Month: September 2019

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In the news – some anxiety, some advantage

On busy days at Chartered House, you may find me picking up on news headlines between meetings. Our round glass table in reception displays the daily newspapers, and I regularly scan them for positive news – sometimes, in vain.

National Health Insurance Bill

The headline catching my eye in the last few months has been of particular concern: the tabling of the National Health Insurance Bill, which aims for universal access to primary healthcare for all South Africans. My immediate question is “How?” I have had many discussions with friends and clients who are doctors and their predominant feeling is that there is not a chance that they can depend on getting paid by the government every month. Furthermore, how can six million taxpayers fund this scheme for a population of 55 million people?

This proposed Bill, together with the Expropriation Bill (land expropriation without compensation), has South Africans in a state of suspended agitation – on those proverbial tenterhooks. Both these Bills still need to go through an extensive parliamentary process before becoming legislation.

Good news for Investors

On the investment front we saw South Africa’s largest stock and success story Naspers announce the listing of its offshore assets in a new entity on the Amsterdam Euronext market. This new share, Prosus, holds all of Naspers’s foreign-owned assets, which includes its 31% holding in the Chinese internet giant, Tencent. I am explaining this to you because most of our clients (through their unit trust holdings) hold approximately 9% of their equity investments in Naspers, so this is a significant development for all of us.

The rationale behind this move is as follows:

  • Naspers was 21% of our JSE and this size had become a constraint
  • Naspers is now 14% of the JSE.
  • By listing offshore, Prosus is now eligible for inclusion in the global indices.
  • Developed market funds could not buy Naspers before owing to limitations on their mandate; they can now invest in this for the first time.
  • This is very positive for the South African investor, who now holds shares in both Prosus and Naspers.

Prescribed Assets

I have noticed in client meetings that many people are concerned about Prescribed Assets, where the government makes it law for retirement funds to invest in certain government-approved investments. For any of us, the thought of buying bonds in SAA or Eskom is most concerning.

There are couple of important points to note:

  • This policy applies only to retirement funds, such as RAs, Pension funds and Provident funds.
  • This policy does not propose to include living annuities.
  • It will only apply to a very small percentage of your investment, if at all.
  • At this stage, the policy has been mentioned as a consideration; but, for it to be implemented, it must go through fairly rigorous process and will take a long time to become law. We will keep you informed of any further developments.
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Great news for the Chartered Family

We congratulate one of our Retiremeant Specialists, Tiffany Venter, on her marriage to Chris over this past weekend. We wish Mr and Mrs Havinga much happiness for their future.

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Managing Global Assets in your Estate Plan

It’s a global village. Technological advances allow us to live, do business and invest offshore with relative ease. Against the backdrop of local uncertainty, South Africans are increasingly looking at offshore investment options; our political climate makes investing in second residency schemes attractive. How, then, do these offshore investments impact our estate planning? Kerryn Franck, Director of Chartered Legacy & Trust, underscores the importance of having an international Estate Plan.

Investing offshore exposes your personal estate to foreign laws and jurisdictions. So, understanding the different rules that may apply to your worldwide assets is imperative as part of your estate planning.

Different countries have different succession and inheritance tax laws. Which law applies to your assets may depend on your nationality, domicile, residence and location of your property.

You can, of course, deal with all your assets in a worldwide Will. It is important, though, to consider whether it may be more practical and/or efficient to deal with offshore assets in a separate Will. I would urge you to discuss the many factors to be considered when making this decision with your planner; for example, property may be situated in a jurisdiction that has forced heirship rules and you may not be able freely to dispose of the property as you wish in your Will.

Even though you have a worldwide Will, you may still be required to report your estate in the foreign jurisdiction where the asset is located and apply for a grant of probate. This requires the services of a lawyer overseas – this can be costly and is an extra expense for your estate. A jurisdiction where a foreign language is spoken can further complicate matters.

Should you opt to have more than one Will, you need to ensure that your Wills are read together. A Will dealing with your offshore assets must not revoke all your previous Wills but only those dealing with your offshore assets. Revoking all Wills may result in your local assets being distributed in accordance with the laws of intestacy. When drafting separate Wills, you must also ensure there is enough liquidity in each of the various jurisdictions to cover the costs of administering that portion of your estate and the transfer of the assets.

Often a testator will have sent money offshore with the intention of it remaining offshore for the benefit of the nominated beneficiary. In this case, a detailed Estate Plan should be created to investigate whether all estate expenses and taxes can be paid locally. This is so that the offshore funds are not repatriated and the testator’s wishes are upheld.

When you do your financial planning, remember that a South African trust cannot hold or inherit offshore assets – note this when drafting your Will. A testator wanting to leave their assets to a local trust in their Will must investigate an alternative option for any offshore assets.

