“shipbuilding structure” means any launching way, fitting–out quay or craneway which is not part of a building.
Category: CHAPTER II – The Taxes (ITA)
Section 15A (ITA) – Amounts to be taken into account in respect of trading stock derived from mining operations
15A. Amounts to be taken into account in respect of trading stock derived from mining operations
For the purposes of section 22, trading stock related to mining operations –
(a) includes anything that is –
(i) won or in any other manner acquired during the course of mining operations by a taxpayer for the purposes of extraction, processing, separation, refining, beneficiation, manufacture, sale or exchange by the taxpayer or on the taxpayer’s behalf; and
(ii) taken into account as inventory in terms of South African Generally Accepted Accounting Practice; and
(b) must not be valued at an amount less than the amount so taken into account.
16. ……….
17. ……….
“Assessed loss” definition of section 20A of ITA
(10) For the purposes of this section-
(a) ‘assessed loss’ means ‘assessed loss’ as defined in section 20(2); and
Section 13bis (ITA) – Deductions in respect of buildings used by hotel keepers
13bis. Deductions in respect of buildings used by hotel keepers
(1) Notwithstanding anything to the contrary contained in paragraph (ii) of the proviso to paragraph (e) of section 11, there shall be allowed to be deducted from the income of any taxpayer for any year of assessment ending on or after the first day of January, 1964, an allowance equal to two per cent of the cost (after the set–off of any amount as provided in subsection (6)) to the taxpayer –
(a) ……….
(b) ……….
(c) of any building the erection of which was commenced by the taxpayer on or after the first day of January, 1964, and of any improvements (other than repairs) thereto commenced not later than the thirtieth day of June, 1965, if such building –
(i) was brought into use not later than the thirtieth day of June, 1965; and
(ii) was during the year of assessment wholly or mainly used by the taxpayer for the purpose of carrying on therein his trade of hotel keeper or was during such year let by the taxpayer and wholly or mainly used by the lessee for the purpose of carrying on therein the lessee’s trade of hotel keeper;
(d) of such portion –
(i) of any building (other than a building in respect of the cost of which an allowance under the preceding provisions of this subsection is or was deductible from the income of the taxpayer for the current or any previous year of assessment) the erection of which was commenced by the taxpayer on or after the first day of January, 1964; or
(ii) of any improvements (other than repairs) to any building referred to in this paragraph, if such improvements were commenced on or after the first day of January, 1964; or
[Subparagraph (ii) substituted by section 31 of Act 25 of 2015 effective on 1 January 2016]
(iii) of any improvements (other than repairs) to any building referred to in paragraph (c), if such improvements were commenced on or after the first day of July, 1965,
as –
(aa) was during the year of assessment used by the taxpayer for the purpose of carrying on therein his trade of hotel keeper; or
(bb) was during such year let by the taxpayer and used by the lessee for the purpose of carrying on therein the lessee’s trade of hotel keeper; or
(e) of such portion of any building improvements (other than repairs and other than improvements in respect of the cost of which, or of any portion thereof, an allowance under the preceding provisions of this subsection is or was deductible from the income of the taxpayer for the current or any previous year of assessment) commenced on or after 1 January 1964, as was during the year of assessment in question used by the taxpayer for the purposes of the taxpayer’s trade of hotel keeper or was during the year of assessment in question let by the taxpayer and used by the lessee for the purposes of the lessee’s trade of hotel keeper:
[Paragraph (e) substituted by section 13 of Act 113 of 1993, section 12 of Act 21 of 1994 and section 33 of Act 23 of 2018 effective on 17 January 2019]
Provided that no allowance shall be made under this subsection in respect of such portion of the cost of any building the erection of which was commenced on or after the first day of July, 1961, or any improvements effected thereto, as has been taken into account in the calculation of any allowance to the taxpayer under paragraph (g) of section eleven, whether in the current or any previous year of assessment: Provided further that in the case of any such building the erection of which has or is commenced on or after 4 June 1988 and any such improvements which have or are commenced on or after that date the allowance under this subsection shall be increased to 5 per cent of the cost (after the setoff of any amount as provided in subsection (6)) to the taxpayer of such building or improvements: Provided further that to the extent to which any portion of any such improvements which have or are commenced on or after 17 March 1993 does not extend the existing exterior framework of the building, the allowance under this subsection shall be increased to 20 percent of the cost of such portion.
[Subsection (1) amended by section 13(a) of Act 90 of 1988, by section 13(1)(c) of Act 13 of 1993 and by section 21 of Act 34 of 2019]
(1A) ……….
