Change, the new certainty - South African Budget February 2018 - EY
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Change, the new certainty South African Budget February 2018
Introduction
In a previous budget review the National Wealth Taxes
Treasury emphasised that “fiscal interventions • South Africans will see an increase in the ad-valorem excise
such as taxes are increasingly recognised as duty rate on luxury goods from 7% to 9 %
complementary tools…”1 • Cellular phones to attract ad-valorem duties at a
progressive rate based on the value of the phone
Yesterday we heard South Africa’s Finance Minister Malusi • A higher estate duty of 25% for estates greater than
Gigaba starting off his Budget Speech by stipulating that “this R30 million
will be a tough but hopeful budget”. The Finance Minister had • Donations tax has increased from 20% to 25% in respect
a difficult task. Not only did he need to show fiscal prudence, of donations in excess of R30 million.
he also needed to present a credible budget that will allay the
concerns of rating agencies and foreign investors. State owned companies
Government may need to provide financial support to several
SOEs entities which can be done by disposing of non-core
Minister Malusi Gigaba echoed the concerns expressed by
assets, strategic equity partners, or direct capital injections.
Former Finance Minister, Pravin Gordhan, last year in respect of
Government will implement some of the suggestions by the
deterioration in the global economy and global rating agencies,
Department of Public Works by better utilizing and disposing of
severe drought affecting the country, rising prices, slow growth
the many buildings owned by government.
of the economy, unemployment, currency weaknesses etc. He
emphasised the need to stop funding State-Owned entities in Free higher education
an effort to curb government spending. An allocation of R57 billion for fee-free higher education over
the next three years.
The consolidated deficit is projected to decrease from 4.3%
of GDP in 2017/18 to 3.5% in 2020/21. The 1% VAT rate Taxes on multi-nationals
increase that has been long expected will contribute to ZAR22 The impact of illicit financial flows remains a focus for National
billion in additional tax revenue and has been stated as Treasury and key South African Stakeholders.
“unavoidable”. The total revenue to be generated by the tax
proposals is ZAR36 billion. Tax Governance
The Minister emphasised that tax morality remains a crucial
component for a healthy democracy. He reiterated the views
Highlights include:
expressed by the President in the SONA and the intention
• As already mentioned, VAT rate increase to 15% effective to establish a commission of inquiry into tax administration
1 April 2018 and governance within SARS. Government is expected to
• Above inflation increases in social grants to relieve the respond to the Davis Tax Committee’s report on the tax
burden on poor households administration and to introduce draft legislation to give effect
• No change in the CIT rate and CGT inclusion rate to its recommendations including provisions in respect of SARS
• Relief will be provided for lower income individuals through accountability to the Minister of Finance.
a below inflation increase in the bottom three personal
income tax brackets and Special economic zones
• Continued focus on ensuring multinational companies are The Minister has approved six special economic zones that will
paying their fair share of taxes through initiatives such as make qualifying companies subject to a reduced corporate tax
Country-by-Country Reporting; curbing illicit financial flows rate, and enable them to claim an employment tax incentive for
and focus on transfer pricing workers of all ages. These measures will promote investment
in those manufacturing and tradable services sectors that
encourage exports, job creation and economic growth.
Key Changes
Indirect tax
• VAT on rye bread and low GI bread will be imposed at 15%
• Increase in the alcohol and tobacco excise duties of between
6 and 10 percent
• 52 cent per litre increase in the levies on fuel, made up of a
22 cent per litre increase in the general fuel levy and a 30
cent per litre increase in the Road Accident Fund levy
• The Carbon Tax Bill will be implemented from
1 January 2019
1
2016 Budget Review.
Lucia Hlongwane, Africa Tax Leader
2
Business
General
Brigitte Keirby-Smith
Business Tax Advisory Leader
Highlights
• No change in CIT rate and CGT inclusion rate for corporates.
• Review and refinement of the debt relief rules.
• Refinement of the anti-avoidance rules dealing with share buy-backs and dividend stripping.
