SARS Interpretation Note 9 Issue 7: Small business corporations (source: https://www.sars.gov.za/lapd-intr-in-2012-09-small-business-corporations/) INTERPRETATION NOTE 9 (Issue 7) DATE: 25 June 2018 ACT : INCOME TAX ACT 58 OF 1962 SECTION : SECTION 12E SUBJECT : SMALL BUSINESS CORPORATIONS CONTENTS PAGE Preamble .............................................................................................................................. 2 1. Purpose ..................................................................................................................... 3 2. Background ............................................................................................................... 3 3. The law...................................................................................................................... 4 4. Application of the law................................................................................................. 4 4.1 Qualifying requirements ............................................................................................. 4 4.1.1 Legal entity requirement [section 12E(4)(a)] .............................................................. 4 (a) Close corporation ...................................................................................................... 4 (b) Co-operatives ............................................................................................................ 5 (c) Private company........................................................................................................ 5 (d) Personal liability company ......................................................................................... 6 4.1.2 Holder of shares requirement .................................................................................... 6 (a) The holding of shares in the potential small business corporation [section 12E(4)(a)] ..................................................................................................... 6 (b) The holding of shares in any other company by the holders of shares or members of the close corporation or co-operative [section 12E(4)(a)(ii)] ................... 7 4.1.3 Gross income limitation requirement [section 12E(4)(a)(i)] ........................................ 8 (a) Gross income ............................................................................................................ 8 (b) Year of assessment ................................................................................................... 9 (c) Variation of the gross income limitation ..................................................................... 9 4.1.4 Business activity requirement [section 12E(4)(a)(iii) and (iv)]................................... 10 (a) Definition of “investment income” [section 12E(4)(c)] ............................................... 11 (b) Definition of “personal service” [section 12E(4)(d)] .................................................. 13 (c) Calculation of the 20% limitation on investment income and income from rendering a personal service [section 12E(4)(a)(iii)] ................................................. 17 4.1.5 Prohibition of personal service providers [section 12E(4)(a)(iv)] .............................. 21 4.2 Small business corporation assets [sections 12E(1) and (1A)] ................................ 22 4.2.1 Plant or machinery used directly in a process of manufacture or a process of a similar nature [section 12E(1)] ................................................................................. 22 (a) Plant and machinery ................................................................................................ 22 (b) Process of manufacture or similar process .............................................................. 24 (c) Owned by and brought into use by the small business corporation.......................... 24 (d) Meaning of used “directly in a process of manufacture” or similar process .............. 26 (e) Other deductions and allowances ............................................................................ 27 4.2.2 Other assets [section 12E(1A)] ................................................................................ 28 (a) Qualifying assets ..................................................................................................... 29 (b) Meaning of “in respect of which a deduction is allowable under section 11(e)” ........ 30 (c) Acquisition by a small business corporation ............................................................ 31 (d) Election of the small business corporation in the year the asset is brought into use 31 (e) Amount of the allowance under section 12E(1A)(b) ................................................. 32 4.2.3 Cost of an asset [section 12E(2)] ............................................................................. 35 4.2.4 Limitation on the amount of the allowance available under section 12E(1) and 12E(1A) ................................................................................................................... 35 4.2.5 Cost of moving an asset [section 12E(3)] ................................................................ 37 4.2.6 Assets acquired for no consideration ....................................................................... 40 5. Recoupment and roll-over relief upon disposal ........................................................ 40 6. Loss on disposal of depreciable assets [section 11(o)] ............................................ 43 7. Impact of a fluctuating small business corporation status on the accelerated allowance ................................................................................................................ 44 7.1 Tax treatment of capital allowances claimed under other provisions of the Act before qualifying as a small business corporation .................................................... 44 7.2 Loss of SBC status before deducting the full cost of an asset under section 12E(1A) ....................................................................................................... 44 8. Objection and appeal............................................................................................... 44 9. Conclusion .............................................................................................................. 45 Annexure A – The law.................................................................................................................... 46 Annexure B – Permissible holding of shares or interests .............................................................. 50 Preamble In this Note unless the context indicates otherwise – • “Close Corporations Act” means the Close Corporations Act 69 of 1984; • “Companies Act” means the Companies Act 71 of 2008; • “Co-operatives Act” means the Co-operatives Act 14 of 2005; • “qualifying entity” means a “close corporation”, a “co-operative”, any “private company” as defined in section 1 of the Companies Act and any “personal liability company” as contemplated in section 8(2)(c) of the Companies Act (see 4.1.1); • “SBC” means small business corporation; • “Schedule” means a Schedule to the Act; • “section” means a section of the Act; • “TA Act” means the Tax Administration Act 28 of 2011; • “the Act” means the Income Tax Act 58 of 1962; • “VAT Act” means the Value-Added Tax Act 89 of 1991; and • any other word or expression bears the meaning ascribed to it in the Act. All guides, interpretation notes and practice notes referred to in this Note are latest issue of these documents should be consulted. 1. Purpose This Note provides guidance on the interpretation and application of section 12E, which provides accelerated depreciation allowances for a taxpayer qualifying as an SBC. This Note does not address other sections in the Act which contain provisions that refer to or apply to a “small business corporation” as defined in section 12E. For example, section 8FA(3)(a) provides that section 8FA, which deems hybrid interest to be a dividend in specie, does not apply to a debt owed by an SBC. Section 8FA is not discussed in this Note. Section 10(1)(zK) and section 23O apply when an amount of funding has been received by or accrued to an SBC from a “small business funding entity” as defined in section 1(1). Generally, these sections provide for the exemption of such receipts and accruals and the reduction of the deduction available for related expenditure. In this regard, this Note considers only the impact of such receipts and accruals on the allowances available under section 12E(1) and section 12E(1A). 2. Background Section 12E sets out the requirements which must be met in order for a specified entity to qualify as an SBC. It provides accelerated depreciation allowances on certain capital assets brought into use by an SBC. In addition, section 5(2) and the annual Rates and Monetary Amounts and Amendment of Revenue Laws Acts provide for concessionary tax rates which follow a graduated marginal structure (0%, 7%, 21% and 28%) 1 as opposed to a flat corporate rate of 28%. The ITR14 return contains a question asking taxpayers whether they are an SBC as referred to in section 12E. The question must be answered “yes” if a taxpayer meets the requirements of an SBC as stipulated in section 12E. If the question is answered “yes”, a further set of questions relating to section 12E will be asked within the return. The answers to these additional questions will determine whether the taxpayer will be assessed as an SBC for that year of assessment. See the Guide for Tax Rates/Duties/Levies for the rates and marginal structure applicable to different years of assessment. 3. The law The relevant provisions are quoted in Annexure A. 4. Application of the law 4.1 Qualifying requirements In order to qualify as an SBC, an entity must meet the requirements stipulated in the definition of “small business corporation” in section 12E(4)(a). These requirements comprise four key areas, namely: • A legal entity requirement (see 4.1.1) • A holder of shares requirement (see 4.1.2) • A gross income limitation requirement (see 4.1.3) • A business activity requirement (see 4.1.4) In addition, the entity may not be a “personal service provider” as defined in the Fourth Schedule. The prohibition relating to personal service providers is discussed in 4.1.5. The requirements must be reconsidered every year of assessment, since an entity could meet all the requirements and be an SBC in one year of assessment but not in another year of assessment. 4.1.1 Legal entity requirement [section 12E(4)(a)] One of the requirements in qualifying as an SBC is that the taxpayer must be a juristic person in the form of a – • “close corporation”; • “co-operative”; • “private company” as defined in section 1 of the Companies Act; or • “personal liability company” as contemplated in section 8(2)(c) of the Companies Act. In this Note the above entities, which are included in the definition of “company” in section 1(1), are referred to as “qualifying entities”. (a) Close corporation A “close corporation” is defined in section 1(1) as a close corporation within the meaning of the Close Corporations Act. The Close Corporations Act defines a “corporation” as a close corporation referred to in section 2(1) which has been registered under that Act. A close corporation is therefore a juristic person, with between one and ten 2 persons who qualify for membership, which has complied with that Act’s requirements for the registration of its founding statement and is duly registered under that Act. Section 28 of the Close Corporations Act. A person or group of persons is prohibited from registering a close corporation as from 1 May 2011. However, a close corporation incorporated and registered before this date may still qualify as an SBC if the other requirements of section 12E(4)(a) are met. (b) Co-operatives A “co-operative” is defined in section 1(1) as any association of persons registered under section 27 of the Co-operatives Act 91 of 1981 3 or section 7 of the Co- operatives Act. The Co-operatives Act and Regulations 4 provide a regulatory framework for co- operatives by setting out the requirements and procedures for the functioning and operations of the various types of co-operative. While it is accepted that a large number of co-operatives may operate informally and, as such, may not be formally registered, only entities that are duly registered under the Acts referred to above may qualify as SBCs. (c) Private company A “private company” is defined in section 1 of the Companies Act as – “a profit company that— 5 6 (a) is not a public, personal liability, or state-owned company; and (b) satisfies the criteria set out in section 8(2)(b);”. A “company” is in turn defined in section 1 of the Companies Act as a juristic person which is incorporated under the Companies Act, is a domesticated company or immediately before 1 May 2011 was – • registered under the Companies Act 61 of 1973 (other than as an “external company” as defined in that Act) or under the Close Corporations Act (if subsequently converted under Schedule 2 to the Companies Act); or • in existence and recognised as an “existing company” under the Companies Act 61 of 1973; or • deregistered under the Companies Act 61 of 1973 and subsequently re- registered under the Companies Act. A profit company is one which is incorporated for the purpose of financial gain for its shareholders. 7 A co-operative registered under the Co-operatives Act 91 of 1981 may continue to operate as if that Act had not been repealed subject to the transitional provisions in section 97 of the Co- operatives Act. GNR. 366 of 30 April 2007: Regulations. A “public company” is defined in section 1 of the Companies Act as a profit company which is not a state-owned company, a private company or a personal liability company. A “state-owned company” is defined in section 1 of the Companies Act as a) a company which is either listed as a public entity in the relevant Schedules of the Public Finance Management Act 1 of 1999 or b) is owned by a municipality as contemplated in the Local Government: Municipal Systems Act 32 of 2000 and is otherwise similar to “a)”. Section 1 of the Companies Act. Section 8(2)(b) of the Companies Act provides that a private company’s Memorandum of Incorporation must prohibit it from offering its securities to the public and it must restrict the transferability of its securities. A private company is, therefore, generally a juristic person that has been incorporated under the Companies Act for the purposes of making financial gain and whose founding document prohibits the offer of its shares to the public and restricts the transferability of its shares. The definition of “private company” specifically excludes a public, personal liability or state-owned company. A company which is incorporated and registered under foreign legislation will not qualify as an SBC. However, a foreign company which has successfully applied under section 13(5) to 13(11) of the Companies Act to transfer its registration from the foreign jurisdiction in which it is registered to South Africa is deemed to have been incorporated in South Africa. Such a company will exist as a company under the Companies Act as if it had originally been so incorporated and registered. A foreign company that has transferred its registration to South Africa is called a “domesticated company” and may qualify as an SBC if it satisfies the requirements of a private company as discussed above and the other requirements of section 12E(4)(a). (d) Personal liability company 8 A personal liability company is a profit company which complies with the requirements of section 8(2)(c) of the Companies Act, namely, – • it must meet the criteria for a private company; and • its Memorandum of Incorporation must state it is a personal liability company. Personal liability companies are typically incorporated associations of professional persons in which the directors, together with the company, are jointly and severally liable for the debts and liabilities of the company. 9 4.1.2 Holder of shares requirement (a) The holding of shares in the potential small business corporation [section 12E(4)(a)] Section 12E(4)(a) provides that all the holders of shares or members, as appropriate, of a qualifying entity must, at all times during the relevant year of assessment, be natural persons. No part of the share capital or members interest of an SBC can therefore be held by a juristic person such as another company. A contravention of this requirement, even if for one day during the year of assessment, will disqualify a qualifying entity from being an SBC for the year of assessment in which the requirement was not met, irrespective of whether all of the other requirements are met. A personal liability company was re-instated as an entity that could potentially qualify as an SBC by section 29 of the Taxation Laws Amendment Act, 2016, thus rectifying an unintended consequence that arose from the enactment of the Companies Act. This amendment is deemed to have come into operation on 1 May 2011 and applies to years of assessment ending on or after that date. Section 19(3) of the Companies Act. See also Henochsberg on the Companies Act 71 of 2008, Notes on Section 8 [online] (My LexisNexis: October 2017). A qualifying entity whose shares or members interest are held in a trust may qualify as an SBC provided that the beneficiaries hold a vested right in those shares or members interest throughout the year of assessment and are all natural persons. The holders of shares requirement looks at the beneficial ownership of the shares or members interest. 