[Subsection (1A) inserted by section 31 of Act 7 of 2010 and deleted by section 33 of Act 23 of 2018 effective on 17 January 2019]
(2) In addition to any allowance under subsection (1), there shall be allowed to be deducted from the income of the taxpayer an allowance in respect of the cost (after the set–off of any amount as provided in subsection (6)) of any building or improvements referred to in paragraph (c) of subsection (1) or of any portion of any building or improvements referred to in paragraph (d) or (e) of subsection (1), provided such building (or a portion thereof), or the building (or a portion thereof) to which such improvements were effected, as the case may be, was during the year of assessment in question registered as an hotel under the Hotels Act, 1965, and such hotel was on the last day of such year graded by the board established under that Act: Provided that no allowance shall be made under this subsection in respect of such portion of the cost of any building or any improvements as has been taken into account in the calculation of any allowance to the taxpayer under paragraph (g) of section 11, whether in the current or any previous year of assessment.
(3) The allowance under subsection (2) in respect of the cost (as reduced in terms of that subsection) of any building (or portion thereof) or of any improvements (or a portion thereof) shall be such percentage of such cost as may be fixed by the Minister of Finance by regulation under subsection (4) for the grade of hotel which is, in terms of a determination of the board referred to in subsection (2), applicable in respect of the hotel in question on the last day of the year of assessment: Provided that where such hotel is graded by the said board for the first time during any year of assessment (hereinafter referred to as the subsequent year) subsequent to any year of assessment (hereinafter referred to as the earlier year) during which such building (or the relevant portion thereof) or such improvements (or the relevant portion thereof) was or were used in carrying on the trade of hotel keeper, and the taxpayer is entitled to the said allowance in respect of the subsequent year, the allowance for the subsequent year (as determined in accordance with the said regulation) shall, if-
[Words preceding paragraph (a) substituted by section 33 of Act 23 of 2018 effective on 17 January 2019]
(a) such building (or the relevant portion thereof) or such improvements (or the relevant portion thereof), as the case may be, is or are completed not later than the thirty–first day of December, 1969; and
(b) where such hotel was not during the earlier year registered under the Hotels Act, 1965, it became so registered during the period ending on the thirtyfirst day of December, 1969, or the period of twelve months reckoned from the date of completion of such building (or the relevant portion thereof) or of such improvements (or the relevant portion thereof), as the case may be, whatever period ends later,
be increased by an amount equal to the allowance to which the taxpayer would have been entitled under the said regulation in respect of the said cost if such regulation had at all relevant times been in force and the grading of such hotel by the said board which was applicable on the last day of the subsequent year had also applied on the last day of the earlier year.
(3A) Where any building in respect of which any deduction of an allowance is claimed in terms of this section was during any previous financial year or years used by the taxpayer for the purposes of any trade carried on by such taxpayer, the receipts and accruals of which were not included in the income of such taxpayer during such year or years, any deduction which could have been allowed during such previous year or years in terms of this section shall for the purposes of this section be deemed to have been allowed during such previous year or years as if the receipts and accruals of such trade had been included in the income of such taxpayer.
(4) The Minister of Finance may make regulations prescribing the rates of the allowances under subsection (2) in respect of the various grades of hotels determined under the provisions of subsection (1) of section fifteen of the Hotels Act, 1965, and may in such regulations prescribe rates which vary according to the grade of hotel or the year of assessment for which any such allowance may be made: Provided that any rate so prescribed in respect of any year of assessment in respect of any grade of hotel shall not exceed eight per cent. of the cost or portion thereof on which the relevant allowance is to be calculated.
(5) The deductions which may be allowed or deemed to have been allowed in terms of this section and any other provision of this Act in respect of the cost of any building or improvement shall not in the aggregate exceed the amount of such cost.
[Subsection (5) substituted by section 21 of Act 59 of 2000 and section 31 of Act 25 of 2015 effective on 1 January 2016]
(6)
(a) If in any year of assessment there falls to be included in a taxpayer’s income in terms of paragraph (a) of subsection (4) of section 8 an amount which has been recovered or recouped in respect of any allowance made under the preceding provisions of this section or the provisions of subsection (1) of section 13, as applied by subsection (4) of that section, or the corresponding provisions of any previous Income Tax Act, in respect of any building or portion thereof or any improvements or portion thereof, so much of the amount so recovered or recouped as is set off against the cost of a further building as hereinafter provided shall, notwithstanding the provisions of the said paragraph, at the option of the taxpayer and provided the taxpayer erects within twelve months or such further period as the Commissioner may allow from the date on which the event giving rise to the recovery or recoupment occurred, any other building in respect of the cost of which an allowance is made under the preceding provisions of this section, not be included in the taxpayer’s income for that year of assessment, but shall be set off against so much of the cost to the taxpayer of such further building erected by the taxpayer as remains after the deduction of any portion of that cost in respect of which an allowance has been granted to the taxpayer under paragraph (g) of section eleven, whether in the current or any previous year of assessment.
(b) Where any allowance has been made under the provisions of subsection (1) of section 13, as applied by subsection (4) of that section, in respect of the cost of any building, any amount which has in terms of subsection (3) of that section been set off against such cost, shall be set off against such cost in the calculation of any allowance made in respect thereof under the preceding provisions of this section.
