Author: Charmaine Prout

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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?

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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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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SARS Commissioner comes with commendable credentials

edward-kieswetter-1While chatting with clients and friends following this year’s Budget Speech, the phrase, “at least” was frequent feature: “At least it was Tito Mboweni” or “At least Ramaphosa is President” or “At least, it isn’t so-and-so” (I leave specific names to your imagination!).

Regarding our new SARS Commissioner, though, we tax practitioners and experts are far more positive.

Why so hopeful, you wonder … and rightly so! Following a string of Commissioners, including the questionable Oupa Magashula, and, most recently, the deeply tainted Tom Moyane, we need the restoration of this once globally respected institution, systematically dismantled by corrupt officials.

Take centre stage Edward Kieswetter, new SARS Commissioner.

From the time of his appointment, Kieswetter has been at pains to comply with good governance: he resigned as Shoprite’s Lead Independent Director, and fully disclosed outside interests and involvement in organisations, including directorships on SOEs such as Transnet and Technology Innovation Agency.

President Ramaphosa has said that he has “every confidence” that this new Commissioner has the “experience, integrity and skills” to restore this once fêted institution to its former honour. Between 1997 and 2009, under Pravin Gordhan’s leadership, SARS established itself as one of the foremost revenue services in the world, embracing technology and viewing the taxpayer as valuable customer. It was applauded as efficient, transparent and modern.

Fit for task

In May, Fin24 listed the most urgent matters facing Kieswetter, and these serve to highlight the new Commissioner’s suitability for his new role.

Firstly, SARS needs to increase its revenue collection. For the financial year ended 31 March 2019, SARS had collected R14.6bn less than estimated in the revised Budget – this larger deficit was attributed to an increase in refunds paid out. In contrast to Moyane with no tax experience or financial background, Kieswetter was SARS Deputy Commissioner between 2004 and 2009, during Gordhan’s tenure as Commissioner; it is said that Kieswetter’s unit was responsible for 30% of the SARS revenue generated then. This contributed to the Government surplus that allowed South Africa to weather the 2008 financial crisis better than many countries. Kieswetter has a Master’s degree in Education, an Executive MBA and an MCom degree in Tax.

SARS must cut down on illicit trade in its mandate to increase revenue collection, and has now tendered for a track and trace marker. South Africa has reportedly lost over R6bn in a single year in illicit alcohol trade and loses around R8bn annually to illicit tobacco trade.
In addition, SARS will be following up on errant taxpayers. Kieswetter has already articulated his policy of prosecuting ‘without fear or favour’.
Secondly, cleaning up after state capture will not only require an unwavering commitment to personal integrity, but also mean reviewing procurement processes, re-establishing the Large Business Centre and other units dismantled by Moyane, and evaluating all SARS posts. Moyane suspended or replaced the whole of the SARS top structure in four months, and in less than a year, many of the most experienced and respected executives had left. IT development halted and millions were paid to such companies as Bain & Co.

So, developing future leaders will be part of Kieswetter’s mission, to recreate a thriving and confident organisation. Kieswetter is known for his transformative leadership approach, with a philosophy of a leader as steward, as an opportunity to serve, not to be served.

Next, with Moyane having stopped the drive to modernise systems, Kieswetter must increase innovation. Embattled IT head, Mmamathe Makhekhe-Mokhuane, has been on suspended leave, following her infamous television interview in October last year.

All these tasks are aimed at restoring the institution’s credibility, both locally and abroad. Finance Minister, Tito Mboweni, is looking forward to “seeing SARS re-established as a respected tax collector and improved revenue collection outcomes.” For the sake of the country’s growth and the goodwill of the taxpayer, so do we.

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2019 Budget Speech: Rebuilding confidence: renewal and hope

charmaine-proutThe 2019 Budget Speech was an honest rendition of the challenges facing South Africa, with a commitment to put plans in place to boost confidence, promote economic growth and prioritise social upliftment.  Tax revenue, however, remains challenging, owing to a combination of economic weakness, poor tax administration by the SA Revenue Service (SARS), and higher-than-expected VAT refunds.  Despite these challenges, the Budget Speech delivered good news to taxpayers.

Good news for taxpayers: Personal income taxes and VAT refunds

In contrast to tax increases in the last four years, the latest Budget did not raise personal income taxes. In addition, there is a slight increase in the tax-free threshold for personal income from R78 150 to R79 900, providing some relief for lower income groups. A further positive is that the Trust tax and transfer duty rates remain unchanged. With the burden that the Treasury faces, this is certainly refreshing.

Over the last few years, VAT refunds have become increasingly difficult. Treasury is now making a concerted effort to pay out overdue VAT refunds and the credit book decreased from R41.8 billion to R31 billion by end January 2019.  The normalisation of refund payments provides businesses with greater certainty on cash flow and revenue projections.

