Category: Transfer Duty Act 40 of 1949

Section 10 (Transfer Duty Act) – Administration of Act

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10. 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 11 (Transfer Duty Act) – Powers of Commissioner

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11. Powers of the Commissioner

 

(1)     The Commissioner may decline to accept any payment of duty otherwise than as a deposit on account of duty until the appropriate declarations referred to in section 14 are submitted to him.

[Subsection (1) substituted by section 4 of Act 46 of 1996]

 

(2)     If the Commissioner is satisfied that the declaration required to be completed by any one of the parties to a transaction or by a person who has acquired property otherwise than by way of a transaction, cannot be obtained, he may, notwithstanding the provisions of subsection (1) of section 14, dispense with the production of such declaration or may accept in lieu thereof a declaration by some other person whom he considers able to furnish the particulars required to be given.

 

(3)    

 

(a)     Where in terms of section 3(2) a deposit on account of the duty payable by any person is made pending the determination by the Commissioner of the fair value of the property concerned, of an amount equal to the duty calculated on the consideration paid or payable in respect of the acquisition of the property or on the declared value thereof, as the case may be, and there is given to the Commissioner security to his or her satisfaction for the payment of any balance of transfer duty which may still be payable, the Commissioner may in his or her discretion issue to the person liable to pay the duty a certificate that such deposit has been made and that such security has been given.

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

(b)     No fee shall be payable in respect of a certificate issued under paragraph (a).

Section 12 (Transfer Duty Act) – Registration of acquisition of property prohibited where duty not paid

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12. Registration of acquisition of property prohibited where duty not paid

 

(1)     No registration officer shall make any record in his deeds registry of an acquisition of property unless there has been produced to him proof, other than a receipt for a deposit on account of duty –

 

(a)     that any duty payable under this Act or any other law has been paid in respect of the acquisition in question; and

(b)     where the property is to be transferred from the registered owner direct to a person who acquired the property from an intermediary contemplated in the Alienation of Land Act, 1981 (Act No. 68 of 1981), that any duty payable under this Act or any other law has been paid in respect of the acquisition of the property by the intermediary who acquired the property from the registered owner, and in respect of each subsequent acquisition of the property by any person who is also an intermediary as contemplated in the said Act.

[Paragraph (b) substituted by section 1 of Act 70 of 1975 and section 4 of Act 86 of 1987]

[Subsection (1) substituted by section 2 of Act 92 of 1971]

 

(2)     The provisions of subsection (1) shall not apply with reference to an acquisition of property in respect of which there is lodged with the registration officer a certificate issued in terms of section 11(3)(a) or 9(15)(c).

[Subsection (2) substituted by section 80 of Act 89 of 1991]

 

(3)     Any dispute as to any person’s right to exemption from the payment of duty shall be referred by the registration officer to the Commissioner.

[Subsection (3) substituted by section 2 of Act 72 of 1970]

[Section 12 substituted by section 8 of Act 103 of 1969]

Section 13 (Transfer Duty Act) – Commissioner to recover amount of duty underpaid

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13. Commissioner to recover amount of duty underpaid

 

(1)     Whenever the Commissioner is satisfied that the duty payable under this Act in respect of the acquisition of any property or the renunciation of any interest in or restriction upon the use or disposal of any property has not been paid in full, the Commissioner shall, notwithstanding that the acquisition has already been registered in a deeds registry, recover the difference between the amount of the duty payable and the amount paid in accordance with Chapter 11 of the Tax Administration Act.

[Subsection (1) substituted by section 3 of Act 31 of 2005 and substituted 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)     The Commissioner may not recover any amount of duty not fully paid by any person as contemplated in subsection (1) after the expiration of a period of five years reckoned from the date on which that amount became payable in terms of this Act, if it is shown that –

 

(a)    the failure to pay that amount was not due to an intent of that person or any other person acting on behalf of that person not to make payment of duty; and

(b)    that person or other person acted in good faith and on an assumption that the transaction was not subject to duty under this Act which assumption was based on reasonable grounds and not due to negligence on the part of that person or other person.

[Subsection (3) added by section 3 of Act 31 of 2005]

Section 14 (Transfer Duty Act) – Declarations to be furnished to Commissioner

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14. Declarations to be furnished to Commissioner

 

(1)     A return appropriate to the manner of the acquisition of property in any particular case shall be submitted by the parties to the transaction whereby the property has been acquired and, if the Commissioner so directs, also by the agent, auctioneer, broker or other person who acted for or on behalf of either party to the transaction or, if the property has been acquired otherwise than by way of a transaction, by the person who acquired the property.

[Subsection (1) substituted by section 6 of Act 88 of 1974, section 1 of Act 34 of 2004,  section 1 of Act 36 of 2007, section 13 of Act 8 of 2010 effective on 1 January 2011 and section 271 of Act 28 of 2011 effective on 1 October 2012]

 

(1A)  ……….

[Subsection (1A) inserted by section 6 of Act 88 of 1974, substituted by section 1 of Act 36 of 2007 and deleted by section 13 of Act 8 of 2010 effective on 1 January 2011]

 

(2)     Where no suitable form of declaration has been prescribed by the Commissioner for any particular kind of acquisition of property, he may require from any person concerned in the acquisition a declaration setting forth the material facts of the case and containing such other information as he may consider necessary.

 

(3)     An estate agent as contemplated in section 1 of the Estate Agency Affairs Act, 1976 (Act No. 112 of 1976), who is entitled to any remuneration or other payment in respect of services rendered in connection with a transaction in terms of which a person acquired  property contemplated in paragraphs (d), (e) or (f) of the definition of ‘property’, must within six months of the date of acquisition of that property submit details of that transaction to the Commissioner in a form and in such manner as prescribed by the Commissioner.