(7) ……….
(8) ……….
(9) The allowance under subsection (2) shall not be granted in respect of –
(a) any building the erection of which has or is commenced on or after 4 June 1988; and
(b) any improvements which have or are commenced on or after that date.
Section 17A (ITA) – Expenditure incurred by a lessor of land let for farming purposes, in respect of soil erosion works
17A. Expenditure incurred by a lessor of land let for farming purposes, in respect of soil erosion works
(1) Subject to the provisions of subsection (2), there shall be allowed to be deducted from the income derived by any taxpayer from letting any land on which bona fide pastoral, agricultural or other farming operations were carried on during the year of assessment, the expenditure incurred by him during such year in respect of the construction of soil erosion works, provided a certificate by the Executive Officer designated under section 4 of the Conservation of Agricultural Resources Act, 1983 (Act No. 43 of 1983), or his assignee is produced to the effect that such works have been approved under the provisions of the said Act.
(2) Where expenditure incurred by the taxpayer during any year of assessment and ranking for deduction from income under subsection (1) exceeds the taxable income (as calculated before allowing any deduction under that subsection) derived by the taxpayer from letting land on which bona fide pastoral, agricultural or other farming operations were carried on during such year, the amount allowed to be deducted under subsection (1) in respect of the said year shall be limited to an amount equal to such taxable income (calculated as aforesaid), and the excess shall be carried forward and be deemed for the purposes of this section to be expenditure incurred by the taxpayer during the next succeeding year of assessment in respect of the construction of soil erosion works.
18. ………
“Relative” definition of section 20A of ITA
(b) ‘relative’ in relation to a person means a spouse, parent, child, stepchild, brother, sister, grandchild or grandparent of that person.
Section 13ter (ITA) – Deductions in respect of residential buildings
13ter. Deductions in respect of certain residential buildings
Section 18A (ITA) – Deductions of donations to certain organisations
18A. Deduction of donations to certain organisations
(1) Notwithstanding the provisions of section 23, there shall be allowed to be deducted in the determination of the taxable income of any taxpayer so much of the sum of any bona fide donations by that taxpayer in cash or of property made in kind, which was actually paid or transferred during the year of assessment to—
[Subsection (1) amended by section 20(a) and (d) of Act 30 of 2002, by section 34(1)(a) and (e) of Act 45 of 2003, by section 18 of Act 8 of 2007, by section 34(1)(b) of Act 60 of 2008, by section 44(1) of Act 24 of 2011 and by section 22 of Act 34 of 2019]
(a) any-
(i) public benefit organisation contemplated in paragraph (a)(i) of the definition of ‘public benefit organisation’ in section 30(1) approved by the Commissioner under section 30; or
(ii) institution, board or body contemplated in section 10(1)(cA)(i),
which-
(aa) carries on in the Republic any public benefit activity contemplated in Part II of the Ninth Schedule, or any other activity determined from time to time by the Minister by notice in the Gazette for the purposes of this section;
(bb) complies with the requirements contemplated in subsection (1C), if applicable, and any additional requirements prescribed by the Minister in terms of subsection (1A); and
(cc) has been approved by the Commissioner for the purposes of this section;
[Paragraph (a) amended by section 20 of Act 30 of 2002, section 34 of Act 45 of 2003 and section 16 of Act 20 of 2006 and substituted by section 31 of Act 17 of 2017 effective on 18 December 2017]
(b) any public benefit organisation contemplated in paragraph (a)(i) of the definition of “public benefit organisation” in section 30(1) approved by the Commissioner under section 30, which provides funds or assets to any public benefit organisation, institution, board or body contemplated in paragraph (a), or any department contemplated in paragraph (c) and which has been approved by the Commissioner for the purposes of this section; or
[Paragraph (b) amended by section 72(1) of Act 59 of 2000, by section 20(c) of Act 30 of 2002, by section 34(1)(d) and (e) of Act 45 of 2003 and by section 26(1)(a) and (b) of Act 31 of 2005 and substituted by section 16(b) of Act 20 of 2006, by section 31 of Act 17 of 2017 and by section 4(a) of Act 24 of 2020]
(bA)
(i) any agency contemplated in the definition of ‘specialized agencies’ in section 1 of the Convention on the Privileges and Immunities of the Specialized Agencies, 1947, set out in Schedule 4 to the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001);
(ii) the United Nations Development Programme (UNDP);
(iii) the United Nations Children’s Fund (UNICEF);
(iv) the United Nations High Commissioner for Refugees (UNHCR);
(v) the United Nations Population Fund (UNFPA);
(vi) the United Nations Office on Drugs and Crime (UNODC);
(vii) the United Nations Environmental Programme (UNEP);
(viii) the United Nations Entity for Gender, Equality and the Empowerment of Women (UN Women);
(ix) the International Organisation for Migration (IOM);
