Acts Online
GT Shield

Income Tax Act, 1962 (Act 58 of 1962)

Schedules

Fourth Schedule

Amounts to be Deducted or Withheld by Employers and Provisional Payments in respect of Normal Tax

Part II: Employees' Tax

2-11 Employers to Deduct Tax

 

2.        1)        Every-

a)        employer who is a resident, or

b)        representative employer in the case of any employer who is not a resident,

(whether or not registered as an employer under paragraph 15) who pays or becomes liable to pay any amount by way of remuneration to any employee shall, unless the Commissioner has granted authority to the contrary, deduct or withhold from that amount, or, where that amount constitutes any lump sum contemplated in paragraph 2(1)(b) of the Second Schedule, deduct from the employee's benefit or minimum individual reserve as contemplated in that paragraph, by way of employees’ tax an amount which shall be determined as provided in paragraph 9, 10 or 11 or section 95 of the Tax Administration Act, whichever is applicable, in respect of the liability for normal tax of that employee, or, if such remuneration is paid or payable to an employee who is married and such remuneration is under the provisions of section 7(2) of this Act deemed to be income of the employee’s spouse, in respect of such liability of that spouse, and shall, subject to the Employment Tax Incentive Act, 2013, pay the amount so deducted or withheld to the Commissioner within seven days after the end of the month during which the amount was deducted or withheld, or in the case of a person who ceases to be an employer before the end of such month, within seven days after the day on which that person ceased to be an employer, or in either case within such further period as the Commissioner may approve.

[Subparagraph (1) amended by section 6(1)(a) of Act No. 16 of 2016]

 

1A) Notwithstanding the provisions of subparagraph (1), a person shall not be required to deduct or withhold employee’s tax in respect of any year of assessment of a company or trust solely by virtue of paragraph (c) of the definition of "personal service provider" where the company or trust has in respect of such year of assessment provided that person with an affidavit or solemn declaration stating that the relevant paragraph does not apply and that person relied on that affidavit or declaration in good faith.

 

1B) Notwithstanding the provisions of subparagraph (1), a person shall deduct or withhold employees’ tax in respect of any amount payable in respect of variable remuneration, as defined in section 7B(1), on the date on which the amount is paid to the employee by the employer as contemplated in section 7B(2).

[Subparagraph (1B) inserted by section 19(1)(a) of Act No. 21 of 2012]

 

2) Any employer may, at the written request of any employee, deduct or withhold from any amount of remuneration an amount by way of employees' tax greater than that required to be deducted or withheld in terms of subparagraph (1), and shall remit such amount to the Commissioner, and the provisions of this Schedule relating to employees' tax shall mutatis mutandis apply in respect of such amount

 

2A) An employer may deduct the amount of the employment tax incentive for which the employer is eligible in terms of the Employment Tax Incentive Act, 2013, from the amount of the employees’ tax to be paid to the Commissioner by that employer in terms of subparagraph (1), unless section 8 of that Act applies.

[Subsection 2A to be commenced]

 

3)        [deleted by section 20 of Act 19 of 2001].

 

4) The amount required to be deducted or withheld from any remuneration under this Schedule by way of employees’ tax must be calculated on the balance of the remuneration remaining after deducting therefrom-
a) any contribution by the employee concerned to any pension fund which the employer is entitled or required to deduct from that remuneration, but limited to the deduction to which the employee is entitled under section 11(k) having regard to the remuneration and the period in respect of which it is payable;
b) at the option of the employer, any contribution to a retirement annuity fund by the employee in respect of which proof of payment has been furnished to the employer, but limited to the deduction to which the employee is entitled under section 11(n) having regard to the remuneration and the period in respect of which it is payable;
bA) any contribution made by the employer to any retirement annuity fund for the benefit of the employee, but limited to the deduction to which the employee is entitled under section 11(n) having regard to the remuneration and the period in respect of which it is payable;
c) at the option of the employer, any premium paid by the employee in respect of which proof of payment has been furnished to the employer, in terms of an insurance policy-
(i) to the extent that it covers that employee against the loss of income as a result of illness, injury, disability or unemployment; and
(ii) in respect of which all amounts payable in terms of that policy consitute or will constitute income as defined,

but limited to the deduction to which the employee is entitled under section 11(a);

cA) any premium deemed to have been paid by the employee in terms of paragraph 12C(2) of the Seventh Schedule;

d)        [Deleted by section 19(1)(a) of Act No. 21 of 2012]

e)        Deleted

f) so much of any donation made by the employer on behalf of the employee-
i) as does not exceed 5 per cent of that remuneration after deducting therefrom the amounts contemplated in items (a), (b) and (bA);

