Category: Estate Duty Act 45 of 1955

Section 3 (Estate Duty Act) – What constitutes estate duty

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3. What constitutes an estate

(1)     For the purposes of this Act the estate of any person shall consist of all property of that person as at the date of his death and of all property which in accordance with this Act is deemed to be property of that person at that date.

(2)     “Property” means any right in or to property, movable or immovable, corporeal or incorporeal, and includes –

(a)     any fiduciary, usufructuary or other like interest in property (including a right to an annuity charged upon property) held by the deceased immediately prior to his death;

(b)     any right to an annuity (other than a right to an annuity charged upon any property) enjoyed by the deceased immediately prior to his death which accrued to some other person on the death of the deceased,

(bA)     . . . . . .

[Paragraph (bA) inserted by section 2(1) of Act 25 of 2015, substituted by section 1(1) of Act 17 of 2017 and by section 1(1) of Act 34 of 2019 and deleted by section 1(1)(a) of Act 23 of 2020 deemed effective on 30 October, 2019 and applicable in respect of (a) the estate of a person who dies on or after that date; and (b) any contributions made on or after 1 March, 2016]

but does not include –

(c)     in the case of a deceased who was not ordinarily resident in the Republic at the date of his death, any right in immovable property situate outside the Republic;

[Paragraph (c) substituted by section 2 of Act 65 of 1960]

(d)     any right in movable property physically situate outside the Republic if the deceased was not ordinarily resident in the Republic at the date of his death;

[Paragraph (d) amended by section 2 of Act 65 of 1960]

(e)     any debt not recoverable or right of action not enforceable in the Courts of the Republic if the deceased was not ordinarily resident in the Republic at the date of his death;

[Paragraph (e) substituted by section 2 of Act 65 of 1960]

(f)     any goodwill, licence, patent, design, trade mark, copyright or other similar right not registered or enforceable in the Republic or attaching to any trade, business or profession in the Republic if the deceased was not ordinarily resident in the Republic at the date of his death;

[Paragraph (f) amended by section 2 of Act 65 of 1960]

(g)     in the case of a deceased who was not ordinarily resident in the Republic at the date of his death –

(i)      any stocks or shares held by him in a body corporate which is not a company; and

(ii)     any stocks or shares held by him in a company, provided any transfer whereby any change of ownership in such stocks or shares is recorded is not required to be registered in the Republic;

[Paragraph (g) substituted by section 2 of Act 65 of 1960]

(h)     any rights to any income produced by or proceeds derived from any property referred to in paragraph (e), (f) or (g).

(i)      so much of any benefit which is due and payable by, or in consequence of membership or past membership of, any pension fund, pension preservation fund, provident fund, provident preservation fund or retirement annuity fund as defined in the Income Tax Act, 1962 (Act No. 58 of 1962), on or as a result of the death of the deceased.

[Paragraph (i) added by section 2 of Act 60 of 2008]

(3)     Property which is deemed to be property of the deceased includes –

(a)     so much of any amount due and recoverable under any policy of insurance which is a “domestic policy”, upon the life of the deceased as exceeds the aggregate amount of any premiums or consideration proved to the satisfaction of the Commissioner to have been paid by any person who is entitled to the amount due under the policy, together with interest at six per cent per annum calculated upon such premiums or consideration from the date of payment to the date of death: Provided that the foregoing provisions of this paragraph shall not apply in respect of any amount due and recoverable under a policy of insurance, if –

(i)      the amount due under such policy is recoverable by the surviving spouse or child of the deceased under a duly registered ante-nuptial or post-nuptial contract; or

(iA)   the Commissioner is satisfied that the policy was taken out or acquired by a person who on the date of death of the deceased was a partner of the deceased, or held any share or like interest in a company in which the deceased on that date held any share or like interest, for the purpose of enabling that person to acquire the whole or part of –

(aa)   the deceased’s interest in the partnership concerned; or

(bb)   the deceased’s share or like interest in that company and any claim by the deceased against that company,

and that no premium on the policy was paid or borne by the deceased; or

[Subparagraph (iA) inserted by section 2 of Act 92 of 1983 and substituted by section 4 of Act 1981 of 1985]