(x) the Joint United Nations Programme on HIV of AIDS (UNAIDS);
(xi) the Office of the High Commissioner for Human Rights (OHCHR); or
(xii) the United Nations Office for the Coordination of Humanitarian Affairs (OCHA),
if that agency, programme, fund, High Commissioner, office, entity or organisation-
(aa) carries on in the Republic any public benefit activity contemplated in Part II of the Ninth Schedule, or any other activity determined from time to time by the Minister by notice in the Gazette for the purposes of this section;
(bb) furnishes the Commissioner with a written undertaking that such agency will comply with the provisions of this section;
[Subparagraph (bb) amended by section 4(b) of Act 24 of 2020]
(cc) waives diplomatic immunity for the purposes of subsection (5)(i); and
[Subparagraph (cc) amended by section 4(b) of Act 24 of 2020]
(dd) has been approved by the Commissioner for the purposes of this section; or
[Paragraph (bA) inserted by section 34(1)(a) of Act 60 of 2008 and substituted by section 31 of Act 17 of 2017. Subparagraph (dd) added by section 4(b) of Act 24 of 2020]
(c) any department of government of the Republic in the national, provincial or local sphere as contemplated in section 10(1)(a), which has been approved by the Commissioner for the purposes of this section, to be used for purpose of any activity contemplated in Part II of the Ninth Schedule,
[Paragraph (c) inserted by section 34(1)(b) of Act 45 of 2003 and substituted by section 16(c) of Act 20 of 2006, by section 37(1)(a) of Act 7 of 2010, by section 31 of Act 17 of 2017 and by section 4(c) of Act 24 of 2020]
as does not exceed-
(A) where the taxpayer is a portfolio of a collective investment scheme, an amount determined in accordance with the following formula:
A = B × 0,005
in which formula:
(AA) “A” represents the amount to be determined;
(BB) “B” represents the average value of the aggregate of all of the participatory interests held by investors in the portfolio for the year of assessment, determined by using the aggregate value of all of the participatory interests in the portfolio at the end of each day during that year; or
(B) in any other case, ten per cent of the taxable income (excluding any retirement fund lump sum benefit, retirement fund lump sum withdrawal benefit and severance benefit) of the taxpayer as calculated before allowing any deduction under this section or section 6quat(1C):
Provided that any amount of a donation made as contemplated in this subsection and which has been disallowed solely by reason of the fact that it exceeds the amount of the deduction allowable in respect of the year of assessment shall be carried forward and shall, for the purposes of this section, be deemed to be a donation actually paid or transferred in the next succeeding year of assessment.
[Subsection (1) amended by section 20(a) and (d) of Act 30 of 2002, by section 34(1)(a) and (e) of Act 45 of 2003, by section 18 of Act 8 of 2007, by section 34(1)(b) of Act 60 of 2008, by section 44(1) of Act 24 of 2011, by section 52(1)(a)-(c) of Act 31 of 2013, by section 35(1)(a) of Act 23 of 2018, by section 22 of Act 34 of 2019 and by section 4(c) of Act 24 of 2020]
(1A) The Minister may, by regulation, prescribe additional requirements with which a public benefit organisation, institution, board or body or the department carrying on any specific public benefit activity identified by the Minister in the regulations, must comply before any donation made to that public benefit organisation, institution, board or body or the department shall be allowed as a deduction under subsection (1).
(1B) Any activity determined by the Minister in terms of subsection (1)(a) or any requirements prescribed by the Minister in terms of subsection (1A), must be tabled in Parliament within a period of 12 months after the date of publication by the Minister of that activity or those requirements, as the case may be in the Gazette for incorporation into this Act.
(1C) The constitution or founding document of a public benefit organisation carrying on the activity contemplated in paragraph 4(d) of Part II of the Ninth Schedule, must expressly provide that the organisation-
(a) may not issue any receipt contemplated in subsection (2) in respect of any donation made by a person to that public benefit organisation, unless-
(i) that donation is made by that person on or after 1 August 2002; and
(ii) that person (in the case of a company, together with any other company in the same group of companies as that company) has during the relevant year of assessment of that person donated an amount of at least R1 million to that organisation;
(b) must ensure that every donation contemplated in paragraph (a), in respect of which such a receipt has been issued, will be matched by a donation to that organisation of the same amount made by a person who is not a resident and which is made from funds generated and held outside the Republic; and
(c) must utilise the amount of-
(i) all donations contemplated in paragraph (a), in respect of which such a receipt has been issued, and all income derived therefrom, in the Republic in carrying on that activity; and
(ii) all donations contemplated in paragraph (b), either in the Republic in carrying on that activity, or in respect of a transfrontier conservation area of which the Republic forms part.
