Category: Employment Tax Incentive Act 26 of 2013

“Associated person” definition of section 1 of ETI

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“associated person”, in relation to an employer-


(a)     where the employer is a company, means any other company which is associated with that employer by reason of the fact that both companies are managed or controlled directly or indirectly by substantially the same persons;


(b)     where the employer is not a company, means any company which is managed or controlled directly or indirectly by the employer or by any partnership of which the employer is a member; or


(c)     where the employer is a natural person, means any relative of that employer;

Section 10 (ETI) – Reimbursement

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10    Refund

(1)     At the end of the period for which the employer is required to render a return in terms of paragraph 14(3)(a) of the Fourth Schedule to the Income Tax Act, a refund of an amount equal to the excess contemplated in section 9(1) must be claimed from the South African Revenue Service in the form and manner and at the time and place prescribed by the Commissioner for the South African Revenue Service.

(2)     A refund contemplated in subsection (1) must be paid in accordance with section 190(1)(a) of the Tax Administration Act to the employer from the National Revenue Fund and be treated as a drawback from revenue charged to the National Revenue Fund.

(3)     Where an employer has claimed the refund in terms of subsection (1), the amount of the excess in respect of the period to which the refund relates must be deemed to be nil in the month immediately following that period.

(4)     The refund contemplated in subsection (1) payable to an employer may not be paid to that employer if the employer-

(a)     has failed to submit any return contemplated in section 8(a); or

(b)     has any tax debt contemplated in section 8(b).

(5)    Where-

(a)     an employer has claimed a refund in terms of subsection (1); and

(b)     the refund contemplated in subsection (2) was not paid in terms of subsection (4),

that refund must be paid to an employer during any month in the period for which the employer is required to render a return in terms of paragraph 14(3)(a) of the Fourth Schedule to the Income Tax Act subsequent to the period contemplated in subsection (1) in the first month during that period in which the employer is not subject to subsection (4).

(6)     Where a refund contemplated in subsection (2) is not paid by virtue of subsection (4) and (5) that refund must be deemed to be nil at the end of the period contemplated in subsection (5).

[Section 10 amended by section 118(1) of Act 43 of 2014, by section 6(1)(a)-(d) of Act 13 of 2020 and by section 142(1) of Act 25 of 2015 and substituted by section 30(1) of Act 16 of 2022 deemed effective on 1 September, 2022, and applicable to any return, for purposes of paragraph 14(2) of the Fourth Schedule to the Income Tax Act, submitted or after that date]

Section 9 (ETI) – Roll-over of amounts

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9      Roll-over of amounts

(1)     Subject to subsection (4) and section 10(3), if in any month the amount of the employment tax incentive available to an employer exceeds the amount payable by the employer in respect of employees’ tax, the amount of the employment tax incentive by which the employees’ tax may be reduced in the succeeding month must be increased by adding the amount of that excess to the amount of the employment tax incentive that is available in that succeeding month.

(2)     If an employer does not reduce employees’ tax in the amount of the employment tax incentive despite that amount being available to that employer, the sum of the amounts by which the employer would have been entitled to reduce employees’ tax must be treated as an excess contemplated in subsection (1) in the first month that the employer reduces employees’ tax in the amount of the tax incentive available to the employer.

(3)     If, by virtue of section 8, an employer may not reduce employees’ tax in the amount of the employment tax incentive available to that employer, the sum of the amounts by which the employer would have been entitled to reduce employees’ tax payable by that employer if the employer had not been subject to section 8 must be treated as an excess contemplated in subsection (1) in the first month that the employer is not subject to section 8.

(4)     Any amount as contemplated in subsection (2) or (3) on the first day of the month following the end of the period for which the employer is required to render a return in terms of paragraph 14(3)(a) of the Fourth Schedule to the Income Tax Act, must be deemed to be nil in respect of each qualifying employee employed by the employer on that date.

