(2) The provisions of this section shall apply in respect of any –
(a) company;
(b) trust carrying on any trade;
(c) natural person who holds any amount contemplated in paragraph (a) or (b) of the definition of “exchange item” as trading stock; and
(d) natural person or trust in respect of any amount contemplated in paragraph (c) or (d) of the definition of “exchange item”:
Provided that this section does not apply in respect of any exchange item of a person who is not a resident (other than a controlled foreign company), unless that exchange item is effectively connected to a permanent establishment of that person in the Republic.
[Subsection (2) amended by section 31(b) and (c) of Act 59 of 2000, substituted by section 36(1)(g) of Act 60 of 2001 and amended by section 27(1)(i) of Act 74 of 2002, by section 23 of Act 32 of 2004 and by section 27 of Act 17 of 2023]
(3) In determining the taxable income of any person contemplated in subsection (2), there shall be included in or deducted from the income, as the case may be, of that person-
(a) any exchange difference in respect of an exchange item of or in relation to that person, subject to subsection 10(A); and
(b)
(i) any premium or like consideration received by, or paid by, such person in terms of a foreign currency option contract entered into by such person; or
(ii) any consideration paid by such person in respect of a foreign currency option contract acquired by such person;
(c) ……….
(4) Subject to section 11, in determining the taxable income of any person contemplated in subsection (2) in respect of a debt owing to that person as referred to in paragraph (b) of the definition of ‘exchange item’-
(a) to the extent that on realisation the debt was irrecoverable by reason of becoming bad; or
(b) the realisation of the debt resulted in a loss determined in the foreign currency due to a decline in the market value of that debt,
the amount of-
(i) any foreign exchange gain, relating to the debt as described in paragraph (a) or (b), that is or was included in the income of that person in the current or any previous year of assessment must be deducted from the income of that person; and
(ii) the amount of any foreign exchange loss, relating to the debt as described in paragraph (a) or (b), that is or was deducted from the income of that person in the current or any previous year of assessment must be included in the income of that person.
[Subsection (4) substituted by section 18 of Act 21 of 1994, amended by section 35 of Act 30 of 1998 and section 31 of Act 59 of 2000, deleted by section 27 of Act 74 of 2002, re-inserted by section 44 of Act 15 of 2016 and substituted by section 43 of Act 23 of 2018 effective on 1 January 2019, applies in respect of years of assessment commencing on or after that date]
(5) ……….
(6) Any inclusion in or deduction from income in terms of this section shall be in lieu of any deduction or inclusion which may otherwise be allowed or included under any other provision of this Act.
(7) Notwithstanding the provisions of subsection (3), but subject to the provisions of section 36 –
[Words preceding paragraph (a) substituted by section 44 of Act 25 of 2015 effective on 8 January 2016]
(a) any exchange difference arising from a debt having been utilised by a person in respect of –
(i) the acquisition, installation, erection or construction of any machinery, plant, implement, utensil, building or improvements to any building, as the case may be; or
(ii) the devising, developing, creation, production, acquisition or restoration of any invention, patent, design, trade mark, copyright or other similar property or knowledge contemplated in section 11(gC);
[Subparagraph (ii) substituted by section 33 of Act 31 of 2005 and section 43 of Act 23 of 2018 effective on 17 January 2019]
(b) any exchange difference arising from a forward exchange contract or a foreign currency option contract which has been entered into by a person contemplated in paragraph (a), to the extent to which such forward exchange contract or foreign currency option contract is entered into to serve as a hedge in respect of a or a debt incurred or to be incurred for the utilisation thereof as contemplated in paragraph (a); and
(c) any premium or other consideration paid or payable in respect of or in terms of a foreign currency option contract entered into or acquired by a person contemplated in paragraph (a), to the extent to which such foreign currency option contract is entered into or obtained in order to serve as a hedge in respect of a debt incurred or to be incurred for the utilisation thereof as contemplated in paragraph (a),