(2) Any claim for a deduction in respect of any donation under subsection (1) shall not be allowed unless supported by-
(a) a receipt issued by the public benefit organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation or the department concerned, containing-
[Words preceding subparagraph (i) substituted by section 35 of Act 23 of 2018 effective on 1 March 2017]
(i) the reference number of the public benefit organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation or the department issued by the Commissioner for the purposes of this section;
[Subparagraph (i) substituted by section 35 of Act 23 of 2018 effective on 17 January 2019]
(ii) the date of the receipt of the donation;
(iii) the name of the public benefit organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation or the department which received the donation, together with an address to which enquiries may be directed in connection therewith;
[Subparagraph (iii) substituted by section 35 of Act 23 of 2018 effective on 17 January 2019]
(iv) the name and address of the donor;
(v) the amount of the donation or the nature of the donation (if not made in cash);
(vi) a certification to the effect that the receipt is issued for the purposes of section 18A of the Income Tax Act, 1962, and that the donation has been or will be used exclusively for the object of the public benefit organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation concerned or, in the case of a department in carrying on the relevant public benefit activity; and
[Subparagraph (vi) substituted by section 35(1)(c) of Act 23 of 2018 and amended by section 2 of Act 21 of 2021]
(vii) such further information as the Commissioner may prescribe by public notice; or
[Paragraph (a) substituted by section 37(1)(d) of Act 7 of 2010 and amended by section 35(1)(b) of Act 23 of 2018 deemed effective on 1 March, 2017. Subparagraph (vii) added by section 2 of Act 21 of 2021]
(b) an employees’ tax certificate as defined in the Fourth Schedule on which the amount of donations contemplated in paragraph 2(4)(f) of that Schedule, for which the employer has received a receipt contemplated in paragraph (a), is given.
(2A) A public benefit organisation, institution, board, body or department may only issue a receipt contemplated in subsection (2) in respect of any donation to the extent that-
(a) in the case of a public benefit organisation, institution, board or body contemplated in subsection (1)(a) which carries on activities contemplated in Parts I and II of the Ninth Schedule, that donation will be utilised solely in carrying on activities contemplated in Part II of the Ninth Schedule;
(b) in the case of a public benefit organisation contemplated in subsection (1)(b) –
(i) that organisation will within 12 months after the end of the relevant year of assessment distribute or incur the obligation to distribute at least 50 per cent of all funds received by way of donation during that year in respect of which receipts were issued: Provided that the Commissioner may, upon good cause shown and subject to such conditions as he or she may determine, either generally or in a particular instance, waive, defer or reduce the obligation to distribute any funds, having regard to the public interest and the purpose for which the relevant organisation wishes to accumulate those funds; and
[Words preceding the proviso substituted by section 29 of Act 43 of 2014 effective on 1 March 2015]
(ii) which provides funds or assets to public benefit organisations, institutions, boards or bodies or any department that carry on public benefit activities contemplated in Parts I and II of the Ninth Schedule, that donation will be utilised solely to provide funds or assets to a public benefit organisation, institution, board or body contemplated in subsection (1)(a), which will utilise those funds or assets solely in carrying on activities contemplated in Part II of the Ninth Schedule or to any department contemplated in subsection (1)(c) which will utilise those funds or assets solely for the purpose of any activity contemplated in Part II of the Ninth Schedule; or
[Paragraph (b) substituted by section 26(1)(d) of Act 31 of 2005 effective on 1 April, 2006 and applicable in respect of any year of assessment of a public benefit organisation commencing on or after that date. Subparagraph (ii) substituted by section 4(d) of Act 24 of 2020]
(c) in the case of a department, that donation will be utilised solely in carrying on activities contemplated in Part II of the Ninth Schedule.
(2B) A public benefit organisation, institution, board or body contemplated in subsection (2A), must obtain and retain an audit certificate confirming that all donations received or accrued in that year in respect of which receipts were issued in terms of subsection (2), were utilised in the manner contemplated in subsection (2A).
(2C) The accounting officer or accounting authority contemplated in the Public Finance Management Act or an accounting officer contemplated in the Local Government: Municipal Finance Management Act, 2003 (Act 56 of 2003), as the case may be, for the department which issued any receipts in terms of subsection (2), must on an annual basis submit an audit certificate to the Commissioner confirming that all donations received or accrued in the year in respect of which receipts were so issued were utilised in the manner contemplated in subsection (2A).
[Subsection (2C) inserted by section 34(1)(k) of Act 45 of 2003 and substituted by section 16(k) of Act 20 of 2006, by section 37(1)(g) of Act 7 of 2010, by section 52(1)(d) of Act 31 of 2013 and by section 2 of Act 33 of 2019]
(2D) Any public benefit organisation contemplated in subsection (1)(b), in respect of any amount that is not distributed as required by subsection (2A)(b)(i), shall distribute or incur the obligation to distribute all amounts received in respect of investment assets held by it, other than amounts received in respect of disposals of those investment assets to any public benefit organisation, institution, board or body contemplated in subsection (1)(a) or to any department contemplated in subsection (1)(c), no later than six months after—
(a) every five years from the date on which the Commissioner issued a reference number referred to in subsection (2)(a)(i) to that public benefit organisation referred to in subsection (1)(b), if that public benefit organisation is incorporated, formed or established on or after 1 March 2015; or
(b) every five years from 1 March 2015, if that public benefit organisation referred to in subsection (1)(b) was incorporated, formed or established and issued with a reference number referred to in subsection (2)(a)(i) prior to 1 March 2015.
