Author: admin_kmos

Section 14 (Transfer Duty Act) – Declarations to be furnished to Commissioner

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14. Declarations to be furnished to Commissioner

 

(1)     A return appropriate to the manner of the acquisition of property in any particular case shall be submitted by the parties to the transaction whereby the property has been acquired and, if the Commissioner so directs, also by the agent, auctioneer, broker or other person who acted for or on behalf of either party to the transaction or, if the property has been acquired otherwise than by way of a transaction, by the person who acquired the property.

[Subsection (1) substituted by section 6 of Act 88 of 1974, section 1 of Act 34 of 2004,  section 1 of Act 36 of 2007, section 13 of Act 8 of 2010 effective on 1 January 2011 and section 271 of Act 28 of 2011 effective on 1 October 2012]

 

(1A)  ……….

[Subsection (1A) inserted by section 6 of Act 88 of 1974, substituted by section 1 of Act 36 of 2007 and deleted by section 13 of Act 8 of 2010 effective on 1 January 2011]

 

(2)     Where no suitable form of declaration has been prescribed by the Commissioner for any particular kind of acquisition of property, he may require from any person concerned in the acquisition a declaration setting forth the material facts of the case and containing such other information as he may consider necessary.

 

(3)     An estate agent as contemplated in section 1 of the Estate Agency Affairs Act, 1976 (Act No. 112 of 1976), who is entitled to any remuneration or other payment in respect of services rendered in connection with a transaction in terms of which a person acquired  property contemplated in paragraphs (d), (e) or (f) of the definition of ‘property’, must within six months of the date of acquisition of that property submit details of that transaction to the Commissioner in a form and in such manner as prescribed by the Commissioner.

[Subsection (3) added by section 1 of Act 34 of 2004 and substituted by section 13 of Act 8 of 2010 effective on 1 January 2011]

Section 15 (Transfer Duty Act) – Records of certain sales of property to be kept

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15. Records of certain sales of property to be kept

 

(1)     In addition to the requirements upon a taxpayer contained in sections 29, 30, 32 and 33 of the Tax Administration Act, every auctioneer or other person who has effected a sale of property on behalf of some other person shall, for a period of five years from the date on which the sale was effected, keep a record of the sale including a description of the property sold, the person by whom and the person to whom the property has been sold and the price paid for the property.

[Subsection (1) substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

 

(2)     ……….

[Subsection (2) deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

 

(3)     ……….

[Subsection (3) amended by section 4 of Act 77 of 1964, substituted by section 5 of Act 30 of 2000 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 16 (Transfer Duty Act) – Persons who acquire property on behalf of others shall disclose names of heir principals

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16. Persons who acquire property on behalf of others shall disclose names of their principals

(1)     Where property is sold to a person who is acting as an agent for some other person, the person so acting as agent shall disclose to the seller or his or her agent the name and address of the principal for whom he or she acts, and furnish the seller or his or her agent with a copy of the documents appointing him or her as agent-

(i)     if the sale is by auction, on the day of acceptance by the auctioneer of his or her offer; or

(ii)    if the sale is otherwise than by auction, on the day of conclusion of the agreement of sale.

[Subsection (1) substituted by section 6 of Act 45 of 2003]

(2)     Any person who has been appointed as an agent, but fails to furnish the documents contemplated in subsection (1) and the name of the person on whose behalf he or she is acting to the seller or his or her agent on the date specified in subsection (1) shall, for the purpose of the payment of the duty payable in respect of the acquisition of the property in question, be presumed, unless the contrary is proved, to have acquired the property for himself or herself.

[Subsection (2) substituted by section 6 of Act 45 of 2003 and section 2 of Act 34 of 2004]

17. ……….

[Section 17 amended by section 5 of Act 77 of 1964, section 6 of Act 46 of 1996 and section 3 of Act 34 of 2004 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

18. ………..

[Section 18 amended by section 3 of Act 27 of 1997, substituted by section 10 of Act 60 of 2001, amended by section 8 of Act 45 of 2003 and repealed by section 271 of Act 28 of 2011 effective on 1 October2012 ]

19. ……….