10 Therefore, if the shares or members interest held by a trust are beneficially owned by natural persons, the share or interest in the qualifying entity would be viewed as being held by a natural person. However, to the extent that the shares are beneficially held by the trust, the company will not qualify as an SBC even if its trustees are natural persons. The trustees are merely the representative taxpayer of the trust and do not have any beneficial interest in the trust assets. (b) The holding of shares in any other company by the holders of shares or members of the close corporation or co-operative [section 12E(4)(a)(ii)] The holders of shares in, or members of, the qualifying entity may not at any time during the particular year of assessment hold any shares or have any interest in the equity of any other “company” as defined in section 1(1), except in those companies specifically permitted. The reason for the limitation is to prohibit multiple shareholdings or arrangements which may be used to split income between various qualifying entities, thus providing taxpayers with an undue tax benefit. A share or interest held in the equity of another “company”, as defined in section 1(1), which is held as a trustee or nominee will generally not be regarded as contravening this requirement provided the holder or member is not the beneficial owner of the share or interest and is not entitled to any profits, income or capital of that other company for the relevant year of assessment. The companies in which a holding of shares is permitted are listed in Annexure B. Any shares or interest in any company not specifically permitted, even if held for one day during the relevant year of assessment, will lead to the qualifying entity being disqualified as an SBC for that year of assessment. Example 1 – Limitation on shares held by holders of shares Facts: Company A, which renders information technology (IT) services to a number of clients, has six full-time employees (two holders of shares, X and Y, and four other employees). The employees are all involved in rendering IT services to clients throughout the year of assessment. Company A’s gross income for the year of assessment was R5,6 million. In addition to the shares in Company A, X is the holder of a number of shares in a share block company and Y is the holder of shares in Company Z. Company Z was listed on the JSE but was delisted during the year of assessment. Result: The shares held by X in a share block company are permissible under section 12E(4)(a)(ii)(cc). The shares held by Y in Company Z are impermissible owing to the company being delisted during the year of assessment. See paragraph 3.2 of the Explanatory Memorandum on the Taxation Laws Amendment Bill, 2011 in relation to section 7(1)(zO) of the Taxation Laws Amendment Act 24 of 2011. Company A cannot therefore qualify as an SBC for the year of assessment as a result of the shares held by Y in Company Z. 4.1.3 Gross income limitation requirement [section 12E(4)(a)(i)] The gross income of a qualifying entity may not exceed R20 million for the particular year of assessment. 11 Key factors for consideration are what constitutes gross income, what is a year of assessment and the circumstances in which the limitation of R20 million must be reduced. These are considered below. (a) Gross income The term “gross income” is defined in section 1(1) and means, in the case of any resident, the total amount, in cash or otherwise, received by or accrued to or in favour of that resident 12 during the year or period of assessment excluding receipts or accruals of a capital nature but including the amounts (whether of a capital nature or not) listed in paragraphs (a) to (n) of that definition. In Geldenhuys v CIR, Steyn J stated that the words “received by” as used in the definition of “gross income” –13 “must mean ‘received by the taxpayer on his own behalf for his own benefit’”. The term “accrued to” was held by Watermeyer J (as he then was) in WH Lategan v CIR to mean – 14 “to which he has become entitled”. In the Lategan case it was also noted that the fact that an amount may be due and payable only in a subsequent year of assessment did not mean that it had not accrued to a taxpayer. If an amount is subject to any conditions, a person will become entitled to it only once the conditions have been fulfilled. 15 The entitlement must therefore be unconditional in order for an amount to be included in gross income. Gross income includes income that is exempt from normal tax, for example, a government grant of a non-capital nature which qualifies for an exemption under section 12P. Taxable capital gains are not included in gross income, since section 26A specifically provides for the inclusion of a taxable capital gain in taxable income. The R20 million limitation is deemed to have come into operation on 1 April 2013 and applies in respect of years of assessment ending on or after 1 April 2013 [section 7(1) of the Rates and Monetary Amounts and Amendment of Revenue Laws Act No. 23 of 2013 and section 140 of the Taxation Laws Amendment Act No. 25 of 2015]. The position for non-residents is not discussed, since it is unlikely that a non-resident company with South African-source income will qualify as an SBC. 1947 (3) SA 256 (C), 14 SATC 419 at 430. 1926 CPD 203, 2 SATC 16 at 20. The correctness of the interpretation of “accrued to” in Lategan’s case was subsequently confirmed by Hefer JA in CIR v People’s Stores (Walvis Bay) (Pty) Ltd 1990 (2) SA 353 (A), 52 SATC 9 at 24. Mooi v SIR 1972 (1) SA 674 (AD), 34 SATC 1. (b) Year of assessment The term “year of assessment” as defined in section 1(1) “means any year or other period in respect of which any tax or duty leviable under this Act is chargeable …”. Under section 5(1)(d) normal tax is payable in respect of the taxable income received by or accrued to or in favour of “any company during every financial year of such company”. A company’s year of assessment is thus its financial year. Qualifying entities are included in the definition of “company”. It follows that the definition of “year of assessment” in section 1(1) applies to qualifying entities and a qualifying entity’s year of assessment is its financial year. 16 The term “financial year” is defined in section 1(1) in relation to any company and hence also applies to a qualifying entity. The financial year of a newly incorporated or created company is the period commencing on the date of incorporation 17 or creation and which ends on the last day of February immediately succeeding that date or any other date that the Commissioner, having regard to the circumstances of the case, may approve as the date on which the first year of assessment ends. For subsequent years the financial year commences immediately after the last day of the immediately preceding year of assessment and ends on the anniversary of that last day or any other date that the Commissioner, having regard to the circumstances of the case, may approve as the date on which a subsequent year of assessment will end. Depending on the facts, a financial year may be shorter than, equal to or longer than 12 months in duration. Therefore, the last day of a year of assessment may differ from qualifying entity to qualifying entity and a qualifying entity’s year of assessment, while often 12 months, may be shorter than, equal to or longer than 12 months. The impact of a longer or shorter year of assessment on the calculation of the gross income limitation is discussed in 4.1.3(c). (c) Variation of the gross income limitation The gross income of an SBC is limited to R20 million for a year of assessment. An exception to this rule is contained in the proviso to section 12E(4)(a)(i) which provides that if a qualifying entity carries on a trade for a period which is less than 12 months, the limitation of R20 million must be reduced proportionately. The ratio applied to the R20 million limitation is the number of months the qualifying entity traded divided by 12. In determining the number of months during which a qualifying entity traded, a part of a month is treated as a full month. The proviso does not increase the denominator of 12 if the year of assessment is longer than 12 months. The date on which trade commences (for example, a newly incorporated company which subsequently commenced trade) and ceases (for example, a company in the process of liquidation which has ceased trade) are important considerations in determining an entity’s gross income limitation for purposes of section 12E(4)(a)(i). The point at which a trade commences or ceases must be determined on a case-by- case basis taking the detailed facts and circumstances into account. For a detailed discussion on the trade requirement, see Interpretation Note 33 “Assessed Losses: Companies: The ‘Trade’ and ‘Income from Trade’ Requirements”. Definitions of “company” and “year of assessment” in section 1(1). Under section 27(2)(a) of the Companies Act, date of incorporation is the date that the incorporation of the company is registered, as stated in its registration certificate. The proviso does not increase the R20 million limitation when the year of assessment or the period of trading is longer than 12 months. Therefore, when a qualifying entity has, for example, a 14-month year of assessment and traded for 13 months in that year of assessment, the R20 million limitation still applies. In contrast, if a company has an 8-month year of assessment, it could have traded for only 8 months in that year and the limitation of R20 million must be reduced. Example 2 – Determination of gross income limitation Facts: A qualifying entity, which carries on a manufacturing business, with a year of assessment ending 28 February started trading activities on 15 August 2017. Gross income for the period 15 August 2017 to 28 February 2018 was R15 million. Result: The period of trade from 15 August 2017 to 28 February 2018 is less than 12 months and the taxpayer must therefore reduce the gross income limitation in proportion to the number of months it has traded. The qualifying entity has traded for 6½ months. However, under section 12E(4)(a)(i) part of a month must be treated as a full month and the qualifying entity is, therefore, treated as if it traded for 7 months. R20 million × number of full months traded 12 months = R20 million ×7 = R11,67 million The gross income limitation for the taxpayer for the year of assessment ended 28 February 2018 is therefore R11,67 million. Gross income for the year of assessment is R15 million which exceeds the limitation of R11,67 million. Therefore, the qualifying entity has not met the gross income limitation requirement and cannot qualify as an SBC for the year of assessment ended 28 February 2018. 4.1.4 Business activity requirement [section 12E(4)(a)(iii) and (iv)] Broadly, section 12E(4)(a)(iii) imposes a limitation on the amount of income which may be generated from certain income streams, namely investment income and income generated from personal services. An entity cannot qualify as an SBC if more than 20% of the total of all receipts and accruals (excluding capital receipts) and capital gains, consists of investment income and income from the rendering of a personal service. The terms “investment income” and “personal service” are specifically defined in section 12E(4)(c) [see 4.1.4(a)] and (d) [see 4.1.4(b)] respectively. The calculation of the 20% limitation is discussed in 4.1.4(c). (a) Definition of “investment income” [section 12E(4)(c)] Section 12E(4)(c) defines “investment income” as – “(c) ‘investment income’ means— (i) any income in the form of dividends, foreign dividends, royalties, rental derived in respect of immovable property, annuities or income of a similar nature; (ii) any interest as contemplated in section 24J (other than any interest received by or accrued to any co-operative bank as contemplated in paragraph (a)(ii)(ff)), any amount contemplated in section 24K and any other income which, by the laws of the Republic administered by the Commissioner, is subject to the same treatment as income from money lent; and (iii) any proceeds derived from investment or trading in financial instruments (including futures, options and other derivatives), marketable securities or immovable property;”. The application of the definition of “investment income” does not generally give rise to problems, however, the treatment of “income” from serviced accommodation potentially raises questions. The view taken by SARS is that the “income” a qualifying entity earns from providing serviced accommodation on a short-term basis in, for example, a guesthouse, a lodge, a bed-and-breakfast establishment or a hotel, will not be regarded as rental derived in respect of immovable property. However, when a person has the exclusive use of property or a portion of property on a long-term basis, for example, periods exceeding one month whether under one or more contracts, and the contracts were not entered on an isolated basis, a portion of the income earned may potentially be regarded as rental in respect of immovable property. All the facts and circumstances will need to be taken into account in these situations to determine whether a portion of the income is considered to be rental in respect of immovable property. The definition of “investment income” must be interpreted within the context of section 12E(4)(a)(iii) because that provision provides that not more than 20% of the total receipts and accruals (other than those of a capital nature) and capital gains may consist of investment income and income from the rendering of a personal service. “Consist” means to “be composed or made up of” 20 and therefore for an amount to be investment income it must first have been included in the qualifying entity’s total receipts and accruals (other than those of a capital nature) or capital gains. For example, if a qualifying entity had gross income of R400 and also disposed of shares held on capital account with a base cost of R90 for R120, section 12E(4)(a)(iii) requires that not more than 20% of R430 (gross income of R400 plus the capital gain of R30) may consist of investment income and income from rendering a personal service. Under paragraph (iii) of the definition of investment income “proceeds” must be interpreted to refer to the capital gain of R30 because that is the amount which has been included in the total of R430 in respect of the disposal of financial instruments held for investment purposes (that is, on capital account as opposed to being held for trading or revenue purposes). The gain of R30, Section 24J deals with the incurral and accrual of interest. Section 24K deals with the incurral and accrual of amounts in respect of interest rate agreements. www.oxforddictionaries.com/definition/english/consist [Accessed 25 June 2018]. and not the full proceeds of R120, was included in the total of R430. Therefore, R30 investment income / R430 × 100 = 6,98% and the 20% limitation has not been exceeded. If the shares had been held on revenue account then the total under section 12E(4)(a)(iii) would be R520 (R400 + R120) and investment income would be R120. Therefore, R120 / R520 × 100 = 23,08% and the 20% limitation would have been exceeded with the result that the qualifying entity could not qualify as an SBC even if all the other requirements under section 12E(4)(a) were met. Example 3 – Determination of investment income Facts: A close corporation conducts two trades, namely, the rental of houses owned by the close corporation on a long-term basis and the provision of short-term serviced residential accommodation to guests in two guesthouses. The period of the rental agreements for the houses varies in duration depending on the tenant’s requirements but is generally longer than 3 months. The guesthouse offers accommodation on a bed-and-breakfast basis. The duration of a guest’s stay varies but is generally between a few days to two weeks. Guests can request dinner at an additional cost. Gross income consisted of rental from the houses of R12 million, income from the bed-and-breakfast accommodation at the guesthouse of R4 million and income from the supply of dinner meals of R400 000. Result: Gross income for the year of assessment is R16 400 000 which means it has not exceeded the gross income limitation of R20 million. Total receipts and accruals (other than those of a capital nature) and capital gains = R16 400 000 + Rnil = R16 400 000. The rental income from the houses is “investment income” as defined. The income from the serviced accommodation and the provision of dinner meals is not “investment income” as defined. Investment income / Total receipts and accruals (other than those of a capital nature) and capital gains = R12 000 000 / 16 400 000 × 100 = 73,17%. The 20% limitation has been exceeded and as a result the close corporation has not met the business activity requirement and cannot qualify as an SBC. (b) Definition of “personal service” [section 12E(4)(d)] For the purposes of the 20% limitation, one of the tainted income streams besides investment income is income from the rendering of a personal service. Section 12E(4)(d) defines “personal service” as – “(d) ‘personal service’, in relation to a company, co-operative or close corporation, means any service in the field of accounting, actuarial science, architecture, auctioneering, auditing, broadcasting, consulting, draftsmanship, education, engineering, financial service broking, health, information technology, journalism, law, management, real estate broking, research, sport, surveying, translation, valuation or veterinary science, if— (i) that service is performed personally by any person who holds an interest in that company, co-operative or close corporation or by any person that is a connected person in relation to any person holding such an interest; and (ii) that company, co-operative or close corporation does not throughout the year of assessment employ three or more full-time employees (other than any employee who is a holder of a share in the company or a member of the co-operative or close corporation, as the case may be, or who is a connected person in relation to a holder of a share in the company or a member), who are on a full-time basis engaged in the business of that company, co-operative or close corporation of rendering that service.” In general, a personal service refers to a service rendered for which the income derived is mainly a reward for the personal efforts or skills of an individual. In determining whether a service falls within the ambit of a “personal service” as defined, the ordinary grammatical meaning is given to each word in that definition. The words “any service in the field of” preceding the categories of services listed in the definition suggest that a wide interpretation must be applied to these categories. Therefore, the list must be interpreted to include every service in the specified field irrespective of whether it is of a professional nature. The list of services included in the definition of “personal service” is limited in two respects. Thus, a qualifying entity will be regarded as rendering a “personal service” only if – • the service falling within the list is personally performed by any person holding an interest in that qualifying entity or by any person who is a connected person in relation to any person holding such an interest; 21 and • that qualifying entity does not throughout the year of assessment employ three or more full-time employees (excluding an employee who holds a share in that company or who is a member of the close corporation or co-operative, or who is a connected person 22 in relation to a holder of a share in that company or a member of the close corporation or co-operative), who are on a full-time basis engaged in the business of that company of rendering that service. The reference to connected persons was inserted by the Taxation Laws Amendment Act 17 of 2017 with effect from the date of promulgation of that Act, 18 December 2017. The term “connected person” is defined in section 1(1). For more information, see Interpretation Note 67 “Connected Persons”. If one of these requirements for a personal service is not met, the qualifying entity will not be rendering a personal service for purposes of section 12E. Stated differently, both of these requirements must be met for the qualifying entity to be regarded as rendering a personal service for purposes of section 12E. It may happen that a qualifying entity provides a service falling within the ambit of the services listed in section 12E(4)(d) which is performed by a person holding an interest in the qualifying entity or by any person who is a connected person in relation to any person holding such an interest, and the qualifying entity employs less than three full-time employees who are not connected to that person in the business of rendering that service. In this situation only the service rendered by the person holding the interest, or by a connected person in relation to such person, is regarded as a personal service. This is important because, when calculating whether the 20% limitation on investment income and income from rendering a personal service has been exceeded [see 4.1.4(c)], it is necessary to determine the amount of income from the rendering of a personal service and that will require a Rand-value apportionment of the income which is attributable to such persons’ involvement. The Act does not prescribe a specific method of record-keeping or apportionment in calculating the income from personal services; it may be done either by means of an hourly charge out system or per job or any other appropriate method. The definition of “personal service” encourages the creation of full-time employment in qualifying entities by setting a minimum employee threshold when a person holding an interest in the qualifying entity, or a connected person in relation to such person, is involved in performing a service included in the list in section 12E(4)(d) and the qualifying entity would like to benefit from the exclusion from the personal service income requirement. A qualifying entity wishing to use the exclusion must maintain a minimum of three full-time employees throughout the year of assessment despite any lay-offs or resignations that may occur. Employees included in the three or more full-time employee count must – • be engaged on a full-time basis in the qualifying entity’s business of performing the relevant service; • not be a holder of shares in or a member of the qualifying entity; and • not be a connected person in relation to a holder of shares in or a member of the qualifying entity. The number of shares held or the size of the member’s interest and how the shares or interest were acquired are irrelevant, since section 12E(4)(d)(ii) merely refers to “a holder of a share in the company or a member of the co-operative or close corporation”. Thus, for example, an employee who holds one share cannot be included in the three or more full-time employee count. The persons considered in the employee count need not necessarily be involved in an activity that directly generates the income from the potential personal service. For example, a receptionist in an accounting firm who does not directly perform the accounting services for which a client is invoiced but is involved on a full-time basis in the support services which allow that accounting service to be provided, will be considered to be involved in the business of performing that service. The receptionist would be included in the three or more full-time employee count because he or she is engaged in the business of the qualifying entity of rendering that service, ‘that service’ meaning the accounting service falling in one of the categories listed in section 12E(4)(d). The term “full-time employee” is not defined for purposes of section 12E and must therefore be given its ordinary grammatical meaning taking into account the context in which the term appears and the purpose to which it is directed. 23 The terms “full- time” and “employee” are considered separately below. The Merriam-Webster Dictionary describes “full-time” as – 24 “working the full number of hours considered normal or standard…done during the full number of hours considered normal or standard …requiring all of or a large amount of your time”. The Oxford Dictionaries defines “full-time” as –25 “occupying or using the whole of someone’s available working time”. The facts and circumstances of each case are thus critical in determining whether an employee is a full-time employee at a particular employer because it is necessary to consider the number of hours the employee works for that employer in relation to the full normal working hours for other employees at that employer. Casual, temporary or part-time employees are not employed on a full-time basis, since they work less than the standard full number of hours and are therefore not taken into account when determining the employee count in the personal service definition. Although not directly relevant to section 12E, the definition of “part-time employee” in section 198C(1) of the Labour Relations Act 66 of 1995 is consistent with the above interpretation. The BusinessDictionary.com defines “employee” as follows: 26 “An individual who works part-time or full-time under a contract of employment, whether oral or written, express or implied, and has recognised rights and duties. Also called worker.” Under common law, an employee does not include an independent contractor, since this type of contract does not generally result in an employer-employee relationship. An independent contractor who has been hired by a qualifying entity will therefore not be taken into account when determining the employee count in the personal service definition. The definition of “employee” in the Fourth Schedule, which includes independent contractors in certain instances, is applicable only to the Fourth Schedule and not section 12E. Example 4 – The amount of income attributable to the rendering of a personal service Facts: Company A renders services in the field of actuarial science. The services are performed by X, Y and Z. X holds shares in Company A and is married to Z. Company A also employs a full-time receptionist, R, whose duties relate only to the actuarial services part of the business. Q is also employed on a full-time basis to write articles for various financial magazines. Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA). www.merriam-webster.com/dictionary/full-time [Accessed 25 June 2018]. www.oxforddictionaries.com/definition/english/full-time [Accessed 25 June 2018]. www.businessdictionary.com/definition/employee [Accessed 25 June 2018]. The following amounts have been received by or accrued to Company A during a year of assessment: Income from the rendering of actuarial services by X R250 000 Income from the rendering of actuarial services by Y R350 000 Income from the rendering of actuarial services by Z R150 000 Income from articles written for financial magazines R200 000 Result: The actuarial services rendered by Company A fall within the “actuarial science” category listed in section 12E(4)(d). Some of the services were performed by X (a holder of shares in the company) and Z (a connected person in relation to a holder of shares, that is, X) [section 12E(4)(d)(i)]. Y and R are employed on a full-time basis in the business of the rendering of actuarial services. However, although Q is engaged on a full-time basis, it is in relation to a different service and the “three or more” employee count is therefore not met [section 12E(4)(d)(ii)]. The combined income from the actuarial services performed by X and Z of R400 000 (R250 000+R150 000) is thus income from rendering a personal service. The income from the actuarial services performed by Y of R350 000 is not income from rendering a personal service because Y is not a holder of shares in the company and is not a connected person in relation to a holder of shares. Writing articles for financial magazines falls within the “journalism” category listed in section 12E(4)(d) but it is not a personal service as it was rendered by Q and Q does not hold an interest in Company A and is not a connected person in relation to a person who holds an interest in Company A. The total gross income received by the company was R950 000 of which R400 000 (42%) was derived from the rendering of a personal service. Since Company A has derived more than 20% of its gross receipts and accruals from the rendering of a personal service, it is not an SBC [section 12E(4)(a)(iii)]. Example 5 –Three or more full-time employees Facts: Skin Care (Pty) Ltd is a company owned by three dermatologists, each holding an equal percentage of shares in the company. The practice consists of the three dermatologists, one receptionist and three pathologists who are involved in analysing skin and blood samples of patients in their own in-house laboratory. All the employees are employed on a full-time basis. The receptionist is appointed to schedule appointments for the dermatologists and pathologists and to handle patient accounts. One of the pathologists is married to one of the dermatologists. Result: The services rendered by the dermatologists and pathologists fall within the “health” category listed in section 12E(4)(d). The services are being performed personally by the three holders of shares in Skin Care (Pty) Ltd and one person who is a connected person in relation to a holder of shares [section 12E(4)(d)(i)]. However, their services are not a personal service because the company employs three employees who are not holders of shares in the company and are not related to, and therefore connected to, any of the holders of shares, on a full-time basis in the business of rendering the services. These three employees are the receptionist and the two pathologists who are not connected persons in relation to the holders of shares in Skin Care (Pty) Ltd [section 12E(4)(d)(ii)]. The pathologist who is married to the dermatologist is a connected person in relation to one of the holders of shares in Skin Care (Pty) Ltd and is therefore not included in the “three or more” employee count. (c) Calculation of the 20% limitation on investment income and income from rendering a personal service [section 12E(4)(a)(iii)] As noted in 4.1.4, the aggregate income from investment and personal services may not exceed 20% of the qualifying entity’s total receipts and accruals (excluding receipts and accruals of a capital nature) and capital gains. The words “of a capital nature” are not defined in the Act. The South African courts have considered the meaning of these words in a number of capital versus revenue disputes and in deciding these cases have developed a number of tests or guidelines for distinguishing between the two concepts. However, as Smalberger JA put it in CIR v Pick ‘n Pay Employee Share Purchase Trust there is – 27 “no single infallible test of invariable application”. See the Comprehensive Guide to Capital Gains Tax for a detailed discussion on the various tests and guidelines. The onus of proving that an amount is of a capital nature rests upon the taxpayer under section 102 of the TA Act. The term “capital gain” is defined in section 1(1) as “an amount determined in terms of paragraph 3 of the Eighth Schedule”. Under paragraph 3(a) of the Eighth Schedule, a person’s capital gain on the disposal of an asset in the current year of assessment is the amount by which the proceeds received or accrued on the disposal exceed the base cost of the asset. It may also happen that an asset disposed of in a previous year of assessment gives rise to a capital gain which must be accounted for in the current year of assessment. Paragraph 3(b) of the Eighth Schedule deals with the circumstances in which this may arise. See the Comprehensive Guide to Capital Gains Tax for more detail. The total of different capital gains arising in a year of assessment must be determined and used when calculating a qualifying entity’s total receipts and accruals (excluding receipts and accruals of a capital nature) and capital gains. For example, if the qualifying entity realised a capital gain of R50 000 on asset A and a capital gain of R60 000 on asset B, the sum of the capital gains of R110 000 must be taken into 1992 (4) SA 39 (A), 54 SATC 271 at 279. account under section 12E(4). Capital losses arising on the disposal of assets by a qualifying entity are not taken into account in this calculation. The term “capital gain” must be distinguished from an “aggregate capital gain”, “aggregate capital loss”, “net capital gain” and “taxable capital gain”. The latter four terms take into account, amongst other things, the sum of all capital gains and capital losses and any assessed capital loss brought forward from the previous year of assessment. 