[Subsection (2D) inserted by section 29(1)(b) of Act 43 of 2014 and amended by section 4(e) of Act 24 of 2020]
(3) If any deduction is claimed by any taxpayer under the provisions of subsection (1) in respect of any donation of property in kind, other than immovable property of a capital nature where the lower of market value or municipal value exceeds cost, the amount of such deduction shall be deemed to be an amount equal to-
(a) where such property constitutes-
(i) a financial instrument which is trading stock of the taxpayer, the lower of fair market value of that financial instrument on the date of that donation or the amount which has been taken into account for the purposes of section 22(8)(C); or
(ii) any other trading stock of the taxpayer (including any livestock or produce in respect of which the provisions of paragraph 11 of the First Schedule are applicable), the amount which has been taken into account for the purposes of section 22(8)(C) or, in the case of such livestock or produce, the said paragraph 11, in relation to the donation of such property; or
(b) where such property (other than trading stock) constitutes an asset used by the taxpayer for the purposes of his trade, the lower of-
(i) the fair market value of that property on the date of that donation; or
(ii) the cost to the taxpayer of such property less any allowance (other than any investment allowance) allowed to be deducted from the income of the taxpayer under the provisions of this Act in respect of that asset; or
(c) where such property does not constitute trading stock of the taxpayer or an asset used by him for the purposes of his trade, the lower of –
(i) the fair market value of that property on the date of that donation; or
(ii) the cost to the taxpayer of such asset, less, in the case of a movable asset which has deteriorated in condition by reason of use or other causes, a depreciation allowance calculated in the manner contemplated in section 8(5)(bB)(i); or
(d) where such property is purchased, manufactured, erected, assembled, installed or constructed by or on behalf of the taxpayer in order to form the subject of the said donation, the lower of-
(i) the fair market value of that property on the date of that donation; or
(ii) the cost to the taxpayer of such property.
(3A) If any deduction is claimed by any taxpayer under the provisions of subsection (1) in respect of any donation of immovable property of a capital nature where the lower of market value or municipal value exceeds cost, the amount of such deduction shall be determined in accordance with the formula:
A = B + (C x D)
in which formula:
(a) “A” represents the amount deductible in respect of subsection (1);
(b) “B” represents the cost of the immovable property being donated;
(c) “C” represents the amount of a capital gain (if any), that would have been determined in terms of the Eighth Schedule had the immovable property been disposed of for an amount equal to the lower of market value or municipal value on the day the donation is made; and
[Paragraph (c) substituted by section 22 of Act 23 of 2020]
(d) ‘D’ represents 60 per cent in the case of a natural person or special trust or 20 per cent in any other case.
[Paragraph (d) substituted by section 35 of Act 23 of 2018 effective on 17 January 2019]
(3B) No deduction shall be allowed under this section in respect of the donation of any property in kind which constitutes, or is subject to any fiduciary right, usufruct or other similar right, or which constitutes an intangible asset or financial instrument, unless that financial instrument is-
(a) a share in a listed company; or
(b) issued by an eligible financial institution as defined in section 1 of the Financial Sector Regulation Act.
[Paragraph (b) substituted by section 29 of Act 43 of 2014 and section 35 of Act 23 of 2018 effective on 1 April 2018]
(4) The provisions of section 30(10) shall apply mutatis mutandis in respect of any institution, board or body contemplated in subsection (1) (a).
[Subsection (4) substituted by section 3 of Act 44 of 2014 effective on 20 January 2015]
(5) If the Commissioner has reasonable grounds for believing that any person who is in a fiduciary capacity responsible for the management or control of the income or assets of any public benefit organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation (other than an institution, board or body in respect of which subsection (5B) applies) has-
(a) in any material way failed to ensure that the objects for which the public benefit organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation was established are carried out or has expended moneys belonging to the public benefit organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation for purposes not covered by such objects;
(b) issued or allowed a receipt to be issued to any taxpayer for the purposes of this section in respect of any fees or other emoluments payable to that organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation by that taxpayer;
[Paragraph (b) amended by section 4(f) of Act 24 of 2020]
(c) issued or allowed a receipt to be issued in contravention of subsection (2A) or utilised a donation in respect of which a receipt was issued for any purpose other than the purpose contemplated in that subsection;
[Paragraph (c) amended by section 4(f) of Act 24 of 2020]
(d) failed to obtain and retain an audit certificate as contemplated in subsection (2B); or
[Paragraph (d) added by section 4(f) of Act 24 of 2020]
(e) failed to submit an audit certificate as contemplated in subsection (2C),
[Paragraph (e) added by section 4(f) of Act 24 of 2020]
the Commissioner may by notice in writing addressed to that person direct that-
(i) any donation in respect of which a receipt was issued by that public benefit organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation during any year of assessment specified in that notice, will be deemed to be taxable income of that public benefit organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation in that year; and
(ii) if corrective steps are not taken by that public benefit organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation within a period stated by the Commissioner in that notice, any receipt issued by that public benefit organisation, institution, board, body or agency, programme, fund, High Commissioner, office, entity or organisation in respect of any donation made on or after the date specified in that notice shall not qualify as a valid receipt for purposes of subsection (2).