Debt relief rules
Significant amendments were promulgated in 2017 to Further, one of the legislative provisions specified that these
those provisions in the Income Tax Act governing the tax anti-avoidance rules would override corporate reorganisation
consequences pertaining to various debt relief transactions. rules thereby preventing taxpayers from stripping dividends
Of particular significance, is that these provisions are out of a target company before undertaking a reorganization
now much wider in their application and include various transaction.
debt restructure arrangements, including debt to equity
conversions. These amendments were effective for years of Also in the tax policy documents, it is noted that these
assessment commencing on or after 1 January 2018. amendments could have resulted in some legitimate
transactions and arrangements being impacted. It is therefore
In the tax policy documents released as part of the 2018 proposed that these anti-avoidance rules be reviewed so as to
Budget, it is noted that the revised debt relief rules may result determine their interaction with the corporate reorganisation
in unintended consequences for taxpayers undertaking debt rules. Further, the anti-avoidance rules dealing with share
restructuring transactions. As such, it is proposed that further buy-backs and dividend stripping as they relate to preference
amendments be made to these provisions to address these shares also require further clarification as these shares
concerns. are often used to structure Broad-Based Black Economic
Empowerment transactions.
Share buy-backs and dividend
stripping rules
The anti-avoidance rules pertaining to share buy-backs and
dividend stripping were enhanced in 2017 to deter these
transactions. Broadly speaking, where a share is disposed of
and the holder of that share has received an “extraordinary
dividend” in respect of such share within a prescribed period,
that extraordinary dividend is deemed to be proceeds for
Capital Gains Tax purposes or income (where that share is held
as trading stock).
3
Business
Financial
Sector
Kabelo Malapela Botlhale Joel
Tax Director Tax Director
Curbing abuse of the tax relief for collateral arrangements Relief for exchange item disposed of at a loss due to external
If a listed share or bond (SA or foreign) is transferred as market forces
collateral (security), the legislation provides for relief from There is uncertainty regarding the calculation and treatment
income and securities transfer taxes, provided the arrangement of tax losses on an exchange item (for example a foreign debt)
is for a duration of 24 months. when it has been disposed of at a loss due to market forces and
not because the debtor is unable to pay. The Income Tax Act (in
Authorities have become aware of some abuse by foreign section 24I) currently caters for the reversal of an exchange gain
shareholders of these provisions. An example of this mischief or loss previously included in taxable income to the extent that
is seen where a foreign shareholder obtains a loan from its the related exchange item is irrecoverable. However, when an
South African resident company, and provides listed shares exchange item is disposed of at a loss, due to external market
as collateral for the loan. If under the collateral arrangement, forces, no relief is provided. It is proposed that some clarification
the resident company receives a tax free dividend within the be provided to deal with losses of this nature.
24 months period, it in turn pays a manufactured dividend
(compensation in lieu of the dividend foregone) to the foreign Certainty on criteria for claiming doubtful debt allowances
shareholder. This manufactured dividend will not be subject to The Commissioner’s discretion to grant an allowance for
dividends tax as it is not a true dividend (a true dividend would doubtful debts in terms of section 11(j) of the Income Tax Act,
have been subject to dividends tax at a rate of 20% or such lower was removed in 2015. This was to make way for a criteria
rate as provided in the relevant double taxation agreement). to qualify for the claim to be provided under public notice to
Looking at the collateral arrangement, the foreign shareholder be issued at a future date. This criteria has to date not been
and the South African resident company suffer zero tax, i.e. no provided and the public notice, not issued. To provide certainty
income tax, no securities transfer tax and no dividends tax. It and ease of reference it is proposed that the criteria rather be
is therefore proposed that legislation be introduced to curb this included in the Income Tax Act.
abuse.
Special Voluntary Disclosure Programme triggered by
Tax treatment of “capital” profits in a collective investment Automatic Exchange of Information projected to yield
scheme R3 billion
In 2009, specific provisions were introduced in the Income In the prior year, the Automatic Exchange of Information (AEOI)
Tax Act to govern the tax treatment of collective investment reporting for South African Financial Institutions was extended
schemes (excluding property) (CIS) operating on behalf of to include Common Reporting Standards (CRS). In the 2017
investors who hold a participatory interest. Generally, income of Budget Speech and with the then impending implementation
a revenue nature received by the CIS is taxed in the hands of the of CRS, the Minister of Finance announced that South Africa
investor, provided the CIS distributes these amounts within 12 remained committed to the AEOI initiative between tax
months from the date of accrual. Amounts of a capital nature, authorities which commenced in September 2017.