In short, if you have offshore assets, you must have an international Estate Plan in place.

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What you need to know before cashing in your Pension or Provident fund

When you are leaving your employer, you may wonder what you should do with your Pension and /or Provident Fund.

The option of cashing in

Can you withdraw your retirement funds before you retire without being penalised?

The simple answer is yes, but be aware of the risks.

Living costs have gone up, with debt levels rising as a result. Household cashflow may be under pressure, and job security is an ever-present concern. These are all valid reasons to access some (if not all) the funds in your Pension Fund when leaving an employer.

Cashing in your retirement savings prematurely has a double cost: you reduce your tax-free lump sum when you retire, and you pay more tax on your retirement savings.

When you resign, you are allowed access to only R25,000 tax free – a SARS regulation. Any amount over that is taxed at a significant 18%. Withdraw more than R660,000, your tax rate is 27%, and 36% on amounts over R990,000.

Let’s look at an example. You are changing jobs and want to cash in a R400,000 pension fund. You will pay 18% tax on R400,000 minus R25,000 (your allowed tax-free amount). So, you will pay R67,500 to SARS.

Should you withdraw again on your next resignation … well, you can imagine the impact on your long-term savings. Please note that R25,000 tax free amount does not apply to every single withdrawal. On every pre-retirement withdrawal the amount will get aggregated to the previous withdrawal, and you’ll end up paying more and more in taxes.

The reasons for staying in

If you reach retirement, the retirement tax tables apply – that is, the rate of tax is determined by the taxable income. If you waited until retirement to cash in, your first R500,000 is tax-free.

South Africans are notoriously poor savers and our retirement statistics are poor. Only about 6% of South Africans retiring can afford to do so at age 65. A major contributor to jeopardising your financial wellbeing is the repeated drawing of retirement funds when leaving employers.

A full transfer from your retirement savings to your living annuity means no tax implications.

Avoid borrowing from your future.

Preserve your retirement funds for retirement. It’s not that far away!

Emigrating?

South African citizens who emigrate are entitled to have their pensions paid to them in their country of emigration, or they may choose to take the amount in cash. If you emigrate before you retire, you may withdraw all your pension or provident funds with no penalty.

You know that you may not withdraw from a Retirement Annuity before 55, and, on retirement, may access only one-third of your funds. The rest buys a pension. If you emigrate, however, you may take the whole amount in full. From 1 March, 2019, the same concession applies to members of pension provident funds. Provident pension members can take their whole amount in cash.

It’s important to note that relocation is not emigration, and, without formal emigration, the usual tax rules apply.

This information is particularly relevant in light of reports of increasing numbers of South Africans considering emigration. For Craig Turton’s message on choosing to stay in South Africa, click here.

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South Africa’s future: choose your focus

“Just do something” is the current cry rising all over South Africa.

The appeal for action has gained volume and momentum in the wake of recent violent attacks across the country, with xenophobia and gender-based violence being cited as reasons for the recent spike.

Of course, the call for action is directed to the man in power: the country’s president. Cyril Ramaphosa’s reaction to the attacks on women and children was first articulated at a BrandSA breakfast, before a Cabinet meeting where the urgent matter was promised to be raised. While his response was widely regarded to be delayed, his message was strong, and he placed the responsibility firmly with men to own their role in stemming this tide of violence against women and children.

In my business and social circles, there seems to be a belief in the positive intentions of the President, but a general pessimism regarding the trajectory of the country. Certainly, the country’s leader is battling on several fronts, including persistent corruption within his own party.

Amid this uncertainty, and committed to the future of our country, I keep my radar up for positive moves that suggest a more sustainable future for us.

The clean-up continues

There are currently two commissions actively working to clean up and rebuild government. One way is to free critical institutions from the previous regime. SARS, the NPA, the Hawks, SAPS have all seen high-ranking officials departing and even arrests.

We recognise that our SOEs (State-Owned Enterprises) are in turmoil and are encouraged by processes underway to seek accountability, among which we find: Brian Molefe and Eskom; the PIC and the Mpati commission; Dudu Myeni and SAA. Transnet’s top five are gone and another eight on suspension. The Denel CEO has also gone.

A significant clean-up has been within the formerly bloated and expensive cabinet: 36 ministers now down to 28.

I take hope from this. Those we thought were untouchable are falling from grace. The commissions are slow but persistent. We are getting convictions. President Ramaphosa is placing a strong emphasis on our economic renewal – without that, we will not eliminate unemployment and inequities.

I am staying in South Africa. I believe in this beautiful country and choose to look at all the positives around us, without discounting the fact that we have a mountain to climb to make us a thriving South Africa.

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Two ways to determine tax residency

On 1 March 2020, new rules about expat income and taxation thereof come into effect. Two tests are applied to determine your tax residency.

