11A.

(1)     Where by virtue of the provisions of paragraph (b), (d), (e) or (g) of the definition of ‘remuneration’ in paragraph 1, the remuneration of an employee includes-

(a)     any gain made by the exercise, cession or release of any right to acquire any marketable security as contemplated in section 8A;

(b)     any gain made from the disposal of any qualifying equity share as contemplated in section 8B;

(c)     any amount referred to in section 8C which is required to be included in the income of that employee; or

(d)     any amount received by or accrued to that employee by way of a dividend contemplated in-

(i)      paragraph (dd) of the proviso to section 10(1)(k)(i);

(ii)     paragraph (ii) of the proviso to section 10(1)(k)(i);

(iii)    paragraph (jj) of the proviso to section 10(1)(k)(i); or

(iv)    paragraph (kk) of the proviso to section 10(1)(k)(i),

the person by whom that right was granted or from whom the equity instrument or qualifying equity share that gave rise to the gain or amount was acquired, as the case may be, is deemed to be a person who pays or is liable to pay to that employee the amount of the gain referred to in paragraph (a) or (b) or the amount referred to in paragraph (c) or (d).

[Subparagraph (1) substituted by section 10 of Act 13 of 2017 effective on 1 March 2018, applies in respect of years of assessment commencing on or after that date]

(2)     Employees’ tax in respect of the amount of remuneration contemplated in subparagraph (1) must, unless the Commissioner has granted authority to the contrary, be deducted or withheld by the person referred to in subparagraph (1) from-

(a)     any consideration paid or payable by that person to that employee in respect of the cession, or release of that right or the disposal of that qualifying equity share, as the case may be;

(b)     any cash remuneration paid or payable by that person to that employee after that right has to the knowledge of that person been exercised, ceded or released or that equity instrument has to the knowledge of that person vested or that qualifying equity share has to the knowledge of that person been disposed of; or

(c)     any amount of a dividend contemplated in subparagraph (1)(d) accrued to that employee:

Provided that where that person is an ‘associated institution’, as defined in paragraph 1 of the Seventh Schedule, in relation to any employer who pays or is liable to pay to that employee any amount by way of remuneration during the year of assessment during which the gain contemplated in subparagraph (1)(a) or (b) or the amount contemplated in subparagraph (1)(c) or (d) arises, and-

(i)      that person is not resident nor has a representative employer;

(ii)     that person is unable to deduct or withhold the full amount of employees’ tax during the year of assessment during which the gain or the amount arises, by reason of the fact that the amount to be deducted or withheld from that remuneration by way of employees’ tax exceeds the amount from which the deduction or withholding can be made; or

(iii)    the amount of the dividend referred to in paragraph (c) consists of an equity instrument referred to in section 8C,

that person and that employer must deduct or withhold from the remuneration payable by them to that employee during that year of assessment an aggregate amount equal to the employees’ tax payable in respect of that gain or that amount and shall be jointly and severally liable for that aggregate amount of employees’ tax.

[Subparagraph (2) substituted by section 10 of Act 13 of 2017 effective on 1 March 2018, applies in respect of years of assessment commencing on or after that date]

(3)     The provisions of this Schedule apply in relation to the amount of employees’ tax deducted or withheld under subparagraph (2) as though that amount had been deducted or withheld from the amount of the gain referred to in subparagraph (1)(a) or (b) or the amount referred to in subparagraph (1)(c) or (d).

[Subparagraph (3) substituted by section 10 of Act 13 of 2017 effective on 1 March 2018, applies in respect of years of assessment commencing on or after that date]

(4)     Before deducting or withholding employees’ tax under subparagraph (2) in respect of remuneration contemplated in subparagraph (1)(a), (c) or (d), that person and that employer must ascertain from the Commissioner the amount to be so deducted or withheld.

[Subparagraph (4) substituted by section 10 of Act 13 of 2017 effective on 1 March 2018, applies in respect of years of assessment commencing on or after that date]

(5)     If that person and that employer are, by reason of the fact that the amount to be deducted or withheld by way of employees’ tax exceeds the amount from which the deduction or withholding is to be made, unable to deduct or withhold the full amount of employees’ tax during the year of assessment during which the gain referred to in subparagraph (1)(a) or (b) or the amount referred to in subparagraph (1)(c) or (d) arises, they must immediately notify the Commissioner of the fact.

[Subsection (5) substituted by section 10 of Act 13 of 2017 effective on 1 March 2018, applies in respect of years of assessment commencing on or after that date]

(6)      Where an employee has-

(a)     under any transaction to which neither that person nor that employer is a party made any gain; or

(b)     disposed of any qualifying equity share as contemplated in subparagraph (1),

that employee must immediately inform that person and that employer of the transaction or the disposal and of the amount of that gain.

(7)     Any employee who, without just cause shown by him or her, fails to comply with the provisions of subparagraph (6) shall be guilty of an offence and liable on conviction to a fine not exceeding R2 000.

[Paragraph 11A inserted by section 45 of Act 89 of 1969, amended by section 47 of Act 28 of 1997, substituted by section 19 of Act 34 of 2004, amended by section 51 of Act 31 of 2005, section 67 of Act 35 of 2007, section 19 of Act 8 of 2010 and section 9 of Act 23 of 2015 and substituted by section 10 of Act 16 of 2016 effective on 19 January 2017]