Author: admin_kmos

Section 9 (Estate Duty Act) – Assessment of duty by Commissioner

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9. Assessment of duty by Commissioner

 

(1)     The Commissioner shall assess the duty payable under this Act and shall in respect of every estate liable for the duty issue a notice of assessment to the executor or, if there is no executor, to any person liable for the duty.

 

(1A)  If the Commissioner, prior to the issue of a notice of assessment in terms of subsection (1)-

 

(a)     is dissatisfied with any value at which any property is shown in any return; or

(b)     is of the opinion that the amount claimed to represent the dutiable amount as disclosed in any return, does not represent the correct dutiable amount,

the Commissioner shall adjust such value or amount and determine the dutiable amount upon which such assessment shall be raised accordingly.

[Subsection (1A) inserted 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)     A notice of assessment shall be issued in respect of each return submitted in respect of any estate in which liability for duty, other than in respect of additional property contemplated in subsection (4)(c),is disclosed, due regard being had in the calculation of the duty to any duty chargeable on any previous returns submitted in respect of the same estate.

[Subsection (3) substituted by section 1 of Act 61 of 2008 effective on 1 January 2009]

 

(4)

 

(a)     Unless a notice of assessment has already been issued, a notice of assessment shall be deemed to have been issued in terms of section 9(3) in respect of the estate of every person-

(i)      if the value of the estate does not exceed the amount determined by the Minister by notice in the Gazette contemplated in section 18(3) of the Administration of Estates Act, 1965 (Act No. 66 of 1965), on the date on which a death notice is given to a Master in terms of section 7 of that Act; or

(ii)     in every other case, on the date on which the estate has become distributable in terms of section 35(12) of the Administration of Estates Act, 1965 (Act No. 66 of 1965).

(b)     If additional property is found in respect of an estate within five years from the date contemplated in subparagraph (i) or (ii) and a supplementary liquidation and distribution account is required in terms of section 35 of the Administration of Estates Act, 1965 (Act No. 66 of 1965), paragraph (a) shall not apply and a notice of assessment shall be deemed to have been issued in terms of section 9(3) in respect of the estate on the date on which the supplementary liquidation and distribution account has become distributable in terms of section 35(12) of the Administration of Estates Act, 1965.

(c)     If additional property is found in respect of an estate more than five years after the date contemplated in subparagraph (i) or (ii) and a liquidation and distribution account is required in terms of section 35 of the Administration of Estates Act, 1965 (Act No. 66 of 1965), the additional property shall be subject to an estate duty as if that property were the sole property of the estate of the deceased and as if the death of the deceased occurred on the date on which the additional property was reflected in the supplementary liquidation and distribution account.

[Subsection (4) added by section 1 of Act 61 of 2008 effective on 1 January 2009]

 

(5)     An assessment contemplated in subsection (4)(a) and (b) is deemed to be an assessment by way of self-assessment.

[Subsection (5) inserted by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 10 (Estate Duty Act) – Payment of interest

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10. Payment of interest

(1)     If any duty remains unpaid at the expiration of a period of thirty days from the date for payment prescribed in terms of section 9C, there shall be payable, in addition to the unpaid duty, interest at the rate of six per cent per annum on the amount of unpaid duty calculated from the date of the expiration of the said period to the date of payment: Provided that, where the assessment of duty is delayed beyond a period of twelve months from the date of death, interest at the rate of six per cent per annum shall be payable as from a date twelve months after the date of death on the difference (if any) between the duty assessed and any deposit (if any) made on account of the duty payable within the said period of twelve months.

[Subsection (1) substituted by section 2(1)(a) of Act 13 of 2017 (section 2(a) of Act 13 of 2017 substituted by section 32(1) of Act 16 of 2022 deemed effective on 18 December, 2017) and by section 1 of Act 24 of 2020 (section 1 of Act 24 of 2020 repealed by section 33(1) of Act 16 of 2022 deemed effective on 20 January, 2021)]

(2)     Whenever the Commissioner is satisfied that the delay in the payment of duty within the period of thirty days from the date for payment prescribed in terms of section 9C, or within the period of twelve months from the date of death, as the case may be, has not been occasioned either by the executor or by any person liable for the duty, the Commissioner may allow an extension of time within which the duty may be paid without interest if, before the expiration of the said period of thirty days or the said period of twelve months, as the case may be or such further period as the Commissioner may allow—

(a)     a deposit on account of the duty payable is made of an amount which, in the opinion of the Commissioner, is reasonable, regard being had to the amount of the duty payable; and

(b)     application is made in writing to the Commissioner for such extension of time.

[Subsection (2) substituted by section 2(1)(b) of Act 13 of 2017 (section 2(b) of Act 13 of 2017 substituted by section 32(1) of Act 16 of 2022 deemed effective on 18 December, 2017)]

Section 11 (Estate Duty Act) – Person liable for duty

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11. Person liable for duty

 

The person liable for the duty shall be –

 

(a)     where duty is levied on property of the deceased which falls under subsection (2) of section 3 –

 

(i)      as to any property referred to in paragraph (a) or (b) of that subsection, the person to whom any advantage accrues by the death of the deceased;

(ii)     as to any other property, the executor;

 

(b)     where duty is levied on property which, in accordance with subsection (3) of section 3, is deemed to be property of the deceased –

 

(i)      as to property referred to in paragraph (a) of that subsection, the executor: Provided that where the amount due under the policy is recoverable by any person other than the executor, the person liable for the duty shall be the person entitled to recover the amount due under the policy;

(iA)   ……….

