Page 670 - SAIT Compendium 2016 Volume1

s4
(p)
(q)
ESTATE DUTY ACT 45 OF 1955 s 5
so much of the value of any property deemed to be property of the deceased by virtue of the provisions of section 3 (3) as has not been deducted under any of the other provisions of this section and as the Commissioner is satis ed has been taken into account under the provisions of section 5 (1) (f)bis in the determination of the value of any company shares or a member’s interest in a close corporation included as property in the estate;
[Para. (p) added by s. 9 (1) (b) of Act 77 of 1964 and substituted by s. 8 (1) (c) of Act 97 of 1993.]
so much of the value of any property included in the estate which has not been allowed as a deduction under the foregoing provisions of this section, as accrues to the surviving spouse of the deceased: Provided that—
(i) the deduction allowable under the provisions of this paragraph shall be reduced by so much of any amount as the surviving spouse is required in terms of the will of the deceased to dispose of to any other person or trust;
(ii) no deduction shall be allowed under the provisions of this paragraph in respect of any property which accrues to a trust established by the deceased for the bene t of the surviving spouse, if the trustee of such trust has a discretion to allocate such property or any income therefrom to any person other than the surviving spouse.
[Para. (q) added by s. 5 (1) (b) of Act 81 of 1985 and substituted by s. 6 (1) (c) of Act 86 of 1987.]
[S. 4 amended by s. 5 (1) (a) of Act 92 of 1971.]
(6) Where a person and his or her spouse die simultaneously, the person of whom the net value of the estate, determined in accordance with section 4, is the smallest must be deemed for the purposes of this section to have died immediately prior to his or her spouse.
[Sub-s. (6) added by s. 4 (1) (b) of Act 7 of 2010.]
[S. 4A inserted by s. 6 (1) of Act 92 of 1971, amended by s. 3 (1) of Act 95 of 1978, by s. 5 (1) of Act 102 of 1979, by s. 12 (1) of Act 106 of 1980, by s. 4 (1) of Act 99 of 1981, by s. 6 (1) of Act 81 of 1985 and by s. 2 (1) of Act 71 of 1986, substituted by s. 11 (1) of Act 87 of 1988, amended by s. 5 (1) of Act 30 of 2002 and by s. 17 (1) of Act 9 of 2006 and substituted by s. 1 (1) of Act 8 of 2007 and by s. 5 (1) of Act 17 of 2009.]
5 Determination of value of property
(1) The value of any property for the purposes of the inclusion thereof in the estate of any person in terms of section 3 or the deduction thereof in terms of section 4, determined as at the date of death of that person, shall be—
(a) in the case of property, other than such property as is
referred to in paragraph (f)bis or the proviso to paragraph (g), disposed of by a purchase and sale which in the opinion of the Commissioner is a bona de purchase and sale in the course of the liquidation of the estate of the deceased, the price realized by such sale;
[Para. (a) amended by s. 4 (a) of Act 65 of 1960.]
(b) in the case of any such duciary, usufructuary or other like interest in property as is referred to in paragraph (a) of section 3 (2), an amount determined by capitalizing at twelve per cent the annual value of the right of enjoyment of the property in which the deceased held any such duciary, usufructuary or other like interest, to the extent to which the person who upon the cessation of the said interest of the deceased in consequence of the death of the deceased becomes entitled to any right of enjoyment of such property of whatever nature, over the expectation of life of such person, or if such right of enjoyment is to be held for a lesser period than the life of such person, over such lesser period: Provided that in any case in which it is proved to the satisfaction of the Commissioner that such person paid any consideration for the right of ownership in the property whereby he became entitled to the right of enjoyment of the property upon the death of the deceased, the value shall be so much of the value so arrived at as exceeds the amount of such consideration together with interest thereon calculated at six per cent per annum from the date of payment of such consideration to the date of death of the deceased: Provided further that where upon the cessation of the interest of the deceased in any property, there accrues to the holder of the bare dominium therein, the full ownership in that property, the value of the advantage or bene t so accruing by reason of the cessation of the interest held by the deceased, shall not exceed the difference between the fair market value of that property as at the date of such cessation and the value of the bare dominium as at the date when such bare dominium was rst acquired under the disposition creating the said interest held by the deceased: Provided further that if upon the cessation of the interest held by the deceased it is not possible to ascertain until some future date the person or some or all of the persons who will become entitled to the right of enjoyment of the property, the value shall be determined by capitalizing at twelve per cent over a period of fty years the annual value of the right of enjoyment of
4A Dutiable amount of an estate
(1) Subject to subsections (2) and (3), the dutiable amount of the estate of any person shall be determined by deducting from the net value of that estate, as determined in accordance with section 4, an amount of R3,5 million.
(2) Where a person was the spouse at the time of death of one or more previously deceased persons, the dutiable amount of the estate of that person shall be determined by deducting from the net value of that estate, as determined in accordance with section 4, an amount equal to the amount speci ed in subsection (1)—
(a) multiplied by two; and
(b) reduced by the amount deducted from the net value
of the estate of any one of the previously deceased
persons in accordance with this section.
(3) Where a person was one of the spouses at the time of death of a previously deceased person, the dutiable amount of the estate of that person shall be determined by deducting from the net value of that estate, as determined in accordance with section 4, an amount equal to the sum of—
(a) (b)
the amount speci ed in subsection (1); and
the amount speci ed in subsection (1) divided by the number of spouses, reduced by an amount which is determined by dividing the amount deducted, in accordance with this section, from the net value of the estate of the previously deceased person by the number of spouses of that previously deceased person.
[Para. (b) substituted by s. 4 (1) (a) of Act 7 of 2010.] (4) The amount contemplated in subsection (2) (b) or (3)
(b) shall not exceed the amount speci ed in subsection (1). (5) Subsections (2) and (3) shall not apply unless the executor of the estate of that person submits, at the time and in the manner and form prescribed by the Commissioner, to the Commissioner a copy of a return submitted to the Commissioner in terms of section 7 in respect of the estate
of the previously deceased person.
662 SAIT CompendIum oF TAx LegISLATIon VoLume 1