TAX CONSULTANCY SERVICES: A FRINGE BENEFIT?

B4A recent judgment of the Tax Court sitting in Pretoria[1] highlighted yet again the very broad nature of the employment fringe benefit regime governed by the Seventh Schedule of the Income Tax Act[2] and as applies to goods and services provided to employees through an employer. As a general principle, employees’ benefits received from their employers in whatever form could potentially be treated as part of employees’ remuneration and therefore subject to income tax in their hands. Such fringe benefits are therefore also subject to the PAYE regime and which should be applied by employers in withholding PAYE on the value of such benefits.

Paragraph (i) to the “gross income” definition in section 1 of the Income Tax Act specifically includes in gross income “… the cash equivalent, as determined under the provisions of the Seventh Schedule, of the value during the year of assessment of any benefit or advantage granted in respect of employment or to the holder of any office, being a taxable benefit as defined in the said Schedule…”.

In the particular tax court case, a South African subsidiary company, forming part of an international corporate group, employed non-resident employees as part of a global secondment programme which the group was implementing. In terms of that secondment programme, employees were guaranteed an after-tax salary amount of not less than what the employees would have received in their country of residence while working for the South African subsidiary company. In other words, where a higher tax charge would be levied in South Africa on remuneration earned, the South African subsidiary would carry that cost on behalf of that employee.

In order to implement this complex “Tax Equalisation Scheme”, the South African employer company contracted the services of a firm of tax consultants to assist the non-resident employees to submit their tax returns in accordance with the South African income tax laws, and also to ensure that the returns reflect the correct information to give effect to the “Tax Equalisation Scheme”.

The Tax Court found that the services which the tax consultants provided, although arguably necessary for purposes of fulfilment of the employer’s contractual arrangement towards its employees, were in essence a service rendered to the employees and not the employer, even though the tax consultants’ services were paid for and contracted by the employer. As a result, these services constituted a “benefit or advantage” for the employees as envisaged in the gross income definition quoted above, and moreover such services were provided for the “private or domestic purposes” of the employees in question.[3] As a result, the appeal against the PAYE assessment raised by SARS in the amount of R2.4m was dismissed.

Although a fact-specific judgment, it nevertheless again highlights the very broad nature potentially of the PAYE regime. Given the heavy penalties and other sanctions linked to a contravention of the provisions of the Fourth Schedule (which governs the collection and payment of PAYE, which may also be levied on fringe benefits received by employees), employers are advised to approach the tax consequences of employee benefits with caution.

[1] Case No IT13775

[2] 58 of 1962

[3] Paragraph 2(e) of the Seventh Schedule to the Income Tax Act

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

WITHDRAWAL OF VAT RELIEF FOR RESIDENTIAL PROPERTY DEVELOPERS

B3Section 18B of the Value-Added Tax Act[1] was introduced effective 10 January 2012 in a bid to grant relief for residential property developers caused by the slump in the property market at that time. Many property developers, registered for VAT, would develop residential properties with a view to dispose of these properties in the short-term as trading stock and as part of its VAT enterprise. However, following the global financial crisis of little less than a decade ago, many property developers found themselves in a position where they were increasingly forced to rent out residential properties once a development was completed due to the slower rate at which properties could be disposed of compared to earlier.

The letting of residential property is typically exempt from VAT. Due to a change in use of the properties therefore (albeit temporarily) from being held for sale as trading stock to now being put up to be let in the interim while being on market constituted a change in use of the properties. Due to the change in use of the properties, from being used to make taxable VAT supplies in the ordinary course of business and being sold as trading stock by the developer, to now being used to make VAT exempt supplies in the form of being used to generate residential rental income, the provisions of section 18(1) of the VAT Act would ordinarily have applied. In terms of section 18(1), where goods have been acquired previously for purposes of making VATable supplies, and these goods are subsequently used to make exempt supplies, the VAT vendor must be deemed to have disposed of all those assets for VAT purposes. In other words, even though no actual disposal of assets has taken place, such a disposal is deemed to take place for VAT purposes and which gives rise to output VAT having to be accounted and paid for by the developer based on the open market value of the property at that stage.[2]

As one could quite easily imagine, having to account for output VAT in these circumstances may be prohibitive, especially considering that the value of a property will likely have been enhanced due to the development and that VAT inputs thus far claimed by the developer would be overshadowed by the output VAT amount that is now required to be claimed.

