Category: Value-Added Tax Act No. 89 of 1991

“Fixed property” definition of section 1 of VAT Act

Posted on by admin_kmos

“fixed property” means land (together with improvements affixed thereto), any unit as defined in section 1 of the Sectional Titles Act, 1986 (Act No. 95 of 1986), any share in a share block company which confers a right to or an interest in the use of immovable property, and, in relation to a property time-sharing scheme, any time-sharing interest as defined in section 1 of the Property Time-sharing Control Act, 1983 (Act No. 75 of 1983); and any real right in any such land, unit, share or time-sharing interest;

[Definition of “fixed property” substituted by GN 2695 of 1991 and section 12 of Act 136 of 1992]

“Exported” definition of section 1 of VAT Act

Posted on by admin_kmos

“exported”, in relation to any movable goods supplied by any vendor under a sale or an instalment credit agreement, means-

(a)     consigned or delivered by the vendor to the recipient at an address in an export country as evidenced by documentary proof acceptable to the Commissioner; or

(b)     delivered by the vendor to the owner or charterer of any foreign-going ship contemplated in paragraph (a) or (c) of the definition of “foreign-going ship” or to a foreign-going aircraft when such ship or aircraft is going to a destination in an export country and such goods are for use or consumption in such ship or aircraft, as the case may be; or

[Paragraph (b) substituted by section 119 of Act 7 of 2010 effective on 2 November 2010]

(c)     delivered by the vendor to the owner or charterer of any foreign-going ship contemplated in paragraph (b) of the definition of “foreign-going ship” for use in such ship; or

(d)     removed from the Republic by the recipient or recipient’s agent for conveyance to an export country in accordance with any regulation made by the Minister in terms of this Act;

[Paragraph (d) amended by section 22 of Act 97 of 1993 and substituted by section 9 of Act 20 of 1994 and section 165 of Act 31 of 2013 effective on 1 April 2014]

“Export country” definition of section 1 of VAT Act

Posted on by admin_kmos

“export country” means any country other than the Republic and includes any place which is not situated in the Republic: Provided that the President may by notice in the Gazette determine that a specific country or territory shall from a date and to the extent indicated in the notice, be deemed not to be an export country;

[Definition of “export country” substituted by section 12 of Act 136 of 1992 and section 9 of Act 20 of 1994]

“Enterprise” definition of section 1 of VAT Act

Posted on by admin_kmos

“enterprise” means-

(a)     in the case of any vendor, any enterprise or activity which is carried on continuously or regularly by any person in the Republic or partly in the Republic and in the course or furtherance of which goods or services are supplied to any other person for a consideration, whether or not for profit, including any enterprise or activity carried on in the form of a commercial, financial, industrial, mining, farming, fishing, municipal or professional concern or any other concern of a continuing nature or in the form of an association or club;

[Paragraph (a) substituted by section 40 of Act 9 of 2006]

(b)     without limiting the applicability of paragraph (a) in respect of any activity carried on in the form of a commercial, financial, industrial, mining, farming, fishing or professional concern-

(i)      the making of supplies by any public authority of goods or services which the Minister, having regard to the circumstances of the case, is satisfied are of the same kind or are similar to taxable supplies of goods or services which are or might be made by any person other than such public authority in the course or furtherance of any enterprise, if the Commissioner, in pursuance of a decision of the Minister under this subparagraph, has notified such public authority that its supplies of such goods or services are to be treated as supplies made in the course or furtherance of an enterprise;

(ii)     the activities of any welfare organization as respects activities referred to in the definition of “welfare organization” in this section;

(iii)    the activities of any share block company (other than the services in respect of which section 12 (f) applies) where such company has applied for registration as a vendor under the provisions of section 23 (3) and has been registered as such;

[Subparagraph (iii) added by section 12 of Act 136 of 1992]

(v)     the activities of an implementing agency carried on in the course of implementing, operating, administering or managing a foreign donor funded project;

[Subparagraph (v) added by section 101(b) of Act 31 of 2005 and substituted by section 66(1)(a) of Act 34 of 2019 effective on 1 April, 2020]

(vi)    the supply of electronic services by a person from a place in an export country, where at least two of the following circumstances are present:

(aa)   The recipient of those electronic services is a resident of the Republic;