[Subsection (4) deleted by section 117(1) of Act 43 of 2014, added by section 96(1) of Act 15 of 2016 and substituted by section 70(1) of Act 23 of 2020 deemed effective on 31 July, 2020]

Section 8 (ETI) – Unavailability of employment tax incentive for reducing employees’ tax

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8       Unavailability of employment tax incentive for reducing employees’ tax


An employer may not reduce the employees’ tax payable by that employer in respect of a month by the amount of the employment tax incentive available to that employer in that month if, on the last day of that month, the employer—


(a)     has failed to submit any return as defined in section 1 of the Tax Administration Act on the basis required by section 25 of that Act; or


(b)     has any outstanding tax debt as defined in section 1 of the Tax Administration Act, but excluding a tax debt—


(i)      in respect of which an agreement has been entered into in accordance with section 167 or 204 of the Tax Administration Act;


(ii)     that has been suspended in terms of section 164 of the Tax Administration Act; or


(iii)     that does not exceed the amount referred to in section 169(4) of the Tax Administration Act.

Section 7A (ETI) – Minister may announce altered amounts

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7A    Minister may announce altered amounts


(1)     The Minister of Finance may announce in the national annual budget contemplated in section 27(1) of the Public Finance Management Act, 1999 (Act 1 of 1999), that, effective on a date or dates mentioned in that announcement, the amounts stipulated in section 4, 5, 6 or 7 will be altered to the extent mentioned in the announcement.


(2)     If the Minister of Finance makes an announcement of an alteration contemplated in subsection (1), that alteration comes into effect on the date or dates determined by the Minister of Finance in that announcement 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.

[Section  7A inserted by section 81(1) of Act 34 of 2019 deemed to have come into operation on 20 February, 2019]

Section 7 (ETI) – Determining amount of employment tax incentive

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Part III
Determining amount of employment tax incentive

7      Determining amount of employment tax incentive

(1)     During each month, commencing from 1 January 2014, that an employer employs a qualifying employee, the amount of the employment tax incentive available to that employer is the sum of the amounts determined in respect of each qualifying employee of that employer stipulated in subsections (2) and (3) and section 9.

[Subsection (1) substituted by section 95(1)(a) of Act 15 of 2016 and by section 92(1) of Act 17 of 2017 effective on 1 March, 2017]

(2)     During each month of the first 12 months in respect of which an employer employs a qualifying employee, the amount of the employment tax incentive in respect of that qualifying employee, if the monthly remuneration of the employee is—

(a)     less than R2 000, is an amount equal to 75 per cent of the monthly remuneration of the employee;

[Paragraph (a) substituted by section 95(1)(b) of Act 15 of 2016, by section 5(1)(e)-(h) of Act 13 of 2020 and by section 6(1)(a) of Act 19 of 2022 deemed effective on 1 March, 2022]

(b)     R2 000 or more but less than R4 500, is an amount of R1 500;

[Paragraph (b) substituted by section 95(1)(c) of Act 15 of 2016, by section 5(1)(a) of Act 32 of 2019, by section 5(1)(i)-(l) of Act 13 of 2020 and by section 6(1)(b) of Act 19 of 2022 deemed effective on 1 March, 2022]

(c)     R4 500 or more but less than R6 500, is an amount determined in accordance with the following formula:

X = A – (B x (C – D))

in which formula—

(i)      “X” represents the amount of the monthly employment tax incentive that must be determined;

(ii)     “A” represents the amount of R1 500;

[Subparagraph (ii) substituted by section 5(1)(m)-(p) of Act 13 of 2020 and by section 6(1)(c) of Act 19 of 2022 deemed effective on 1 March, 2022]

(iii)     “B” represents the number 0,75;

[Subparagraph (iii) substituted by section 5(1)(m)-(p) of Act 13 of 2020 and by section 6(1)(c) of Act 19 of 2022 deemed effective on 1 March, 2022]

(iv)    “C” represents the amount of the monthly remuneration of the employee; and

(v)     “D” represents the amount of R4 500; or

[Paragraph (c) amended by section 95(1)(d) of Act 15 of 2016 and by section 5(1)(b) of Act 32 of 2019 deemed to have come into operation on 1 March, 2019. Subparagraph (v) substituted by section 5(1)(c) of Act 32 of 2019 deemed to have come into operation on 1 March, 2019]

(d)     R6 500 or more, is an amount of nil.

