Category: Securities Transfer Tax Act 25 of 2007

Section 8A (STT Act) – Sharia compliant financing arrangements

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8A.      Sharia compliant financing arrangements

(1)     In the case of any murabaha as defined in section 24JA(1) of the Income Tax Act, 1962 (Act No. 58 of 1962)-

(a)     the financier shall be deemed not to have acquired any beneficial ownership of the security under the sharia arrangement; and

(b)     the client shall be deemed to have acquired beneficial ownership of the security from the seller-

(i)      for an amount equal to the consideration paid by the financier to the seller; and

(ii)     at such time as the financier acquired the beneficial ownership of the security from the seller by virtue of the transaction between the seller and the financier.

[Section 8A inserted by section 128 of Act 7 of 2010 effective on 1 January 2013 and substituted by section 149 of Act 24 of 2011 effective on 1 January 2013]

Section 2 (STT Act) – Imposition of tax

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2.  Imposition of tax

 

(1)     There must be levied and paid for the benefit of the National Revenue Fund a tax, to be known as the securities transfer tax, in respect of-

 

(a)        every transfer of any security issued by-

(i)      a close corporation or company incorporated, established or formed inside the Republic; or

(ii)     a company incorporated, established or formed outside the Repub­lic and listed on an exchange; and

(b)     any reallocation of securities from a member’s bank restricted stock account or a member’s unrestricted and security restricted stock account to a member’s general restricted stock account,

at the rate of 0,25 per cent of the taxable amount of that security determined in terms of this Act.

[Subsection (1) substituted by section 154 of Act 22 of 2012 effective on 1 January 2013]

 

(2)     The Minister of Finance may announce in the national annual budget contemplated in section 27(1) of the Public Finance Management Act, 1999 (Act No. 1 of 1999), that, with effect from the date mentioned in that announcement-

 

(a)     the rate of securities transfer tax referred to in subsection (1) is altered to the extent mentioned in the announcement; or

(b)     there is a change in the provisions of this Act to the effect that the transfer of any security is no longer subjected to securities transfer tax.

[Subsection (2) substituted by section 91 of Act 15 of 2016 effective on19 January 2017]

 

(3)     If the Minister makes an announcement referred to in subsection (2), that alteration comes into effect on the date announced and continues to apply for a period of 12 months from that date, subject to Parliament passing legislation giving effect to that announcement within that period of 12 months.

[Subsection (3) substituted by section 60 of Act 18 of 2009 and section 91 of Act 15 of 2016 effective on19 January 2017]

Section 3 (STT Act) – Purchase of listed securities through or from member

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3.  Purchase of listed securities through or from member

(1)     The taxable amount in respect of any transfer as a result of every purchase of a listed security through the agency of or from a member is the consideration for which that security is so purchased.

(2)     The member is liable for the tax payable in respect of a transfer of a listed security referred to in this section.

Section 4 (STT Act) – Transfer of listed securities effected by participant

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4.  Transfer of listed securities effected by participant

 

(1)     Unless tax is payable on a transfer contemplated in section 3, the taxable amount in respect of any transfer of a listed security effected by a participant is –

 

(a)     where that security is a security referred to in paragraph (a) of the definition of “security” –

(i)      the amount of the consideration for that security declared by the person who acquires that security; or

(ii)     if no amount of consideration referred to in subparagraph (i) is declared, or if the amount so declared is less than the lowest price of that security, the closing price of that security.

[Subparagraph  (ii) amended by section 146 of Act 24 of 2011 effective on 1 April 2012]

(b)     ……….

[Paragraph (b) deleted by section 146 of Act 24 of 2012 effective on 1 April 2012]

 

(2)     The participant is liable for the tax payable in respect of the transfer of a security referred to in this section.

