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Income Tax Act, 1962 (Act 58 of 1962)

Schedules

Eighth Schedule

Determination of Taxable Capital Gains and Assessed Capital Losses

Part III - Disposal and Acquisition of Assets

 

11.        Disposals

(1) Subject to subparagraph (2), a disposal is any event, act, forbearance or operation of law which results in the creation, variation, transfer or extinction of an asset, and includes—
(a) the sale, donation, expropriation, conversion, grant, cession, exchange or any other alienation or transfer of ownership of an asset;
(b) the forfeiture, termination, redemption, cancellation, surrender, discharge, relinquishment, release, waiver, renunciation, expiry or abandonment of an asset;
(c) the scrapping, loss, or destruction of an asset;
(d) the vesting of an interest in an asset of a trust in a beneficiary;
(e) the distribution of an asset by a company to a holder of shares;
(f) the granting, renewal, extension or exercise of an option; or
(g) the decrease in value of a person’s interest in a trust or partnership as a result of a value shifting arrangement.

(2)        There is no disposal of an asset—

(a) by a person who transfers the asset as security for a debt or by a creditor who transfers that asset back to that person upon release of the security;
(b) by a company in respect of—
(i) the issue, cancellation or extinction of a share in the company; or
(ii) the granting of an option to acquire a share in or certificate acknowledging or creating a debt owed by that company;

[Item (b) inserted by section 105(1)(a) of the Taxation Laws Amendment Act, 2015 (Act No. 25 of 2015]

(c) by a portfolio of a collective investment scheme in respect of the issue of a participatory interest in that portfolio, or by a portfolio in respect of the granting of an option to acquire a participatory interest in that portfolio;
(d) by a person in respect of the issue of any debt by or to that person;
(e) [Paragraph (e) deleted by the Revenue Laws Amendment Act No. 60 of 2008]
(f) [Paragraph (f) deleted by Second Revenue Laws Amendment Act, No. 60 of 2001];
(g) by a person where a disposal is made to correct an error in the registration in the deeds registry of immovable property in that person’s name;
(h) by a lender to a borrower or by a borrower to a lender, where any  security or bond has been lent by a lender to a borrower in terms of a securities lending arrangement; or

[Subparagraph (2)(h) substituted by section 70(1)(a) of the Taxation Laws Amendment Act, 2016 (Act No. 15 of 2016) - effective 1 January 2017]

(i) by a person where that asset vests in the Master of the High Court or in a trustee, in consequence of the sequestration of the estate of the spouse of that person, as contemplated in section 21 of the Insolvency Act, 1936 (Act No. 24 of 1936), and where that asset is subsequently released by the Master or that trustee as contemplated in that section.
(j) [Item (j) deleted by section 105(b) of the Taxation Laws Amendment Act, 2015 (Act No. 25 of 2015)]
(k) by a person on the cession or release of a right to acquire a marketable security in whole or in part for a consideration which consists of or includes another rights to acquire a marketable security in the circumstances contemplated in section 8A(5).

[Paragraph (k) inserted by section 66 of Act No. 31 of 2005]

(l) by a person of shares held in a company where that company—
(i) subdivides or consolidates those shares;
(ii) converts shares of par value to no par value or of no par value to par value; or
(iii) converts shares in terms of section 40A or 40B,

solely in substitution of the shares held by that person, and—

(aa) the proportionate participation rights and interests of that person in that company remain unaltered; and
(bb) no other consideration whatsoever passes directly or indirectly in consequence of that subdivision, consolidation or conversion;

[Paragraph (l) amended by section 80(a) of Act No. 43 of 2014]

(m) by a person where that person exchanges a qualifying equity share for another qualifying equity share as contemplated in section 8B(2);

[Item (m) amended by section 105(1)(c) of the Taxation Laws Amendment Act, 2015 (Act No. 25 of 2015]

(n) by a transferor to a transferee or by a transferee to a transferor where any share or bond has been transferred in terms of a collateral arrangement;

[Subparagraph (2)(n) substituted by section 70(1)(b) of the Taxation Laws Amendment Act, 2016 (Act No. 15 of 2016) - effective 1 January 2017

(o) by a person that—
(i) disposed of an asset to another person in terms of an agreement; and
(ii) reacquired that asset from that other person by reason of the cancellation or termination, during the year of assessment during which that asset was so disposed of, of that agreement and the restoration of both persons to the position they were in prior to entering into that agreement.