28 The amount received or accrued on disposal of an allowance asset held on capital account is of a capital nature even though part of it may represent a recoupment included in the taxpayer’s gross income under paragraph (n) of the definition of that term. The definition of “gross income” includes amounts “whether of a capital nature or not”. While the effect of the special inclusions in gross income is to treat an amount of a capital nature as gross income, they do not deem amounts of a capital nature to be of a revenue nature. The full amount received or accrued on disposal of an allowance asset held on capital account must therefore be excluded from the denominator in the 20% limitation formula. The capital gain, if applicable, is included. Example 6 – Nature of amount derived on disposal of allowance asset for purposes of the 20% limitation formula Facts: Manufacturing Company A acquired a machine at a cost of R100 and claimed allowances under section 12E of R100. It disposed of the asset for R110. Result: There is a recoupment of R100 of the capital allowances under section 8(4)(a) which is included in Manufacturing Company A’s “gross income” under paragraph (n) of the definition of that term. There is also a capital gain of R10 arrived at as follows: R Amount received or accrued on disposal of machine 110 Less: Recoupment [paragraph 35(3)(a) of Eighth Schedule] (100) Proceeds 10 Less: Base cost (see below) Nil Capital gain 10 The base cost of the asset is determined by reducing the acquisition cost of R100 by the capital allowances under paragraph 20(3)(a) of the Eighth Schedule. The denominator in the 20% limitation formula is determined as follows: R Amount received or accrued 110 Less: Amount of a capital nature derived on disposal of machine (110) Capital gain 10 Denominator 10 See paragraphs 6, 7, 8 and 10 of the Eighth Schedule. Example 7 – Determination of whether a close corporation qualifies as an SBC by considering the 20% limitation of income from rendering a personal service and investment income Facts: Compzone CC trades mainly in the supply of computer hardware and pre-packaged software. The company employs three full-time sales assistants who are engaged in the processing of sales orders, merchandising of stock and assisting customers in the store. On a smaller scale, the company offers its clients a computer software development service which is performed by three holders of shares in the company and independent contractors who are occasionally hired for specific projects. In addition, the close corporation disposed of a capital asset that was used for purposes of trade, received an award under a will and derived royalty income. Proceeds from the disposal of the asset were R900 000, with a capital gain derived of R40 000. The receipts and accruals of Compzone CC for the year of assessment are as follows: R Income from sales 3 900 000 Income from computer software development service 1 100 000 Royalties received 23 000 Cash payment under a will (capital receipt) 50 000 Amount received from the sale of a capital asset 900 000 Total receipts and accruals 5 973 000 Result: The main business activity, that is, the supply of hardware and software, concerns the sale of goods and is therefore not a service or personal service. The computer software development service constitutes a “personal service” as defined because – • the computer software development service falls within the “information technology” category listed in section 12E(4)(d); and • the service is rendered by persons who hold shares in Compzone CC and Compzone CC does not employ three or more other employees, who are not connected to the members of Compzone CC, on a full-time basis in rendering that service. The fact that Compzone CC employs three full-time employees in the part of its business dealing with the supply of computer hardware and software is irrelevant, since they are not engaged in the rendering of the computer software development service. The royalty income constitutes investment income [section 12E4(c)(i)]. The total of all receipts and accruals (other than those of a capital nature) and all capital gains for the purposes of calculating the 20% limitation is R5 063 000 (R5 973 000 total receipts and accruals – R50 000 payment under a will – R900 000 proceeds from disposal of a capital asset + R40 000 capital gain). The 20% limitation calculation is as follows: • [(investment income + personal service income) / (total receipts and accruals of non-capital nature + capital gains] × 100 • [(R23 000 + R1 100 000) / R5 063 000] × 100 = 22,18% Investment income and income from the rendering of a personal service exceeds the 20% limitation for the relevant year of assessment and accordingly the close corporation will not qualify as an SBC even if all the other requirements of section 12E(4)(a) are met. Example 8 – Determining whether a company qualifies as an SBC by considering the 20% limitation of income from rendering a personal service and investment income Facts: A and B hold shares in PetDoc (Pty) Ltd and practice as veterinarians. Besides consulting, the practice also generates income from the dispensing of medicine and the selling of pet goods such as nutritional supplements, pet food and treats. PetDoc (Pty) Ltd has a full-time receptionist, sales assistant and cleaner. The company disposed of two assets that were used in the veterinary practice. An X-Ray machine was disposed of for R500 000 generating a capital gain of R35 000. A veterinary table was disposed of for R2 000 which resulted in a loss of R1 000 under section 11(o). The receipts and accruals of PetDoc (Pty) Ltd for the year of assessment are as follows: R Income from sales of pet goods 1 360 000 Income from veterinary services 5 000 000 Amount received from the sale of the X-Ray system 500 000 Amount received from the sale of the table 2 000 Total receipts and accruals 6 862 000 Result: The total of receipts and accruals (other than those of a capital nature) and all capital gains for the purposes of calculating the 20% limitation is R6 395 000 (R6 862 000 – R500 000 – R2 000 + R35 000 capital gain). The loss of R1 000 under section 11(o) on the disposal of the veterinary table is disregarded for purposes of this calculation. The sale of goods is not a service and as a result does not fall within the definition of “personal service”. Veterinary services falls within the “veterinary science” category listed in section 12E(4)(d). The veterinary services are rendered by the two holders of shares. Although the full-time receptionist is also engaged in the business of rendering the veterinary services, the sales assistant and cleaner are not engaged in the business of rendering the veterinary services on a full-time basis. PetDoc (Pty) Ltd does not therefore employ three or more full-time employees who are not connected to the holders of shares in the business of veterinary services, and the income from the veterinary services constitutes a “personal service” as defined. PetDoc (Pty) Ltd does not earn any investment income [section 12E4(c)]. The 20% limitation calculation is as follows: • [(investment income + personal service income) / (total receipts and accruals of non-capital nature + capital gains] × 100 • [(Rnil + R5 000 000) / R6 395 000] × 100 = 78,19% Investment income and income from the rendering of a personal service exceeds the 20% limitation for the relevant year of assessment and the company will not therefore qualify as an SBC even if all the other requirements of section 12E(4)(a) are met. 4.1.5 Prohibition of personal service providers [section 12E(4)(a)(iv)] Section 12E(4)(a)(iv) excludes a company which is a “personal service provider” as defined in paragraph 1 of the Fourth Schedule from qualifying as an SBC. A “personal service provider” is defined in the Fourth Schedule as a company 29 if the services rendered on behalf of such company to a client are rendered personally by a connected person 30 in relation to the company and – • the connected person would be regarded as an employee of the client if that person had rendered the service directly to the client; or • the services must be performed mainly at the premises of the client and the connected person or the company is subject to the control or supervision of the client as to the manner in which the services are rendered; or • more than 80% of the income of the company during the year of assessment is or is likely to be received directly or indirectly from any one client or associated institution in relation to that client, except if the company, throughout the year of assessment, employs three or more full-time employees who are engaged on a full-time basis in the business of the company of rendering any such service excluding any employee who is a holder of a share in the company or is a connected person in relation to a holder of a share in the company. A full-time employee who holds one or more shares in the company is not included in the “three or more full-time employee” count even if that employee is not a connected person in relation to the company. The definition refers to companies and trusts; however, in the context of an SBC, trusts are irrelevant. The term “connected person” is defined in section 1(1). For more information, see Interpretation Note 67 “Connected Persons”. A “personal service” as discussed in 4.1.4(b) is different to a “personal service provider”. Although the definitions of a “personal service” and a “personal service provider” share some common features, they also contain some distinct differences. Both definitions must therefore be considered in light of the facts of a particular case. A company that is not a “personal service provider” under the Fourth Schedule may render a “personal service” under section 12E and vice versa. A company will need to ensure that it is not a “personal service provider” as defined in the Fourth Schedule and that its investment income and income from personal services is equal to or less than 20% of its total receipts and accruals (excluding those of a capital nature) and capital gains in order to potentially qualify as an SBC. 4.2 Small business corporation assets [sections 12E(1) and (1A)] Under section 12E, two sets of accelerated depreciation rates potentially apply to the assets of an SBC. Subject to certain conditions, assets used directly in a process of manufacture or a process of a similar nature may qualify for a 100% write-off in the year of assessment in which the asset is brought into use. Assets that do not fall into this category may qualify for write-off over a period of three years at a rate of 50, 30 and 20% in the respective years. 4.2.1 Plant or machinery used directly in a process of manufacture or a process of a similar nature [section 12E(1)] An SBC may deduct the cost 31 of any plant or machinery used directly in a process of manufacture, or any other process which is of a similar nature, carried on by that SBC in the year of assessment in which the SBC brings the plant or machinery into use, provided it is – • brought into use for the first time by that SBC on or after 1 April 2001; • brought into use for the purposes of the taxpayer’s trade (other than a trade of mining or farming); and • owned by the SBC or the SBC acquired the plant or machinery as purchaser under paragraph (a) of the definition of "instalment credit agreement" in section 1(1) of the VAT Act. The total amount of the allowance available under section 12E(1) may be limited to less than 100% of the cost of the plant and machinery concerned if funding was received from a small business funding entity or in the form of a government grant (see 4.2.4). (a) Plant and machinery Plant The term “plant” is not defined in the Act. The term has, however, been considered in various court cases. In Blue Circle Cement Ltd v CIR 32 the issue was whether a 41 kilometre extension to an existing railway line was “plant and machinery” under section 12. The railway line was used to convey limestone from the taxpayer’s quarry, where it was conceded the process of manufacture began, to the factory where it was made into cement. The court agreed with the taxpayer’s concession that the railway line was not “machinery” and proceeded to determine the meaning of “plant”. Referring to the definition of “plant” in the Oxford English Dictionary, the court See 4.2.3. 1984 (2) SA 764 (A), 46 SATC 21. held that the relevant enquiry in determining if the railway line was “plant”, was whether it constituted fixtures, implements, machinery or apparatus used in carrying on an industrial process. The court reviewed a number of English cases in which the term was considered and agreed that in making that determination, it was useful to apply a functional test and a durability test. The English cases held that “plant” connoted a degree of durability and did not include articles that were quickly consumed or worn out in the course of a few operations. 33 The functional test considers how the particular asset is used and whether it is employed to carry on or promote the taxpayers business activities. In applying the above tests to the facts, the learned judge concluded that the function performed by the railway line of conveying materials was part of the taxpayer’s industrial process and that the railway line was part of the apparatus used in carrying on the industrial process of manufacturing cement. The railway line, in spite of needing repairs from time to time, was intended to last the life of the limestone deposits (approximately 40 years) and clearly met the durability test. The railway line thus qualified as plant for purposes of section 12. In ITC 1468, 34 a case which concerned a shoe manufacturer, it was held that knives and lasts (implements used by the taxpayer in manufacturing shoes) constituted “plant”. The court referred to the definition and tests applied in Blue Circle Cement Ltd v CIR. 35 The items passed the functional test because they were used by the taxpayer in the course of the business of manufacturing shoes and enabled the machines in the factory to perform their manufacturing function. They also passed the durability test since the lasts had a minimum life of two to three years and after that period were kept for possible use again in the future. The knives were used for shorter periods but were also stored for possible future re-use and met the durability test. Applying the same approach in ITC 1469, 36 lithographic plates and embossing dies were held not to constitute plant. The items were used directly in an industrial process (hence meeting the functional test) but were used for only a single job before being discarded and as a result lacked the required degree of durability and permanence to constitute plant. Machinery The term “machinery” is not defined in the Act. The ordinary grammatical meaning will therefore be applied having regard to the context in which it is used. According to CollinsDictionary.com “machinery” is defined as – 37 “machines, machine parts, or machine systems collectively… [a] particular machine system or set of machines”. See also Hinton v Maden and Ireland Ltd (1959) 3 All ER at 356. (1989) 52 SATC 32 (C). 1984 (2) SA 764 (A), 46 SATC 21. (1989) 52 SATC 40 (C). www.collinsdictionary.com/dictionary/english/machinery [Accessed 25 June 2018]. (b) Process of manufacture or similar process The Act does not define a “process of manufacture”. However, the courts have provided general guidelines which are helpful in determining whether the taxpayer is engaged in a process of manufacture. The following is an extract from Ovation Recording Studios (Pty) Ltd v CIR: 38 “The phrase ‘a process of manufacture’ in this context is a familiar one, which has been considered in many cases, including two decided in this court: Secretary for Inland Revenue v Hersamer (Pty) Ltd 1967(3) SA 177(A) and Secretary for Inland Revenue v Safranmark (Pty) Ltd 1982(1) SA 113(A). It is clear from these cases that there are no hard and fast rules for deciding whether a taxpayer’s activities fall within or outside the ambit of the section, but the following general propositions emerge as governing the enquiry: the term ‘process of manufacture’ comprises activities which constitute the production of a thing which is essentially different from the materials or components which went into its making; the concept of ‘essential difference’ necessarily involves an element of degree in determining whether the change brought about between the original material and the finished product is sufficient for the process to qualify as being one of manufacture; whether the requirement of an essential difference in relation to such change is satisfied cannot be determined by any fixed criteria or any fixed universal test; in each individual case the particular facts must be examined and analysed in order to assess and evaluate the ‘change… in regard to the nature or form or shape or utility, etc, of the previous article or material or substance’; and in doing so the ordinary natural meaning of the phrase ‘process of manufacture’ in the English language must not be disregarded (see Hersamer’s case supra at 186 if – 187E and Safranmark’s case supra at 116G- 117D and 122D-123B). In the extract quoted above from Hersamer’s case, viz ‘change . . . in regard to the nature or form or shape or utility, etc, of the previous article . . .’, the words ‘form’ and ‘shape’ refer to physical attributes, but neither the word ‘nature’ nor the word ‘utility’ is so limited, and under the umbrella of ‘etc’ must certainly be included, I consider, the factor of ‘value’. As a matter of principle I can see no reason for generally according more weight to features of ‘form’ and ‘shape’ than to the attributes of ‘nature’ (in a non-physical sense), ‘utility’ and ‘value’. The relative weight to be given to the various features of change must depend on the particular facts of each case.” (Footnotes suppressed.) Practice Note No. 42 dated 27 November 1995 “Income Tax: processes of manufacture, processes similar to a process of manufacture and processes not regarded as processes of manufacture or processes similar to a process of manufacture” may be referred to in establishing whether a process constitutes a process of manufacture or similar process. 39 If an activity is not listed in the practice note, the guidelines provided above should be considered. (c) Owned by and brought into use by the small business corporation The introductory words of section 12E(1) refer to any plant or machinery owned by or acquired as purchaser under an instalment sale agreement by a taxpayer which qualifies as an SBC. Section 12E(1)(a) requires that the plant or machinery should be brought into use for the first time by that taxpayer, that is, the SBC that owns the asset or acquired it as a purchaser under an instalment sale agreement. 