[Subsection (5) substituted by section 26 of Act 31 of 2005, section 34 of Act 60 of 2008 and section 35 of Act 23 of 2018 effective on 17 January 2019]
(5A) If the Commissioner has reasonable grounds for believing that any regulating or co-ordinating body of a group of public benefit organisations, institutions, boards or bodies contemplated in section 30(3A) or subsection (6) fails to –
(a) take any steps contemplated in section 30(3A) or subsection (6), to exercise control over any public benefit organisation, institution, board or body in that group; or
(b) notify the Commissioner where it becomes aware of any material failure by any public benefit organisation, institution. board or body over which it exercises control to comply with any provision of this section,
the Commissioner may by notice in writing addressed to that regulating or co-ordinating body direct that if corrective steps are not taken by that regulating or co-ordinating body within a period stated by the Commissioner in that notice, any receipt issued by public benefit organisations, institutions, boards or bodies in that group in respect of any donation made on or after the date specified in that notice shall not qualify as a valid receipt for purposes of subsection (2).
(5B) If the Commissioner has reasonable grounds for believing that any accounting officer or accounting authority contemplated in the Public Finance Management Act or an accounting officer contemplated in the Local Government: Municipal Finance Management Act, 2003 (Act No. 56 of 2003), as the case may be, for any institution in respect of which that Act applies, has issued or allowed a receipt to be issued in contravention of subsection (2A) or utilised a donation in respect of which a receipt was issued for any purpose other than the purpose contemplated in that subsection, the Commissioner –
(a) must notify the National Treasury and the Provincial Treasury (if applicable) of the contravention; and
(b) may by notice in writing addressed to that accounting officer or accounting authority direct that, if corrective steps are not taken by that accounting officer or accounting authority within a period stated by the Commissioner in that notice, any receipt issued by that institution in respect of any donation made on or after the date specified in that notice shall not qualify as a valid receipt for purposes of subsection (2).
(5C) If any public benefit organisation contemplated in subsection (1)(b), has not distributed amounts as contemplated in subsection (2D), or has not incurred the obligation to distribute those amounts received in respect of investment assets held by it, those amounts shall be deemed to be taxable income of that public benefit organisation in that year of assessment.
[Subsection (5C) inserted by section 29 of Act 43 of 2014 and substituted by section 34 of Act 25 of 2015 effective on 8 January 2016]
(6) The Commissioner may, for the purposes of this section, approve a group of institutions, boards or bodies contemplated in subsection (1)(a)(ii), sharing a common purpose which carry on any public benefit activity under the direction or supervision of a regulating or co-ordinating body, where that body takes such steps, as prescribed by the Commissioner, to exercise control over those institutions, boards or bodies in order to ensure that they comply with the provisions of this section.
(7) Any person who is-
(i) in a fiduciary capacity responsible for the management or control of the income and assets of any public benefit organisation, institution, board or body contemplated in this section; or
(ii) the accounting officer or accounting authority contemplated in the Public Finance Management Act or the Local Government: Municipal Finance Management Act, 2003 (Act No. 56 of 2003), as the case may be, for any institution in respect of which that Act applies,
who intentionally fails to comply with any provisions of this section, or a provision of the constitution, will or other written instrument under which such organisation is established to the extent that it relates to the provisions of this section, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 24 months.
Section 20B (ITA) – Limitation of losses from disposal of certain assets
20B. Limitation of losses from disposal of certain assets
(1) Any deduction which is allowable during any year of assessment under section 11(o) in respect of the disposal by a person during that year of any asset the full consideration of which will not accrue to that person during that year, must be disregarded in that year,
(2) So much of any amount disregarded in terms of subsection (1), which has not otherwise been allowed as a deduction, may be deducted from the income of that person in any subsequent year of assessment to the extent that any consideration which is received by or accrued to that person in that subsequent year from that disposal is included in the income of that person.