(bb)   any payment to that person in respect of such electronic services originates from a bank registered or authorised in terms of the Banks Act, 1990 (Act 94 of 1990);

(cc)   the recipient of those electronic services has a business address, residential address or postal address in the Republic;

[Sub-paragraph (vi) added by section 165(1)(e) of Act 31 of 2013 and substituted by section 95(1)(a) of Act 43 of 2014 effective on 1 April, 2015. Item (cc) amended by section 8(1)(a) of Act 21 of 2018 effective on 1 April, 2019 and applicable in respect of supplies made on or after that date]

(vii)      the activities of an intermediary:

[Sub-paragraph (vii) added by section 8(1)(a) of Act 21 of 2018 effective on 1 April, 2019 and applicable in respect of supplies made on or after that date]

(c)     ……….

[Paragraph (c) amended by section 22 of Act 97 of 1993 and section 9 of Act 20 of 1994 and deleted by section 40 of Act 9 of 2006]

Provided that-

(i)      anything done in connection with the commencement or termination of any such enterprise or activity shall be deemed to be done in the course or furtherance of that enterprise or activity;

(ii)     any branch or main business of an enterprise permanently situated at premises outside the Republic shall be deemed to be carried on by a person separate from the vendor, if-

(aa)   the branch or main business can be separately identified; and

(bb)   an independent system of accounting is maintained by the concern in respect of the branch or main business;

[Paragraph (ii) substituted by section 22 of Act 97 of 1993, section 9 of Act 20 of 1994 and section 92 of Act 32 of 2004]

(iii)

(aa)   the rendering of services by an employee to his employer in the course of his employment or the rendering of services by the holder of any office in performing the duties of his office, shall not be deemed to be the carrying on of an enterprise to the extent that any amount constituting remuneration as contemplated in the definition of “remuneration” in paragraph 1 of the Fourth Schedule to the Income Tax Act is paid or is payable to such employee or office holder, as the case may be;

[Item (aa) substituted by section 164 of Act 45 of 2003]

(bb)   subparagraph (aa) of this paragraph shall not apply in relation to any employment or office accepted by any person in carrying on any enterprise carried on by him independently of the employer or concern by whom the amount of remuneration is paid or payable;

(iv)    any activity carried on by a natural person essentially as a private or recreational pursuit or hobby or any activity carried on by a person other than a natural person which would, if it were carried on by a natural person, be carried on essentially as a private or recreational pursuit or hobby shall not be deemed to be the carrying on of an enterprise;

(v)     any activity shall to the extent to which it involves the making of exempt supplies not be deemed to be the carrying on of an enterprise;

(vi)    the activity of underwriting insurance business by Underwriting Members of Lloyd’s of London, to the extent that contracts of insurance are concluded in the Republic, shall be deemed to be the carrying on of an enterprise;

[Paragraph (vi) added by GN 2695 of 1991 and section 12 of Act 136 of 1992 and substituted by section 81 of Act 53 of 1999]

(vii) ……….

[Paragraph (vii) added by section 9 of Act 20 of 1994, substituted by section 114 of Act 74 of 2002 and deleted by section 104 of Act 60 of 2008]

(viii)  the making of supplies by a constitutional institution listed in Schedule 1 of the Public Finance Management Act, 1999 (Act No. 1 of 1999), shall be deemed not to be the carrying on of an enterprise;

[Paragraph (viii) inserted by section 164 of Act 45 of 2003]

(ix)    where a person carries on or intends carrying on an enterprise or activity supplying commercial accommodation as contemplated in paragraph (a) of the definition of “commercial accommodation” in section 1, and the total value of taxable supplies made by that person in respect of that enterprise or activity in the preceding period of 12 months or which it can reasonably be expected that that person will make in a period of 12 months, as the case may be, will not exceed R120 000, shall be deemed not to be the carrying on of that enterprise;

[Paragraph (ix) added by section 92 of Act 32 of 2004 and substituted by section 128 of Act 25 of 2015 and section 83 of Act 15 of 2016 effective on 1 April 2017]

(x)     where the Minister is satisfied that an activity of the municipal entity as defined in section 1 of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), is of a regulatory nature and if the Commissioner, in pursuance of a decision of the Minister, has notified that ‘municipal entity’ of that decision, the supply of goods or services in respect of that activity by the municipal entity shall be deemed not to be the carrying on of an enterprise;