It is in acknowledgement hereof that section 18B was introduced to the VAT Act in 2012. In terms of that provision, property developers were granted a 36-month grace period within which to sell properties, and during which time these residential properties could be rented out without a deemed supply being triggered for VAT purposes.

When introduced originally, it was made clear at that stage that the relief for temporary letting as explained above will only be in effect until 1 January 2018. However, it is arguable that the property market has not recovered sufficiently yet for the relief to be withdrawn at this stage.

[1] 89 of 1991

[2] Section 10(7) of the VAT Act

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

WELCOMING TAX NEWS FOR FRANCHISE OWNERS

B2The Tax Court has upheld a decision that a tax deduction allowed by section 24C of the Income Tax Act may be applied to franchisee costs. Section 24C permits the deduction of certain expenses in the current tax year assessment, where those expenses are not yet incurred, on the basis that these expenses will contractually be incurred in future years. This tax allowance protects businesses from being taxed on earmarked funds that bloat their annual earnings.

Where did this decision come?

The appeal involved the taxpayer (restaurant chain) against additional assessments raised by SARS for its 2011 to 2014 years of assessment. They arose from SARS’ refusal of deductions claimed by the taxpayer as allowances in respect of future expenditure in terms of section 24C of the Income Tax Act.

The crux of the dispute lies in whether or not the income received by the taxpayer from sales of meals to its customers can properly be regarded as arising directly from – or put differently, accruing in terms of – the franchise agreement itself. The taxpayer maintains that it can whereas SARS maintains it cannot.

However, as far as franchisees are concerned, it is clear that where a franchise agreement sets out an obligation to incur future expenditure, such expenditure may very well fall within the beneficial parameters of section 24C of the Act.

The Court’s decision

The Tax Court held that there need not be one physical contract document to give rise to section 24C’s benefit. Furthermore, while different parties were involved (the franchisor and the restaurant’s customers), the franchisee’s agreements with each were “inextricably linked” and “not legally independent and separate”.

The income deducted was, therefore, regarded as earned under the same contract as the taxpayer’s future expenditure, fulfilling the requirements of section 24C.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference:

B v Commissioner for the South African Revenue Services (IT14240) [2017] ZATC 3 (3 November 2017)

KEEP YOUR BUSINESS GROWING

B1Having a successful business means ensuring that it continues to grow. Without growth, your business will eventually run dry and stagnant. But with the added responsibility of maintaining your business and keeping things running smoothly, it can be difficult to know where to look for business growth.

  1. Look for cost savings;

This point is especially true when your business is trying to survive a struggling economy. Making cost saving choices can become more or less difficult depending on how you manage your incomings and outgoings.

Try find cost savings wherever you can. What subscriptions are you still paying for that you no longer need? Which supplier relationships need to be terminated? Are you spending too much on stationery? Aim to eliminate all unnecessary costs, even if they’re small.

  1. Automate everything

When you waste time, you waste money. When it comes to things like report preparation, data entry, and accounts payable and receivable, it’s worth investigating your automation options. Things like pursuing invoices can now be done with a click of a button and a few strokes of the keyboard. What’s more, they can be handled safely, legally, and efficiently.

Once you’ve automated portions of your business, you can focus exclusively on growing the business rather than just maintaining it. This is critical, because growing a business takes extreme dedication and commitment.

  1. Target other markets

If your current market is serving you well, then ask yourself if there are others. Sometime, those other markets are what make money. If your consumer market ranges from young professionals to young families, think about where these people spend most of their time. Could you introduce your business to schools, restaurants or community events? You could also offer discounts to special-interest clubs or donate part of your profits to schools and associations.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE DROUGHT AFFECTS US ALL

Day Zero is closer than ever and may even occur sooner than expected as on the 21ST of April 2018. This will not only influence the Western Cape, but South Africa as a whole. With the 50-litres-per-day-for-the-next-150-days alarms going off, will the looming ‘Day Zero’ affect those beyond the Western Cape?

Water is a daily need – cooking, drinking, hygiene – and the need for it is far greater than what the city has left. Water meters are being monitored, swimming pools are being emptied, and monthly tariffs have increased to ensure that households use water within the set restrictions. The rest of the country will feel the water crisis pinch.