[Item (o) inserted by section 105(1)(e) of the Taxation Laws Amendment Act, 2015 (Act No. 25 of 2015]

 

 

12.        Events treated as disposals and acquisitions

(1) Where an event described in subparagraph (2) occurs, a person must, subject to paragraph 24, be treated for the purposes of this Schedule as having disposed of an asset described in subparagraph (2) for an amount received or accrued equal to the market value of the asset at the time of the event and to have immediately reacquired the asset at an expenditure equal to that market value, which expenditure must be treated as an amount of expenditure actually incurred for the purposes of paragraph 20(1)(a).

[Subparagraph (1) amended by section 81(a) of Act No. 43 of 2014]

 

(2)        Subparagraph (1) applies, in the case of—

(a)        a person—

(i) that commences to be a resident; or

[Item (i) amended by section 81(b) of Act No. 43 of 2014]

(ii) that is a foreign company that commences to be a controlled foreign company; and

[Item (ii) amended by section 81(b) of Act No. 43 of 2014]

(iii) [Item (iii) deleted by section 81(c) of Act No. 43 of 2014]

in respect of all assets of that person other than—

(aa) assets in the Republic listed in paragraph 2(1)(b)(i) and (ii);
(bb) any right to acquire any marketable security contemplated in section 8A;
(b) an asset of a person that is not a resident, which asset—
(i) becomes an asset of that person’s permanent establishment in the Republic otherwise than by way of acquisition; or
(ii) ceases to be an asset of that person’s permanent establishment in the Republic otherwise than by way of a disposal contemplated in paragraph 11;
(c) assets that are held by a person otherwise than as trading stock, when they commence to be held by that person as trading stock;
(d) an asset which ceases to be held by a person as a personal-use asset otherwise than by way of a disposal contemplated in paragraph 11;
(e) an asset which is held by a person otherwise than as a personal-use asset, when that asset commences to be held by that person as a personal-use asset; or
(f) an asset transferred by an insurer contemplated in section 29A from one fund contemplated in section 29A(4) to any other such fund.

 

(3) Where assets that are held by a person as trading stock cease to be held by that person as trading stock, otherwise than by way of a disposal contemplated in paragraph 11, that person will be treated as having disposed of those assets for a consideration equal to the amount included in that person’s income in terms of section 22(8) and to have immediately reacquired those assets for a cost equal to that amount, which cost must be treated as an amount of expenditure actually incurred and paid for the purposes of paragraph 20(1)(a).

 

(4) In the event of a person ceasing to be a controlled foreign company as a result of becoming a resident that person must, subject to paragraph 24, be treated for the purposes of this Schedule as having—
(a) disposed of each of that person’s assets, other than—
(i) assets in the Republic listed in paragraph 2(1)(b)(i) and (ii); and
(ii) assets held by that person if any amount received or accrued from the disposal of those assets would have been taken into account for purposes of determining the net income as contemplated in section 9D of that person; and
(b) immediately reacquired each of those assets at an expenditure equal to the market value of those assets immediately before the disposal, which expenditure must be treated as an amount of expenditure actually incurred and paid for the purposes of paragraph 20(1)(a).

 

(5)        [Deleted by the Taxation Laws Amendment Act, 2012 (Act No. 22 of 2012)]

 

12A.        Reduction of debt

(1)        For the purposes of this paragraph—

'allowance asset' means a capital asset in respect of which a deduction or allowance is allowable in terms of this Act for purposes other than the determination of any capital gain or capital loss;

'capital asset' means an asset that is not trading stock;

'debt' does not include a tax debt as defined in section 1 of the Tax Administration Act;

'reduction amount', in relation to a debt owed by a person, means any amount by which that debt is reduced less any amount applied by that person as consideration for that reduction.