received by the CIS, are however, only taxed in the hands of the
investor when they dispose of their participatory interest. By In the build-up to implementation of CRS, National Treasury
default, any profits emanating from frequent trades that have promulgated the Special Voluntary Disclosure Programme
been classified as capital by the CIS are also not taxable until the (SVDP) with effect from 1 October 2016. The purpose of the
participatory interest holder disposes of its interest in the CIS. SVDP was to provide taxpayers that own offshore assets and
income to disclose these to the SARS and SARB prior to the
Based on case law, profits emanating from frequent trading implementation of the next phase of the AEOI and CRS. The
should be taxed on revenue account, therefore the proposal Minister of Finance has now announced that the SVDP has
is for current provisions to be amended to give effect to this attracted 2000 applications for disclosures of foreign assets to
treatment, in spite of the classification by the CIS. SARS, which are expected to yield revenue of about R3 billion
by the end of March 2018. Work continues on the review of
4 remaining applications.
Business
Incentives
Marinda Fourie
Tax Associate Director
Highlights
• Approval of six Special Economic Zones (“SEZ”).
• Removal of complexity of R&D tax incentive scheme under consideration.
• Venture capital tax incentive boosts investments in start-ups.
• Reducing the write-off period for electronic communication lines and fibre optic cables.
Incentives
The theme from the Medium-Term Budget with regards The uptake of this tax incentive has increased significantly, and
to tax and business incentives was that the programs are there are currently more than 90 registered venture capital
under review by the Department of Planning, Monitoring companies with total investments of R2.5 billion. Having said
and Evaluation. This theme appears to remain in place as the that, it is noted that various administrative and technical
process of reviewing these programs is not as yet finalized. issues are preventing an increased uptake of this incentive,
and as such, it is proposed that the legislation be reviewed and
In his Budget Speech, the Minister of Finance notes that he amended to address these obstacles.
has approved six SEZ’s that will allow qualifying companies to
benefit from a reduced corporate tax rate and enable them Telecommunication infrastructure upgrades from copper to
to claim an employment tax incentive for workers of all ages. fibre optic cables are under review to align the tax system
Other incentives available in these SEZ’s include potential with technological advances and international practice. In this
industrial policy project tax incentives as well as the benefit of regard, it is proposed that the period over which electronic
a customs-controlled area. communication lines and fibre optic cables are written off be
reduced.
The aim is to promote investment in manufacturing and
tradable services sectors that encourage exports, job creation The window period for the industrial policy project tax incentive
and economic growth. was extended to 31 March 2020, notwithstanding that the R20
billion budget is fully subscribed. No mention of negotiations
A welcomed proposal is that the unnecessary complexities to increase this budget are noted. The Black Producer
currently experienced with the tax incentive for R&D will be Commercialisation Programme, a sub-component of the
considered for removal. This will hopefully align the qualifying Comprehensive Agricultural Support Programme administered
criteria for the R&D tax incentive with those of developed by the Department of Agriculture, Forestry and Fisheries,
countries. also received special mention in the Minister’s Budget Speech
as around R582 million is earmarked to fund the sector’s
efforts to leverage capital for the commercialisation of black
The venture capital tax incentive provides a tax deduction for
agricultural producers.
shares purchased in a venture capital company.
5
International tax
Ide Louw
Tax Director
Highlights
• Increased measures to mitigate the impact of illicit financial flows.
• Cryptocurrencies and the impact of the digital economy on business models.
• Revisiting the use of offshore trusts to circumvent the South African Controlled Foreign Company rules.
International tax
Combating illicit financial flows remains of paramount Of specific concern remains the use of offshore trusts. In
importance to a number of key South African stakeholders 2017, draft amendments were proposed aimed at combatting
including the National Treasury working in close cooperation the use of offshore discretionary trusts to circumvent the
with the South African Revenue Service, the Reserve Bank and South African controlled foreign company (“CFC”) rules. The
the Financial Intelligence Centre. draft amendments were, however, withdrawn since it is unclear
how the CFC imputation should be determined in relation
Measures that have been introduced to curb illicit financial to discretionary beneficiaries. The Minister notes that these
flows include the introduction of Country-by-Country Reporting measures will be revisited.
