Section 4 (SDL) – Exemptions

Posted on July 5, 2021July 20, 2021 by admin_kmos

4 Exemptions

The levy is not payable by-

(a) any public service employer in the national or provincial sphere of government;

(b) any employer where section 3(1)(a) or (b) applies and during any month, there are reasonable grounds for believing that the total amount of remuneration, as determined in accordance with section 3(4), paid or payable by that employer to all its employees during the following 12 month period will not exceed R500 000;

[Paragraph (b) substituted by section 24(1) of Act 9 of 2005 effective on 1 August, 2005]

(i) solely carries on any public benefit activity contemplated in paragraphs 1, 2(a), (b), (c) and (d) and 5 of Part I of the Ninth Schedule to that Act; or

(ii) solely provides funds to public benefit organisations contemplated in subparagraph (i); or

[Paragraph (c) substituted by section 91 of Act 30 of 2000, by section 62 of Act 30 of 2002 and by section 196 of Act 45 of 2003]

(d) any national or provincial public entity, if 80 per cent or more of its expenditure is defrayed directly or indirectly from funds voted by Parliament;

(e) any municipality in respect of which a certificate of exemption has been granted on such conditions and for such period as the Minister may prescribe by regulation, in consultation with the Minister of Finance and the Minister for Provincial and Local Government.

[Paragraph (e) added by section 112 of Act 53 of 1999]

Section 5 (SDL) – Registration for payment of levy

Posted on July 5, 2021July 20, 2021 by admin_kmos

5 Registration for payment of levy

(1) When an employer is liable to pay the levy, that employer must-

(a) apply to the Commissioner in such manner as the Commissioner may determine, to be registered as an employer for the purposes of the levy and indicate in such application the jurisdiction of the SETA within which that employer must be classified (if any); and

(b) if the employer is affected by the establishment or amendment of a SETA as contemplated in subsection (4), indicate to the Commissioner the jurisdiction of the SETA within which that employer must be classified.

(1A) If the Director-General is satisfied that an employer has incorrectly indicated the jurisdiction of a SETA under subsection (1), the Director-General may direct that the employer be classified under the jurisdiction of the correct SETA.

[Subsection (1A) inserted by section 21(a) of Act 33 of 2019]

(2) For the purposes of subsection (1), where an employer falls within the jurisdiction of more than one SETA, that employer must, having regard to—

(a) the composition of its workforce;

(b) the amount of remuneration paid or payable to the different categories of employees; and

select one SETA within which it must be so classified for the purposes of this Act.

(3) A selection by an employer in terms of subsection (2) is binding on the employer, unless the Director-General having regard to the factors contemplated in subsection (2)(a), (b) and (c), otherwise directs.

[Subsection (3) substituted by section 21(b) of Act 33 of 2019]

(4) If a SETA is established or its jurisdiction is amended after 1 April 2000, the Minister must, by notice in the Gazette—

(a) inform employers of any change in respect of which the SETA levy is or becomes payable; and

(b) determine a date, more than 60 days after the date of the notice, from which employers will be affected by that establishment or amendment of jurisdiction.

(5) An employer that falls within the jurisdiction of a SETA specified in a notice referred to in section 7(1), must—

(a) apply to the SETA in such manner as the SETA determines, to be registered as an employer for the purposes of the payment of the levy;

(b) within 21 days from the date of such notice, submit a statement to the Commissioner confirming that such employer falls within the jurisdiction of that SETA and that payment of the levy will be made to that SETA.

(6) Any employer that is exempt from the payment of the levy as contemplated in section 4(a), (c), (d) and (e), must register in terms of subsection (1).

[Subsection (6) substituted by section 92(1) of Act 30 of 2000 effective on 24 November, 1999]

Section 6 (SDL) – Payment of levy to Commissioner and refund

Posted on July 5, 2021January 27, 2024 by admin_kmos

6 Payment of levy to Commissioner and refund

(1) Subject to section 7, every employer must, not later than seven days, or such longer period as the Commissioner determines, after the end of each month in respect of which the levy is payable, pay the levy to the Commissioner.

[Subsection (1) substituted by section 271 read with paragraph 150(a) of Schedule 1 of Act 28 of 2011 and by section 18 of Act 13 of 2017]

(1A) Notwithstanding the provisions of subsection (1), if an employer is a micro business that is registered in terms of the Sixth Schedule to the Income Tax Act, the employer may pay the levy to the Commissioner within the periods as prescribed in paragraph 11(4A) of the Sixth Schedule to that Act.

[Subsection (1A) inserted by section 23(1)(a) of Act 39 of 2013 effective on 1 March, 2014 and applicable in respect of tax periods commencing on or after that date]

(2) An employer must together with payment of the levy in terms of subsection (1) or (1A), submit a return.