shall, where such exchange difference arose or such premium or other consideration was paid or became payable in a year of assessment prior to the year of assessment during which such machinery, plant, implement, utensil, building, improvements to any building, invention, patent, design, trade mark, copyright or other similar property or knowledge was or is brought into use for the purposes of such person’s trade, be carried forward and be taken into account in the determination of the taxable income of such person in the year of assessment during which such machinery, plant, implement, utensil, building, improvements to any building, invention, patent, design, trade mark, copyright or other similar property or knowledge was or is so brought into use for the purposes of such person’s trade: Provided that where during any year of assessment subsequent to the year of assessment during which such exchange difference arose or such premium or other consideration was paid or became payable –
[Words preceding paragraph (a) substituted by section 44 of Act 25 of 2015 effective on 8 January 2016]
(a) the debt to be incurred as contemplated in paragraph (b) or (c) of this subsection will no longer be so incurred;
(b) such debt has not been utilised as contemplated in paragraph (a); or
(c) any such asset, property or knowledge will no longer be brought into use for the purpose of such person’s trade,
such exchange difference or premium or other consideration shall no longer be carried forward, but shall be taken into account in the determination of such person’s taxable income in such subsequent year of assessment.
(8) Any foreign exchange loss sustained in respect of a transaction entered into by a person, or any premium or other consideration paid in respect of or in terms of a foreign currency option contract entered into or acquired by a person, shall not be allowed as a deduction from such person’s income under subsection (3), if such transaction was entered into or such foreign currency option contract was entered into or acquired solely or mainly to enjoy a reduction in tax by way of a deduction from income.
(9) ……….
(10) ……….
(10A)
(a) Subject to paragraph (b), no exchange difference arising during any year of assessment in respect of an exchange item contemplated in paragraph (b) of the definition of ‘exchange item’ shall be included in or deducted from the income of a person in terms of this section –
(i) if, at the end of that year of assessment-
(aa) that person and the other party to the contractual provisions of that exchange item-
(A) form part of the same group of companies; or
(B) are connected persons in relation to each other; and
(bb) no forward exchange contract and no foreign currency option contract has been entered into by that person to serve as a hedge in respect of that exchange item; and
(ii) that exchange item-
(aa) or any portion thereof does not represent for that person a current asset or a current liability for the purposes of financial reporting pursuant to IFRS; and
(bb) is not directly or indirectly funded by any debt owed to any person that-
(A) does not form part of the same group of companies as; or
(B) is not a connected person in relation to,
that person or the other party to the contractual provisions of that exchange item.
[Paragraph (a) substituted by section 40 of Act 43 of 2014 effective on 20 January 2015]
(b) Where paragraph (a) was applied during any year of assessment to any exchange difference in respect of an exchange item and-
(i) that exchange difference was not included in nor deducted from the income of a person in that year of assessment; and
(ii) during any year of assessment-
(aa) subsequent to that year of assessment, paragraph (a) no longer applies to that exchange difference; or
(bb) that exchange item is realised,
an amount in respect of that exchange item must be included in or deducted from the income of that person in that subsequent year of assessment or in the year of assessment during which the exchange item is realised which amount shall be determined by multiplying that exchange item by the difference between the ruling exchange rate on the last day of the year of assessment immediately preceding that subsequent year of assessment and the ruling exchange rate on transaction date, less any amount of the exchange differences included in or deducted from the income of that person in terms of this section in respect of that exchange item for all years of assessment preceding that subsequent year of assessment during which the person was a party to the contractual provisions of the exchange item.
(11) ……….
(12) Where a person holds any exchange item and the provisions of this section at any time during a year of assessment-
(a) become applicable to that person, that exchange item shall be deemed to have been acquired at that time for the purposes of this section; or
(b) cease to apply to that person, that exchange item shall be deemed to have been realised at that time for the purposes of this section.