Section 5 (STT Act) – Other transfers of listed securities

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5.  Other transfers of listed securities

 

(1)     Unless tax is payable on a transfer contemplated in section 3 or 4, the taxable amount in respect of any transfer of a listed security is –

 

(a)     where that security is a security referred to in paragraph (a) of the definition of “security”-

(i)      the amount of the consideration for that security declared by the person who acquires that security; or

(ii)     if no amount of consideration referred to in subparagraph (i) is declared, or if the amount so declared is less than the lowest price of the security, the closing price of that security.

[Subparagraph  (ii) amended by section 147 of Act 24 of 2011 effective on 1 April 2012]

(b)     ……….

[Paragraph  (b) deleted by section 147 of Act 24 of 2012 effective on 1 April 2012]

 

(2)     The person to whom the listed security is transferred is liable for the tax payable as referred to in this section.

 

(3)     Tax payable in terms of subsection (2) must be paid through the member or participant holding the listed security in custody or, in the case where the listed security is not held in custody by either a member or participant, through the company that issued the listed security.

[Subsection (3) substituted by section 126 of Act 60 of 2008 effective on 1 Jul 2008]

Section 6 (STT Act) – Transfer of unlisted securities

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6. Transfer of unlisted securities

(1)     The taxable amount in respect of every transfer of an unlisted security is –

(a)     the amount or market value of the consideration given or, where no consideration is given or the consideration given is less than the market value of that security, the market value of that security; and

(b)     in the case of the cancellation or redemption of an unlisted security, the market value of that security immediately prior to the cancellation or redemption: Provided that the market value must be determined as if that security was never cancelled or redeemed.

(2)     The company which issued the unlisted security is liable for the tax payable in respect of any transfer of that unlisted security.

Section 7 (STT Act) – Tax recoverable from person to whom security is transferred

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7.  Tax recoverable from person to whom security is transferred

(1)     In the case of a listed security, a member or participant may recover the amount of the tax payable by that member or participant in respect of the transfer of that security from the person –

(a)     to whom that security is transferred; or

(b)     that cancels or redeems that security.

(2)     In the case of an unlisted security, the company which issued that security may recover the amount of tax payable by that company in respect of the transfer of that security from the person to whom that security is transferred.

Section 8 (STT Act) – Exemptions

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8.  Exemptions

(1)     The tax is not payable in respect of a transfer of a security –

(a)     if the security is transferred to a person –

(i)      in terms of an asset-for-share transaction referred to in section 42 of the Income Tax Act;

(iA)   in terms of a substitutive share-for-share transaction referred to in section 43 of the Income Tax Act or in terms of paragraph 11(2)(l) of the Eighth Schedule to the Income Tax Act;

[Subparagraph  (iA) inserted by section 183 of Act 31 of 2013 effective on 4 July 2013]

(ii)     in terms of an amalgamation transaction referred to in section 44 of the Income Tax Act;

(iii)    in terms of an intra-group transaction referred to in section 45 of the Income Tax Act;

(iv)    in terms of an unbundling transaction referred to in section 46 of the Income Tax Act;

(v)     in terms of a liquidation distribution referred to in section 47 of the Income Tax Act; or

(vi)    in terms of any transaction which would have constituted a transaction or distribution referred to –

(A)    ………..

[Item (A) substituted by section 73 of Act 3 of 2008 and section 97 of Act 17 of 2009 and deleted by section 127 of Act 7 of 2010 effective on 1 January 2009]

(B)    in subparagraph (i) or (ii) regardless of the market value of the asset disposed of in exchange for that security; or

[Item (B) substituted by section 127 of Act 60 of 2008 effective on 1 Jan 2009]

(C)    in subparagraphs (i) to (v) regardless of whether or not that person acquired that security as a capital asset or as trading stock,

where the public officer of the relevant company has made a sworn affidavit or solemn declaration that the acquisition of that security complies with the provisions of this paragraph;

(b)     if the transfer is from a lender to a borrower, or vice versa, in terms of a lending arrangement and the person to whom that security has been transferred has certified to the member or participant that the change is in terms of that lending arrangement;