  • Drought creates a socio-economic effect. The deficit between water demand and water supply worsens, forcing businesses to cut down drastically during production. This contributes to the already existing socio-economic factor of unemployment with more businesses trimming overhead costs to allow them to remain profitable. Unemployment in the Western Cape will have a ripple effect on the rest of the country, with people relocating in search of jobs elsewhere.
  • Health risks increase as the greater population adjusts to the limited water use for sanitary purposes. One of the biggest perils is the sewerage system coming to a standstill.
  • Because Cape Town is the leading exporter of wine, fruit, vegetables and wheat, the prices of these commodities are bound to increase nationally in order for the agricultural sector to remain profitable despite lower quantities in production.
  • Cape Town is the country’s second economic hub. Because of the water crisis, Cape Town is a high risk for incoming capital. Abroad corporations who have built business relationships with the country are left to look elsewhere for those who will meet their production needs.
  • There is increased pressure on the national government to provide an infrastructure that ensures that water is “protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons” (Water Act of 1998).

Tourists are urged to be as cautious as the city’s residents by choosing to stay in accommodation facilities that have water-saving measures in place, using cups when brushing teeth instead of letting the tap run, and taking shorter showers.

Dam levels are critically low, and when storage reaches 13.5%, Cape Town will turn off most taps, leaving only vital services with access to water. Below is a list of dam levels of each province as of 22 January 2018:

Province Dam levels in %
Western Cape 25.3 %
Gauteng 94.1 %
Eastern Cape 58.9 %
Free State 65.0 %
KwaZulu-Natal 50.6 %
Limpopo 65.3 %
Mpumalanga 76.9 %
Northern Cape 75.6 %
North West 67.0 %

Day Zero is expected to hit on 11 May 2018, and as over consumption continues excessively, the day draws closer and closer.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

FURTHER REFINEMENTS TO THE ATTACK ON INTEREST FREE LOANS TO TRUSTS

B (4)We previously reported on the introduction of section 7C of the Income Tax Act, 58 of 1962. In terms of this targeted anti-avoidance provision, National Treasury sought to attack interest free loans granted to trusts by connected persons of that trust.

Typically, these loans would have arisen by virtue of an individual that would sell his or her asset to a trust of which he/she is a beneficiary for estate duty purposes on interest free loan account. By doing so, the asset’s value will grow in the trust, while the interest free loan will remain a non-appreciable, static asset in the hands of the beneficiary, thereby excluding future capital growth on the asset from estate duty when that individual should one day pass away.

Section 7C deems an interest component to arise on interest free or low interest loan accounts to the extent that interest is not charged at the prescribed rate. The amount of the deemed interest is then treated as an annual donation by the trust, thereby attracting donations tax on the value of the deemed donation made to the trust. Were the trust creditors to actually charge interest on the loans to the trusts on the other hand, this will lead to taxable income accruing in their hands, and which will be subject to income tax being charged thereon at prevailing income tax rates.

The new proposals contained in the draft Taxation Laws Amendment Bill, published on 19 July 2017, contain two significant reforms which further focus the extent of the anti-avoidance provisions of section 7C and counter two specific planning solutions being conceived in practice to counter the application of section 7C in its current form.

The first such proposal to take note of is that loans to trusts are no longer the sole target, but also interest free loans extended to companies (owned by trusts) by the beneficiaries of that trust. This is in an attempt to counter structuring solutions whereby loans owing by a trust were shifted by way of complex restructurings to companies owned by trusts.

The second proposal is aimed at loans due by trusts being transferred from the creditor individual to another, thereby effectively “breaking the link” between the person that extended the loan to the trust and the person now entitled to the amounts due by the trust. In other words, section 7C would only previously apply to the person who extended the loan to the trust. Since the person now holding the loan claim did not originally grant the loan to the trust, the provisions of section 7C, in its original form, would not have applied. The second new revision to section 7C counters this approach making it clear that a connected person acquiring a loan claim is also caught by the provisions of section 7C (and thus required to charge interest) irrespective thereof that that person did not itself extend any loan finance itself to the trust.

The above are still mere proposals, but are proposed to become effective 19 July 2017 if enacted (which appears likely). Taxpayers with loan accounts to trusts are therefore well-advised to seek guidance on how to treat such loan accounts going forward.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

RETROSPECTIVE TAX LEGISLATION: CAN TREASURY REWRITE YOUR TAX HISTORY?

B (3)Retrospective legislation involves Parliament passing Acts which affect the legal position or consequences of actions already completed by persons. In a criminal law context for example, retrospective legislative amendments would involve Parliament passing a law that actions already carried out by an individual may be illegal with historic effect, even though at the time that the act was carried out by the individual, the act was not considered criminal. In the income tax context, an example would be were an individual to receive a dividend (tax exempt based on prevailing legislation) on 1 June. However, on 1 July Parliament passes an amendment Act to the Income Tax Act, 58 of 1962, in terms of which dividends received from 1 January of that year is deemed to be non-exempt income.

