Page 585 - SAIT Compendium 2016 Volume1

s 35
(a)
(b) (c)
(d) (e)
TAX ADMINISTRATION ACT 28 OF 2011 s 38
contains provisions in terms of which the calculation of interest as de ned in section 24J of the Income Tax Act, nance costs, fees or any other charges is wholly or partly dependent on the assumptions relating to the tax treatment of that ‘arrangement’ (otherwise than by reason of any change in the provisions of a tax Act); has any of the characteristics contemplated in section 80C (2) (b) of the Income Tax Act, or substantially similar characteristics;
gives rise to an amount that is or will be disclosed by any ‘participant’ in any year of assessment or over the term of the ‘arrangement’ as—
(i) a deduction for purposes of the Income Tax Act but not as an expense for purposes of ‘ nancial reporting standards’; or
(ii) revenue for purposes of ‘ nancial reporting standards’ but not as gross income for purposes of the Income Tax Act;
does not result in a reasonable expectation of a ‘pre- tax pro t’ for any ‘participant’; or
results in a reasonable expectation of a ‘pre-tax pro t’ for any ‘participant’ that is less than the value of that ‘tax bene t’ to that ‘participant’ if both are discounted to a present value at the end of the rst year of assessment when that ‘tax bene t’ is or will be derived or is assumed to be derived, using consistent assumptions and a reasonable discount rate for that ‘participant’.
(d) a transaction in participatory interests in a scheme regulated in terms of the Collective Investment Schemes Control Act, 2002 (Act 45 of 2002).
(2) Subsection (1) applies only to an ‘arrangement’ that—
(a) is undertaken on a stand-alone basis and is not directly or indirectly connected to any other ‘arrangement’ (whether entered into between the same or different parties); or
(b) would have quali ed as having been undertaken on a stand-alone basis as required by paragraph (a), were it not for a connected ‘arrangement’ that is entered into for the sole purpose of providing security and if no ‘tax bene t’ is obtained or enhanced by virtue of the security ‘arrangement’.
(3) Subsection (1) does not apply to an ‘arrangement’ that is entered into—
(a) with the main purpose or one of its main purposes of
obtaining or enhancing a ‘tax bene t’; or
(b) in a speci c manner or form that enhances or will
enhance a ‘tax bene t’.
(4) The Commissioner may determine an ‘arrangement’
to be an excluded ‘arrangement’ by public notice.
[Sub-s. (4) substituted by s. 42 (1) of Act 44 of 2014 – date of commencement: 20 January 2015.]
37 Disclosure obligation
(1) The information referred to in section 38 in respect of a ‘reportable arrangement’ must be disclosed by a person who—
(a) is a ‘participant’ in an ‘arrangement’ on the date on
which it quali es as a ‘reportable arrangement’, within
45 business days after that date; or
(b) becomes a ‘participant’ in an ‘arrangement’ after the
date on which it quali es as a ‘reportable arrangement’,
within 45 business days after becoming a ‘participant’.
[Sub-s. (1) substituted by s. 43 (1) (a) of Act 44 of 2014 – date of commencement: 20 January 2015.]
(2) . . .
[Sub-s. (2) omitted by s. 43 (1) (a) of Act 44 of 2014 – date of commencement: 20 January 2015.]
(3) A ‘participant’ need not disclose the information if the ‘participant’ obtains a written statement from any other ‘participant’ that the other ‘participant’ has disclosed the ‘reportable arrangement’.
[Sub-s. (3) amended by s. 47 of Act 21 of 2012 (date of
commencement deemed to have been 1 October 2012) and substituted by s. 43 (1) (a) of Act 44 of 2014 – date of commencement: 20 January 2015.]
(4) . . .
[Sub-s. (4) deleted by s. 43 (1) (b) of Act 44 of 2014 – date of commencement: 20 January 2015.]
(5) SARS may grant extension for disclosure for a further 45 business days, if reasonable grounds exist for the extension.
38 Information to be submitted
The following information in relation to a ‘reportable arrangement’, must be submitted in the prescribed form and manner and by the date speci ed:
(2) An ‘arrangement’ is a ‘reportable arrangement’ if the Commissioner has listed the ‘arrangement’ in a public notice.*
[Sub-s. (2) substituted by s. 41 (1) (b) of Act 44 of 2014 – date of commencement: 20 January 2015.]
(3) . . .
[Sub-s. (3) deleted by s. 41 (1) (c) of Act 44 of 2014 – date of commencement: 20 January 2015.]
36 Excluded arrangements
(1) An ‘arrangement’ is an excluded ‘arrangement’ if it is—
(a) a debt in terms of which—
[Words preceding sub-para. (i) substituted by s. 46 of Act
21 of 2012 – date of commencement deemed to have been 1 October 2012.]
(i) the borrower receives or will receive an amount of cash and agrees to repay at least the same amount of cash to the lender at a determinable future date; or
(ii) the borrower receives or will receive a fungible asset and agrees to return an asset of the same kind and of the same or equivalent quantity and quality to the lender at a determinable future date;
(b) a lease;
(c) a transaction undertaken through an exchange
regulated in terms of the Financial Markets Act, 2012
(Act 19 of 2012); or
[Para. (c) substituted by s. 40 of Tax Administration Laws Amendment Act, 2015 – date of commencement: date of promulgation of Tax Administration Laws Amendment Act, 2015.]
Prelex
Wording of para. (c) in force until promulgation of Tax Administration Laws Amendment Act, 2015
(c) a transaction undertaken through an exchange
regulated in terms of the Securities Services Act, 2004 (Act 36 of 2004); or
(a)
[Words preceding para. (a) substituted by s. 44 (1) of Act 44 of 2014 – date of commencement:
20 January 2015.]
a detailed description of all its steps and key features, including, in the case of an ‘arrangement’ that is a step or part of a larger ‘arrangement’, all the steps and key features of the larger ‘arrangement’;
577
* See GN 212 in GG 38569 of 16 March 2015.
SAIT CompendIum oF TAx LegISLATIon VoLume 1
TAX ADMINISTRATION ACT