(3) If during any year of assessment a person contemplated in subsection (1) proves that no further consideration will accrue to him or her in that year and any subsequent year as contemplated in subsection (2), so much of the amount which was disregarded in terms of subsection (1) as has not been allowed as a deduction in any year, must be allowed as a deduction from the income of that person in that year of assessment.
Subsections 2, 2A, 3, 4, 5, 6, 6A, 7, 8, 9, 10 and 11 of section 13ter of ITA
(2) Notwithstanding anything to the contrary contained in paragraph (ii) of the proviso to section 11(e), there shall, subject to the provisions of this section, be allowed to be deducted from the income of the taxpayer for the year of assessment referred to in subsection (6) of this section and each succeeding year of assessment, an allowance, to be known as the residential building annual allowance, equal to two per cent of the cost to the taxpayer of any residential unit erected by the taxpayer under a housing project of the taxpayer.
(2A) For the purposes of this section where a taxpayer completes an improvement as contemplated in section 12N, the expenditure incurred by the taxpayer to complete the improvement shall be deemed to be the cost to the taxpayer of a residential unit contemplated in subsection (2).
(3) In addition to the deduction provided for in subsection (2), there shall, subject to the provisions of this section, be allowed to be deducted from the income of the taxpayer for the year of assessment referred to in subsection (5), an allowance, to be known as the residential building initial allowance, equal to ten per cent of the cost to the taxpayer of the residential unit referred to in subsection (2).
(4) The allowances under this section shall not be made in respect of any portion of the cost of any residential unit on any premises not owned by the taxpayer, unless the taxpayer, at the date on which the erection of such residential unit is commenced, is entitled to the occupation of such premises for a period ending not less than ten years after such date.
(5) The residential building initial allowance in relation to any residential unit shall be made for the year of assessment during which such residential unit is for the first time let or occupied as contemplated in the definition of “residential unit” in subsection (1): Provided that if at the end of such year of assessment less than five of the residential units of the relevant housing project have for the first time been let or occupied as contemplated in the definition of “residential unit” in subsection (1), the residential building initial allowance relating to such residential unit shall not be made for that year of assessment but shall be made for the first succeeding year of assessment in which at least five of the residential units in that housing project have been so let or occupied for the first time.
(6) The residential building annual allowance relating to any residential unit shall be made for the first time for the year of assessment in which the residential building initial allowance is made in respect of that residential unit.
(6A) Where any building in respect of which any deduction of an allowance is claimed in terms of this section was during any previous financial year or years used by the taxpayer for the purposes of any trade carried on by him the receipts and accruals of which were not included in the income of such taxpayer during such year or years, any deduction which could have been allowed during such previous year or years in terms of this section shall for the purposes of this section (excluding the provisions of subsection (7)(a)) be deemed to have been allowed during such previous year or years as if the receipts and accruals of such trade had been included in the income of such taxpayer.
(7) If in any year of assessment any residential unit in respect of the cost of which any allowance has been made to the taxpayer under the provisions of this section, whether in the current or any previous year of assessment, is so used or dealt with by the taxpayer that it ceases to be available either for letting to a tenant or for occupation by an employee as contemplated in the definition of “residential unit” in subsection (1) –
(a) there shall be included in the income of the taxpayer for the year of assessment in which such residential unit is so used or dealt with, the amount of the residential building initial allowance made to him in respect of the cost of such residential unit, less one–tenth of such amount for each completed period of one year, but not exceeding ten years, from the date on which such residential unit was first let or occupied as contemplated in the definition of “residential unit” in subsection (1) until the date on which such residential unit was used or dealt with as aforesaid; and
(b) the residential building annual allowance shall not be made in respect of the cost of the said residential unit for the year of assessment during which such residential unit was used or dealt with as aforesaid nor in respect of any succeeding year of assessment during which it continued to be unavailable for the letting or occupation contemplated in the definition of “residential unit” in subsection (1).
(8) The provisions of sections 8(4)(a) and 11(o) shall not apply to so much of the amount of any residential building initial allowance as has been included in the taxpayer’s income under the provisions of subsection (7) (a) of this section, whether in the current or any previous year of assessment.
(9) No allowance shall be made under this section in respect of so much of the cost of any residential unit as has qualified or will qualify for deduction from the taxpayer’s income by way of a deduction of expenditure or an allowance in respect of expenditure under any other provision of this Act, whether for the current or any preceding or subsequent year of assessment.
(10) The aggregate of the allowances allowed or deemed to have been allowed under the preceding provisions of this section in respect of the cost of any residential unit shall not exceed such cost or, if such allowances have been calculated on a portion of such cost, such portion.
(11) Where any company is mainly engaged in the provision of housing facilities for the employees of the sole or principal holder of shares in that company or for the employees of any other company the shares in which are held wholly by the sole or principal holder of shares in such firstmentioned company, the employees of such holder of shares or such other company, as the case may be, shall for the purposes of this section be deemed to be the employees also of such firstmentioned company.