The ordinary residence test

The ordinary residence test serves as the point of departure; in other words, it is the first step in determining tax residency.

According to the South African Revenue Service (SARS), the following requirements need to be satisfied for a person to qualify as ordinarily resident:

  • An intention to be ordinarily resident in South Africa, and
  • Steps indicative of this intention being taken.

SARS may challenge a person’s intention to be ordinarily resident, or not, by looking at objective facts that might disprove such a subjective intention.

It is important to note that a person can be ordinarily resident in South Africa regardless of the number of days spent in, or absent from, South Africa.

Here are helpful questions to ask in determining whether you are ordinarily resident in South Africa:

  • Is South Africa the country to which I return to from my wanderings?
  • Is my primary residence within South Africa?
  • Where is my most settled place of residence?
  • How many days do I spend in South Africa compared to other jurisdictions?
  • What nationality am I?
  • Do my family members reside in South Africa?
  • Where is my immovable property located?
  • Where are my assets or personal belongings located?
  • Is there any documentary evidence on file (such as emails and other correspondence) implying an intention to live permanently in South Africa?
  • Where are my business and economic interests primarily located?
  • Do I have any political, social and religious ties to South Africa?

If a person has no intention to be resident in South Africa and this intention is objectively evidenced by steps taken to give effect to that intention, that person will not be ordinarily resident in South Africa.

The days test

The next step in determining if a person is resident in South Africa is to apply the days test.

If you are not ordinarily resident in South Africa, you may still qualify as a ‘resident’ based on the number of days spent in the country over a period of six years. Intention is irrelevant under this test.

In terms of the days test, you are resident in the following circumstances:

  • If you are physically present in South Africa for more than 91 days in aggregate during the current year of assessment; and
  • If you have been physically present in South Africa for more than 91 days per year during each of the previous five years of assessment; and
  • If you have been physically present in South Africa for a period(s) exceeding 915 days in aggregate during the previous five years of assessment.

In calculating the number of days, a day includes a part of a day, but excludes any day spent in transit through and without formally entering South Africa.

In the first year of assessment in which you fulfil the days test requirements, you are deemed to be a resident from the first day of that year of assessment.

If you are deemed a South African resident because of the days test, residency can be broken by leaving South Africa and remaining outside of the country for a continuous period of at least 330 full days.

You are welcome to contact the Chartered Tax team if you have any queries regarding this new legislation.

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To financially emigrate or not?

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There is much conflicting information in the media about the taxation of South Africans on their foreign earnings and the impact of tax law amendments.

Currently, remuneration earned by South African tax residents for services rendered abroad is exempt from South African tax, if that resident has spent more than 183 full days (including a continuous period of more than 60 full days) outside South Africa in a 12-month period during which those services were rendered (‘foreign earnings exemption’).

With effect from 1 March, 2020, the foreign earnings exemption will only apply to up to R1 million of foreign income earned in a tax year. Income earned abroad exceeding R1 million will not be exempt under the foreign earnings exemption.

Many South Africans work and/or live abroad may want to ‘financially’ emigrate by placing their emigration on record with the South African Reserve Bank. They think that by taking this measure, their foreign income will not be taxed in South Africa. This move will not necessarily exempt them from paying tax in South Africa.

Who will be affected by the changes in the law?

It is important to understand the difference between becoming non-resident for tax purposes and non-resident for exchange control purposes.

The foreign earnings exemption, and its new cap, only applies to South African tax residents. If you are not a South African resident for tax purposes, you will not be affected by this amendment. People who have placed their emigration on record with the Reserve Bank may still be tax resident in South Africa.

South African tax residency

South Africa has a residence-based tax system. Residents are taxed on their world-wide income, except if specifically exempt, as is the case with the foreign earnings exemption.

A resident is defined by the Income Tax Act 58 of 1962 (ITA) as a person either:

  • ordinarily resident in South Africa (the ‘ordinary residence test’), or
  • a resident by their physical presence in South Africa (the ‘days test’).

To be defined as non-tax resident in South Africa, you must pass both tests.

Even if a South African tax resident in terms of the tests, you may still be regarded as a non-resident for tax purposes under the applicable double tax agreement (DTA) between South Africa and the country where you are working or living.

For helpful tips in determining your status in terms of the two tests, click here.

Double Tax Agreements

If you are defined as a South African tax resident by either the ordinarily resident or days test, the applicable DTA entered into between South Africa and the country in which you are living and/or working might regard you as non-resident in South Africa, and as resident in the other country. Make sure you check the terms of the DTA.

Section 6quat rebate

If you are a South African tax resident taxed in another country on the same income taxed in South Africa, section 6quat of the ITA provides for a rebate of the foreign tax paid against South African taxes. The rebate is limited to the South African tax payable on the foreign income.

