| (1) |
The value on which duty shall be payable shall, subject to the provisions of this section— |
| (a) |
where consideration is payable by the person who has acquired the property, be the amount of that consideration; and |
| (b) |
where no consideration is payable, be the declared value of the property. |
| (a) |
If a transaction whereby property has been acquired, is, before registration of the acquisition in a deeds registry, cancelled, or dissolved by the operation of a resolutive condition, duty shall be payable only on that part of the consideration which has been or is paid to and retained by the seller and on any consideration payable by the buyer for or in respect of the cancellation thereof, provided that on cancellation or dissolution of that transaction, such property completely reverts to the seller and the original buyer has relinquished all rights and has not received nor will receive any consideration arising from such cancellation or dissolution. |
[Section 5(2)(a) substituted by section 2 of Act No. 45 of 2003]
| (b) |
Upon the subsequent disposal of property referred to in paragraph (a), the person so disposing of it shall, in the declaration to be made by him in terms of section fourteen, set forth the circumstances of such previous transaction and of the cancellation thereof and shall furnish particulars relating to the payment of duty in connection therewith, and any duty payable in connection with such previous transaction but still unpaid shall be paid by the person so disposing of the property, who may thereupon recover the duty so paid from the person liable for the payment thereof in terms of section three. |
| (3) |
Where a transaction provides for the payment of the whole or any part of the consideration by way of rent, royalty, share of profits or any other periodical payment, or otherwise than in cash, the value of such consideration shall be determined in accordance with the provisions of section eight. |
| (4) |
In the case of a transaction whereby one properly is exchanged for another, and— |
| (a) |
no additional consideration is payable by either party to the transaction, the value on which duty shall be payable in respect of the acquisition of each property shall, subject to the provisions of subsections (6) and (7), be the declared value of each property: Provided that if the properties exchanged are not of equal value, duly shall, subject to the said provisions, be paid in respect of the acquisition of each property on the declared value of the property which has the greater value; |
| (b) |
additional consideration is payable by either party to the transaction, the value on which duty shall be payable, shall, subject to the provisions of subsections (6) and (7), be— |
| (i) |
in respect of the acquisition of the property for which the additional consideration is payable, the declared value of that property, or the declared value of the property given in exchange for that property plus the additional consideration payable, whichever is the greater; and |
| (ii) |
in respect of the acquisition of the other property, the declared value thereof, or the declared value of the property given in exchange for that property less the additional consideration payable, whichever is the greater. |
| (5) |
In the case of the cession of a lease or sub-lease referred to in paragraph (c) of the definition of "property" in section one, the value on which duty shall be payable shall be the amount of the consideration payable by the cessionary to the cedent in respect of the cession or, if no consideration is so payable, the declared value of the property acquired under the cession. |
[Section 5(5) substituted by section 4(a) of Act No. 24 of 2011]
| (5A) |
[Section 5(5A) deleted by Proclamation R. 11 of 1994] |
| (6) |
If the Commissioner is of opinion that the consideration payable or the declared value is less than the fair value of the property in question he may determine the fair value of that property, and thereupon the duty payable in respect of the acquisition of that property shall be calculated in accordance with the fair value as so determined or the consideration payable or the declared value, whichever is the greatest: Provided that the provisions of this subsection shall not be construed as preventing the Commissioner, after a determination of the fair value of the property in question has been made, from revising such determination or from making a further determination of the fair value of that property under this subsection, provided such revision or further determination is made not later than two years from the date on which duty was originally paid in respect of the said acquisition. |
[Section 5(6) substituted by section 6 of Act No. 103 of 1969]
| (7) |
In determining the fair value in terms of subsection (6), the Commissioner shall have regard, according to the circumstances of the case, inter alia to— |
| (a) |
the nature of the real right in land and the period for which it has been acquired or, where it has been acquired for an indefinite period or for the natural life of any person, the period for which it is likely to be enjoyed; |
| (b) |
the municipal valuation of the property concerned; |
[Section 5(7)(b) substituted by section 15 of Act No. 9 of 2006]
| (c) |
any sworn valuation of the property concerned furnished by or on behalf of the person liable to pay the duty; |
| (d) |
any valuation made by the Director-General: Mineral Resources or by any other competent and disinterested person appointed by the Commissioner. |
[Section 5(7)(d) substituted by section 4(b) of Act No. 24 of 2011]
| (8) |
If the fair value of property as determined by the Commissioner— |
| (a) |
exceeds the amount of the consideration payable in respect of that property, or the declared value, as the case may be, by not less than one-third of the consideration payable or the declared value, as the case may be, the costs of any valuation made by a person referred to in paragraph (d) of subsection (7) (other than the Director-General: Mineral Resources) shall be paid by the person liable for the payment of the duty; |
[Section 5(8)(a) substituted by section 4(c) of Act No. 24 of 2011]
| (b) |
does not exceed the said consideration or declared value as the case may be, to the extent set out in paragraph (a), the costs of the valuation shall be borne by the State. |
| (9) |
The provisions of subsections (6) and (7) shall not apply in respect of the acquisition of property sold by public auction, unless the Commissioner is satisfied that the sale was not a bona fide sale by public auction, or that there was collusion between the seller and the purchaser or their agents. |
| (10) |
In the case of the acquisition of property in terms of Item 8 of Schedule 1 to the Share Blocks Control Act, 1980 (Act No. 59 of 1980), the value of that property shall be reduced by an amount equal to the value of any supply made to the person acquiring that property, of a share mentioned in section 8(17) of the Value-Added Tax Act, 1991 (Act No. 89 of 1991), where— |
| (i) |
tax in respect of such supply has been paid in terms of that Act; or |
| (ii) |
such supply is in terms of that Act subject to tax at the rate of zero per cent, |
if the value of such share wholly or partly constitutes consideration for the acquisition of that property.
[Section 5(10) inserted by section 3 of Act No. 136 of 1992]
| (11) |
Where any person has acquired any property and any consideration has in terms of section 6(1)(c) been added to the consideration payable by such person in respect of such property, the value of that property shall be reduced by an amount equal to the value which constitutes consideration of any supply of such property made to the person acquiring that property, if in terms of the Value-Added Tax Act, 1991 (Act No. 89 of 1991)— |
| (a) |
value-added tax in respect of such supply has been paid or will be accounted for; or |
| (b) |
such supply is subject to value-added tax at the rate of zero per cent. |
[Section 5(11) inserted by section 2 of Act No. 20 of 1994]
National Environmental Management Act, 1998 (107 of 1998)