[Subsection (2) substituted by section 271 read with paragraph 150(b) of Schedule 1 of Act 28 of 2011 and by section 23(1)(b) of Act 39 of 2013 effective on 1 March, 2014 and applicable in respect of tax periods commencing on or after that date]

(2A) Every employer shall—

(a) by such date or dates as prescribed by the Commissioner by notice in the Gazette; and

(b) if the employer ceases to carry on any business or other undertaking in respect of which the employer has paid or becomes liable to pay a levy as prescribed in terms of section 3, or otherwise ceases to be an employer, within 14 days after the date on which the employer has so ceased to carry on that business or undertaking or to be an employer, as the case may be,

or within such longer time as the Commissioner may approve, render to the Commissioner such return as the Commissioner may prescribe.

[Subsection (2A) inserted by section 43 of Act 18 of 2009]

(3) . . . . . .

[Subsection (3) deleted by section 30(a) of Act 23 of 2015]

(4) If the Director-General has allocated in accordance with section 8 the full amount or any portion of an amount, refunded in terms of section 190 of the Tax Administration Act, the Director-General must, when necessary, withhold the amount so allocated from future payments due to the SETA or National Skills Fund, as the case may be, in terms of this Act.

[Subsection (4) substituted by section 30(b) of Act 23 of 2015]

(5) The Commissioner must, before the seventh day of each month, or such longer period as the Commissioner and Director-General may agree, notify the Director-General of—

(a) the names of employers in each SETA and the amount of levies, interest and penalties collected from and refunds made to those employers; and

(b) the names of employers which do not fall within the jurisdiction of any SETA and the amount of levies, interest and penalties collected from and refunds made to those employers,

during the previous month.

[Subsection (5) amended by section 76 of Act 19 of 2001]

(6) The Commissioner may refuse to authorise a refund under section 190 of the Tax Administration Act, if the employer has failed to submit a return, as required in terms of subsection (2), until the employer has submitted such return.

[Subsection (6) added by section 22 of Act 24 of 2020]

Section 7 (SDL) – Payment of levy to SETA and refund

Posted on July 5, 2021July 20, 2021 by admin_kmos

7 Payment of levy to SETA and refund

(1) Subject to subsection (2), the Minister may, in consultation with the Minister of Finance and by notice in the Gazette, determine that all employers that fall within the jurisdiction of any SETA specified in that notice, must pay the levy to—

(a) that SETA; or

(b) a body nominated by the SETA and approved by the Minister to collect the levy on behalf of that SETA.

(2) Before making a determination contemplated in subsection (1), the Minister and the Minister of Finance must be satisfied that—

(a) sufficient grounds exist for the SETA to collect the levy from the employers in its jurisdiction;

(b) the SETA, or the body nominated by the SETA to collect the levy on its behalf, has demonstrated the required competence to collect the levy; and

(3) The Minister may withdraw the notice contemplated in subsection (1) if he or she is satisfied that the SETA has not complied in the prescribed manner with section 10(1)(a), (b), (g)(iii) and (h)(ii) of the Skills Development Act.

(4) An employer must, not later than seven days after the end of each month in respect of which the levy is payable—

(a) pay the levy; and

(b) submit to the SETA or approved body and to the Commissioner a statement—

(i) in such form as the SETA or approved body, as the case may be, and the Commissioner, respectively, may require; and

(ii) reflecting the amount of the levy paid to the SETA or approved body and containing such other information as the SETA or approved body, as the case may be, and the Commissioner may require.

(5) If the amount of a levy, interest or penalty paid by an employer to the SETA or approved body was not leviable or payable, or was in excess of the amount leviable or payable, in terms of this Act, that amount must be refunded to the employer by the SETA or approved body from the funds of the SETA—

(a) within five years from the date on which the payment was made in terms of the Act; or

(b) if that amount is claimed by the employer within the period referred to in paragraph (a), but not paid by the SETA or approved body within that period.

[Subsection (5) substituted by section 22 of Act 33 of 2019]

(6) If any portion of the amount refunded in terms of subsection (5), has been paid over to the National Skills Fund in terms of section 3(a), the SETA must withhold that portion from future payments to the Fund in terms of this Act.

Section 8 (SDL) – Distribution of levies paid to Commissioner

Posted on July 5, 2021July 20, 2021 by admin_kmos

8 Distribution of levies paid to Commissioner

(1) The levies, interest and penalties collected by the Commissioner, after deduction of refunds, must be paid into the National Revenue Fund.

(2) Subject to section 6(4), the total amount of levies, interest and penalties paid into the National Revenue Fund in terms of subsection (1), is a direct charge against the National Revenue Fund for the credit of—

(a) the SETA to the amount contemplated in subsection (3)(b);

(b) the National Skills Fund to the amount contemplated in subsection (3)(a) and (c).

(3) The Director-General must, within 14 days after receipt of a notice from the Commissioner in terms of section 6(5), allocate—

(a) 20 per cent of the levies, interest and penalties collected in respect of a SETA to the National Skills Fund;

(b) 80 per cent of the levies, interest and penalties collected in respect of a SETA to that SETA after he or she is satisfied that the SETA has complied in the prescribed manner with section 10(1)(a), (b), (g)(iii) and (h)(ii) of the Skills Development Act;

(c) the levies, interest and penalties collected by the Commissioner from employers which do not fall within the jurisdiction of a SETA to the National Skills Fund.