[Paragraph (d) substituted by section 95(1)(e) of Act 15 of 2016 and by section 5(1)(d) of Act 32 of 2019 deemed effective on 1 March, 2019]

[Subsection (2) amended by section 5(1)(a)-(d) of Act 13 of 2020 deemed to have come into operation on 1 December, 2021 and applicable in respect of any remuneration paid on or after that date]

(3)     During each of the 12 months after the first 12 months that the same employer employs the qualifying employee, the amount of the employment tax incentive in respect of that qualifying employee, if the monthly remuneration of the employee is-

(a)     less than R2 000, is an amount equal to 37,5 per cent of the monthly remuneration of the employee;

[Paragraph (a) substituted by section 95(1)(f) of Act 15 of 2016, by section 5(1)(u)-(x) of Act 13 of 2020 and by section 6(1)(d) of Act 19 of 2022 deemed effective on 1 March, 2022]

(b)     R2 000 or more but less than R4 500, is an amount of R750;

[Paragraph (b) substituted by section 95(1)(g) of Act 15 of 2016, by section 5(1)(e) of Act 32 of 2019, by section 5(1)(y)-(zB) of Act 13 of 2020 and by section 6(1)(e) of Act 19 of 2022 deemed effective on 1 March, 2022]

(c)     R4 500 or more but less than R6 500, is an amount determined in accordance with the following formula:

X = A – (B x (C – D))

in which formula-

(i)      “X” represents the amount of the monthly employment tax incentive that must be determined;

(ii)     “A” represents the amount of R750;

[Subparagraph (ii) substituted by section 5(1)(zC)-(zF) of Act 13 of 2020 and by section 6(1)(f) of Act 19 of 2022 deemed effective on 1 March, 2022]

(iii)    “B” represents the number 0,375;

[Subparagraph (iii) substituted by section 5(1)(zC)-(zF) of Act 13 of 2020 and by section 6(1)(f) of Act 19 of 2022 deemed effective on 1 March, 2022]

(iv)    “C” represents the amount of the monthly remuneration of the employee; and

(v)     “D” represents the amount of R4 500; or

[Paragraph (c) amended by section 95(1)(h) of Act 15 of 2016 and by section 5(1)(f) of Act 32 of 2019 deemed to have come into operation on 1 March, 2019. Subparagraph (v) substituted by section 5(1)(g) of Act 32 of 2019 deemed to have come into operation on 1 March, 2019]

(d)     R6 500 or more, is an amount of nil.

[Paragraph (d) substituted by section 95(1)(i) of Act 15 of 2016 and by section 5(1)(h) of Act 32 of 2019 deemed effective on 1 March, 2019]

 [Subsection (3) amended by section 5(1)(q)-(t) of Act 13 of 2020 deemed to have come into operation on 1 December, 2021 and applicable in respect of any remuneration paid on or after that date]

(3A)    . . . . . .

[Subsection (3A) inserted by section 5(1)(zG) of Act 13 of 2020, deleted by section 5(1)(zH) of Act 13 of 2020, inserted by section 5(1)(zI) of Act 13 of 2020 and deleted by section 5(1)(zJ) of Act 13 of 2020 deemed effective on 1 December, 2021 and applicable in respect of any remuneration paid on or after that date]

(4)     If a qualifying employee was previously, on or after 1 January 2014, employed by an associated person in relation to the employer that employs the qualifying employee, the number of months that the qualifying employee was employed by the associated person must be taken into account by that employer for the purposes of this section as if that employee had already been employed by that employer for that number of months.

(5)     If an employer employs a qualifying employee for less than 160 hours in a month, the employment tax incentive to be received in respect of that month in respect of that qualifying employee must be an amount that bears to the total amount calculated in terms of subsection (2) or (3) the same ratio as the number of hours that the qualifying employee was employed and is paid remuneration in respect of those hours by that employer in that month bears to the number 160.

[Subsection (5) substituted by section 116(1) of Act 43 of 2014, by section 95(1)(j) of Act 15 of 2016, by section 5(1)(zK)-(zN) of Act 13 of 2020 deemed effective on 1 December, 2021 and applicable in respect of any remuneration paid on or after that date]

Section 6 (ETI) – Qualifying employees

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6      Qualifying employees

An employee is a qualifying employee if the employee-

(a)

(i)      is not less than 18 years old and not more than 29 years old at the end of any month in respect of which the employment tax incentive is claimed;

[Subparagraph (i) substituted by section 4(1)(a)-(d) of Act 13 of 2020 deemed effective on 1 December, 2021 and applicable in respect of any remuneration paid on or after that date]