1990 (3) SA 682 (A), 52 SATC 163 at 172. Also see SIR v Safranmark 1982 (1) SA 113 (A), 43 SATC 235. The lists contained in the Practice Note are not exhaustive. A lessee of plant and machinery will not qualify for a deduction under section 12E(1) because a lessee does not own the leased asset. The plant and machinery may be new or second-hand, provided it is being brought into use for the first time by the SBC seeking to claim the allowance. Example 9 – Asset brought into use before becoming an SBC Facts: ABC (Pty) Ltd (ABC) manufactures kitchen kettles which are sold on the local market. ABC acquired and started using a machine in its manufacturing process on 30 August 2017. Its year of assessment ends on 30 September. During its 2018 year of assessment ABC met the requirements under section 12E(4)(a) and qualified as an SBC. Prior to this period, ABC did not qualify as an SBC. Result: ABC cannot claim an allowance under section 12E(1) because ABC was not an SBC in the 2017 year of assessment when it first brought the machine into use. However, an allowance may be claimed for the machine under section 12C if the requirements of that section are met. In addition, in 2018 even though ABC was an SBC, the machine was not brought into use by ABC for the first time in that year. Example 10 – Asset brought into use by an SBC Facts: XYZ (Pty) Ltd (XYZ) manufactures food mixers which are sold on the local market. Its year of assessment ends on 30 September. On 30 August 2017 XYZ acquired a machine for use in its manufacturing process but commenced using the machine only on 10 October 2017. During its 2018 year of assessment XYZ met the requirements of section 12E(4)(a) and qualified as an SBC. Result: XYZ can claim an allowance under section 12E(1) in its 2018 year of assessment because it was an SBC when it brought the asset into use for the first time during that year of assessment. The machine was owned by an SBC when first brought into use. (d) Meaning of used “directly in a process of manufacture” or similar process The use of the word “directly” indicates an intention by the legislature to draw a distinction between plant and machinery used directly in a process of manufacture or similar process and plant and machinery which is used indirectly in such processes. In ITC 1061, Corbett J (as he then was) held that: 40 “The word ‘directly’ in this sense, is defined by the Shorter Oxford English Dictionary to mean – ‘Without the intervention of a medium; immediately; by a direct process or mode’. The same dictionary defines the adjective ‘direct’, in a cognate sense, as meaning – ‘Without intervening agency; immediate’. Sections 12(1) and 12(2) [the sections relevant to the case which used the same wording used in section 12E(1)], therefore, have reference to plant and machinery used directly, i.e. without the intervention of some other medium or agency, in the process of manufacture etc. The words ‘in the process’ are also deserving of emphasis.” Plant and machinery is used “directly” in a process if it is an integral part of the process. Determining the starting 41 and ending point of the process of manufacture and, whether the plant or machinery is used in that process, whether the item of plant and machinery is solely or predominantly used in that process, 42 are important practical considerations in assessing whether an item of plant or machinery is used directly in a process of manufacture. Assets used in an action or operation which is indirect or ancillary to a process of manufacture or similar process, will not be considered as being used directly and will not qualify for the full cost deduction in year one under section 12E(1). The asset may, however, qualify for an accelerated deduction under section 12E(1A). How and for what a particular asset is used, and not the identity of the asset per se, will determine whether it is used directly in a process of manufacture or similar process. For example, motor vehicles used for transportation purposes have, depending on the facts, been regarded as being used indirectly 43 and directly 44 in a process of manufacture. (1964) 26 SATC 317 (C) at 319. SIR v Cape Lime Company Ltd 1967 (4) SA 226 (A), 29 SATC 131; ITC 1114 (1967) 30 SATC 14(N); ITC 1247 (1975) 38 SATC 27(N). ITC 1061 (1964) 26 SATC 317 (C); ITC 1445 (1988) 51 SATC 40 (T). ITC 1061 (1964) 26 SATC 317 (C) which involved the transportation of personnel, materials and equipment to the construction site. CIR v Stellenbosch Farmers’ Winery 1989 (4) SA 722 (C), 51 SATC 81 which involved the transportation of “raw wine” in tankers once the process of manufacture had already begun. Example 11 – Determination of assets used “directly” in a process of manufacture Facts: ABC Bakeries (Pty) Ltd produces breads, cakes and pastries. The company acquired the following assets for its business: • 2 × mixers – used to prepare dough for baking; • 1 × proof boxes – storage facility for dough that is set aside to rise; • 100 × baking sheets and pans; • 2 × convection ovens; • 2 × fryers; and • 1 × truck – used to deliver the baked goods to some of its clients. The company qualifies as an SBC. Result: Baking breads, cakes and pastries constitutes a process of manufacture because the different activities result in the production of edible goods such as cakes or loaves of bread which are essentially different from the raw materials which went into their making (for example, flour, egg, milk, baking powder). The baking of bread is specifically listed as a process of manufacture in Annexure B of Practice Note 42. One of the requirements under section 12E(1) is that the asset must be used “directly” in a process of manufacture. In this example it is necessary to determine the start and end point of the baking process. It is submitted that the starting point of the process is the mixing of the various ingredients required for the different breads, cakes and pastries which will be baked or fried. The end point will vary depending on the particular product, for example, for buns and bread, the process ends when the product is removed from the oven or fryer but for cakes and other products requiring icing or decoration, it will end once that has been completed. The mixers, proof-boxes, baking sheets and pans, ovens and fryers are used “directly” in a process of manufacture, since they are used without intervention between the start and end points of the process. The truck is used to deliver completed products after the process of manufacture has ended. The truck is therefore not used directly in a process of manufacture or similar process. It may, however, qualify for an allowance under section 12E(1A) if it meets the requirements of that section. (e) Other deductions and allowances Plant or machinery which qualifies for a deduction under section 12E(1) will not qualify for any other deduction or allowance under the Act. Section 23B and often the particular section of the Act under which the asset would otherwise also have qualified for a deduction or allowance prohibit double deductions. For example, plant or machinery which qualifies for a deduction under section 12E(1) and section 12C, will not qualify for a deduction under both sections, since section 23B prohibits double deductions. In addition, section 12C(3)(d) specifically states that no deduction shall be allowed under section 12C on any asset for which an allowance has been granted to the taxpayer under section 12E. Similarly, section 11(e) also specifically states that it does not apply to assets for which a deduction may be granted under, amongst others, section 12E(1). 4.2.2 Other assets [section 12E(1A)] Subject to section 12E(1), an SBC that acquires any machinery, plant, implement, utensil, article, aircraft or ship – • in respect of which a deduction is allowable under section 11(e); 45 and • that was acquired under an agreement formally and finally signed by every party to the agreement on or after 1 April 2005, may elect, subject to the provisions of section 11(e), to determine the amount which may be deducted as either – • the amount allowable for those assets under section 11(e) (the wear-and-tear allowance); 46 or • an amount over three years of assessment calculated at the following rates with apportionment not being required for assets used for part of a year of assessment: 47  50% of the cost in the year of assessment in which the asset was first brought into use (first year).  30% of the cost in the first succeeding year (second year).  20% of the cost in the second succeeding (third year). In order to claim an allowance under section 12E(1A), the qualifying entity must be an SBC in both the year of assessment in which the asset is acquired and the year of assessment when it is first brought into use [see 4.2.2(c) and 4.2.2(d)]. The election between the two alternative methods for calculating the amount of the deduction is made when the asset is first brought into use [see 4.2.2(d)]. For example, if a qualifying entity qualifies as an SBC in year one when the asset was acquired, but does not qualify in year two when the asset is first brought into use, the election is not available to it and section 12E(1A)(b) cannot apply. An asset which qualifies for a deduction under section 12E(1) does not qualify for a deduction under section 12E(1A). 48 An SBC may elect to calculate the amount of the deduction allowable under section 12E(1A) according to the provisions of section 11(e) under section 12E(1A)(a) if, for example, it provides a more favourable allowance than the three-year spread under section 12E(1A)(b). For example, a “small” item which does not form part of a set and which is acquired at a cost of less than R7 000 may be written off in full under section 11(e) in the year of assessment in which it is acquired and brought into use. An SBC meeting the requirements of section 12E(1A) may See Interpretation Note 47 “Wear-and-Tear or Depreciation Allowance” for a detailed discussion on section 11(e). Section 12E(1A)(a). Section 12E(1A)(b). Section 12E(1A) is subject to section 12E(1) and section 11(e) specifically prohibits a deduction under section 11(e) if a deduction may be granted under section 12E(1). therefore elect to claim a deduction of R7 000 in the year in which the asset is brought into use under section 12E(1A)(a) instead of writing it off over three years under section 12E(1A)(b). The election to calculate the amount of the deduction under section 12E(1A)(a) [that is, the amount determined under section 11(e)] or section 12E(1A)(b) is made on an asset-by-asset basis. The total amount of the allowance available under section 12E(1A) over the various years of assessment may be limited to less than 100% of the cost of the asset concerned if funding was received from a small business funding entity or in the form of a government grant – see 4.2.4. (a) Qualifying assets A wide range of assets can potentially qualify for the allowance under section 12E(1A). The assets listed in section 12E(1A) are all tangible assets and do not include intangible assets such as patents, trademarks and goodwill. The types of qualifying assets are considered below. Plant and machinery See 4.2.1(a) for a discussion of the terms “plant” and “machinery”. Section 12E(1A) potentially applies to plant and machinery that is not used directly in a process of manufacture or similar process, that is, plant and machinery that does not qualify for a deduction under section 12E(1). Implements The Oxford Dictionaries provides the following meaning of “implement”: 49 “A tool, utensil, or other piece of equipment that is used for a particular purpose: ‘garden implements’.” Utensils The CollinsDictionary.com provides the following meaning of “utensil”: 50 “[A]n implement, tool, or container for practical use.” Articles In SIR v Charkay Properties (Pty) Ltd, 51 the court considered whether demountable partitions used in 14 floors of a building that were let as offices constituted articles for purposes of the wear-and-tear allowance. The relevant floors did not contain any permanent internal walls. Partitions were used to create flexible divisions to suit a tenant’s requirements. The demountable partitions were designed to be moved about from time to time but could not survive more than three to six removals. Even if they were left in position, partitions had a shorter life than that of an inner brick wall or of the building itself. Trollip JA who delivered the judgement held as follows: 52 “The word ‘article’ is of a wide and somewhat vague or indefinite connotation. Its ordinary meaning, relevant here, is a material thing forming part of, or coming under the head of, any class…‘Articles’…means the class of all those material things that are used by the taxpayer for the purpose of his ‘trade’. ‘Things’ means, of course, material entities or objects of any kind … Hence the class of things involved is of www.oxforddictionaries.com/definition/english/implement [Accessed 25 June 2018]. www.collinsdictionary.com/dictionary/english/utensil [Accessed 25 June 2018]. 1976 (4) SA 872 (A), 38 SATC 159. At SATC 165 and 166. considerable amplitude. Apart from machinery, implements, and utensils, the material things that are capable of being used in those multifarious activities, and which are subject to wear and tear through being used, are infinite. Yet the legislature must have intended (subject, of course, to the provisos to s 11(e)) that all those material things so used should qualify for the depreciation allowance – no reason emerges from the Act why some and not others should qualify; and, because of the difficulty or impracticality of denominating all those things precisely, the legislature probably used the compendious, albeit somewhat vague, designation of ‘articles’ as a convenient and practical way of covering them all. Moreover, the preceding words, ‘machinery, implements, utensils’ do not sufficiently clearly point to any genus of material things that might otherwise, through the ejusdem generis rule, serve to confine ‘articles’ to some species of that genus; so no reason exists for not giving that word the ordinary, wide connotation canvassed above ... Moreover, the fact that the Act elsewhere specifically excludes certain things from the application of ‘machinery, implements, utensils and articles’, which would otherwise fall under ‘articles’, tends to confirm that conclusion. Thus, ships and aircraft are excluded by proviso(iii), as amended; and vehicles and equipment for managers’ and servants’ rooms and offices are excluded for the purpose of the hotel-keepers’ allowance provided in s 12(3) as amended.” After considering the facts, the court found that the demountable partitions constituted “articles” which had not lost their own separate identity and character, and qualified for the wear-and-tear allowance. Although the case considered the meaning of “article” in the context of section 11(e), the same meaning should apply in the context of section 12E(1A). Aircraft and ships Aircraft and ships for which a deduction is allowable under section 11(e) potentially qualify for the accelerated allowance under section 12E(1A). Section 11(e) specifically prohibits an allowance if a deduction may be granted under, amongst others, sections 12B and 12C. Aircraft and ships will generally qualify for a deduction under section 12C(1)(f) or section 12C(1)(g) respectively or section 12B if used in farming or the production of specified renewable energy. Aircraft and ships will thus generally not qualify for a deduction under section 11(e) nor, consequently, under section 12E(1A). SBCs may be able to claim a deduction for ships and aircraft under section 12B or 12C as appropriate. (b) Meaning of “in respect of which a deduction is allowable under section 11(e)” Section 12E(1A) applies to assets “in respect of which a deduction is allowable under section 11(e)”. Thus, an SBC will be entitled to a deduction under section 12E(1A) only if the asset qualifies for a deduction under section 11(e). Under section 11(e) a deduction will generally be allowable if – • any machinery, plant, implements, utensils and articles; • owned by the taxpayer or acquired by the taxpayer as a purchaser under an instalment credit agreement; • are used for the purposes of the taxpayer’s trade; and • have diminished in value by reason of wear-and-tear or depreciation during the year of assessment. An allowance for some assets is prohibited under section 11(e). For purposes of section 12E(1A), an SBC must be cognisant of the exclusions which apply under section 11(e). For example, no deduction may be granted under section 11(e), and therefore section 12E(1A), for the following assets: • Assets used by a person carrying on farming activities which qualify for a deduction under paragraph 12(1) or 12(1A) of the First Schedule. 53 • Assets for which a deduction may be granted under sections 12B, 12C, 12DA,12E(1) or 37B. 54 • Assets which are not owned by the person claiming the allowance unless acquired as purchaser under an “instalment credit agreement”. 55 • Assets the ownership of which is retained by the taxpayer as a seller under an “instalment credit agreement”. 56 • Buildings or other structures or works of a permanent nature. 57 • Assets the cost of which has been allowed as a deduction from the taxpayer’s income under section 24D (expenditure on a National Key Point or specified important place or area). 