[Paragraph  (b) substituted by section 138 of Act 25 of 2015 effective on 1 January 2016]

(c)     if the transfer is from a pension fund to another pension fund both of which are registered under the Pension Funds Act, 1956 (Act No. 24 of 1956), and that change is made in pursuance of a scheme referred to in section 14(1) of that Act;

(d)     if that security is transferred to a public benefit organisation which is exempt from income tax in terms of section 10(1)(cN) of the Income Tax Act, if the tax thereon would, but for this exemption, be legally payable and borne by that public benefit organisation;

[Paragraph (d) substituted by section 57 of Act 20 of 2021 effective on 19 January, 2022]

(e)     if that security is transferred to an institution, board or body, which is exempt from income tax in terms of section 10(1)(cA)(i) of the Income Tax Act, and which has as its sole or principal object the carrying on of any public benefit activity referred to in section 30 of that Act, if the tax thereon would be legally payable and borne by that institution, board or body;

(f)     to the extent that that security is a participatory interest in a collective investment scheme regulated in terms of the Collective Investment Schemes Control Act, 2002 (Act No. 45 of 2002);

(g)     if that security is transferred to a beneficiary entitled thereto under a trust created in accordance with a will;

(h)     if the person to whom that security is transferred is an heir or a legatee who has acquired that security ab intestatio or by way of testamentary succession or as a result of a redistribution of the assets of a deceased estate in the process of liquidation;

(i)      if the person to whom that security is transferred is a spouse in a marriage in community of property who acquires an undivided half-share in that security by operation of law by virtue of the contraction of such marriage, if that security was acquired by the other spouse prior to the date of that marriage;

(j)      if the person to whom that security is transferred is a surviving or divorced spouse who acquires a security from his or her deceased or divorced spouse where that security is transferred to that surviving or divorced spouse as a result of the death of his or her spouse or dissolution of their marriage or union;

(k)     transferred to any sphere of the Government of the Republic or to any sphere of the government of any other country;

(l)      transferred to any “water services provider” as defined in section 1 of the Income Tax Act;

(m)    ……….

[Paragraph (m) deleted by section 148 of Act 24 of 2011 effective on 10 January 2012]

(n)     if that security is an unlisted security which in terms of the Transfer Duty Act, 1949 (Act 40 of 1949), constitutes a transaction for the acquisition of property that is subject to transfer duty or constitutes a supply of goods that is subject to value-added tax under the Value-Added Tax Act, 1991 (Act 89 of 1991);

[Paragraph(n) substituted by section 77(a) of Act 34 of 2019]

(o). . . . . .

[Paragraph(o) deleted by section 77(b) of Act 34 of 2019]

(p)     transferred to any traditional council as referred to in the Communal Land Rights Act, 2004 (Act No. 11 of 2004), on or before a date that may be determined by the Minister by notice in the Gazette;

[Paragraph (p) amended by section 127 of Act 60 of 2008 effective on 1 Jan 2009]

(q)     if the person to whom that security is transferred is a member who acquires that security and allocates it to that member’s bank restricted stock account or that member’s unrestricted and security restricted stock account; or

[Paragraph (q) amended by section 127 of Act 60 of 2008 effective on 1 Jan 2009, substituted by section 148 of Act 24 of 2011 effective on 1 January 2011, section 155(a) of Act 22 of 2012 effective on 1 July 2008 and section 155 (b) of Act 22 of 2012 effective on 1 January 2013]

(r)      if that security was transferred during a month in respect of which-

(i)      in the case of an unlisted security, the company which issued that security; or

(ii)     in the case of a listed security, the relevant member, relevant participant or the company that issued that security where that security is not held in custody by either a member or a participant,

would have had to pay tax of less than R100 to the Commissioner;

[Paragraph  (r) amended by section 127 of Act 60 of 2008 effective on 1 January 2009, section 155 of Act 22 of 2012 effective on 1 January 2011 and section 155 of Act 22 of 2012 effective on 1 Apri 2013]