(first reporting is due 28 February 2018), entering into
various exchange of information agreements, and revenue Other international tax matters raised include:
authorities across Africa cooperating through the African Tax
Administration Forum. • Revisiting the transfer pricing secondary adjustment (i.e.
the deemed dividend treatment);
In his Budget Speech, the Minister specifically notes that policy
measures to deal with transfer pricing and base erosion by • Reversing exchange difference for exchange items disposed
multi-national companies will be implemented and will continue of at a loss;
to be tightened. Further, measures to approve material cross-
• Reviewing the definition of “international shipping income”;
border transactions involving state-owned entities will be put in
place. Taxpayers can therefore expect continued scrutiny from • The taxation of non-resident short-term insurers operating
the South African Revenue Service with regards to transfer in South Africa through a branch; and
pricing. Taxpayers therefore need to ensure that their transfer
pricing policies align to their operating models. • The rules concerning South African sourced interest paid to
non-resident beneficiaries of a trust.
The digital economy and its impact on business models is
specifically mentioned in the Budget Speech and one can
therefore expect more certainty around the use and taxation of
cryptocurrencies such as Bitcoin.
6
Individuals
Elizabete Da Silva
Tax Executive Director
Highlights
• A
below inflation increase in the personal income tax rebates and brackets, with greater relief for those in the lower income
tax brackets.
• The proposals in this years’ Budget are aimed at ensuring minimum impact on lower income households.
• No adjustment to the maximum marginal individual tax rate of 45%.
• No adjustment to the CGT inclusion rate for individuals.
• Estate Duty and Donations Tax rates increased from 20% to 25% for estates and donations, respectively, above R30 million.
Personal income tax
As expected, there were minor changes announced in respect Other changes include the further alignment of retirement
of personal income taxes in the 2018 Budget proposals. reforms and the removal of fringe benefits tax on loans at
The progressive individual tax rates were subject to below beneficial interest rates for low cost housing.
inflationary adjustments, with these adjustments being limited
to the bottom three tax brackets. This will result in a revenue The Minister of Finance also announced an increase in Estate
contribution of R6,8 billion. Duty from 20% to 25% for estates with a dutiable value
exceeding R30 million. This increase will come into effect on
Government is focused on introducing the National Health 1 April 2018. Aligned to this is a similar increase in the rate of
Insurance (NHI) and therefore the reduced increase in the Donations Tax from 20% to 25% for donations exceeding
medical tax credits over the next three years will help to R30 million.
finance the roll-out of this programme. The NHI is still in
its early stages and will require further debate among all
stakeholders, before it can even be considered. Further,
medical tax credits in respect of contributions to medical funds
and additional medical expenses will be apportioned in respect
of joint contributors so as to avoid duplicate tax credits being
claimed.
7
Tax
administration
Mmangaliso Nzimande
Tax Controversy Leader
Highlights
• Tax exempt dividends will no longer require submission of a return.
• Correction to VAT invoices will no longer be regarded as a criminal offence.
• Provisions relating to the commencement of an audit to be amended to include a formal notification.
• These changes are expected to form part of the 2018 Revenue and Taxation amendments.
Tax Administration Act changes
Currently a return is required to be submitted to SARS when Correction of tax invoices will no longer constitute an offence
a dividend is declared by a taxpayer, even in the case of an where the correction relates to rectifying a legitimate error.
exempt dividend. This creates an unnecessary administrative
burden on both the taxpayer and SARS in having to administer
The Tax Administration Act currently requires an auditor
these returns. These provisions will be repealed in instances
to provide a taxpayer with reports on each stage and on
where the dividend is exempt from dividends tax and this will
completion of an audit but does not make provision for
alleviate the respective burden on the taxpayer and SARS.
notification at the commencement of audit. The provisions
relating to the audit procedures in the Tax Administration Act
Under the current dispensation, any correction to a tax invoice will be amended to include the notification of commencement
in order to claim input tax is seen as an offence under the of an audit.
VAT Act even in legitimate cases where an error is made on
a tax invoice. A legitimate correction to a tax invoice is often
required but is not allowed under the VAT Act which prevents
vendors from claiming valid input taxes.
8
Indirect Tax
VAT
Leon Oosthuizen
Indirect Tax Leader
Highlights
• The Value-Added Tax (“VAT”) rate will increase from 14% to 15% effective 1 April 2018.