So, for South African tax residents, all taxes paid abroad on income in excess of R1 million will be rebated against the South African taxes payable on that same income. Earnings exceeding R1 million will therefore not be taxed twice, but at the higher rate of South Africa or the foreign country.

Financial emigration through the Reserve Bank

The main reason for financial emigration is to break exchange control residence.

To financially emigrate, apply to the Financial Surveillance Department of the South African Reserve Bank with proof of the right, either by foreign passport or an appropriate visa, to live in another country.

Through the application, show your intent no longer to be permanently resident in South Africa.

By financially emigrating, you are strongly demonstrating the intent to have a primary residence outside South Africa and not to be ordinarily resident here.

Conclusion

Financial emigration is only a strong indication that you are not ordinarily resident in South Africa, and not a definitive factor. SARS takes various factors into account, and a person’s residency status at the Reserve Bank is only one of them.

Even if you can show that you are no longer ordinarily resident, you may still be tax resident because of number of days spent in South Africa, or of the applicable DTA between SA and the country where you are working.

Non-residents for tax purposes in South Africa do not pay tax on foreign sourced income.

The amendments to the foreign earnings exemption would therefore not be applicable to non-residents as the foreign earnings are never taxable.

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To financially emigrate or not?

charmaine-prout

There is much conflicting information in the media about the taxation of South Africans on their foreign earnings and the impact of tax law amendments.

Currently, remuneration earned by South African tax residents for services rendered abroad is exempt from South African tax, if that resident has spent more than 183 full days (including a continuous period of more than 60 full days) outside South Africa in a 12-month period during which those services were rendered (‘foreign earnings exemption’).

With effect from 1 March, 2020, the foreign earnings exemption will only apply to up to R1 million of foreign income earned in a tax year. Income earned abroad exceeding R1 million will not be exempt under the foreign earnings exemption.

Many South Africans work and/or live abroad may want to ‘financially’ emigrate by placing their emigration on record with the South African Reserve Bank. They think that by taking this measure, their foreign income will not be taxed in South Africa. This move will not necessarily exempt them from paying tax in South Africa.

Who will be affected by the changes in the law?

It is important to understand the difference between becoming non-resident for tax purposes and non-resident for exchange control purposes.

The foreign earnings exemption, and its new cap, only applies to South African tax residents. If you are not a South African resident for tax purposes, you will not be affected by this amendment. People who have placed their emigration on record with the Reserve Bank may still be tax resident in South Africa.

South African tax residency

South Africa has a residence-based tax system. Residents are taxed on their world-wide income, except if specifically exempt, as is the case with the foreign earnings exemption.

A resident is defined by the Income Tax Act 58 of 1962 (ITA) as a person either:

  • ordinarily resident in South Africa (the ‘ordinary residence test’), or
  • a resident by their physical presence in South Africa (the ‘days test’).

To be defined as non-tax resident in South Africa, you must pass both tests.

Even if a South African tax resident in terms of the tests, you may still be regarded as a non-resident for tax purposes under the applicable double tax agreement (DTA) between South Africa and the country where you are working or living.

For helpful tips in determining your status in terms of the two tests, click here.

Double Tax Agreements

If you are defined as a South African tax resident by either the ordinarily resident or days test, the applicable DTA entered into between South Africa and the country in which you are living and/or working might regard you as non-resident in South Africa, and as resident in the other country. Make sure you check the terms of the DTA.

Section 6quat rebate

If you are a South African tax resident taxed in another country on the same income taxed in South Africa, section 6quat of the ITA provides for a rebate of the foreign tax paid against South African taxes. The rebate is limited to the South African tax payable on the foreign income.

So, for South African tax residents, all taxes paid abroad on income in excess of R1 million will be rebated against the South African taxes payable on that same income. Earnings exceeding R1 million will therefore not be taxed twice, but at the higher rate of South Africa or the foreign country.

Financial emigration through the Reserve Bank

The main reason for financial emigration is to break exchange control residence.

To financially emigrate, apply to the Financial Surveillance Department of the South African Reserve Bank with proof of the right, either by foreign passport or an appropriate visa, to live in another country.

Through the application, show your intent no longer to be permanently resident in South Africa.

By financially emigrating, you are strongly demonstrating the intent to have a primary residence outside South Africa and not to be ordinarily resident here.

Conclusion

Financial emigration is only a strong indication that you are not ordinarily resident in South Africa, and not a definitive factor. SARS takes various factors into account, and a person’s residency status at the Reserve Bank is only one of them.

Even if you can show that you are no longer ordinarily resident, you may still be tax resident because of number of days spent in South Africa, or of the applicable DTA between SA and the country where you are working.

Non-residents for tax purposes in South Africa do not pay tax on foreign sourced income.

The amendments to the foreign earnings exemption would therefore not be applicable to non-residents as the foreign earnings are never taxable.

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