(s)     if that security constitutes a share in a headquarter company as defined in section 1 of the Income Tax Act, 1962 (Act No. 58 of 1962); or

[Paragraph (s) added by section 155 of Act 22 of 2012 effective on 1 January 2011 and amended by section 155 of Act 22 of 2012 effective on 1 April 2013]

(t)      if that security constitutes a share in a REIT as defined in section 1 of the Income Tax Act;

[Paragraph (t) added by section 155 of Act 22 of 2012 effective on 1 April 2013 and amended by section 138 of Act 25 of 2015 effective on 1 January 2016]

(u)     if the transfer is from a transferor to a transferee, or vice versa, in terms of a collateral arrangement and the person to whom that security has been transferred has certified to the member or participant that the change is in terms of that collateral arrangement; or

[Paragraph (u) added by section 138(1)(c) of Act 25 of 2015 and amended by section 77(c) of Act 34 of 2019]

(v)     if that security is transferred to a bank, if that bank is not resident in the Republic and is entrusted by the Government of a territory outside the Republic with the custody of the principal foreign exchange reserves of that territory;

[Paragraph (v) added by section 77(c) of Act 34 of 2019 and amended by section 68 of Act 23 of 2020]

(w)    if that security is transferred to any multinational organisation providing foreign donor funding in terms of an official development assistance agreement that is binding in terms of section 231(3) of the Constitution of the Republic of South Africa Act, 1996, to the extent—

(i)      the security is transferred pursuant to the organisation supplying goods or rendering services in relation to projects that are approved by the Minister; or

(ii)     that agreement provides that the transfer of that security to that organisation must be exempt; or

[Paragraph (w) added by section 68 of Act 23 of 2020]

(x)     if that security is transferred to-

(i)      African Development Bank established on 10 September 1964;

(ii)     World Bank established on 27 December 1945 including the International Bank for Reconstruction and Development and International Development Association;

(iii)    International Monetary Fund established on 27 December 1945;

(iv)    African Import and Export Bank established on 8 May 1993;

(v)     European Investment Bank established on 1 January 1958 under the Treaty of Rome; or

(vi)    New Development Bank established on 15 July 2014.

[Paragraph (x) added by section 68 of Act 23 of 2020]

(2)     The Commissioner may for the purposes of this section prescribe any declaration to be submitted by any person to the participant or member in respect of any security referred to in subsection (1).

[Subsection (2) substituted by section 15 of Act 22 of 2018]

(3)     No exemption referred to in subsection (1) applies in respect of any transfer of the security referred to in that subsection, unless there is lodged with a participant or member a declaration referred to in subsection (2) in respect of that security.

[Subsection (3) substituted by section 15 of Act 22 of 2018]

Section 9 (STT Act) – Schemes for obtaining undue tax benefits

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9.  Schemes for obtaining undue tax benefits

(1)     Notwithstanding any other provision of 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 any person obtaining a tax benefit;

(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 must determine the liability for tax, penalties and interest imposed by this Act and the Securities Transfer Tax Administration Act, 2007, and the amount thereof, as if the transaction, operation, scheme or understanding had not been entered into or carried out, or in the manner that the Commissioner in the circumstances of the case deems appropriate for the prevention or diminution of that tax benefit.

(2)     For the purposes of this section “tax benefit” means –

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

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

(c)     any other avoidance or postponement of liability for the payment of tax.

(3)     Any decision of the Commissioner under subsection (1) is subject to objection and appeal in accordance with Chapter 9 of the Tax Administration Act, 2011 (Act No. 28 of 2011), 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 is presumed, until the contrary is proved, that that scheme was entered into or carried out solely or mainly for the purpose of obtaining a tax benefit.

[Subsection (3) substituted by section 26 of Act 39 of 2013 effective on 16 January 2014]