• 35 days to implementation for all VAT vendors.
• In addition to zero rating of basic food items, vulnerable households will also be compensated through an above average increase in
social grants.
• Draft VAT regulations will be updated to cover foreign businesses selling electronic services to South African consumers.
Value-Added Tax
An increase in the South African VAT rate has been expected The most important changes that need further consideration
for many years. Due to the impact that an increased VAT rate include:
has on the poor and its political sensitivity, Government has
avoided this option for as long as possible. However, given • Changes to accounting systems;
the current revenue deficit, this did not allow for any further
delay. A VAT rate increase is the only tax rate increase that • Changes to tax invoices;
generates significant revenue for Government. In this regard,
a 1% increase (from 14% to 15%) is expected to generate an • Changes to product labelling and price lists;
additional R22 billion in tax revenue.
• The impact on existing contracts; and
The last time that the VAT rate was increased was back in • Supplies that spans the effective date of the increase.
1993, some 25 years ago. It should also be noted that the
South African VAT rate will, even after this increase, remain
Furthermore, even small businesses not registered for VAT
one of the lowest VAT rates in the world. As South African
or businesses making exempt supplies will need to consider
vendors are not accustomed with a VAT rate increase, this will
the impact of the rate increase on their expenses. These
cause some real challenges. Adding to this, is the fact that the
businesses may need to increase their prices to cover the
rate increase is effective 1 April 2018. VAT vendors therefore
additional costs they will incur as a result of the impact of the
have a mere 35 days to prepare for this event.
increased VAT rate on their inputs. Indirect expenses to deal
with these changes can impact cash flow and budgets that
As noted above, the VAT rate increase will have a major
have already been set for the year ahead and will need to be
administrative impact and vendors will, in a very short period
carefully evaluated by businesses as well.
of time, need to assess the impact and make the necessary
changes.
9
Indirect Tax
Customs & Excise
Erasmus Theron
Tax Executive Director
Highlights
• Increased “sin taxes”, luxury ad valorem excise duties and other levies.
• Discouraging consumer habits through increased environmental levies.
• Date of implementation for increased excise duties and other levies: 1 April 2018.
• Introduction of Carbon Tax from 1 January 2019.
Excise duties and levies
The general increase in excise duties applicable to the tobacco The environmental levy on incandescent light bulbs will increase
and alcoholic beverage industries (“sin taxes”) were expected from R6 to R8 to incentivise more energy-efficient behavior.
and are aligned with policy considerations. The increase in
excise duties on tobacco products is set at 8.5% while those on The vehicle emissions tax will be increased to R110 for every
alcohol range from 6% to 10%. gram above 120 g CO2/km for passenger vehicles, and R150 for
every gram above 175 g CO2/km for double cab vehicles.
The 2018 Budget has revived the approach to taxing luxury
goods as a further measure to address the budget deficit. The general fuel levy will be increased by 22c/litre and the Road
These luxury goods will be subject to an ad valorem excise duty Accident Fund levy by 30c/litre.
that will be increased from the current 5 per cent and 7 per
cent duty rates to 7 per cent and 9 per cent, respectively. The
Working with the Department of Environmental Affairs,
classification of cellular telephones will be updated to include
Government intends publishing a policy brief to broaden the
“smart phones” so as to ensure they attract ad valorem excise
scope of environmental fiscal reform, to explore fiscal and
duties.
regulatory measures to protect the environment and promote
the sustainable use of limited resources.
Government will also consult on a proposal to replace the flat
rate for cellphones with a progressive rate structure based on
the value of the phone. The maximum ad valorem excise duty
for motor vehicles will be increased from 25 per cent to 30 per Carbon Tax
cent. The impact of this increase will only affect vehicles with a
retail value of R1 300 000 and above, whereas the previous ad The introduction of Carbon Tax is expected to assist South
valorem excise duty rate affected vehicles with a retail value of Africa in meeting its commitments to reduce carbon emissions.
R1 100 000 and above. National Treasury published the Second Draft Carbon Tax Bill
in December 2017, inviting written comments to be submitted
To reduce litter and dissuade consumers from buying plastic on or before 9 March 2018. The bill is expected to be enacted
bags, the plastic bag levy will be increased to 12 cents per bag, before the end of 2018 and Government proposes implementing
an increase of 50%. the tax from 1 January 2019.