58 See Interpretation Note 47 “Wear-and-Tear or Depreciation Allowance” for a detailed discussion on section 11(e). As stated, the SBC must be the owner of the asset or have acquired it as a purchaser under an instalment sale agreement. Lessees of assets do not therefore qualify for a deduction under section 11(e) or section 12E(1A). (c) Acquisition by a small business corporation Section 12E(1A) stipulates that the asset must be acquired by an SBC under an agreement formally and finally signed by every party to the agreement on or after 1 April 2005. The asset must have been acquired by the SBC as owner or as purchaser under an agreement contemplated in paragraph (a) of the definition of “instalment credit agreement” in section 1(1) of the VAT Act. 59 In order to claim a deduction under section 12E(1A), a taxpayer must qualify as an SBC in the year of assessment in which the asset is acquired. (d) Election of the small business corporation in the year the asset is brought into use Section 12E(1A) provides that the amount which may be deducted must, “at the election of the small business corporation and subject to the provisions of that section”, be the amount determined under section 12E(1A)(a) or section 12E(1A)(b). Opening words of section 11(e) and paragraph 12(2) of the First Schedule. Opening words of section 11(e). Opening words of section 11(e). Paragraph (iA) of the proviso to section 11(e). Paragraph (ii) of the proviso to section 11(e). Paragraph (iiiA) of the proviso to section 11(e). Through the reference in section 12E(1A) to section 11(e). The election to calculate the amount allowable under section 12E(1A) in accordance with section 12E(1A)(a) or (b) can be made only by a taxpayer meeting the requirements of an SBC as specified in section 12E(4)(a) (see 4.1). It must be made in the year of assessment when the asset is first brought into use by the taxpayer. This outcome is apparent from – • the words “subject to the provisions of that section” [being section 11(e)] which requires an asset to be used by a taxpayer in the taxpayer’s trade before qualifying for the allowance; and • the wording of section 12E(1A)(b) which specifically refers to the amount of the deduction in the year of assessment when the asset is first brought into use. The election is made once for each asset on an asset-by-asset basis with the consequences of the election following automatically. If the SBC elects to calculate the amount of the deduction under section 12E(1A)(b), that section specifies how the deduction must be calculated in the year the election is made and in the following two years of assessment. Alternatively, if the SBC elects to calculate the amount of the deduction under section 12E(1A)(a), the amount of the deduction claimed under section 12E(1A) is determined according to the provisions of section 11(e). The election is binding and an SBC cannot change the election made in a subsequent year of assessment. The qualifying entity must be an SBC in both the year of assessment in which the asset was acquired and in the year of assessment in which the asset is first brought into use and at which time the election under section 12E(1A) is made. For example, if a qualifying entity qualifies as an SBC in year one when the asset was acquired, but does not qualify in year two when the asset is first brought into use, the election is unavailable to it and section 12E(1A) cannot apply. (e) Amount of the allowance under section 12E(1A)(b) Section 12E(1A)(b) provides that the amount of the allowance is equal to – • 50% of the cost of the asset in the year of assessment in which the asset was first brought into use; • 30% of the cost in the first succeeding year; and • 20% of the cost in the second succeeding year. The deduction is a percentage of cost and no apportionment is therefore required if the asset is used for only part of the year of assessment. The first succeeding year and second succeeding year are made in reference to the year of assessment in which the asset is brought into use by the SBC. Under the opening words of section 12E(1A), the deduction under section 12E(1A) is “subject to the provisions of that section”, being section 11(e). This condition means that a taxpayer’s entitlement to the 50:30:20 allowance during any one of the three years of assessment in which it applies is conditional on continued compliance with section 11(e). One of the ongoing requirements of section 11(e) is that the asset must be used for the purposes of the taxpayer’s trade. This requirement means that a taxpayer that fails to use the asset in a year of assessment will not be entitled to the allowance for that year of assessment. A taxpayer that brings an asset into use in the first year would be entitled to the 50% deduction even if the asset was used for only one day. Similarly, if the taxpayer ceased to use the asset in the second year, it would be entitled to the 30% deduction as long as the asset was used for a part of the second year. If the asset was not used during the third year, the taxpayer would not be allowed to claim the 20% allowance. No provision is made in section 12E for the taxpayer to claim any balance of the cost not allowable during the three-year period should the asset again be brought into use in the fourth or a subsequent year of assessment. Section 12E(1A)(b) does not require the taxpayer to be an SBC in the succeeding years of assessment. As a result, even if the taxpayer no longer qualifies as an SBC in the second or third years of assessment, it will still qualify for the 30% and 20% deductions provided it complies with the trade usage requirement of section 11(e). Example 12 – Amount of allowance – brought into use in a subsequent year of assessment Facts: ABC (Pty) Ltd (ABC) acquired a machine during its 2017 year of assessment ending on 28 February 2017. The machine cost R200 000 and potentially qualified for an allowance under section 11(e). ABC started using the machine on 31 March 2017. ABC met the requirements of an SBC in its 2017 and 2018 years of assessment. Result: ABC can claim a deduction under section 12E(1A) and elect to calculate the amount of that deduction under section 12E(1A)(b) because it was an SBC in both the year of assessment in which it acquired the machine and the year of assessment in which it first brought it into use. The election is made in 2018 when the asset is brought into use for the first time. The amount of the deduction in the 2017 and 2018 years of assessment is as follows: • 2017 = Rnil. The election to apply section 12E(1A)(b) is unavailable, since the asset has not been brought into use for the first time and an allowance is also unavailable under section 11(e) because of the lack of trade usage. • 2018 = R200 000 cost × 50% = R100 000. A full deduction is available even though ABC used the asset for only part of the year because the amount of the deduction is based on cost and not on the period of use. Example 13 – Amount of allowance – brought into use when no longer an SBC Facts: ABC (Pty) Ltd (ABC) acquired a machine during its 2017 year of assessment ending on 28 February 2017. The machine cost R200 000. ABC started using the machine on 31 March 2017. ABC met the requirements of an SBC in its 2017 year of assessment but did not meet the requirements in its 2018 year of assessment. Result: ABC cannot elect to claim a deduction under section 12E(1A) because it was not an SBC in the year when it first brought the asset into use. ABC may be able to claim a deduction under section 11(e) in its 2018 year of assessment taking into account the period of use. Example 14 – Amount of allowance – cessation of use of asset after making the election under section 12E(1A) Facts: ABC (Pty) Ltd (ABC) acquired and started using a machine in its office during its 2016 year of assessment ending on 28 February 2016. The machine cost R200 000. ABC used the machine throughout its 2017 year of assessment but stopped using it on 31 August 2017. ABC met the requirements of an SBC in its 2016, 2017 and 2018 years of assessment and elected to calculate the amount of the deduction under section 12E(1A)(b) in 2016. Result: ABC can claim a deduction under section 12E(1A) and can elect to calculate the amount of that deduction under section 12E(1A)(b) because it acquired and brought the asset into use when it was an SBC. The amount of the deduction in each year of assessment is as follows: • 2016 = R200 000 cost × 50% = R100 000. This amount is not apportioned even though the machine was used only for a portion of the year of assessment. • 2017 = R200 000 cost × 30% = R60 000. • 2018 = R200 000 cost × 20% = R40 000. The full amount is allowable even though ABC used the asset for only part of the year because the amount of the deduction is based on cost and does not require an apportionment if used for only part of a year. Example 15 – Amount of allowance – cessation of use of asset throughout a year of assessment Facts: ABC (Pty) Ltd (ABC) acquired and started using a machine in its office during its 2016 year of assessment ending on 28 February 2016. The machine cost R200 000. ABC stopped using the machine on 31 August 2016. ABC met the requirements of an SBC in its 2016 year of assessment and elected to claim the deduction available under section 12E(1A)(b). ABC did not meet the requirements of an SBC in its 2017 or 2018 years of assessment. Result: ABC can claim a deduction under section 12E(1A) and can elect to calculate the amount of that deduction under section 12E(1A)(b) because it acquired and brought the asset into use when it was an SBC. Its status as an SBC during the second and third years of assessment is irrelevant. The amount of the deduction in each year of assessment is as follows: • 2016 = R200 000 cost × 50% = R100 000. This amount is not apportioned even though the machine was used for only a portion of the year of assessment. • 2017 = R200 000 cost × 30% = R60 000. The deduction is available despite ABC having used the machine for only a part of the year of assessment and not meeting the requirements of an SBC. • 2018 = ABC is not entitled to the 20% deduction in the third year of assessment (R200 000 cost × 20% = R40 000) because it failed to use the machine in the year of assessment. 4.2.3 Cost of an asset [section 12E(2)] Under section 12E(2) the cost of an asset is, for the purposes of sections 12E(1) (see 4.2.1) and 12E(1A) (see 4.2.2), deemed to be the lesser of – • the actual cost to the taxpayer to acquire that asset; or • the cost that a person would have incurred if the asset had been acquired under an arm's length cash transaction on the date on which the transaction was in fact concluded. Cost refers to the direct cost of acquisition, it excludes interest and finance charges but includes the direct cost of installation, erection or construction of the asset. In a situation in which a person acquires a replacement asset, the disposal of the original asset may trigger the recoupment provisions under section 8(4)(e) and result in the recoupment being recognised on a deferred basis (see 5. below). The section 12E allowance for the replacement asset is determined independently from the recoupment, that is, on the cost of the replacement asset as explained above and is not influenced by the deferral of the recoupment on the original asset. 4.2.4 Limitation on the amount of the allowance available under section 12E(1) and 12E(1A) Section 10(1)(zK) exempts from normal tax any amount received by or accrued to or in favour of a small, medium or micro-sized enterprise from a small business funding entity. 60 Section 23O limits the deduction by the small, medium or micro-sized enterprise as a result of the amount received or accrued under section 10(1)(zK). Section 12P exempts from normal tax a government grant listed in the Eleventh Schedule or one which is identified by the Minister in the Government Gazette. It also contains provisions limiting expenditure funded by such an exempt grant. Defined in section 1(1) as an entity approved by the Commissioner in terms of section 30C. Sections 10(1)(zK), 12P and 23O 61 are of potential application to an SBC that receives funding – • for the acquisition, creation or improvement of an asset that qualifies under section 12E(1) or 12E(1A); or • as a reimbursement for expenditure incurred in respect of the acquisition, creation or improvement of that asset. The funding may take the form of – • a “government grant” as defined in section 12P; or • an amount from a small business funding entity. The consequences for the SBC are generally that – • the amount received by or accrued to or in favour of it is exempt from normal tax under section 10(1)(zK) or section 12P; and • the aggregate amount of the deductions allowable to the SBC in respect of the asset concerned may not exceed an amount equal to the aggregate of the expenditure incurred, reduced by an amount equal to the sum of  the amount received or accrued from the government or small business funding entity for that purpose; and  the aggregate amount of all deductions and allowances previously allowed to that SBC in respect of that asset. A taxpayer will therefore effectively not be allowed to claim more than the actual expenditure incurred net of the amount of exempt funding received in respect of that expenditure. Example 16 – Limitation of allowances Facts: On 1 March 2017 JHK (Pty) Ltd, which qualifies as an SBC and has a financial year ending on the last day of February, received an amount of R10 000 from the DEF Trust. The DEF Trust is an approved small business funding entity and provided the funding for the purpose of subsidising the cost of machinery to be purchased by JHK (Pty) Ltd. On 1 April 2017 JHK (Pty) Ltd purchased a machine at a cost of R100 000 (not used in a process of manufacture). The asset qualifies for a deduction under section 12E(1A) and JHK (Pty) Ltd elected that the amount of the deduction be calculated on the 50:30:20 basis under section 12E(1A)(b). Result: Since the SBC received funding from a small business funding entity for the purchase of machinery, any allowance in respect of that machinery must be subject to the limitation formula set out in section 23O(4). Section 23O applies to small, medium or micro-sized enterprises which are defined in section 1(1) as specifically including an SBC. JHK (Pty) Ltd will be entitled to the following deduction on the machine under section 12E(1A): 2018 year of assessment: R Section 12E(1A) deduction (50 000) Limitation calculation under section 23O(4) for the 2018 year of assessment Acquisition cost 100 000 Less: Exempt amount from the DEF Trust (1 March 2017) (10 000) Section 12E deduction claimed previously Nil 90 000 The deduction for the 2018 year of assessment must not exceed R90 000. Therefore, the full deduction of R50 000 (100 000 × 50%) may be claimed because it is within the limitation. 2019 year of assessment: R Section 12E(1A) deduction (30 000) Limitation calculation under section 23O(4) for the 2019 year of assessment Acquisition cost 100 000 Less: Exempt amount received from the DEF Trust (1 March 2017) (10 000) Section 12E deduction claimed for 2018 (50 000) 40 000 The deduction for the 2019 year of assessment must not exceed R40 000. Therefore, the full deduction of R30 000 (100 000 × 30%) may be claimed because it is within the limitation. 2020 year of assessment: R Section 12E(1A) deduction (10 000) Limitation calculation under section 23O(4) for 2020 year of assessment Acquisition cost 100 000 Less: Exempt amount received from the DEF Trust (1 March 2017) (10 000) Section 12E allowance claimed for 2018 (50 000) Section 12E allowance claimed for 2019 (30 000) 10 000 The deduction for the 2020 year of assessment must not exceed R10 000. Therefore, the full deduction of R20 000 (100 000 × 20%) is limited to R10 000. 