47.     Transactions relating to liquidation, winding-up and deregistration

(2)     The provisions of this Part must, subject to subsection (3), apply in respect of an asset-for-share transaction, a substitutive share-for-share transaction, an amalgamation transaction, an intra-group transaction, an unbundling transaction and a liquidation distribution as contemplated in sections 42, 43, 44, 45, 46 and 47, respectively, notwithstanding any provision to the contrary contained in the Act, other than sections 24BA, 24I, 25BB (5), 40CA (b) and 103, Part IIA of Chapter III and paragraph 11(1)(g) of the Eighth Schedule and any adjusted gain on transfer or redemption of an instrument, as defined in section 24J (1) and any adjusted loss on transfer or redemption of an instrument as defined in section 24J (1).

[Subsection (2) substituted by section 49(1)(i) of Act 45 of 2003, by section 32(1)(d) of Act 32 of 2004, by section 28(1)(j) of Act 20 of 2006, by section 52(1)(e) of Act 35 of 2007, by section 67(1)(c) of Act 24 of 2011, by section 73(1) of Act 22 of 2012, by section 90(1)(g) and (h) of Act 31 of 2013, by section 50(b) of Act 17 of 2017, by section 54(1)(a) of Act 23 of 2018, by section 54(1)(b) of Act 23 of 2018, by section 39(a) of Act 34 of 2019 and by section 24 of Act 20 of 2021]

(3)     The provisions of this Part shall not apply in respect of any transaction in terms of which any asset is disposed of to an insurer as defined in section 29A if the asset is to be held in the insurer’s untaxed policyholder fund as contemplated in subsection (4)(a) of that section.

(4)     A company must for the purposes of this Part, be deemed to have taken steps to liquidate, wind up or deregister, where-

(a)     in the case of a liquidation or winding-up-

(i)      that company has lodged a resolution authorising the voluntary winding-up of that company in terms of-

(aa)   section 80(2) of the Companies Act in the case of a company to which that section applies;

(bb)   Regulation 21 of the Regulations under the Co-operatives Act, 2005 (Act No. 14 of 2005), published under section 95 of that Act in Government Notice R. 366 of 30 April 2007, in the case of a co-operative; or

(cc)   a similar provision contained in any foreign law relating to the liquidation of companies, in the case where that company is incorporated in a country other than the Republic, if such foreign law so requires; and

(ii)     that company has disposed of all assets and has settled all liabilities (other than assets required to satisfy any reasonably anticipated liabilities to any sphere of government of any country and costs of administration relating to the liquidation or winding-up); and

(iii)    the manager, trustee or custodian of the portfolio of the collective investment scheme in property has in terms of section 102(1) or(2) of the Collective Investment Schemes Control Act applied for the winding up of that portfolio;

(b)       in the case of a deregistration of a company—

(i)

(aa)   a request for the deregistration of that company has in terms of section 82(3)(b)(ii) of the Companies Act been lodged; or

(bb) a notice of amalgamation or merger has in terms of section 116 of the Companies Act been filed in respect of that company,

in the prescribed form and manner with the Companies and Intellectual Property Commission; or

(ii)     in the case where that company is incorporated in a country other than the Republic, a request or notice in respect of that company has been lodged with a person who, in terms of any similar provision contained in any foreign law, exercises the powers and performs the duties assigned to the Commission contemplated in subparagraph (i), if such foreign law so requires;

[Paragraph (b) substituted by section 67(1)(e) of Act 24 of 2011, amended section 90(1)(k) of Act 31 of 2013 and substituted by section 39(b) of Act 34 of 2019]

(c)     that company has submitted a copy of the resolution contemplated in paragraph (a)(i) or the request or notice contemplated in paragraph (b) to the Commissioner; and

[Paragraph (c) substituted by section 67(1)(e) of Act 24 of 2011 and by section 39(b) of Act 34 of 2019]

(d)     all the returns or information required to be submitted or furnished to the Commissioner in terms of any Act administered by the Commissioner by the end of the relevant period within which the steps contemplated in this subsection must be taken, have been submitted or furnished or arrangements have been made with the Commissioner for the submission of any outstanding returns or furnishing of information.

(5)     The Commissioner may prescribe the circumstances under which a person entering into any asset-for-share transaction, amalgamation transaction, intra-group transaction, unbundling transaction or liquidation distribution contemplated in sections 42, 44, 45, 46 and 47, respectively, must furnish a return to the Commissioner of that transaction or distribution.

(6)     ……….

(7)     An amount contemplated in paragraph (j) of the definition of ‘gross income’ in section 1 and an amount to be included in gross income in terms of paragraph 14 of the First Schedule must for purposes of this Part be deemed to be an allowance that must be recovered or recouped.

(8)     ……….

(9)     Where a person has made an election in respect of an asset under paragraph 65 or 66 of the Eighth Schedule and disposes of or distributes any replacement asset in relation to that asset in terms of section 42, 44, 45 or 47–

(a)     the person so disposing of or distributing that replacement asset must disregard any capital gain or amount recovered or recouped which was apportioned to that asset under paragraph 65 or 66 of the Eighth Schedule or section 8(4)(e) and (eA), as the case may be, and which otherwise would have had to be brought to account at the time of that disposal or distribution; and

(b)     the company acquiring that replacement asset and the person referred to in paragraph (a) must be treated as one and the same person for the purposes of section 8(4)(eB), (eC) or (eD) and paragraphs 65 and 66 of the Eighth Schedule.

(10)   For the purposes of this Part, a contingent liability is deemed to be a debt actually incurred.

[Subsection (10) added by section 50 of Act 17 of 2017 effective on 18 December 2017]