[Subitem (i) amended by section 6(1)(b) of Act No. 16 of 2016]

5)
a) The Commissioner shall on application made to him by any person who is a labour broker or who is an employee by reason of the provisions of paragraph (d) of the definition of "employee" in paragraph 1, issue to such person a certificate of exemption if-
i) such person carries on an independent trade and is registered as a provisional taxpayer under the provisions of paragraph 17;
ii) in the case of any such labour broker, he is registered as an employer under the provisions of paragraph 15; and
iii) such person has, subject to any extension granted by the Commissioner, submitted all such returns as are required to be submitted by him under this Act:

Provided that the Commissioner shall not issue a certificate of exemption if-

 

aa) more than 80 per cent of the gross income of such person during the year of assessment consists of, or is likely to consist of, an amount or amounts received from any one client of such person, or any associated institution as defined in the Seventh Schedule to this Act in relation to such client unless that person is a labour broker who throughout the year of assessment employs three or more full-time employees—
A) who are on a full-time basis engaged in the business of that labour broker of providing persons to or procuring persons for clients of that labour broker; and
B) who are not connected persons in relation to that labour broker;
bb) such labour broker provides to any of its clients the services of any other labour broker; or
cc) such labour broker is contractually obliged to provide a specified employee of such labour broker to render any service to such client.
b) The certificate of exemption referred to in item (a) shall be issued in such form as the Commissioner may decide and shall be valid for such period as the Commissioner may indicate thereon.
c) An employer shall not be required to deduct or withhold employees tax from any remuneration paid or payable by him to any person who produces to the employer a valid certificate of exemption issued by the Commissioner under item (a)

 

6) Any amount included in gross income in terms of paragraph (eA) of the definition of gross income shall for the purposes of this schedule be deemed to be an amount which an employer pays or becomes liable to pay by way of remuneration to an employee

 

3.
1) The liability of any employer to deduct or withhold any amount of employees' tax in terms of paragraph 2 shall not be reduced or extinguished by reason of the fact that the employer has a right or is otherwise than in terms of any law under an obligation to deduct or withhold any other amount from the employees' remuneration, and such right or obligation shall notwithstanding anything to the contrary in any other law contained, for all purposes be deemed to have reference only to the amount of the remuneration remaining after the amount of employees' tax referred to in that paragraph has been deducted or withheld.

 

2) The provisions of paragraph 2 shall apply in respect of all amounts payable by way of remuneration, notwithstanding the provisions of any law which provide that any such amount shall not be reduced or shall not be subject to attachment.

 

4. Any amount required to be deducted or withheld in terms of paragraph 2 shall be a debt due to the State and the employer concerned shall save as otherwise provided be absolutely liable for the due payment thereof to the Commissioner.

 

5.
1) Subject to the provisions of sub-paragraph (6), if an employer is personally liable for the payment of employees’ tax under Chapter 10 of the Tax Administration Act, the employer shall pay that amount to the Commissioner not later than the date on which payment should have been made if the employees' tax had in fact been deducted or withheld in terms of paragraph 2.

 

1A) The liability of the employer as contemplated in paragraph 2 must be deemed to have been discharged if the employer made payment of the outstanding employees’ tax in terms of subparagraph (1).

 

 

2) Where the employer has failed to deduct or withhold employees' tax in terms of paragraph 2 and the Commissioner is satisfied that the failure was not due to an intent to postpone payment of the tax or to evade the employer's obligations under this Schedule, the Commissioner may, if he is satisfied that there is a reasonable prospect of ultimately recovering the tax from the employee, absolve the employer from his liability under sub-paragraph (1) of this paragraph.

 

3) An employer who has not been absolved from liability as provided in sub-paragraph (2) shall have a right of recovery against the employee in respect of the amount paid by the employer in terms of sub-paragraph (1) in respect of that employee, and such amount may in addition to any other right of recovery be deducted from future remuneration which may become payable by the employer to that employee, in such manner as the Commissioner may determine.

 

4) Until such time as an employee pays to his employer any amount which is due to the employer in terms of sub-paragraph (3), such employee shall not be entitled to receive from the employer and employees' tax certificate in respect of that amount.

 

5) Any amount which an employer is required to pay in terms of sub-paragraph (1) and which the employer does not recover from the employee shall, insofar as the employer only is concerned, for the purposes of section 23(d), be deemed to be a penalty due and payable by that employer.