10Indirect Tax
Health Promotion Levy
Erasmus Theron
Tax Executive Director
Highlights
• The Health Promotion Levy (HPL) will be levied at a rate of 2,1c/gram of the sugar content that exceeds 4g/100ml.
• S
ugary beverages liable to the Health Promotion Levy include flavored water, soft drinks and syrups/concentrates for making such
beverages.
• Date of implementation: 1 April 2018.
Health Promotion Levy
With reference to the Summary of the national budget for Furthermore, as administered in other excise industries, the
Indirect Taxes it is estimated that this new levy will bring in HPL (the new “sin tax”) will be collected on a duty-at-source
R1.9 billion, when it becomes effective on 1 April 2018. (“DAS”) basis, and all manufacturers liable for payment of the
HPL must be registered, and have their premises licensed,
All sugary beverages, imported into, or manufactured in, South accordingly. In terms of the draft rules for the HPL, this
Africa, which are subject to the HPL are set out in Section A includes all persons carrying on activities as manufacturers of
of Part 7 of Schedule No. 1 to the Customs and Excise Act sugary beverages with a sugar content exceeding 500kg per
No. 91 of 1964, and all levies collected in terms thereof will calendar year.
accrue to the National Revenue Fund for general government
expenditure. It is noted, however, that a policy brief will be With 1 April 2018 fast approaching, a number of concerns
published on the uses of taxes to encourage healthy choices. are yet to be addressed, including registration/licensing
requirements and issues relating to the movement of goods.
In terms of the current legislation, sugary beverages include To that end, the South African Revenue Service has indicated
beverages with both intrinsic and added sugars, including other that it will present workshops to stakeholders during
sweetening matter. 100% fruit juices and most dairy products March 2018.
are excluded and do not attract the HPL.
11Key Tax Contacts
For more information, advice or consultation, please contact the following
Johannesburg / National Cape Town Durban
Africa Tax Leader Cape Leader Kwazulu-Natal Leader
Lucia Hlongwane Chris Sickle Vinesh Moodley
lucia.hlongwane@za.ey.com Chris.Sickle@za.ey.com vinesh.moodley@za.ey.com
+27 76 830 4144 +27 82 413 3477 +27 83 787 0411
Financial Services Tax Cape Tax Leader Kwazulu-Natal Tax Leader
Kabelo Malapela Craig Mitchell Brigitte Keirby-Smith
kabelo.malapela@za.ey.com Craig.Mitchell@za.ey.com brigitte.keirbysmith@za.ey.com
+27 83 602 7608 +27 71 484 5111 +27 83 310 3947
Financial Services Tax International Tax and Transfer Tax Associate Director
Botlhale Joel Pricing Services Candice van den Berg
botlhale.joel@za.ey.com Ide Louw Candice.vandenberg@za.ey.com
+27 82 603 4549 Ide.Louw@za.ey.com +27 74 118 6388
+27 82 300 6666
Tax Controversy Services
Mmangaliso Nzimande Domestic Tax Services
Mmangaliso.Nzimande@za.ey.com Russell Smith
+27 76 792 9297 Russell.Smith@za.ey.com
+27 83 256 2751
Domestic Tax Services
Brigitte Keirby-Smith Value Added Tax Services
brigitte.keirbysmith@za.ey.com Redge de Swardt
+27 83 310 3947 Redge.Deswardt@za.ey.com
+27 82 776 3287
Indirect Tax Services
Leon Oosthuizen Customs and Excise Services
Leon.Oosthuizen@za.ey.com Erasmus Theron
+27 83 307 1051 Erasmus.Theron@za.ey.com
+27 72 823 3993
Customs and Excise Services
Carridine Brooks Expatriate and Personal Tax Services
Carridine.Brooks@za.ey.com Elriëtte Butler
+27 64 754 7774 Elriette.Butler@za.ey.com
+27 82 883 5864
International Tax and Transfer
Pricing Services
Marius Leivestad
marius.leivestad@za.ey.com
+27 82 947 7794
Expatriate and Personal Tax Services
Cinzia de Risi
cinzia.derisi@za.ey.com
+27 82 787 3474
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