[Paragraph (x) inserted by section 40 of Act 9 of 2006]

(xi)    the supply of services by a mutual association licensed in terms of section 30 of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993), to carry on the business of insurance of employers against their liabilities to employees in terms of that Act in respect of which that mutual association pays compensation that is no greater than compensation that would have been paid in similar circumstances in terms of that Act shall be deemed not to be the carrying on of an enterprise;

[Paragraph (xi) inserted by section 129 of Act 24 of 2011 with effect from 10 January 2012]

(xii)    any activity carried on by a trust contemplated in the definition of “sukuk” in section 24JA (1) of the Income Tax Act shall be deemed not to be the carrying on of an enterprise;

[Paragraph (xii) inserted by section 129 of Act 24 of 2011 effective on from 1 January 2013]

(xiii)   where a person is neither a resident of the Republic, nor a registered vendor and that person supplies or intends to supply to a recipient solely the use or the right of use of ships, aircraft, rolling stock or parts directly in connection thereto under any rental agreement, that activity shall be deemed not to be the carrying on of an enterprise, notwithstanding that those goods are supplied for use in the Republic, if-

(aa)   the supply is made to a recipient that is a resident of the Republic;

(bb)   such goods are supplied for use by the recipient wholly or partly in the Republic; and

(cc)   the recipient and supplier have agreed in writing that the recipient shall—

(A)    in terms of the Customs and Excise Act, enter such goods for home consumption and be liable for the payment of the tax imposed in accordance with section 7(1)(b) and section 13 of this Act; and

(B)    not be reimbursed by the supplier of the movable goods in respect of the tax imposed under section 7(1)(b) of this Act;

[Paragraph (xiii) added by section 61(1) of Act 23 of 2020 and amended by section 27(1)(a) of Act 20 of 2022 effective on 1 January, 2023]

(xiv)  where goods are supplied by a “qualifying purchaser” to another “qualifying purchaser” on a “flash title” basis as respectively defined in the regulations issued in terms of section 74(1)(contained in Government Notice No. R.316 published in Government Gazette No. 37580 of 2 May 2014) read with paragraph (d) of the definition of “exported” in section 1(1), the activity of the first-mentioned qualifying purchaser shall be deemed not to be the carrying on of an enterprise in the Republic provided that the documentary requirements prescribed in regulation 10 of the regulation referred to in paragraph (d) of the definition of “exported” in section 1(1) are complied with: Provided further that the provisions of this paragraph shall not apply where the first-mentioned qualifying purchaser applies in writing to the Commissioner and the Commissioner, having regard to the circumstances of the case, directs that the provisions of this section shall not apply to such first-mentioned qualifying purchaser;

[Paragraph (xiv) added by section 27(1)(b) of Act 20 of 2022 effective on 1 January, 2023]

(xv)   the activities of the Corporation for Deposit Insurance established in terms of section 166AE of the Financial Sector Regulation Act, 2017 (Act 9 of 2017), shall to the extent that it makes supplies of deposit insurance as contemplated in section 166AF(1) of that Act be deemed not to be the carrying on of an enterprise;

[Paragraph (xv) added by section 46(1) of Act 17 of 2023 effective on 1 April, 2024]

“Employee organisation” definition of section 1 of VAT Act

Posted on by admin_kmos

“employee organization” means an organization in which a number of employees in any particular undertaking, industry, trade, occupation or profession are associated together for the purpose of regulating relations between themselves or some of them and their employers or some of their employers or mainly for that purpose, disregarding the provision of sickness, accident or unemployment benefits for the members of the organization or for the widows, children, dependants or nominees of deceased members;

[Definition of “employee organization” inserted by GN 2695 of 1991 and section 12 of Act 136 of 1992]

“Dwelling” definition of section 1 of VAT Act

Posted on by admin_kmos

“dwelling” means, except where it is used in the supply of commercial accommodation, any building, premises, structure, or any other place, or any part thereof, used predominantly as a place of residence or abode of any natural person or which is intended for use predominantly as a place of residence or abode of any natural person, including fixtures and fittings belonging thereto and enjoyed therewith;

[Definition of “dwelling” substituted by section 12 of Act 136 of 1992, section 65 of Act 19 of 2001 and section 148 of Act 60 of 2001]