(ii)     except where the provisions of paragraph (i) or (iA) of this proviso apply, the Commissioner is satisfied and remains satisfied that such policy was not effected by or at the instance of the deceased, that no premium on such policy was paid or borne by the deceased, that no amount due or recoverable under such policy has been or will be paid into the estate of the deceased and that no such amount has been or will be paid to, or utilized for the benefit of, any relative of the deceased or any person who was wholly or partly dependent for his maintenance upon the deceased or any company which was at any time a family company in relation to the deceased;

[Sub-para (ii) amended by section 2 of Act 92 of 1983]

[Paragraph (a) amended by section 2 of Act 81 of 1965, substituted by section 4 of Act 1992 of 1971 and section 7 of Act 30 of 2000]

(a)bis ……….

[Paragraph (a)bis inserted by section 2 of Act 81 of 1965, substituted by section 3 of Act 102 of 79, section 10 of Act 106 of 1980 and section 2 of Act 92 of 83, amended by section 6 of Act 27 of 1997, substituted by section 13 of Act 30 of 1998 and deleted by section 2 of Act 60 of 2008]

(b)     any property donated by the deceased in terms of a donation which was exempt from donations tax under section 56(1)(c) or (d) of the Income Tax Act, 1962 (Act No. 58 of 1962), if that property is not otherwise included as property of the deceased for purposes of this Act;

[Paragraph (b) substituted by section 5 of Act 31 of 2005 with effect from 8 November 2005]

(c)     ……….

[Paragraph (c) amended by section 8 of Act 77 of 1964, section 3 of Act 89 of 1972 and section 4 of Act 81 of 1985 and deleted by section 9 of Act 87 of 1988]

(cA)  the amount of any claim acquired by the estate of the deceased under section 3 of the Matrimonial Property Act, 1984, against the deceased’s spouse or the estate of his deceased spouse, in respect of any accrual contemplated in that section;

[Paragraph (cA) inserted by section 4 of Act 81 of 1985]

(cB)  ……….

[Paragraph (cB) inserted by section 9 of Act 87 of 1988 and deleted by section 7 of Act 97 of 1993]

(d)     property (being property not otherwise chargeable under this Act or the full value of which is not otherwise required to be taken into account in the determination of the dutiable amount of the estate) of which the deceased was immediately prior to his death competent to dispose for his own benefit or for the benefit of his estate.

[Paragraph (d) substituted by section 2 of Act 65 of 1960]

(e)     so much of the amount of any contribution made by the deceased in consequence of membership or past membership of any pension fund, provident fund, or retirement annuity fund, as was allowed as a deduction in terms of paragraph 5 of the Second Schedule to the Income Tax Act, 1962 (Act 58 of 1962), to determine the taxable portion of the lump sum benefit that is deemed to have accrued to the deceased immediately prior to his or her death.

[Paragraph (e) added by section 1(1)(b) of Act 23 of 2020 deemed effective on 30 October, 2019 and applicable in respect of (a) the estate of a person who dies on or after that date; and (b) any contributions made on or after 1 March, 2016]

(4)     ……….

[Subsection (4) amended by section 8 of Act 77 of 1964 and section 4 of Act 92 of 1971, substituted by section 9 of Act 87 of 1988 and deleted by section 7 of Act 97 of 1993]

(5)     For purposes of paragraph (d) of subsection (3) –

(a)     the term “property” shall be deemed to include the profits of any property;

(b)     a person shall be deemed to have been competent to dispose of any property –

(i)      if he had such power as would have enabled him, if he were sui juris, to appropriate or dispose of such property as he saw fit whether exercisable by will, power of appointment or in any other manner;

(ii)     if under any deed of donation, settlement, trust or other disposition made by him he retained the power to revoke or vary the provisions thereof relating to such property;

(c)     the power to appropriate, dispose, revoke or vary contemplated in paragraph (b) shall be deemed to exist if the deceased could have obtained such power directly or indirectly by the exercise, either with or without notice, of power exercisable by him or with his consent;

(d)     the expression “property of which the deceased was immediately prior to his death competent to dispose” shall not include the share of a spouse of a deceased in any property held in community of property between the deceased and such spouse immediately prior to his death.

