Category: Section 12R (ITA) – Special economic zones

“Qualifying company” definition of section 12R of ITA

Posted on by admin_kmos

‘qualifying company’ means a company-

(a)

(i)      incorporated by or under any law in force in the Republic or in any part thereof; or

(ii)     that has its place of effective management in the Republic;

(b)     that carries on a trade in a special economic zone designated by the Minister of Trade and Industry in terms of the Special Economic Zones Act and approved by the Minister of Finance after consultation with the Minister of Trade and Industry for the purposes of this section by notice in the Gazette;

[Paragraph (b) substituted by section 26 of Act 43 of 2014 effective on the date on which the Special Economic Zones Act comes into operation, 9 February 2016 and by section 30 of Act 17 of 2017 effective on 9 February 2016]

(c)     if the trade contemplated in paragraph (b) is carried on from a fixed place of business situated within a special economic zone;

[Paragraph (c) substituted by section 30(1)(a) of Act 17 of 2017 and amended by section 20(1) of Act 34 of 2019 deemed effective on 1 January, 2019 and applicable in respect of years of assessment ending on or after that date]

(d)     if not less than 90 per cent of the income of that company is derived from the carrying on of a trade within one or more special economic zones; and

[Paragraph (d) substituted by section 26(1)(c) of Act 43 of 2014 and by section 30(1)(a) of Act 17 of 2017 and amended by section 20(1) of Act 34 of 2019 deemed effective on 1 January, 2019 and applicable in respect of years of assessment ending on or after that date]

(e)      that—

(i)      was carrying on any trade before 1 January 2013 in a location that is subsequently approved for the purpose of this section as a zone in terms of subsection (3);

(ii)     commenced, on or after 1 January 2013 the carrying on, in a location that is approved or subsequently approved for the purpose of this section as a zone in terms of subsection (3), of any trade not previously carried on by that company or any connected person in relation to that company in the Republic; or

(iii)    commenced, on or after 1 January 2013 the carrying on, in a location that is approved or subsequently approved for the purpose of this section as a zone in terms of subsection (3), of any trade and that trade-

(aa)   comprises of the production of goods not previously produced by that company or any connected person in relation to that company in the Republic;

(bb)   utilises the use of new technology in that company’s production processes; or

(cc)   represents an increase in the production capacity of that company in the Republic.

[Paragraph (e) added by section 20(1) of Act 34 of 2019 deemed effective on 1 January, 2019 and applicable in respect of years of assessment ending on or after that date]

Subsections 2, 3, 4 and 5 of section 12R of ITA

Posted on by admin_kmos

(2)       ……….

[Subsection (2) substituted by section 26 of Act 43 of 2014 effective on the date on which the Special Economic Zones Act is operational, 9 February 2016, deleted by section 34 of Act 15 of 2016 effective on 19 January 2017]

(3)     The Minister of Finance must approve a special economic zone for purposes of this section after taking into account the financial implications for the State should a special economic zone be approved under this section.

(4)     Notwithstanding a qualifying company being located in a special economic zone-

(a)     a company is not a qualifying company if that company conducts any of the following activities classified under ‘Section C: Manufacturing’ in the SIC Code:

[Words preceding subparagraph (i) substituted by section 26 of Act 43 of 2014 effective on the date on which the Special Economic Zones Act is operational, 9 February 2016, substituted by section 34 of Act 15 of 2016 effective on 19 January 2017]

(i)      Distilling, rectifying and blending of spirits (SIC Code 1101);

[Subparagraph (i) substituted by section 26 of Act 43 of 2014 effective on the date on which the Special Economic Zones Act is operational, 9 February 2016]

(ii)     Manufacture of wines (SIC Code 1102);

[Subparagraph (ii) substituted by sectoin 26 of Act 43 of 2014 effective on the date on which the Special Economic Zones Act is operational, 9 February 2016]

(iii)    Manufacture of malt liquors and malt (SIC Code 103);

[Subparagraph (iii) substituted by section 26 of Act 43 of 2014 effective on the date on which the Special Economic Zones Act operational on, 9 February 2016]

(iv)    Manufacture of tobacco products (SIC Code 12);

[Subparagraph (iv) substituted by section 26 of Act 43 of 2014 effective on the date on which the Special Economic Zones Act is operational, 9 February 2016]

(v)     Manufacture of weapons and ammunition (SIC Code 252);

[Subparagraph (v) substituted by section 26 of Act 43 of 2014 effective on the date on which the Special Economic Zones Act is operational, 9 February 2016]

(vi)    Manufacture of bio-fuels if that manufacture negatively impacts on food security in the Republic;

[Subparagraph (vi) added by section 26 of Act 43 of 2014 and amended by section 28 of Act 25 of 2015 effective on the date on which the Special Economic Zones Act is operational, 9 February 2016]

(b)     a company that conducts any activity classified in the SIC Code, which the Minister of Finance may designate by notice in the Gazette is not a qualifying company; or

[Paragraph (b) substituted by section 26 of Act 43 of 2014 and amended by section 28 of Act 25 of 2015 effective on the date on which the Special Economic Zones Act is operational, 9 February 2016, substituted by section 34 of Act 15 of 2016 effective on 19 January 2017]

(c)     a company is not a qualifying company if-

[Words preceding subparagraph (i) substituted by section 34 of Act 15 of 2016 effective on 19 January 2017]

(i)      more than 20 per cent of expenditure that is deductible under this Act is incurred; or

(ii)     more than 20 per cent of the income of that company is received or accrued,

in respect of transactions with any connected person in relation to that company if that connected person-

(aa)    is a resident; or

(bb)   is not a resident and those transactions are attributable to a permanent establishment of that connected person in the Republic.

[Paragraph (c) added by section 28 of Act 25 of 2015 effective on the date on which the Special Economic Zones Act is operataional, 9 February 2016]

(5)     This provision ceases to apply in respect of any year of assessment commencing on or after 1 January 2031.

[Subsection (5) substituted by section 26(1)(i) of Act 43 of 2014, amended by section 30(1)(b) of Act 17 of 2017 and substituted by section 18(1) of Act 23 of 2020 deemed effective on 9 February, 2016][Section 12R inserted by section 43 of Act 31 of 2013 and amended by section 26 of Act 43 of 2014 and section 28 of Act 25 of 2015 effective on the date on which the Special Economic Zones Act is operational, 9 February 2016]