Making SARS more efficient

It is certainly good news for taxpayers that our money is in the hands of Minister Mboweni. He understands the private investment sector and recognises the challenges South Africa is facing. Given that tax revenue remains challenging, one of Minister Mboweni’s priorities is streamlining the SARS processes to make this entity more efficient. We can also expect the appointment of a new SARS commissioner in the upcoming weeks.

SARS certainly has work to do in restoring public faith and trust. Not only has SARS been struggling to collect money from taxpayers, who have lost faith in the system due to corruption and irregular expenditure, but their IT systems needs a major overhaul to improve on tax collections. Getting SARS back on track will be a combined effort by Government and us as tax payers.  A more efficient SARS will ensure increased revenue collected and assist the Government in implementing initiatives to boost the economy.

With these positive changes within SARS, it should become easier for taxpayers to submit returns and get tax refunds paid out as quickly as possible. This will be welcomed by all taxpayers.

It will be a challenging journey – but an exciting one! We will continue to assist our Chartered clients to ensure tax compliance and look forward to a sincere and reliable relationship with SARS.

Warm regards,
Charmaine

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New legislation on Estate Tax

Charm_TaxMost people find taxes very complicated. Albert Einstein said it himself: The hardest thing in the world to understand is the income tax.

Don’t be intimidated at all! Keep in mind that my team at Chartered Tax is here to help. We certainly don’t expect you to study all the tax implications, especially the new Tax laws relating to Estates, as we are here to support you through your journey.

We are, however, experiencing some delays in the process of winding up Deceased Estates, and wanted to share some of the most significant changes implemented in March 2016. These may help to guide your conversations with your Legacy & Trust Specialists during your Estate Planning meetings.

Here is a short summary of the new Tax laws on Deceased Estates:

Income Tax

Prior to the changes in legislation, post-death income was taxable in the hands of the beneficiary. The new legislation states that for deaths after 1 March 2016, income is taxable in a new entity referred to as a Deceased Estate. Put simply, after the date of death, the Deceased Estate comes into existence, and is liable for tax.
There are, however, exceptions to this rule: for example, the assets accrued to the surviving spouse on the death of the first dying spouse are not deemed to have been disposed of on the death of the deceased, and taxes are not payable at this point.

Value Added Tax (VAT)
If the deceased was registered as a VAT vendor, the Executor may have to register the estate for VAT purposes and there may be VAT implications.

Estate Taxes
With the Estate now seen as a separate Income Tax entity, any income accrued before death and additional income to the Estate, whether through acquisitions or disposal of assets, after the date of death, is now taxable.

Capital Gains Tax (CGT)
Capital Gains Tax is payable by the Estate. This payment is due before the inheritance is transferred to the beneficiaries. Beneficiaries only become liable for capital gain or loss once the asset inherited is sold or disposed of.

While all this may seem very complicated, remember that your Retiremeant™, Tax, and Legacy & Trust Specialists will guide you every step of the way. To assist us in winding up Estates more timeously, here are a few tips to keep in mind:

1.We are here to help. While we ensure that Estate taxes are taken care of and SARS requirements are met, we will also make you aware of what the Capital Gains Tax and Estate duties are likely to be. We plan to ensure that the Estate has enough liquidity.
2.Remember to file your Tax returns annually, and if you are married, this applies to both spouses.
3.Keep your Tax Clearance Certificates in a safe and accessible place. Having up-to-date Tax returns and Certificates speeds up the winding up Estate process.
4.Discuss any other entities that should be tax compliant with your Planning Specialist; for example, your business, a company that you may be a shareholder or director of, a Trust that you may be beneficiary or trustee of.
Taxes aren’t as intimidating as you think! It’s just a matter of incorporating these conversations into your Retiremeant™ planning process. Added to that, a good dash of administration and filing goes a long way!

Charmaine

We hope that you enjoy the new format of The Beacon, which will be appearing four times a year, and replaces the monthly Reporting from the Helm, and The Journey. Our in-house services – Invest, Tax, and Legacy & Trust – are represented, in addition to our RetiremeantTM and Wealth Creation teams.

 

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Tax return filing

If filling in a tax return were an easy task, the South African Revenue Service (SARS) would not have a page dedicated to ‘How to complete your income tax return’.

When in doubt, turn to a professional for advice, but in the meantime here are some tips for a smooth tax return submission:

Income versus salary

Ensure that you include all your sources of income:

  • Interest that you have earned on your investments

Don’t be tempted to omit this. All financial institutions complete an IT3(b) certificate, from which SARS learns what interest you have earned in the year of assessment. You will face penalties for any omissions.

  • Income from renting out a property, such as a holiday home
  • Income from a trust

Expenses

Home office expenses

SARS is scrutinising home office expenses, and random site visits are not unheard of.