[Subsection (5) inserted by section 2 of Act 65 of 1960]

Section 5 (Estate Duty Act) – Determination of value of property

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5. Determination of value of property

[Heading substituted by section 12 of Act 60 of 2001]

(1)     The value of any property for the purposes of the inclusion thereof in the estate of any person in terms of section 3 or the deduction thereof in terms of section 4 determined as at the date of death of that person, shall be-

(a)     in the case of property, other than such property as is referred to in paragraph (f)bis or the proviso to paragraph (g), disposed of by a purchase and sale which in the opinion of the Commissioner is a bona fide purchase and sale in the course of the liquidation of the estate of the deceased, the price realized by such sale;

[Paragraph (a) amended by section 4 of Act 65 of 1960]

(b)     in the case of any such fiduciary, usufructuary or other like interest in property as is referred to in paragraph (a) of section 3(2), an amount determined by capitalizing at twelve per cent the annual value of the right of enjoyment of the property in which the deceased held any such fiduciary, usufructuary or other like interest, to the extent to which the person who upon the cessation of the said interest of the deceased in consequence of the death of the deceased becomes entitled to any right of enjoyment of such property of whatever nature, over the expectation of life of such person, or if such right of enjoyment is to be held for a lesser period than the life of such person, over such lesser period: Provided that in any case in which it is proved to the satisfaction of the Commissioner that such person paid any consideration for the right of ownership in the property whereby he became entitled to the right of enjoyment of the property upon the death of the deceased, the value shall be so much of the value so arrived at as exceeds the amount of such consideration together with interest thereon calculated at six per cent per annum from the date of payment of such consideration to the date of death of the deceased: Provided further that where upon the cessation of the interest of the deceased in any property, there accrues to the holder of the bare dominium therein, the full ownership in that property, the value of the advantage or benefit so accruing by reason of the cessation of the interest held by the deceased, shall not exceed the difference between the fair market value of that property as at the date of such cessation and the value of the bare dominium as at the date when such bare dominium was first acquired under the disposition creating the said interest held by the deceased: Provided further that if upon the cessation of the interest held by the deceased it is not possible to ascertain until some future date the person or some or all of the persons who will become entitled to the right of enjoyment of the property, the value shall be determined by capitalizing at twelve per cent over a period of fifty years the annual value of the right of enjoyment of the property in which such interest was held, unless the Commissioner and the executor agree that, having regard to the circumstances of the case, it would be reasonable to adopt a lesser period than fifty years, in which event such lesser period, as agreed, may be adopted accordingly;

[Paragraph (b) amended by section 3 of Act 59 of 1957 and section 4 of Act 65 of 1960 and substituted by section 7 of Act 114 of 1977]

(c)     in the case of any right to any annuity referred to in paragraph (a) of subsection (2) of section 3, an amount equal to the value of the annuity capitalized at twelve per cent-

(i)      in the case where the said right accrues to some other person on the death of the deceased, over the expectation of life of the person to whom the said right accrues on the death of the deceased, or if it is to be held for a lesser period than the life of such person, over such lesser period;

(ii)     in the case where the said right does not so accrue to some other person, over the expectation of life of the person who on the death of the deceased is the owner of the property upon which such annuity was charged;

[Paragraph (c) amended by section 7 of Act 114 of 1977]

(d)     in the case of any right to any annuity referred to in paragraph (b) of subsection (2) of section 3, an amount equal to the value of the annuity capitalized at twelve per cent, over the expectation of life of the person to whom the right to such annuity accrues on the death of the deceased, or if it is to be held for a lesser period than the life of such person, over such lesser period;

[Paragraph (d) amended by section 7(1)(c) of Act 114 of 1977 and substituted by section 1(b) of Act 21 of 2021 and by section 2 of Act 16 of 2022]

(d)bis in the case of any annuity to which the provisions of section 3(3)(a) apply, an amount equal to the value of the annuity capitalized at twelve per cent over the expectation of life of the annuitant, or if the annuity is payable for a lesser period than the life of the annuitant, over such lesser period: Provided that if within five years after the death of the deceased the annuity ceases to be payable because of the death of the annuitant within that period or, where the annuitant is the widow of the deceased, because of her remarriage within that period, the value of the annuity shall be deemed to be an amount equal to the lesser of –

(i)      the aggregate of the amounts which accrued to the annuitant in respect of the annuity and any amounts which accrued to him or his estate upon or as a result of the termination of the annuity; or