[Subparagraph (iA) inserted by section 3 of Act 56 of 66 and deleted by section 3 of Act 15 of 2016 effective on 1 January 2009 and applies in respect of the estate of a person who dies on or after that date]

 

(ii)     as to any property referred to in paragraph (b) of that subsection, the donee;

[Subparagraph (ii) substituted by section 13 of Act 87 of 1988 and section 3 of Act 37 of 1995]

(iii)    as to any property referred to in paragraph (cA) or (d) of that subsection, the executor.

[Subparagraph (iii) substituted by section 3 of Act 37 of 1995]

Section 12 (Estate Duty Act) – Duty payable by executor

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12. Duty payable by executor

 

Notwithstanding anything to the contrary contained in section 11, any duty payable under this Act shall be payable by and recoverable from the executor of the estate subject to the duty, to the extent contemplated in Chapters 10 and 11 of the Tax Administration Act.

[Section 12 amended by section 4 of Act 18 of 2009 and substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 13 (Estate Duty Act) – Right of recovery by executor

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13. Right of recovery by executor

(1)     Every executor who is required to pay duty in respect of any property referred to in paragraph (a)(i), or in the proviso to paragraph (b)(i), or in paragraph (b)(ii), of section 11, shall be entitled to recover from the person liable therefor the duty attributable to such property.

[Subsection (1) substituted by section 7(1)(a) of Act 92 of 1971 and by section 3 of Act 20 of 2021]

(2)     The duty attributable to any such property shall be a sum which bears to the full duty payable in respect of the estate (before the deduction in accordance with the provisions of section 16 of any amount in respect of transfer duty or donations tax) the same ratio as that portion of the net value of the estate (as determined under section 4) which is attributable to the inclusion in the estate of the value of the said property, bears to the net value of the estate as so determined, reduced, in any case in which there is, in accordance with the said section 16, deducted from the duty payable in respect of the estate, any amount of transfer duty or donations tax paid in respect of any property included in the estate which has accrued to the person liable for the duty attributable to that property, by the amount of the transfer duty or donations tax so paid.

[Subsection (2) substituted by section 7 of Act 92 of 1971]

(3)     Whenever duty is in terms of section 11(b)(i) payable by more than one person on the value of any property referred to in section 3(3)(a), the amount of duty payable by each such person shall be such proportion of the total duty attributable to the total value of the said property, as bears to the said total duty the same ratio as so much of the amount which such person is entitled to recover under any policy as is included in the estate under section 3 (3) (a), bears to the total value of the said property.

[Subsection (3) substituted by section 14 of Act 87 of 1988]

Section 14 (Estate Duty Act) – Right to mortgage property

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14. Right to mortgage property

To provide for the payment of any duty, the person liable therefor may, with the consent of the Master, borrow any moneys or mortgage any property in respect of which the liability for duty arises, notwithstanding any provision to the contrary contained in any deed or testamentary disposition or in any law.

Section 15 (Estate Duty Act) – Recovery of duty paid in certain cases

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15. Recovery of duty paid in certain cases

 

Any person who has disposed of property in respect of which a liability for duty in accordance with sub-paragraph (ii) of paragraph (b) of section 11, thereafter arises, without having received full consideration therefor, may recover from the person to whom he has disposed of such property the amount of duty payable by him in respect thereof.

Section 16 (Estate Duty Act) – Deduction of transfer duty and donations tax

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16. Deduction of transfer duty and donations tax

There shall be deducted from any duty payable under this Act –

(a)     any transfer duty which is proved to the satisfaction of the Commissioner to have been paid in respect of the acquisition from the deceased or his estate of any property included in the estate for the purposes of the assessment of duty, by any person liable for the duty attributable to that property;

(b)          ……….

[Paragraph (b) amended by section 11 of Act 77 of 1964 and deleted by section 15 of Act 87 of 1988]

(c)     without in any way modifying or adding to the rights of any person under an agreement entered into by the Government of the Republic with the Government of any other country or territory relating to the prevention of or relief from double taxation in respect of estate duty, any amount of any death duties proved to the satisfaction of the Commissioner to have been paid to any other State in respect of any property situate outside the Republic and included in the estate of any person who at the date of his death was ordinarily resident in the Republic: Provided that the deduction under this paragraph shall not exceed the duty imposed on such property by this Act.

[Paragraph (c) added by section 5 of Act 65 of 1960]

Section 18 (Estate Duty Act) – No property to be delivered by executor before duty provided for

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18. No property to be delivered by executor before duty provided for

Before delivering or transferring any property of the deceased to any heir or legatee the executor shall satisfy the Commissioner that due provision has been made for the payment of any duty payable under this Act.

19. ……….