[Subparagraph (1) amended by section 82(1)(a) of Act No. 43 of 2014]

 

(2)        Subject to subparagraph (6), this paragraph applies where a debt that is owed by a person is reduced by any amount and—

(a)        the amount of that debt was used, directly or indirectly, to fund any expenditure-

(i)        other than expenditure in respect of which a deduction or allowance was granted in terms of this Act; or

(ii)        incurred in respect of an allowance asset; and

[Subitem (ii) amended by section 127(b) of Act No. 31 of 2013]

(b)        the amount of that reduction exceeds any amount applied by that person as consideration for that reduction.

 

(3)        Where—

(a)        a debt owed by a person is reduced as contemplated in subparagraph (2); and

(b) the amount of that debt was used as contemplated in item (a) of that subparagraph to fund expenditure incurred in respect of an asset that is held by that person at the time of the reduction of the debt,

[Item (b) amended by section 127(c) of Act No. 31 of 2013]

the amount of expenditure so incurred in respect of that asset must, for the purposes of paragraph 20, be reduced by the reduction amount in respect of that debt.

 

(4)        Where—

(a)        a debt owed by a person is reduced as contemplated in subparagraph (2); and

(b) the amount of that debt was used as contemplated in item (a) of that subparagraph to fund expenditure incurred in respect of an asset (other than an allowance asset) that is—
(i) held by that person at the time of the reduction of the debt, and subparagraph (3) has been applied to reduce any expenditure in respect of that asset to the full extent of that expenditure; or
(ii) no longer held by that person at the time of the reduction of that debt,

the reduction amount in respect of that debt, less any amount that has been applied to reduce any amount of expenditure as contemplated in subparagraph (3), must be applied to reduce any assessed capital loss of that person for the year of assessment in which the reduction takes place.

[Subparagraph (4) amended by section 106(a) of the Taxation Laws Amendment Act, 2015 (Act No. 25 of 2015]

 

(5) Where subparagraph (3) or (4) applies in respect of a debt that was used to fund expenditure in respect of a pre-valuation date asset of a person, for the purposes of determining the date of acquisition of that asset and the expenditure incurred in respect of that asset, that person must be treated as having-

[Subsection 5 to be commenced]

(a) disposed of that asset at a time immediately before that debt is reduced as contemplated in subparagraph (3)(a) or (4)(a), as the case may be, for an amount equal to the market value of that asset at that time; and
(b) immediately reacquired that asset at that time at an expenditure equal to that market value-

(i)        less any capital gain, and

(ii)        increased by any capital loss,

that would have been determined had the asset been disposed of at market value at that time,

which expenditure must be treated as an amount of expenditure actually incurred at that time for the purposes of paragraph 20(1)(a).

 

(6)        This paragraph must not apply to any debt owed by a person—

(a)        that is an heir or legatee of a deceased estate, to the extent that—

(i)        the debt is owed to that deceased estate;

(ii)        the debt is reduced by the deceased estate; and

(iii) the amount by which the debt is reduced by the deceased estate forms part of the property of the deceased estate for the purposes of the Estate Duty Act;

[Subitem (iii) amended by section 106(b) of the Taxation Laws Amendment Act, 2015 (Act No. 25 of 2015]

(b)        to the extent that the debt is reduced by way of—

(i)        donation as defined in section 55(1); or

(ii)        any transaction to which section 58 applies;

(c) to an employer of that person, to the extent that the debt is reduced in the circumstances contemplated in paragraph 2(h) of the Seventh Schedule;
(d) to another person where that person and that other person are companies that form part of the same group of companies as defined in section 41, unless, as part of any transaction, operation or scheme entered into to avoid any tax imposed by this Act-

(i)        that debt (or any debt issued in substitution for that debt) was acquired directly or indirectly from a person who does not form part of that group of companies; or

(ii)        that company or that other company became part of that group of companies after that debt (or any debt issued in substitution for that debt) arose; or

(e)        that is a company, where-

(i) that debt is reduced in the course, or in anticipation, of the liquidation, winding up, deregistration or final termination of the existence of that company; and
(ii) the person to whom the debt is owed is a connected person in relation to that company,

to the extent that reduction amount in respect of that debt does not, at the time that the debt is reduced, exceed the amount of expenditure contemplated in paragraph 20 incurred in respect of that debt by the connected person: Provided that this subitem must not apply