(ii)     the said capitalized value of the annuity;

[Paragraph (d)bis inserted by section 4(1) of Act 81 of 1965, substituted by section 2(1) of Act 56 of 1966 and amended by section 7(1)(d) of Act 114 of 1977 and by section 2 of Act 20 of 2021]

(e)     in the case of any property referred to in section 3(3)(b), an amount determined in the manner prescribed in section 62 of the Income Tax Act, 1962 (Act No. 58 of 1962);

[Paragraph (e) substituted by section 10 of Act 77 of 1964, section 12 of Act 87 of 1988 and section 9 of Act 97 of 1993]

(f)     in the case of a right of ownership in any movable or immovable property which is subject to a usufructuary or other like interest in favour of any person, the amount by which the fair market value of the full ownership of such property exceeds the value of such interest, determined –

(i)      in the case of a usufructuary interest, by capitalizing at twelve per cent, the annual value of the right of enjoyment of the property subject to such usufructuary interest over the expectation of life of the person entitled to such interest, or if such right of enjoyment is to be held for a lesser period than the life of such person, over such lesser period;

[Subparagraph (i) amended by section 7(1)(e) of Act 114 of 1977 and substituted by section 1(c) of Act 21 of 2021]

(ii)     in the case of an annuity charged upon the property, by capitalizing at twelve per cent, the amount of the annuity over the expectation of life of the person entitled to such annuity, or if it is to be held for a lesser period than the life of such person, over such lesser period; or

[Subparagraph (ii) amended by section 7(1)(e) of Act 114 of 1977 and substituted by section 1(c) of Act 21 of 2021]

(iii)    in the case of any other interest, by capitalizing at twelve per cent, such amount as the Commissioner may consider reasonable as representing the annual yield of such interest, over the expectation of life of the person entitled to such interest, or if such interest is to be held for a lesser period than the life of such person, over such lesser period;

[Paragraph (f) amended by section 1(b) of Act 19 of 2001. Subparagraph (iii) amended by section 7(1)(e) of Act 114 of 1977 and substituted by section 1(c) of Act 21 of 2021]

(f)bis in the case of shares in any company not quoted on any stock exchange, the value of such shares in the hands of the deceased at the date of his death, subject to the following provisions, namely –

(i)      no regard shall be had to any provision in the memorandum and articles of association, founding statement, association agreement or rules of the company, as the case may be, restricting the transferability of the shares therein, but it shall be assumed that such shares were freely transferable;

[Subparagraph (i) substituted by section 9 of Act 97 of 1993]

(ii)     no regard shall be had to any provision in the memorandum and articles of association, founding statement, association agreement or rules of the company, as the case may be, whereby or whereunder the value of the shares of the deceased or any other member is to be determined;

[Subparagraph (ii) substituted by section 9 of Act 97 of 1993]

(iii)    if upon a winding-up of the company the deceased would have been entitled to share in the assets of the company to a greater extent pro rata to shareholding or membership than other shareholders or members, no lesser value shall be placed on the shares held by the deceased than the amount to which he would have been so entitled if the company had been in course of winding-up and the said amount had been determined as at the date of his death;

[Subparagraph (iii) substituted by section 9 of Act 97 of 1993]

(iv)    no regard shall be had to any provision or arrangement resulting in any variation in the rights attaching to any shares through or on account of the death of the deceased;

[Subparagraph (iv) substituted by section 10 of Act 71 of 1961]

(v)     there shall be taken into account any power of control exercisable by the deceased and the company whereunder he was entitled or empowered to vary or cancel any rights attaching to any class of shares therein, including by way of redemption of preference shares, if, by the exercise of such power he could have conferred upon himself any benefit or advantage in respect of the assets or profits of the company;

(vi)    ……….