[Section 19 amended by section 4 of Act 27 of 1997 and repealed by section 11 of Act 60 of 2001]

20. …………

[Section 20 substituted by section 11 of Act 30 of 1998 and section 4 of Act 31 of 2005 2003 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

20A.    …………

[Section 20A inserted by section 12 of Act 30 of 1998, substituted by section 5 of Act 34 of 2004 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 20B (Transfer Duty Act) – Transactions, operations, schemes or understanding for obtaining undue tax benefits

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20B.  Transactions, operations, schemes or understanding for obtaining undue tax benefits

(1)     Notwithstanding anything in this Act, whenever the Commissioner is satisfied that any transaction, operation, scheme or understanding (whether enforceable or not), including all steps by which it is carried into effect-

(a)     has been entered into or carried out which has the effect of granting a tax benefit to any person; and

(b)     having regard to the substance of the transaction, operation, scheme or understanding-

(i)     was entered into or carried out in a manner which would not normally be employed for bona fide business purposes, other than the obtaining of a tax benefit; or

(ii)    has created rights or obligations which would not normally be created between persons dealing at arm’s length; and

(c)     was entered into or carried out solely or mainly for the purposes of obtaining a tax benefit,

the Commissioner shall determine the liability for any duty imposed by this Act, and the amount thereof, as if the transaction, operation, scheme or understanding had not been entered into or carried out, or in such manner as in the circumstances of the case the Commissioner deems appropriate for the prevention or diminution of such tax benefit.

(2)     For the purpose of this section ‘tax benefit’ means-

(a)     any reduction in the liability of any person to pay duty;

(b)     any increase in the entitlement of any person to the refund of duty; or

(c)     any other avoidance or postponement of liability for the payment of any duty imposed by this Act or any tax, duty or levy imposed by any other Act administered by the Commissioner.

(3)     Any decision of the Commissioner under subsection (1) shall be subject to objection and appeal in accordance with Chapter 9 of the tax Administration Act, and whenever in proceedings relating thereto it is proved that the relevant transaction, operation, scheme or understanding results or would result in a tax benefit, it shall be presumed, until the contrary is proved, that such transaction, operation, scheme or understanding was entered into or carried out solely or mainly for the purpose of obtaining a tax benefit.

[Section 20B inserted by section 9 of Act 45 of 2003 and section 1 of Act 39 of 2013 effective on 16 January 2014]

Section 21 (Transfer Duty Act) – Repeal of laws

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21. Repeal of Laws

 

The Laws specified in the Schedule are hereby repealed to the extent set out in the fourth column of the said Schedule: Provided that any duty which has at the date of commencement of this Act become payable under any law so repealed, but which has not at that date been paid, shall be recovered in accordance with and subject to the provisions of the said law: Provided further that if any such duty was not paid before the twentieth day of March, 1963, any interest payable in respect of such duty under any such law for the period from that date to the date of payment of the duty, shall be calculated at the rate of seven and a half per centum per annum in respect of each completed month in that period.

[Section 21 amended by section 4 of Act 70 of 1963 and section 3 of Act 72 of 1970]

Schedule (Transfer Duty Act) – Repeal of laws

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Schedule

 

REPEAL OF LAWS

Province or Union

Number and Date of Law

Title or Subject of Law

Extent of Repeal

Cape of Good Hope

Ordinance No. 6 of 1844           

Ordinance for Regulating Sales   

So much as is unrepealed      

Act No. 5 of 1884      

Transfer Duty Consolidation and Amendment Act, 1884           

The whole, except sections twenty-four, twenty-five, twenty-eight and thirty           

Act No. 46 of 1902    

The Higher Educational Institutions Transfer Duty Exemption Act, 1902 

So much as relates to transfer duty  

Ordinance No. 5 of 1921           

Consolidated Education Ordinance, 1921        

So much of sections three hundred and eighteen and three hundred and twenty as relates to transfer duty

Transvaal

Proclamation No. 8 of 1902

Transfer Duty Proclamation, 1902

The whole, except sections twenty-two, twenty-three, twenty-six, twenty-eight, twenty-nine and thirty

Ordinance No. 14 of 1905

Ordinance to amend the Transfer Duty Proclamation, 1902

The whole

Natal

Law No. 5 of 1860     

To amend the Law for regulating the payment of Transfer Duty on the sale or transfer of Immovable Property         

The whole      

Law No. 20 of 1865   

To exempt growing crops and Machinery from the payment of Transfer Duty on being sold along with the Lands on which they are growing or to which they are attached        