(ii)     is employed by an employer that is a qualifying company as contemplated in section 12R of the Income Tax Act, and that employee renders services to that employer mainly within the special economic zone in which the qualifying company that is the employer carries on trade; or

[Subparagraph (ii) substituted by section 80(1)(a) of Act 34 of 2019 effective on 1 March, 2020]

(iii)     is employed by an employer in an industry designated by the Minister of Finance, after consultation with the Minister of Labour and the Minister of Trade and Industry, by notice in the Gazette;

(b)

(i)      is in possession of an identity card referred to in section 14 of the Identification Act, 1997 (Act 68 of 1997), issued to that employee after application for the card in terms of section 15 of that Act;

[Subparagraph (i) amended by section 115(1)(a) of Act 43 of 2014 deemed to have come into operation on 1 January, 2014]

(ii)     is in possession of an asylum seeker permit, issued to that employee in terms of section 22(1) of the Refugees Act, 1998 (Act 130 of 1998), after application for the permit in terms of section 21(1) of that Act; or

[Subparagraph (ii) amended by section 115(1)(a) of Act 43 of 2014 deemed to have come into operation on 1 January, 2014]

(iii)    is in possession of an identity document issued in terms of section 30 of the Refugees Act, 1998 (Act 130 of 1998);

[Subparagraph (iii) added by section 115(1)(a) of Act 43 of 2014 deemed to have come into operation on 1 January, 2014]

(c)     in relation to the employer, is not a connected person as defined in section 1 of the Income Tax Act;

(d)     is not a domestic worker as defined in section 1 of the Basic Conditions of Employment Act, 1997 (Act 75 of 1997);

(e)     was employed by the employer or an associated person on or after 1 October 2013 in respect of employment commencing on or after that date;

[Paragraph (e) amended by section 115(1)(b) of Act 43 of 2014, deleted by section 4(1)(e) of Act 13 of 2020, inserted by section 4(1)(f) of Act 13 of 2020, deleted by section 4(1)(g) of Act 13 of 2020 and inserted by section 4(1)(h) of Act 13 of 2020 deemed effective on 1 December, 2021 and applicable in respect of any remuneration paid on or after that date]

(f)      is not an employee in respect of whom an employer is ineligible to receive the incentive by virtue of section 4; and

[Paragraph (f) amended by section 115(1)(b) of Act 43 of 2014 deemed to have come into operation on 1 January, 2014]

(g)     receives remuneration in an amount less than R6 500 in respect of a month.

[Paragraph (g) added by section 115(1)(b) of Act 43 of 2014 and substituted section 80(1)(b) of Act 34 of 2019 deemed to have come into operation on 1 March, 2019]

: Provided that the employee is not, in fulfilling the conditions of their employment contract during any month, mainly involved in the activity of studying, unless the employer and employee have entered into a learning programme as defined in section 1 of the Skills Development Act, 1998 (Act 97 of 1998), and, in determining the time spent studying in proportion to the total time for which the employee is employed, the time must be based on actual hours spent studying and employed.

[Section 6 amended by section 59(1) of Act 20 of 2021 effective on 1 March, 2022 and applicable in respect of years of assessment commencing on or after that date]

Section 5 (ETI) – Penalty and disqualification in respect of displacement

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5      Penalty and disqualification in respect of displacement


(1)     Where an employer is deemed to have displaced an employee as contemplated in subsection (2), that employer-


(a)     must pay a penalty to the South African Revenue Service in an amount of R30 000 in respect of the employee that is displaced; and


(b)     may be disqualified from receiving the employment tax incentive by the Minister of Finance by notice in the Gazette after taking into account-


(i)      the number of employees that have been displaced by the employer; and


(ii)     the effect that the disqualification may directly or indirectly have on the employees of the employer.


(2)     For the purposes of subsection (1), an employer is deemed to have displaced an employee if-


(a)     the resolution of a dispute, whether by agreement, order of court or otherwise, reveals that the dismissal of that employee constitutes an automatically unfair dismissal in terms of section 187(1)(f) of the Labour Relations Act; and

[Paragraph (a) substituted by section 114(1) of Act 43 of 2014 deemed to have come into operation on 1 January, 2014]

(b)     the employer replaces that dismissed employee with an employee in respect of which the employer is eligible to receive the employment tax incentive.