[Subparagraph (vi) deleted by section 10 of Act 71 of 1961]

[Paragraph (f)bis inserted by section 4 of Act 65 of 1960 and amended by section 10 of Act 71 of 1961 and section 1 of Act 19 of 2001]

(f)ter  in the case of any property referred to in paragraph (d) of subsection (3) of section 3 which consists only of profits, an amount determined by capitalizing at twelve per cent, such amount as the Commissioner may consider reasonable as representing the annual value of such profits over the expectation of life of the deceased immediately prior to the date of his or her death, and in the case of any other property referred to in the said paragraph the amount remaining after deducting from the fair market value of that property as at the date of death of the deceased the expenses and liabilities which the deceased would have had to bear or assume if he or she had at that date exercised his or her power of disposition;

[Paragraph (f)ter inserted by section 4(c) of Act 65 of 1960, amended by section 7(1)(f) of Act 114 of 1977 and substituted by section 1(d) of Act 21 of 2021]

(g)     in the case of any other property, the fair market value of such property as at the date of death of the deceased person: Provided that in any case in which, as a result of conditions imposed by any person whomsoever, the value of any property could or would be reduced for any reason or after the moment of death, the value of such property shall, unless the Commissioner otherwise directs, be determined as though those conditions had not been imposed.

[Paragraph (g) amended by section 4 of Act 65 of 1960 and section 1 of Act 19 of 2001]

[Subsection (1) amended by section 1 of Act 19 of 2001]

(1A)  Where any company referred to in paragraph (f)bis of subsection (1) owns immovable property on which bona fide farming operations are being carried on in the Republic, the value of such immovable property shall, in so far as it is relevant for the purposes of determining in terms of that subsection the value of any shares in such company, be determined in the manner prescribed in the definition of “fair market value” in section 1.

[Subsection (1A) inserted by section 7 of Act 81 of 1985]

(2)     For the purposes of paragraphs (b) and (f) of subsection (1) and for purposes of determining the value of any deduction contemplated in section 4, the annual value of the right of enjoyment of a property means an amount equal to twelve per cent upon the fair market value of the full ownership of the property which is subject to any fiduciary, usufructuary or other like interest: Provided that where the Commissioner is satisfied that the property which is subject to any such interest could not reasonably be expected to produce an annual yield equal to twelve per cent on such value of the property, the Commissioner may fix such sum as representing the annual yield as may be reasonable, and the sum so fixed shall be deemed to be the annual value of the right of enjoyment of such property:  Provided further that where the property which is subject to any such interest consists of books, pictures, statuary or other objects of art, the annual value of the right of enjoyment thereof shall for the purposes of paragraph (b) of subsection (1) be deemed to be the average net receipts (if any) derived by the person entitled to such right of enjoyment of such property during the three years immediately preceding the date of death of the deceased.

[Subsection (2) amended by section 7(1)(g) of Act 114 of 1977, by section 2 of Act 136 of 1991, by section 1(e) of Act 19 of 2001, by section 12(1)(b) of Act 60 of 2001 and by section 1(e) of Act 21 of 2021]

(3)     Where for the purposes of subsection (1) any calculation is required to be made over the expectation of life of any person, such calculation shall, in the case of a person who is not a natural person, be made over a period of fifty yearsection

(4)     Whenever the value of any property included in the estate of a deceased is reduced as a result of the continuance after the death of that person of any right (other than a fiduciary, usufructuary or other like interest) to the use or occupation of property for no consideration or for a consideration which in the opinion of the Commissioner is not an adequate consideration, the value of such property shall for the purposes of subsection (1) be determined as though the said right had not been granted.

[Subsection (4) added by section 3 of Act 59 of 1957 and substituted by section 12 of Act 87 of 1988]

(5)     For the purposes of subsection (1) (f)bis, the term “shares” includes any members’ interests or any class of shares, stock, debenture stock, debentures or right to purchase members’ interests or to subscribe for or purchase shares, stocks or debentures, and the term “company” includes any company or close corporation incorporated in the Republic or elsewhere.

[Subsection (5) inserted by section 4 of Act 65 of 1960, amended by section 10 of Act 71 of 1961 and substituted by section 9 of Act 97 of 1993]

Section 6 (Estate Duty Act) – Administration of Act

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6. Administration of Act

(1)     The Commissioner shall be responsible for the administration of this Act.

(2)     The powers conferred and the duties imposed upon the Commissioner by this Act may be exercised or performed by the Commissioner or by any SARS official under the control, direction or supervision of the Commissioner.

[Subsection (2) substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(3)     Administrative requirements and procedures for purposes of the performance of any duty, power or obligation or the exercise of any right in terms of this Act are, to the extent not regulated in this Act, regulated by the Tax Administration Act.

[Subsection (3) substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

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

Posted on by admin_kmos

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.