 

6) The provisions of sub-paragraph (1) shall not apply in respect of any amount or any portion of any amount of employees' tax which an employer has failed to deduct or withhold and in respect of which the provisions of sub-paragraph (3) of paragraph 28 apply.

 

6.
1) If an employer fails to pay any amount of employees' tax for which he or her is liable within the period allowable for payment thereof in terms of paragraph 2 SARS must in accordance with Chapter 15 of the Tax Administration Act, impose a penalty equal to ten per cent of such amount.

 

2)        Deleted

 

2A)        Deleted

 

2B)        Deleted

 

3)        Deleted

 

4)        Deleted

 

7. Any agreement between an employer and an employee whereby the employer undertakes not to deduct or withhold employees' tax shall be void.

 

8. [Paragraph 8 of Fourth Schedule was deleted by the Tax Administration Act, 2011 (Act No. 28 of 2011)].

 

9.
1) The Commissioner may from time to time, having regard to the rates of normal tax as fixed by Parliament or foreshadowed by the Minister in his budget statement and to any other factors having a bearing upon the probable liability of taxpayers for normal tax, prescribe—
(a) deduction tables applicable to such classes of employees as the Commissioner may determine, taking into account the rebates applicable in terms of section 6; and
(b) the manner in which such tables shall be applied,

and the amount of employees' tax to be deducted from any amount of remuneration shall, subject to the provisions of subparagraphs (3) and (4) of this paragraph and paragraphs 10 and 11 and section 95 of the Tax Administration Act, be determined in accordance with such tables or where subparagraph (3) or (4) is applicable, in accordance with that subparagraph.

[Subparagraph (1) amended by section 7(1)(a) of Act No. 16 of 2016]

 

2) Any tables prescribed by the Commissioner in accordance with sub-paragraph (1) shall come into force on a date prescribed by the Commissioner, and shall remain in force until withdrawn by the Commissioner.

[Subparagraph (2) amended by section 7(1)(b) of Act No. 16 of 2016]

 

3)
a) The amount to be deducted or withheld in respect of employees' tax from any lump sum to which paragraph (d) or (e) of the definition of "gross income" in section 1 or section 7A applies, shall be ascertained by the employer from the Commissioner before paying out such lump sum, and the Commissioner's determination of the amount to be so deducted or withheld shall be final.
b) [Subparagraph (3)(b) deleted by section 7(1)(c) of the Tax Administration Laws Amendment Act, 2016 (Act No. 16 of 2016)]

 

4) The amount to be deducted or withheld in respect of any amount contemplated in paragraph (eA) of the definition of 'gross income' in section 1 of this Act, shall be ascertained by the employer on inquiry from the Commissioner before that date of transfer or conversion of any amount for the benefit or ultimate benefit of any member as contemplated in such paragraph and the Commissioner's determination of the amount to be so deducted or withheld shall be final.

 

5) [Subparagraph (5) deleted by section 7(1)(d) of Act No. 16 of 2016]

 

6) There must be deducted from the amount to be withheld or deducted by way of employees’ tax as contemplated in paragraph 2 the amount—
(a) of the medical scheme fees tax credit that applies in respect of that employee in terms of section 6A; and
(b) where the employee is entitled to a rebate under section 6(2)(b), of the additional medical expenses tax credit that applies in respect of that employee in terms of section 6B(3)(a)(i),

if—

(i) the employer effects payment of the medical scheme fees as contemplated in section 6A(2)(a); or
(ii) the employer does not effect payment of the medical scheme fees as contemplated in section 6A(2)(a), at the option of the employer, if proof of payment of those fees has been furnished to the employer.

[Subparagraph (6) amended by section 8(b) of the Tax Administration Laws Amendment Act, 2015 (Act No. 23 of 2015)]

 

10.
1) If the Commissioner is satisfied that the circumstances warrant a variation of the basis provided in paragraph 9 for the determination of amounts of employees' tax to be deducted or withheld from remuneration of employees in the case of any employer, the Commissioner may agree with such employer as to the basis of determination of the said amounts to be applied by that employer, and the amounts to be deducted or withheld by that employer in terms of paragraph 2 shall, subject to the provisions of paragraph 11 and section 95 of the Tax Administration Act, be determined accordingly.

[Subparagraph (1) amended by section 8 of Act No. 16 of 2016]

 

2) Any agreement made in terms of sub-paragraph (1) shall remain in force indefinitely, but the Commissioner or the employer concerned may give notice of termination thereof and upon the expiration of a period of three months from the date of such notice such agreement shall terminate.