To calculate office expenses accurately, the following formula is recommended:
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Medical expenses

Simply uploading your medical aid tax certificate is not sufficient for the claim for out-of-pocket expenses. SARS carefully looks for the proof of payment for qualifying medical expenses paid out of the taxpayer’s own pocket; so, for SARS to allow the deduction, a medical invoice must be submitted with a proof of payment.

Travel allowances

When it comes to claiming a travel allowance, it is not unusual for SARS to request more information, in addition to a taxpayer’s log book.

Glitches and errors

Should you forget to upload all the necessary documents, an additional assessment will be raised, and you could find yourself owing SARS money. Have all your supporting documents ready before you complete and submit your ITR12 tax return.

Filing taxes can be a complicated matter, and SARS recognises that taxpayers may make genuine errors when submitting their tax form. Deal with errors in the following ways:

  • Request for correction: Use this form if you have made an error or omission on your return, or if you believe SARS has captured your information incorrectly.
  • Notice of objection: Use this form when your information has been captured correctly, but you disagree with your assessment outcome. This must be done within the (TAA) prescription period: 30 days from date of assessment.

For more details on this, consult the SARS guide.

To start your own tax filing, visit the official Tax Season 2018 for Individuals page on the SARS website.

If doing your taxes on your own is too daunting, consider using a tax practitioner – they may save you time, money and stress. The SARS call centre is not always the best route to go.

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Enhancing the client experience

Take a moment to imagine your stereotypical tax practitioner: possibly a grey suit, conservative manner and serious expression, meant to communicate a disciplined approach to life. Then, take Charmaine Prout, Managing Director of Chartered Tax – outspoken, flamboyantly stylish, always with a sparkle somewhere (mostly on her nails!).

But don’t be fooled. Beneath this unconventional exterior resides a very savvy businesswoman, one who, in a very short period of time, has brought tremendous value to our Chartered Wealth Solutions clients.

It’s a family matter

“My son-in-law, Devlin Ross, has worked at Chartered Employee Benefits for six years. He had been urging me to engage with Chartered Wealth Solutions regarding my personal financial planning. In the process, it became clear that my tax business and Chartered would be a great match,” explains Charmaine.

“Within this business are three generations, and they extend the family caring to their clients.”

Together with her family, Charmaine had established her tax and accounting practice 35 years ago, and her clients include a range of businesses and individuals: restaurant-owners, doctors and dentists, garages, swim-schools, car dealers, farms, emergency medical services … spanning locations from Gauteng to Nelspruit to Cape Town.

Within this company are three generations: Charmaine’s mother, Lucy Groenenstein, manages reception and administrative tasks, bringing a motherly warmth and welcome to the office; Lucy Nel, Senior Bookkeeper, is Charmaine’s sister, and also, according to Charmaine, her anchor and her sage; Charmaine’s daughter, Tannith Ross, started her High School teaching career in Maths and Science, and is now also a Senior Bookkeeper and Junior Tax Consultant; Janine Urwin recently joined the company as General Assistant and Charmaine’s PA.

Their Office Assistant, Siphilisiwe Ncube, has become a member of the family, so long has she been working for them. The relationships within the family are reflected in the caring service that they extend to their clients.

Each brings an attention to detail and commitment to serving their clients with excellent service and extensive expertise. “We have up-to-date tax knowledge and vast experience with a variety of clients,” Charmaine comments, “and Chartered clients had been asking for tax services as part of their financial planning.” And the rest, as the cliche runs, is history.

Chartered Family focus

Working with clients from Chartered Wealth Solutions has resulted in mutual benefit for both planners and tax practitioners. “Imagine how much more holistic planning can be with knowledge from both a financial planning and a tax perspective,” says Charmaine. “We go through their financial affairs for a second time, from a tax perspective, and this often facilitates a client’s greater understanding of their own Retiremeant™ plan. We help bring order to their finances.”

The serious implication of not having up-to-date tax affairs becomes obvious in Estate Planning. The new tax legislation requires you to have all your tax affairs in order before an Estate can be wound up, and this can cause mammoth delays and administrative wrangles. “Now we are working with Chartered Legacy & Trust, rather than having to rely on a variety of different legal companies. We meet once a week with Kerryn and her team, and so have shortened the process for our clients considerably,” adds Charmaine.

She also loves the fact that clients are being empowered to understand their own tax. “A client received a large inheritance, and, suddenly had to register for tax – daunting but we took her through the process step-by-step.”

The reason why we are such a natural fit with the Chartered Family,” concludes Charmaine, “is that we share values, with the end goal of serving the client with excellence.” Clients have appreciated the service offered by Chartered Tax. You can read the testimonials from appreciative clients in this newsletter.

Connect with Chartered

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Fax: +27 11 502 2812

Email: info@charteredwealth.co.za

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