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.

Section 4 (ETI) – Compliance with wage regulating measures

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4       Compliance with wage regulating measures

(1)     An employer is not eligible to receive the employment tax incentive in respect of an employee in respect of a month if the wage paid to that employee in respect of that month is less than-


(a)     the higher of the amount payable by virtue of a wage regulating measure applicable to that employer or the amount contemplated in section 4(1) of the National Minimum Wage Act, 2018 (Act 9 of 2018), or Schedule 2 to that Act; or


(b)     if the amount of the wage payable to an employee by an employer is not subject to any wage regulating measure or not subject to section 3 of the National Minimum Wage Act, 2018 (Act 9 of 2018), or exempt under section 15 of that Act-


(i)      where the employee is employed and paid remuneration for at least 160 hours in a month, the amount of R2 000 in respect of a month; or


(ii)     where the employee is employed and paid remuneration for less than 160 hours in a month, an amount that bears to the amount of R2 000 the same ratio as 160 hours bears to the number of hours that the employee was employed for and paid remuneration by that employer in that month.

[Subsection (1) amended by 113(1) of Act 43 of 2014, by section 141(1) of Act 25 of 2015, by section 94(1) of Act 15 of 2016, by section 91(1)(a) of Act 17 of 2017 and by section 79(1)(a) and (b) of Act 34 of 2019 and substituted by section 3(1)(a)-(d) of Act 13 of 2020 deemed effective on 1 December, 2021 and applicable in respect of remuneration paid on or after that date]

(2)     If an employer receives the employment tax incentive in respect of an employee despite not being eligible by reason of subsection (1), that employer must pay a penalty to the South African Revenue Service in an amount equal to 100 per cent of the employment tax incentive received in respect of that employee in respect of each month that the employer received the employment tax incentive.

(3)     For the purposes of this section “wage regulating measure” means—

(a)     a collective agreement as contemplated in section 23 of the Labour Relations Act;

(b)     a sectoral determination as contemplated in section 51 of the Basic Conditions of Employment Act, 1997 (Act 75 of 1997); or

(c)     a binding bargaining council agreement as contemplated in section 31 of the Labour Relations Act, including where such agreement is extended by reason of a determination of the Minister of Labour in terms of section 32 of that Act.

(4)     For the purposes of this section, “hours” means “ordinary hours” as defined in section 1 of the Basic Conditions of Employment Act, 1997 (Act 75 of 1997).

[Subsection (4) added by section 91(1)(b) of Act 17 of 2017 effective on 1 March, 2018]

Section 3 (ETI) – Eligible employers

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3       Eligible employers

 

An employer is eligible to receive the employment tax incentive if the employer-

 

(a)     is registered for the purposes of the withholding and payment of employees’ tax by virtue of paragraph 15 of the Fourth Schedule to the Income Tax Act; and

 

(b)     is not-

 

(i)      the government of the Republic in the national, provincial or local sphere;

 

(ii)     a public entity that is listed in Schedule 2 or 3 to the Public Finance Management Act, 1999 (Act 1 of 1999), other than those public entities that the Minister of Finance may designate by notice in the Gazette on such conditions as the Minister of Finance may prescribe by regulation;

 

(iii)    a municipal entity defined in section 1 of the Local Government: Municipal Systems Act, 2000 (Act 32 of 2000); and

 

(c)     is not disqualified from receiving the incentive—

 

(i)      by the Minister of Finance in accordance with section 5(1)(b), due to the displacement of an employee by virtue of section 5(2); or

 

(ii)     by not meeting such conditions as the Minister of Finance, after consultation with the Minister of Labour, may prescribe by regulation, including—

 

(aa)   conditions based on requirements in respect of the training of employees; and

 

(bb)   conditions based on the classification of trade in the most recent Standard Industrial Classification Code issued by Statistics South Africa.

Section 2 (ETI) – Instituting of employment tax incentive

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Part I
Employment tax incentive

 

2      Instituting of employment tax incentive

 

(1)     An incentive, called the employment tax incentive, in order to encourage employment creation is hereby instituted.

 

(2)     If an employer is eligible to receive the employment tax incentive in respect of a qualifying employee in respect of a month, that employer may reduce the employees’ tax payable by that employer in an amount determined in terms of section 7 or receive payment of an amount contemplated in section 10(2), unless section 8 applies.