The whole      

Law No. 19 of 1883   

To amend Law No. 5 of 1860   

The whole      

Law No. 19 of 1884   

To amend in certain respects the Law and Practice in reference to Registration    

So much as is unrepealed      

Law No. 5 of 1890     

To amend in certain respects Law No. 5 of 1860 and Law No. 19 of 1883           

The whole      

Law No. 6 of 1891     

To amend Law 19, 1884 entitled “Law to amend in certain respects the Law and Practice in reference to Registration”  

The whole      

Act No. 43 of 1889    

The Natal Mines Act, 1889           

Sections ninety and ninety-one      

Act No. 7 of 1903      

To amend the Law relating to Sale and Purchase of Land   

Sections three, four and six and the Schedule        

Act No. 23 of 1907    

To amend Law No. 5 of 1890 and Law No. 6 of 1891   

The whole      

Act No. 31 of 1908    

To impose a cession fee upon unregistered Crown Leases

The whole      

Act No. 11 of 1909    

To amend the Transfer Duty Law No. 5 of 1860           

The whole      

Act No. 12 of 1909    

To amend Law No. 19, 1884, relative to the registration of leases  

The whole

Orange Free State

Law Book Chapter CXVIII          

Transfer and Registration of Stands        

Sections six and eight

Law No. 14 of 1897   

To impose a tax on fixed property situate in but sold outside the Orange Free State by public auction           

The whole      

Ordinance No. 12 of 1906   

Transfer Duty Ordinance, 1906   

The whole, except sections forty-one, forty-two, forty-five, forty-seven, forty-nine, fifty-one, fifty-two and fifty-three       

Ordinance No. 18 of 1906   

Villages Management Amendment Ordinance, 1906   

Section five    

Act No. 30 of 1908    

Transfer Duty Amendment Act, 1908       

The whole      

Union

Act No. 11 of 1913    

Transfer Duty Reduction Act, 1913       

The whole      

Act No. 42 of 1917    

Financial Adjustment Act, 1917   

Section eight  

Act No. 28 of 1919    

Transvaal Transfer Duty Amendment Act, 1919           

The whole      

Act No. 43 of 1919    

Financial Adjustments Act, 1919   

Section three  

“Commissioner” definition of section 1 of Transfer Duty Act

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“Commissioner” means the Commissioner for the South African Revenue Service appointed in terms of section 6 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997), or the Acting Commissioner designated in terms of section 7 of that Act;

 [Definition of “Commissioner” deleted by section 1 of Act 77 of 1964, inserted by section 4 of Act 106 of 1980 and substituted by section 34 of Act 34 of 1997 and section 271 of Act 28 of 2011 effective on 1 Oct 2012]

“Company” definition of section 1 of Transfer Duty Act

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“company” includes-

(a)     any association, corporation or company (including a close corporation) incorporated or deemed to be incorporated by or under any law in force or previously in force in the Republic or in any part thereof, or any body corporate formed or established or deemed to be formed or established by or under any such law; or

(b)     any association, corporation or company incorporated under the law of any country other than the Republic or any body corporate formed or established under such law; or

(c)     any association (not being an association referred to in paragraph (a)) formed in the Republic to serve a specified purpose, beneficial to the public or a section of the public;

[Definition of “company” inserted by section 1 of Act 5 of 2001]

“Date of acquisition” definition of section 1 of Transfer Duty Act

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“date of acquisition” means –

(a)     in the case of the acquisition of property (other than the acquisition of property contemplated in paragraph (b)) by way of a transaction, the date on which the transaction was entered into, irrespective of whether the transaction was conditional or not or was entered into on behalf of a company already registered or still to be registered and, in the case of the acquisition of property otherwise than by way of a transaction, the date upon which the person who so acquired the property became entitled thereto: Provided that where property has been acquired by the exercise of an option to purchase or a right of pre-emption, the date of acquisition shall be the date upon which the option or right of pre-emption was exercised;

[Paragraph (a) amended by section 1 of Act 86 of 1987 and Proc.R11 of 1994]

(b)     in the case of the acquisition of property in terms of item 8 of Schedule 1 to the Share Blocks Control Act, 1980 (Act No. 59 of 1980), and if section 9A of this Act does not apply to that acquisition, the date of the written request referred to in subitem (1)(b) of the said item 8;

(c)     ……….

[Paragraph (c) added by section 1 of Act 86 of 1987 and deleted by Proc. R11 of 1994]

[Definition of “date of acquisition” substituted by section 4 of Act 106 of 1980]