(4) The levies, interest and penalties allocated to a SETA in terms of subsection (3)(b) must be dealt with in accordance with section 14 of the Skills Development Act.

Section 9 (SDL) – Distribution of levies paid to SETA

Posted on July 5, 2021July 20, 2021 by admin_kmos

9 Distribution of levies paid to SETA

Subject to section 10(3), the executive officer of a SETA or its approved body, as the case may be, must—

(a) not later than the 15th day of each month, pay 20 per cent of the levies collected by that SETA in terms of section 7(1), and of any interest and penalties collected in respect thereof, to the National Skills Fund;

(b) deal with the balance of the levies, interest and penalties so collected in accordance with section 14 of the Skills Development Act.

Section 10 (SDL) – Collection costs

Posted on July 5, 2021July 20, 2021 by admin_kmos

10 Collection costs

(1) Subject to subsection (2), the Director-General must, on a monthly basis as may be agreed between by the Commissioner and the Director-General, defray the costs of collection by the Commissioner from the levies paid into the National Skills Fund.

(2) The total amount of collection costs referred to in subsection (1), excluding the start-up capital costs, may not exceed two per cent of the total amount of the levies calculated at the rate referred to in section 3(1)(b).

(3) Subject to subsection (4), a SETA or its approved body may withhold from its payment to the National Skills Fund in accordance of section 3(a), the cost of collection of the SETA or approved body.

(4) The total amount of collection costs referred to in subsection (3) may not exceed two per cent of the total amount of the levies collected.

Section 11 (SDL) – Interest on late payment

Posted on July 5, 2021July 20, 2021 by admin_kmos

11 Interest on late payment

(1) If an employer fails to pay a levy or any portion thereof on the last day for payment thereof, as contemplated in section 6(1), (1A) or 7(4), interest is payable on the outstanding amount at the rate contemplated in paragraph (b) of the definition of “prescribed rate” in section 1 of the Income Tax Act, calculated from the day following that last day for payment to the day that payment is received by the Commissioner, SETA or approved body, as the case may be.

[Subsection (1) substituted by section 23 of Act 33 of 2019]

(2) The Commissioner may prescribe by notice in the Gazette that any interest payable in terms of this section be calculated on the daily balance owing and compounded monthly, and such method of determining interest will apply from such date as the Commissioner may prescribe.

[Section 11 substituted by section 123 of Act 74 of 2002 and by section 45 of Act 18 of 2009]

Section 12 (SDL) – Penalties on default

Posted on July 5, 2021July 20, 2021 by admin_kmos

12 Penalties on default

(1) Subject to subsection (2), if any levy remains unpaid after the last day for payment thereof as contemplated in section 6(1), (1A) or 7(4), the Commissioner must, under Chapter 15 of the Tax Administration Act, impose a penalty of 10 per cent of that unpaid amount.

[Subsection (1) substituted by section 113 of Act 53 of 1999, by section 271 read with paragraph 153(a) of Schedule 1 of Act 28 of 2011 and by section 24 of Act 33 of 2019]

(2) The Commissioner or the executive officer of the SETA or approved body, as the case may be, may remit the penalty or any portion thereof imposed by subsection (1) in accordance with the provisions of Chapter 15 of the Tax Administration Act.

13 . . . . . .

[Section 13 amended by section 93(1) of Act 30 of 2000, by section 70(1)(c) of Act 59 of 2000, by section 70(1)(e) of Act 59 of 2000 and repealed by section 271 read with paragraph 154 of Schedule 1 of Act 28 of 2011]

Section 14 (SDL) – Recovery of levy

Posted on July 5, 2021July 20, 2021 by admin_kmos

CHAPTER 2
RECOVERY OF LEVY BY SETA

14 Recovery of levy

(1) A levy payable by an employer in terms of section 7(1) to a SETA or its approved body is regarded to be a debt due to the SETA.

(2) If an employer—

(a) fails to submit a statement in respect of the amount of levies due as contemplated in section 7(4)(b); or

(b) submits a statement reflecting an amount which, in the opinion of the executive officer of the SETA or approved body, as the case may be, is less than the amount which is due in terms of this Act,

the executive officer of the SETA or approved body, as the case may be, may estimate the amount of the levy due and issue an assessment for the outstanding amount.

(3) If any amount of the levy payable by an employer to a SETA in accordance with section 7(1), or any interest or penalty in respect thereof, remains unpaid on the last day for payment thereof as contemplated in sections 7(4)(a), 11 and 12, respectively, the SETA or approved body, as the case may be, may, despite any law to the contrary, recover the outstanding amount by action in a magistrate’s court having jurisdiction in the area in which the person liable for the levy, interest or penalty carries on business.