 

11.        The Commissioner may, having regard to the circumstances of the case, issue a directive—

a)        to an employer authorising that employer-

i) to refrain from deducting or withholding any amount under paragraph 2 by way of employees’ tax from any remuneration due to any employee of that employer; or
ii) to deduct or withhold by way of employees’ tax from any remuneration in terms of paragraph 2, a specified amount or an amount to be determined in accordance with a specified rate or scale,

in order to alleviate hardship to that employee due to circumstances outside the control of the employee or to correct any error in regard to the calculation of employees’ tax, or in the case of remuneration constituting commission or where the remuneration is paid or payable to a personal service provider and that directive must be complied with; or

b)        [Subparagraph (b) deleted by section 9(1) of Act No. 16 of 2016]

 

11A.
1) Where by virtue of the provisions of paragraph (b), (d) or (e) of the definition of "remuneration" in paragraph 1, the remuneration of an employee includes-
a) any gain made by the exercise, cession or release of any right to acquire any marketable security as contemplated in section 8A;
b) any gain made from the disposal of any qualifying equity share as contemplated in section 8B; or
c) any amount referred to in section 8C which is required to be included in the income of that employee,

the person by whom that right was granted or from whom that equity instrument or qualifying equity share was acquired, as the case may be, is deemed to be a person who pays or is liable to pay to that employee the amount of the gain referred to in paragraph (a) or (b) or the amount referred to in paragraph (c).

[Subparagraph (1)(c) amended by section 9 of the Tax Administration Laws Amendment Act, 2015 (Act No. 23 of 2015)]

 

2) Employees’ tax in respect of the amount of remuneration contemplated in subparagraph (1) must, unless the Commissioner has granted authority to the contrary, be deducted or withheld by the person referred to in subparagraph (1) from—
(a) any consideration paid or payable by that person to that employee in respect of the cession or release of that right or the disposal of that qualifying equity share, as the case may be; or
(b) any cash remuneration paid or payable by that person to that employee after that right has to the knowledge of that person been exercised, ceded or released or that equity instrument has to the knowledge of that person vested or that qualifying equity share has to the knowledge of that person been disposed of:

Provided that where that person is an 'associated institution', as defined in paragraph 1 of the Seventh Schedule, in relation to any employer who pays or is liable to pay to that employee any amount by way of remuneration during the year of assessment during which the gain contemplated in subparagraph (1)(a) or (b) or the amount contemplated in subparagraph (1)(c) arises; and-

i) is not resident nor has a representative employer; or
ii) is unable to deduct or withhold the full amount of employees’ tax during the year of assessment during which the gain or the amount arises, by reason of the fact that the amount to be deducted or withheld from that remuneration by way of employees’ tax exceeds the amount from which the deduction or withholding can be made,

that person and that employer must deduct or withhold from the remuneration payable by them to that employee during that year of assessment an aggregate amount equal to the employee's tax payable in respect of that gain or that amount and shall be jointly and severally liable for that aggregate amount of employee's tax.

 

3) The provisions of this Schedule apply in relation to the amount of employees’ tax deducted or withheld under subparagraph (2) as though that amount had been deducted or withheld from the amount of the gain referred to in subparagraph (1)(a) or (b) or the amount referred to in subparagraph (1)(c).

 

4) Before deducting or withholding employees' tax under subparagraph (2) in respect of remuneration contemplated in subparagraph (1)(a) or (c), that person and that employer must ascertain from the Commissioner the amount to be so deducted or withheld.

 

5) If that person and that employer are, by reason of the fact that the amount to be deducted or withheld by way of employees’ tax exceeds the amount from which the deduction or withholding is to be made, unable to deduct or withhold the full amount of employees’ tax during the year of assessment during which the gain referred to in subparagraph (1)(a) or (b) or the amount referred to in subparagraph (1)(c) arises, they must immediately notify the Commissioner of the fact.

 

6) Where an employee has—
(a) under any transaction to which neither that person nor that employer is a party made any gain; or
(b) disposed of any qualifying equity share as contemplated in subparagraph (1),

that employee must immediately inform that person and that employer of the transaction or the disposal and of the amount of that gain.

 

7) Any employee who without just cause shown by him or her, fails to comply with the provisions of subparagraph (6) shall be guilty of an offence and liable on conviction to a fine not exceeding R2 000.

[Subparagraph (11A) amended by section 10 of Act No. 16 of 2016]