[Subsection (3) added by section 1 of Act 34 of 2004 and substituted by section 13 of Act 8 of 2010 effective on 1 January 2011]

Section 15 (Transfer Duty Act) – Records of certain sales of property to be kept

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15. Records of certain sales of property to be kept

 

(1)     In addition to the requirements upon a taxpayer contained in sections 29, 30, 32 and 33 of the Tax Administration Act, every auctioneer or other person who has effected a sale of property on behalf of some other person shall, for a period of five years from the date on which the sale was effected, keep a record of the sale including a description of the property sold, the person by whom and the person to whom the property has been sold and the price paid for the property.

[Subsection (1) substituted 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)     ……….

[Subsection (3) amended by section 4 of Act 77 of 1964, substituted by section 5 of Act 30 of 2000 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 16 (Transfer Duty Act) – Persons who acquire property on behalf of others shall disclose names of heir principals

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16. Persons who acquire property on behalf of others shall disclose names of their principals

(1)     Where property is sold to a person who is acting as an agent for some other person, the person so acting as agent shall disclose to the seller or his or her agent the name and address of the principal for whom he or she acts, and furnish the seller or his or her agent with a copy of the documents appointing him or her as agent-

(i)     if the sale is by auction, on the day of acceptance by the auctioneer of his or her offer; or

(ii)    if the sale is otherwise than by auction, on the day of conclusion of the agreement of sale.

[Subsection (1) substituted by section 6 of Act 45 of 2003]

(2)     Any person who has been appointed as an agent, but fails to furnish the documents contemplated in subsection (1) and the name of the person on whose behalf he or she is acting to the seller or his or her agent on the date specified in subsection (1) shall, for the purpose of the payment of the duty payable in respect of the acquisition of the property in question, be presumed, unless the contrary is proved, to have acquired the property for himself or herself.

[Subsection (2) substituted by section 6 of Act 45 of 2003 and section 2 of Act 34 of 2004]

17. ……….

[Section 17 amended by section 5 of Act 77 of 1964, section 6 of Act 46 of 1996 and section 3 of Act 34 of 2004 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

18. ………..

[Section 18 amended by section 3 of Act 27 of 1997, substituted by section 10 of Act 60 of 2001, amended by section 8 of Act 45 of 2003 and repealed by section 271 of Act 28 of 2011 effective on 1 October2012 ]

19. ……….

[Section 19 amended by section 4 of Act 27 of 1997 and repealed by section 11 of Act 60 of 2001]

20. …………

[Section 20 substituted by section 11 of Act 30 of 1998 and section 4 of Act 31 of 2005 2003 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

20A.    …………

[Section 20A inserted by section 12 of Act 30 of 1998, substituted by section 5 of Act 34 of 2004 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 20B (Transfer Duty Act) – Transactions, operations, schemes or understanding for obtaining undue tax benefits

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20B.  Transactions, operations, schemes or understanding for obtaining undue tax benefits

(1)     Notwithstanding anything in this Act, whenever the Commissioner is satisfied that any transaction, operation, scheme or understanding (whether enforceable or not), including all steps by which it is carried into effect-

(a)     has been entered into or carried out which has the effect of granting a tax benefit to any person; and

(b)     having regard to the substance of the transaction, operation, scheme or understanding-

(i)     was entered into or carried out in a manner which would not normally be employed for bona fide business purposes, other than the obtaining of a tax benefit; or

(ii)    has created rights or obligations which would not normally be created between persons dealing at arm’s length; and

(c)     was entered into or carried out solely or mainly for the purposes of obtaining a tax benefit,

the Commissioner shall determine the liability for any duty imposed by this Act, and the amount thereof, as if the transaction, operation, scheme or understanding had not been entered into or carried out, or in such manner as in the circumstances of the case the Commissioner deems appropriate for the prevention or diminution of such tax benefit.

(2)     For the purpose of this section ‘tax benefit’ means-

(a)     any reduction in the liability of any person to pay duty;

(b)     any increase in the entitlement of any person to the refund of duty; or

(c)     any other avoidance or postponement of liability for the payment of any duty imposed by this Act or any tax, duty or levy imposed by any other Act administered by the Commissioner.

(3)     Any decision of the Commissioner under subsection (1) shall be subject to objection and appeal in accordance with Chapter 9 of the tax Administration Act, and whenever in proceedings relating thereto it is proved that the relevant transaction, operation, scheme or understanding results or would result in a tax benefit, it shall be presumed, until the contrary is proved, that such transaction, operation, scheme or understanding was entered into or carried out solely or mainly for the purpose of obtaining a tax benefit.

[Section 20B inserted by section 9 of Act 45 of 2003 and section 1 of Act 39 of 2013 effective on 16 January 2014]

Section 21 (Transfer Duty Act) – Repeal of laws

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21. Repeal of Laws

 

The Laws specified in the Schedule are hereby repealed to the extent set out in the fourth column of the said Schedule: Provided that any duty which has at the date of commencement of this Act become payable under any law so repealed, but which has not at that date been paid, shall be recovered in accordance with and subject to the provisions of the said law: Provided further that if any such duty was not paid before the twentieth day of March, 1963, any interest payable in respect of such duty under any such law for the period from that date to the date of payment of the duty, shall be calculated at the rate of seven and a half per centum per annum in respect of each completed month in that period.

[Section 21 amended by section 4 of Act 70 of 1963 and section 3 of Act 72 of 1970]