4.2.5 Cost of moving an asset [section 12E(3)] An SBC may incur costs in moving an asset, for example, when relocating its business operations to a new site. Section 12E(3) provides that any expenditure [other than expenditure falling within section 11(a)] which has been incurred during a year of assessment in moving an asset for which a deduction was allowed or allowable under sections 12E(1) or 12E(1A) must be deducted – • if the taxpayer was entitled to a deduction for that asset under section 12E(1A) in that year and one or more succeeding years of assessment, in equal instalments over that and the remaining number of years in which a deduction is allowable; or • in any other case, in that year of assessment. The moving costs must relate to moving an asset for which “a deduction was allowed or is allowable” under sections 12E(1) or 12E(1A) even if the SBC neglected to claim the deduction. For assets contemplated in section 12E(1A), taxpayers have a choice between calculating the amount of the allowance under section 12E(1A)(a) [determined under section 11(e)] or adopting the 50:30:20 write-off specified in section 12E(1A)(b). Irrespective of whether the amount of the allowance is calculated under section 12E(1A)(a) or section 12E(1A)(b), the allowance is deducted under section 12E(1A) and therefore the moving costs must be deducted under section 12E(3). Moving costs incurred in a year of assessment before a qualifying asset has been brought into use may not be written off under section 12E(3). Such expenditure has not been incurred in a year of assessment during which a deduction is or was allowable under section 12E(1) or section 12E(1A). A deduction is allowable – • under section 12E(1) in the year in which the asset is brought into use for the first time; and • under section 12E(1A) in the year in which the asset is brought into use for the first time and in the two succeeding years of assessment if the amount of the deduction is calculated under section 12E(1A)(b) or the number of succeeding years under section 11(e) if calculated under section 12E(1A)(a). A claim for moving costs must commence in the year of assessment in which such costs are incurred, provided a deduction for the asset concerned is allowable under section 12E. Section 12E(3)(a) regulates the spreading of the deduction for moving costs in respect of an asset for which the taxpayer is or was entitled to a deduction under section 12E(1A) in the year the moving costs were incurred and at least one succeeding year. The use of the word “entitled” indicates that a deduction need not necessarily have been claimed under section 12E(1A) in order for the moving costs of an asset to qualify for a deduction under this section. The requirement for deductibility of the moving costs is simply that the deduction was “allowable” under section 12E(1A). If the requirements are met, the moving costs are deductible in equal instalments in the year in which the moving costs are incurred and in the remaining years of assessment in which a deduction is allowable under section 12E(1A). Section 12E(3)(b) provides for a deduction of 100% of the moving costs in the year of incurral if a deduction was allowed or is allowable under section 12E(1) or section 12E(1A) and section 12E(3)(a) does not apply. This provision encompasses assets qualifying for the section 12E(1) deduction in the current or a prior year, and assets qualifying for the section 12E(1A) deduction in respect of which the final deduction as calculated under section 12E(1A)(a) [in line with the provisions of section 11(e)] or section 12E(1A)(b) (that is, 20% of cost) was allowable in the current or a prior year of assessment. For example, if an SBC acquires an asset which is eligible for the three-year write-off under section 12E(1A)(b) and incurs costs in moving the asset in year two when relocating to new business premises, the moving costs must be deducted under section 12E(3)(a) in equal amounts in year two and year three. Alternatively, if the SBC relocated to new premises and incurred the costs in moving the relevant assets only in year three, then the taxpayer must claim those moving costs in full under section 12E(3)(b) in year three. If the moving costs were incurred in year 4 or a later year, the full amount of the moving costs would be allowable in the year in which they were incurred since the asset should already have been written off in full under section 12E(1A)(b). Example 17 – Deduction of moving costs Facts: Company X is an SBC with a year of assessment ending on the last day of February. Company X moved the location of its business operations. The following information is relevant: • Asset A was acquired on 1 May 2016 at a cost of R100 000 and was brought into use during May 2016. The asset qualified for an allowance under section 12E(1A)(b) and 50/30/20 % of the cost was allowed as a deduction in the 2017, 2018 and 2019 years of assessment respectively. The cost to move asset A was R6 000. • Asset B was acquired on 1 April 2015 at a cost of R50 000 and was brought into use during that month. The asset qualified for an allowance under section 12E(1) and 100 % of the cost was allowed as a deduction in the 2016 year of assessment. The cost to move asset B was R4 000. • Assume the assets were moved on the following alternative dates –  1 July 2016;  1 July 2017;  1 January 2020. Result: a) Calculation of section 12E(3) deduction of moving costs of asset A Asset moved on 1 July 2016 (2017 year of assessment) [section 12E(3)(a)] 2017 year of assessment: R6 000 / 3 = R2 000 2018 year of assessment: R6 000 / 3 = R2 000 2019 year of assessment: R6 000 / 3 = R2 000 2020 year of assessment: Nil Moving costs were incurred during the year of assessment in which the asset was brought into use. Therefore, the write-off period for the moving costs is the same as the write-off period for the cost of the asset under section 12E(1A)(b), that is, three years. The moving costs must be deducted in three equal instalments over three years. Asset moved on 1 July 2017 (2018 year of assessment) [section 12E(3)(a)] 2018 year of assessment: R6 000 / 2 = R3 000 2019 year of assessment: R6 000 / 2 = R3 000 2020 year of assessment: Nil Two years (the 2018 and 2019 years of assessment) remain in which the cost of the asset may be deducted under section 12E(1A)(b). Therefore, the moving costs must be claimed over two years of assessment in equal instalments. Asset moved on 1 January 2020 (2020 year of assessment) [section 12E(3)(b)] 2020 year of assessment: R6 000 / 1 = R6 000 The asset was fully written off under section 12E(1A) by the end of the 2019 year of assessment. Therefore, the moving costs are claimed in full in the 2020 year of assessment. b) Calculation of section 12E(3)(b) deduction of moving costs of asset B Asset moved on 1 July 2016, 1 July 2017 or 1 January 2020 The full cost of asset B was allowed as a deduction under section 12E(1) in the 2016 year of assessment. Irrespective of whether asset B is moved in the 2017, 2018 or 2020 year of assessment, the full amount of the moving costs (R4 000) must be allowed as a deduction in the year of assessment in which the moving costs were incurred. 4.2.6 Assets acquired for no consideration Assets acquired for no consideration, for example, by donation, inheritance or as a dividend in specie, are ineligible for a deduction under section 12E(1) and 12E(1A). The deduction under section 12E(1) and 12E(1A) is based on cost and there is no cost in these circumstances. In addition, expenditure incurred by an SBC in moving an asset acquired in these circumstances will not qualify for a deduction under section 12E(3). Section 12E(3) applies only to expenditure incurred in moving an asset in respect of which a deduction was allowed or allowable under section 12E. No deduction is allowed or allowable under section 12E on assets acquired for no consideration. An asset acquired for no consideration, as well as expenditure incurred in installing, erecting or moving that asset, may qualify for a deduction under section 11(e) based on the amount by which the value of the asset is reduced owing to wear and tear. The requirements of section 11(e) must be met in order to qualify for a deduction under that section. See Interpretation Note 47 “Wear-and-Tear or Depreciation Allowance” for a detailed discussion on section 11(e). 5. Recoupment and roll-over relief upon disposal References here to “paragraph” are to paragraphs of the Eighth Schedule. A recoupment under section 8(4)(a) and a capital gain may be triggered if an SBC disposes of an asset. Under paragraph 11(1) the meaning of “disposal” is described in wide terms as – “any event, act, forbearance or operation of law which results in the creation, variation, transfer or extinction of an asset”. Section 8(4)(a) provides that all amounts deducted under, amongst others, sections 12E and 11(e), which have been recovered or recouped, must be included in a taxpayer’s income. Despite section 8(4)(a), section 8(4)(e) provides that the amount recovered or recouped must not be included in income if a taxpayer has elected that either paragraph 65 (involuntary disposal) or 66 (reinvestment in replacement assets) applies to the disposal of the asset. The amount recovered or recouped is recognised on a deferred basis over time in line with the requirements of sections 8(4)(eB), (eC), (eD) and (eE). The capital gain is also deferred and recognised over time under paragraphs 65 and 66. Involuntary disposals – paragraph 65 election Paragraph 65 enables a taxpayer to elect to defer a capital gain when the asset is disposed of by way of operation of law, theft or destruction and proceeds accrue to the taxpayer by way of compensation. The following conditions apply: • Proceeds 62 must be equal to or exceed the base cost 63 of the asset. • The full amount received or accrued on disposal has been or will be invested in one or more replacement asset or assets. • Contracts for the replacement assets must be concluded within 12 months after the date of disposal of the asset. • All the replacement assets must be assets contemplated in section 9(2)(j) or (k). • Replacement assets must be brought into use within three years from the date of disposal of the asset. • The asset must not have been deemed to have been disposed of and reacquired by that person. For example, the relief will not apply in a “degrouping” situation in which a deemed disposal and immediate reacquisition is triggered. The Commissioner may on application by the taxpayer extend the period within which the contract must be concluded or the asset brought into use by a maximum of six months but only if all reasonable steps were taken to conclude the contract or bring the asset into use. Reinvestment in replacement assets – paragraph 66 election Paragraph 66 enables a taxpayer to elect to defer a capital gain arising on the disposal of qualifying depreciable assets, which includes assets qualifying for a deduction under section 12E, when the proceeds are reinvested in qualifying depreciable assets. For a detailed discussion on paragraphs 65 and 66, see the Comprehensive Guide to Capital Gains Tax. Paragraph 35 of the Eighth Schedule. Paragraph 20 of the Eighth Schedule deals with the base cost of assets acquired on or after valuation date (generally 1 October 2001) while paragraph 25 of the same Schedule deals with the base cost of pre-valuation date assets. Example 18 – Recoupment of deductions allowed for the cost of assets Facts: X, an SBC with a year of assessment ending on the last day of February, acquired a truck costing R400 000 on 1 May 2015 and immediately brought the truck into use in its business operations. The truck was damaged beyond repair in an accident on 2 December 2016. An amount of R300 000 was paid out under a contract of insurance on 31 March 2017. X concluded an agreement for the acquisition of a truck to replace the previous one on 1 April 2017 and brought it into use on 15 April 2017. The cost of the replacement truck was R450 000. X met the requirements of paragraph 65 of the Eighth Schedule and elected that it must be applied. Result: 2016 year of assessment R Section 12E(1A)(b) deduction (R400 000 × 50%) (200 000) The truck was brought into use for the first time by the taxpayer in the 2016 year of assessment and qualified for the 50% deduction in that year. 2017 year of assessment Section 12E(1A)(b) deduction (R400 000 × 30%) (120 000) 2018 year of assessment No deduction may be claimed because the asset was written off in the 2017 year of assessment and no longer exists. Section 12E(1A)(b) deduction in respect of replacement truck: R450 000 × 50% (225 000) Recoupment under section 8(4)(a) Amount received or accrued 300 000 Less: Tax value (R400 000 – 200 000 – 120 000) (80 000) Recoupment 220 000 However, the full R220 000 is not included in income under section 8(4)(e) because X elected that paragraph 65 applies to the disposal. The recoupment will be spread under section 8(4)(eB) in the same ratio as the allowances are deducted on the replacement asset. Section 8(4)(eB) recoupment: R220 000 × 50% 110 000 Capital gain: R Under paragraph 13(1)(c) the time of disposal is when the full compensation for the destruction of the truck was received from the insurer, that is, during the 2018 year of assessment. Amount received or accrued 300 000 Less: Recoupment [paragraph 35(3)(a)] (220 000) Proceeds 80 000 Base cost 400 000 Less: Previous allowances [paragraph 20(3)(a)(i)] (320 000) 80 000 Therefore, the capital gain is (R80 000 – R80 000) Nil 2019 year of assessment Section 12E(1A)(b) deduction (R450 000 × 30%) (135 000) Section 8(4)(eB) recoupment (R220 000 × 30%) 66 000 2020 year of assessment Section 12E(1A)(b) deduction (R450 000 × 20%) (90 000) Section 8(4)(eB) recoupment (R220 000 × 20%) 44 000 6. Loss on disposal of depreciable assets [section 11(o)] An SBC that realises a loss on the alienation, loss or destruction of specified assets may elect to claim a deduction under section 11(o). The amount of the loss allowable against income is equal to the amount by which the cost of the specified asset exceeds a) the amount received or accrued for the alienation, loss or destruction of the asset and b) the total of all deductions previously allowed or deemed to have been allowed on that asset. The specified assets are assets which – • qualified for capital allowances under section 11(e), 11B, 11D,12B, 12C, 12DA, 12E,14, 14bis or 37B(2)(a); and • the expected useful life of which did not exceed 10 years as determined from the date of original acquisition. The deduction under section 11(o) in respect of an asset which qualified for a deduction under section 12E(1) will always be equal to nil because the deduction claimed in the first year of use is equal to cost, and so no excess can ever arise. A deduction may, depending on the facts, arise on an asset which has qualified for a deduction under section 12E(1A). The deduction under section 11(o) is subject to the limitation discussed in 4.2.4 if an SBC received funding in the form of a “government grant” as defined in section 12P or an amount from a small business funding entity for the acquisition, creation or improvement of a specified asset. For a detailed discussion on section 11(o), see Interpretation Note 60 “Loss on Disposal of Qualifying Depreciable Assets”. 7. Impact of a fluctuating small business corporation status on the accelerated allowance A taxpayer may meet the requirements of an SBC in one year of assessment but not in a subsequent year of assessment or vice versa. Two of the consequences of this situation are considered in 7.1 and 7.2. 7.1 Tax treatment of capital allowances claimed under other provisions of the Act before qualifying as a small business corporation A taxpayer that starts using an asset in its trade when it is not an SBC and claims a capital allowance under another section must continue claiming the allowances available under that section even if it qualifies as an SBC in a subsequent year of assessment. The taxpayer cannot switch and claim the allowance under section 12E in a subsequent year of assessment when it becomes an SBC. A deduction is available only under section 12E(1) and section 12E(1A) when the assets falling under those sections are brought into use for the first time by an SBC. Even though a taxpayer may meet the requirements of an SBC in a subsequent year of assessment, it will not have brought the asset into use for the first time when it was an SBC and will therefore not qualify for a deduction under section 12E(1) or section 12E(1A). 7.2 Loss of SBC status before deducting the full cost of an asset under section 12E(1A) An SBC that acquires an asset and meets the requirements of section 12E(1A) may claim a deduction of 50% of the cost of such asset in the year that it is first brought into use by the SBC, followed by a deduction of 30% and 20% of the cost in the first and second succeeding years of assessment. It may happen that a taxpayer does not meet the requirements of an SBC in the first or second succeeding years of assessment, for example, because its gross income exceeds the R20 million limitation. A company that qualified for a deduction under section 12E(1A) in the year it first brought an asset into use can continue claiming the allowances under section 12E(1A) even if it does not qualify as an SBC in a subsequent year of assessment. See 4.2.2(d). The cost of any assets acquired and brought into use in a year of assessment in which the taxpayer is not an SBC will not be allowed to be deducted under section 12E(1A). 8. Objection and appeal Any decision by the Commissioner under section 12E is subject to objection and appeal under section 104 of the TA Act. 64 Section 3(4)(b). 9. Conclusion Section 12E sets out the requirements for a “close corporation”, “co-operative”, “private company” as defined in section 1 of the Companies Act or “personal liability company” as contemplated in section 8(2)(c) of the Companies Act to qualify as an SBC. All the holders of shares in the SBC must be natural persons who may not hold shares in other unlisted companies (with some exceptions), its turnover for the year may not exceed R20 million and not more than 20% of its receipts and accruals, other than those of a capital nature, plus capital gains may consist of “investment income” and income from rendering a “personal service”. In addition, the entity may not be a “personal service provider” as defined in the Fourth Schedule (see 4.1). Section 12E provides for an accelerated depreciation allowance on certain capital assets acquired and brought into use by an SBC. There are two sets of accelerated depreciation rates which may apply. Subject to certain conditions, assets used directly in a process of manufacture or process of a similar nature, may qualify for a 100% write-off of cost in the year of assessment in which the asset is brought into use. Assets that do not fall into this category may be subject to a write-off under section 12E(1A), the amount of which may, at the election of the SBC, be calculated under section 11(e) or over a period of three years at a rate of 50%, 30% and 20% of cost in the respective years. The term “cost” is specifically defined in section 12E(2). In addition to the accelerated depreciation allowance, the section also deals with the deduction of costs incurred in moving assets which fall within the ambit of the section. SBCs are subject to concessionary tax rates which follow a graduated marginal structure and are not taxed at the corporate tax rate of 28%. In order to qualify as an SBC, an entity must meet the requirements of section 12E in each year of assessment. Legal Counsel SOUTH AFRICAN REVENUE SERVICE Date of 1st issue : 13 December 2002 Date of 2nd issue : 29 March 2004 Date of 3rd issue : 13 January 2006 Date of 4th issue : 16 February 2007 Date of 5th issue : 14 October 2009 Date of 6th issue : 26 July 2016 Annexure A – The law Section 12E 12E. Deductions in respect of small business corporations.