(aa) if-
(A) the debt was reduced as part of any transaction, operation or scheme entered into to avoid any tax imposed by this Act; and
(B) that company became a connected person in relation to the person to whom the debt is owed after the debt (or any debt issued in substitution of that debt) arose; or

(bb)        if that company-

(A) has not, within 36 months of the date on which the debt is reduced or such further period as the Commissioner may allow, taken the steps contemplated in section 41(4) to liquidate, wind up, deregister or finally terminate its existence;
(B) has at any stage withdrawn any step taken to liquidate, wind up deregister or finally terminate its corporate existence; or
(C) does anything to invalidate any step contemplated in subparagraph (A), with the result that the company is or will not be liquidated, wound up, deregistered or finally terminate its existence.

 

(7) Any tax which becomes payable as a result of the application of paragraph (bb) of the proviso to subparagraph (6)(e) must be recovered from the company and the connected person contemplated in that subparagraph who must be jointly and severally liable for that tax.

 

13.         Time of disposal

(1)        The time of disposal of an asset by means of -

(a) a change of ownership effected or to be effected from one person to another because of an event, act, forbearance or by the operation of law is, in the case of -
(i) an agreement subject to a suspensive condition, the date on which the condition is satisfied;
(ii) any agreement which is not subject to a suspensive condition, the date on which the agreement is concluded;
(iiA) the distribution of an asset of a trust by a trustee to a beneficiary to the extent that the beneficiary has a vested interest in the asset, the date on which the interest vests;
(iiB) the granting by a trust to a beneficiary of an equity instrument contemplated in section 8C, the time that equity instrument vests in that beneficiary as contemplated in that section;

[Subitem (iiB) inserted by section 107(1) of the Taxation Laws Amendment Act, 2015 (Act No. 25 of 2015)]

(iii)        a donation of an asset, the date of compliance with all legal requirements for a valid donation;

(iv) the expropriation of an asset, the date on which the person receives the full compensation agreed to or finally determined by a competent tribunal or court;
(v) the conversion of an asset, the date on which that asset is converted;
(vi) the granting, renewal or extension of an option, the date on which the option is granted, renewed or extended;
(vii) the exercise of an option, the date on which the option is exercised;
(viii) the termination of an option granted by a company to a person to acquire a share, participatory interest or debenture of that company, the date on which that option terminates; or
(ix) any other case, the date of change of ownership;
(b) the extinction of an asset including by way of forfeiture, termination, redemption, cancellation, surrender, discharge, relinquishment, release, waiver, renunciation, expiry or abandonment, the date of the extinction of the asset;
(c) the scrapping, loss or destruction of an asset is the date—
(i) when the full compensation in respect of that scrapping, loss or destruction is received; or
(ii) if no compensation is payable, the later of the date when the scrapping, loss or destruction is discovered or the date on which it is established that no compensation will be payable;
(d) [Deleted];
(e) the distribution of an asset by a company to a holder of shares is the date on which that asset is so distributed as contemplated in paragraph 75;
(f) the decrease of a person’s interest in a trust or partnership as a result of a value shifting arrangement, is the date on which the value of that person’s interest decreases; or
(g) the happening of an event contemplated in -
(i) paragraph 12(2)(a), (b), (c), (d) or (e), 12(3) or 12(4) is the date immediately before the day that the event occurs; or
(ii) paragraph 12(2)(f), is the date that that event occurs.

 

(2) A person to whom an asset is disposed of is treated as having acquired that asset at the time of disposal of that asset as contemplated in subparagraph (1).

 

14.        Disposal by spouse married in community of property

For the purposes of this Schedule, in the case of spouses married in community of property, where any asset is disposed of by one of the spouses and that asset—

(a) falls within the joint estate of the spouses, that disposal is treated as having been made in equal shares by each spouse; and
(b) was excluded from the joint estate of the spouses, that disposal is treated as having been made solely by the spouse making the disposal.