—(1) Where any plant or machinery (hereinafter referred to as an asset) owned by a taxpayer which qualifies as a small business corporation or acquired by such a taxpayer as purchaser in terms of an agreement contemplated in paragraph (a) of the definition of “instalment credit agreement” in section 1 of the Value-Added Tax Act— (a) is brought into use for the first time by that taxpayer on or after 1 April 2001 for the purpose of that taxpayer’s trade (other than mining or farming); and (b) is used by that taxpayer directly in a process of manufacture (or any other process which is of a similar nature) carried on by that taxpayer, a deduction equal to the cost of such asset shall be allowed in the year that such asset is so brought into use. (1A) Subject to subsection (1), where any machinery, plant, implement, utensil, article, aircraft or ship in respect of which a deduction is allowable under section 11(e) (“the asset”) is acquired by a small business corporation under an agreement formally and finally signed by every party to the agreement on or after 1 April 2005, the amount allowed to be deducted in respect of the asset must, at the election of the small business corporation and subject to the provisions of that section, be either— (a) the amount allowable in terms of and subject to that section; or (b) an amount equal to 50 per cent of the cost of the asset in the year of assessment during which it was first brought into use, 30 per cent in the first succeeding year and 20 per cent in the second succeeding year. (2) For purposes of this section the cost to a taxpayer of any asset shall be deemed to be the lesser of the actual cost to the taxpayer to acquire that asset or the cost which a person would, if he had acquired the said asset under a cash transaction concluded at arm’s length on the date on which the transaction for the acquisition of the asset was in fact concluded, have incurred in respect of the direct cost of acquisition of the asset, including the direct cost of the installation or erection thereof. (3) Any expenditure (other than expenditure referred to in section 11 (a)) incurred by a taxpayer during any year of assessment in moving an asset in respect of which a deduction was allowed or is allowable under this section from one location to another must— (a) where the taxpayer is or was entitled to a deduction in respect of that asset under subsection (1A) in that year and one or more succeeding years, be allowed to be deducted from his or her income in equal instalments in that year and each succeeding year in which that deduction is allowable; or (b) in any other case, be allowed to be deducted from that taxpayer’s income in that year. (3A) . . . . . . (4) For the purposes of this section— (a) “small business corporation” means any close corporation or co-operative or any private company as defined in section 1 of the Companies Act or a personal liability company as contemplated in section 8(2)(c) of the Companies Act if at all times during the year of assessment all the holders of shares in that company, co-operative, close corporation or personal liability company are natural persons, where— (i) the gross income for the year of assessment does not exceed an amount equal to R20 million: Provided that where the close corporation, co-operative or company during the relevant year of assessment carries on any trade, for a period which is less than 12 months, that amount shall be reduced to an amount which bears to that amount, the same ratio as the number of months (in the determination of which a part of a month shall be reckoned as a full month), during which that company, co-operative or close corporation carried on that trade bears to 12 months; (ii) at any time during the year of assessment, no holder of shares in the company or member of the close corporation or co-operative holds any shares or has any interest in the equity of any other company as defined in section 1, other than— (aa) a company contemplated in paragraph (a) of the definition of “listed company”; (bb) any portfolio in a collective investment scheme contemplated in paragraph (e) of the definition of “company”; (cc) a company contemplated in section 10 (1) (e) (i) (aa), (bb) or (cc); (dd) less than 5 per cent of the interest in a social or consumer co-operative or a co-operative burial society as defined in section 1 of the Co-operatives Act, 2005 (Act No. 14 of 2005), or any other similar co-operative if all of the income derived from the trade of that co-operative during any year of assessment is solely derived from its members; (ee) any friendly society as defined in section 1 of the Friendly Societies Act, 1956 (Act No. 25 of 1956); (ff) less than 5 per cent of the interest in a primary savings co-operative bank or a primary savings and loans co-operative bank as defined in the Co- operative Banks Act, 2007, that may provide, participate in or undertake only the following— (A) in the case of a primary savings co-operative bank, banking services contemplated in section 14(1)(a) to (d) of that Act; and (B) in the case of a primary savings and loans co-operative bank, banking services contemplated in section 14(2)(a) or (b) of that Act; (gg) a venture capital company as defined in section 12J; (hh) any company, close corporation or co-operative if the company, close corporation or co-operative— (A) has not during any year of assessment carried on any trade; and (B) has not during any year of assessment owned assets, the total market value of which exceeds R5 000; or (ii) any company, co-operative or close corporation if the company, co- operative or close corporation has taken the steps contemplated in section 41(4) to liquidate, wind up or deregister: Provided that this item ceases to apply if the company, co-operative or close corporation has at any stage withdrawn any step so taken or does anything to invalidate any step so taken, with the result that the company, co-operative or close corporation will not be liquidated, wound up or deregistered; (iii) not more than 20 per cent of the total of all receipts and accruals (other than those of a capital nature) and all the capital gains of the company, close corporation or co-operative consists collectively of investment income and income from the rendering of a personal service; and (iv) such company is not a personal service provider as defined in the Fourth Schedule; (b) …… (c) “investment income” means— (i) any income in the form of dividends, foreign dividends, royalties, rental derived in respect of immovable property, annuities or income of a similar nature; (ii) any interest as contemplated in section 24J (other than any interest received by or accrued to any co-operative bank as contemplated in paragraph (a)(ii)(ff)), any amount contemplated in section 24K and any other income which, by the laws of the Republic administered by the Commissioner, is subject to the same treatment as income from money lent; and (iii) any proceeds derived from investment or trading in financial instruments (including futures, options and other derivatives), marketable securities or immovable property; (d) “personal service”, in relation to a company, co-operative or close corporation, means any service in the field of accounting, actuarial science, architecture, auctioneering, auditing, broadcasting, consulting, draftsmanship, education, engineering, financial service broking, health, information technology, journalism, law, management, real estate broking, research, sport, surveying, translation, valuation or veterinary science, if— (i) that service is performed personally by any person who holds an interest in that company, co-operative or close corporation or by any person that is a connected person in relation to any person holding such an interest; and (ii) that company, co-operative or close corporation does not throughout the year of assessment employ three or more full-time employees (other than any employee who is a holder of a share in the company or a member of the co-operative or close corporation, as the case may be, or who is a connected person in relation to a holder of a share in the company or a member), who are on a full-time basis engaged in the business of that company, co-operative or close corporation of rendering that service. Definition of “personal service provider” – paragraph 1 of the Fourth Schedule “personal service provider” means any company or trust, where any service rendered on behalf of such company or trust to a client of such company or trust is rendered personally by any person who is a connected person in relation to such company or trust, and— (a) such person would be regarded as an employee of such client if such service was rendered by such person directly to such client, other than on behalf of such company or trust; or (b) where those duties must be performed mainly at the premises of the client, such person or such company or trust is subject to the control or supervision of such client as to the manner in which the duties are performed or are to be performed in rendering such service; or (c) where more than 80 per cent of the income of such company or trust during the year of assessment, from services rendered, consists of or is likely to consist of amounts received directly or indirectly from any one client of such company or trust, or any associated institution as defined in the Seventh Schedule to this Act, in relation to such client, except where such company or trust throughout the year of assessment employs three or more full- time employees who are on a full-time basis engaged in the business of such company or trust of rendering any such service, other than any employee who is a holder of a share in the company or member of the trust or is a connected person in relation to such person; Definition of “instalment credit agreement” – section 1(1)(a) of the VAT Act “instalment credit agreement” means any agreement entered into on or after the commencement date whereby any goods consisting of corporeal movable goods or of any machinery or plant, whether movable or immovable— (a) are supplied under a sale under which— (i) the goods are sold by the seller to the purchaser against payment by the purchaser to the seller of a stated or determinable sum of money at a stated or determinable future date or in whole or in part in instalments over a period in the future; and (ii) such sum of money includes finance charges stipulated in the agreement of sale; and (iii) the aggregate of the amounts payable by the purchaser to the seller under such agreement exceeds the cash value of the supply; and (iv) (aa) the purchaser does not become the owner of those goods merely by virtue of the delivery to or the use, possession or enjoyment by him thereof; or (bb) the seller is entitled to the return of those goods if the purchaser fails to comply with any term of that agreement; Annexure B – Permissible holding of shares or interests Under section 12E(4)(a)(ii), no holder of shares or member of a qualifying entity may hold shares or have any interest in the equity of any other “company” as defined in section 1(1) except in those entities specifically listed in paragraphs (aa) to (ii) of section 12E(4)(a)(ii). These entities are the following: • A company contemplated in paragraph (a) of the definition of “listed company” [section 12E(4)(a)(ii)(aa)]. Under paragraph (a) of the definition of “listed company” in section 1(1), it is a company whose shares or depository receipts for its shares are listed on an “exchange” as defined in section 1 of the Financial Markets Act 19 of 2012 and licensed under section 9 of that Act. Therefore, shares in a company listed on an exchange operated by JSE Ltd, ZARX (Pty) Ltd or 4 Africa Exchange (Pty) Ltd are permissible. • Any portfolio in a collective investment scheme contemplated in paragraph (e) of the definition of “company” [section 12E(4)(a)(ii)(bb)]. Paragraph (e) includes the following two types of portfolio:  a portfolio in any investment scheme carried on outside South Africa that is comparable to a portfolio of a collective investment scheme in participation bonds or a portfolio of a collective investment scheme in securities. This portfolio must be in pursuance of any arrangement under which “members of the public” (as defined in section 1 of the Collective Investment Schemes Control Act 45 of 2002) are invited or permitted to contribute to and hold participatory interests in that portfolio through shares, units or any other form of participatory interest [definition of “company” in section 1(1), paragraph (e)(ii)].  A portfolio of a collective investment scheme in property that qualifies as a “REIT” as defined in paragraph 13.1(x) of the JSE Limited Listings Requirements [definition of “company” in section 1(1), paragraph (e)(iii)]. 65 • A company contemplated in section 10(1)(e)(i)(aa), (bb) or (cc) [section 12E(4)(a)(ii)(cc)], namely –  a body corporate established under the Sectional Titles Act 95 of 1986;  a share block company established under the Share Blocks Control Act 59 of 1980; and  any other association of persons (other than a “company” as defined in the Companies Act, any co-operative, close corporation and trust, but including a “non-profit company” as defined in that Act) formed solely to manage the collective interests common to all its members and that is not permitted to distribute its funds to any person other than to a similar association. For example, a homeowners association. For more information on the above entities see Interpretation Note 64 “Income Tax Exemption: Bodies Corporate, Share Block Companies and Associations of Persons Managing the Collective Interests Common to All Members”. Effectively applicable to years of assessment commencing on or after 1 January 2015. Previously, for years of assessment commencing on or after 1 April 2013, it referred to a collective investment scheme in property. • Less than 5% of the interest in the following “co-operatives” as defined in section 1 of the Co-operatives Act:  A social co-operative which means a non-profit co-operative which engages in the provision of social services to its members, such as care for the elderly, children and the sick;  A consumer co-operative which means a co-operative that procures and distributes goods or commodities to its members and non-members and provides services to its members;  A co-operative burial society which means a co-operative that provides funeral benefits, including funeral insurance and other services to its members and their dependants; or  Any other similar co-operative if all of the income derived from the trade of that co-operative during any year of assessment is solely derived from its members. [Section 12E(4)(a)(ii)(dd)] • A “friendly society” as defined in section 1 of the Friendly Societies Act 25 of 1956 which is generally an association or business established for the mutual assistance of its members and approved nominees in a specified number of areas [section 12E(4)(a)(ii)(ee)]. • Less than 5% of the interest in –  a primary savings co-operative bank as defined in the Co-operative Banks Act, 2007, that may provide, participate in or undertake only banking services contemplated in section 14(1)(a) to (d) of that Act; and  a primary savings and loans co-operative bank as defined in the Co- operative Banks Act, 2007, that may provide, participate in or undertake only banking services contemplated in section 14(2)(a) or (b) of that Act. [Section 12E(4)(a)(ii)(ff)] • A “venture capital company” as defined in section 12J [section 12E(4)(a)(ii)(gg)]. Section 12J defines “venture capital company” as a company which has been approved by the Commissioner under section 12J(5) and has not had that approval withdrawn under section 12J(6) or (6A). A venture capital company is, broadly speaking, a resident company which has the sole objective of managing investments in “qualifying companies” (as defined in section 12J) and that is licensed under section 7 of the Financial Advisory and Intermediary Services Act 37 of 2002. • Any company, close corporation or co-operative if it has not –  during any year of assessment carried on any trade, and  during any year of assessment owned assets of which the total market value exceeds R5 000. [Section 12E(4)(a)(ii)(hh).] • Any company, co-operative or close corporation if it has taken the steps contemplated in section 41(4) to liquidate, wind up or deregister [section 12E(4)(a)(ii)(ii)]. This permissible holding will cease to be permissible if the company, co-operative or close corporation withdraws any steps so taken at any time, or does anything to invalidate any of these steps with the result that it will not be liquidated, wound up or deregistered.

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