How such retrospective legislation should be interpreted, and whether it is constitutional to even begin with, was the theme of a recent judgment in the North Gauteng Tax Court case of Pienaar Brothers (Pty) Ltd v CSARS.[1] The matter involved a taxpayer who planned to enter into an amalgamation transaction as contemplated in section 44 of the Income Tax Act. On 20 February 2007 though (at which stage the amalgamation transaction had not yet been entered into), the Minister of Finance announced in his Budget Speech that the Income Tax Act will be amended later that year, but which amendment will be effective from the date of that announcement, to address certain “shortcomings” in section 44. The “shortcomings” identified by the Minister however had no bearing on the tax treatment of the amalgamation transaction contemplated by the taxpayer, and it proceeded to enter into the proposed amalgamation transaction after the Budget Speech during March of that year.

Much to the surprise of the taxpayer, in June of that year, legislation was published which would amend section 44 in a manner more far-reaching than was announced by the Minister earlier. As forewarned though, the legislation was still to be introduced with retrospective effect (i.e. to the date of the Budget Speech earlier), and which now had the effect of altering the tax consequences of the amalgamation transaction which the taxpayer had already entered into with retrospective effect, now giving rise to a significant tax charge in the amount of R3.7 million. This tax liability did not arise based on the tax legislation as it read on the date of entering into the amalgamation transaction, but due to the retrospective enactment of legislation now, tax became due. The more drastic amendments were explained in the explanatory memorandum to the amendment bill as being necessitated to counter a new form of identified tax avoidance scheme.

The taxpayer appealed against the additional assessments raised to the North Gauteng Tax Court, on the basis that legislation may not in terms of our law be interpreted with retrospective effect, alternatively that the retrospective amendment to the Income Tax Act was unconstitutional in that it amounted to a deprivation of property.

The appeal was dismissed on both counts. What clearly played a significant role in the judgment was that the Minister had issued a warning of an impending, retrospective amendment to the Income Tax Act in his Budget Speech already earlier that year (even though the warning was issued in general terms only, and did not make mention of the specific amendment that would be introduced). According to the judgment by Judge Fabricius, taxpayers cannot be said to have a legitimate expectation to rely on the consistency of tax legislation, especially where National Treasury intervenes in order to close a loophole which would otherwise lead to continued raids on the fiscus.

The above matter presents a significant judgment, and it may not be the last say in the matter yet. There is a strong possibility that the matter will be taken to Bloemfontein on appeal, and on the outcome of which judgment we will report in due course.

[1] (87760/2014) [2017] ZAGPPHC 231 (29 May 2017)

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

GROWING YOUR BUSINESS AND ADAPTING TO CHANGE

B (2)Growing a business takes several important characteristics that require a dedicated leader driving it at the helm. These characteristics include vision, change and people. An effective leader will also engage others in the business to embrace and adapt to change as growth continues.

  1. Vision:
    .
    First, plot the course for where the business should go in the short-term, and the long-term. This includes knowing who your customers are and what they are likely to demand. Without a clear vision, you will be steering your business in a random direction, which could completely miss your customers.
    .
  2. Change:
    .
    When it comes to growing any business, change is essential. Those that do not change and adapt to new ways of doing things will fall behind. Understand what needs to be put in place to grow the business. You might need to source better business operating systems to streamline this growth, or change a few internal business processes, or rethink how you calculate your hourly rates.
    .
  3. People:
    .
    People are essential for the growth of any business. But not just any people, you need the right team in order to move your business forward and reach the vision you have in mind. However, you should understand that you will need to guide and coach the staff into changing their mindset and adapting to these growth changes.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

TEN TIPS FOR SMALL BUSINESS OWNERS DURING TOUGH FINANCIAL TIMES

B (1)When the economy is slow, small business owners struggle to survive, many for the first time. Financial problems consume valuable time and business resources, yet must be dealt with proactively. Also make use of your financial advisor or your banker; they have the expertise and knowledge regarding your business and its financial well-being.

  1. In tough times cash is king.Have a close look at every purchase you need to make, and decide if it is worth the money. Will the product generate enough cash to pay for itself? If not, don’t buy it.
  1. Let your budget show the way.Without a budget, you will find it difficult to cope with hard financial times. Adapt it regularly and do the same with your personal expenses. If you don’t keep track of expenses, they will become a bottomless pit into which all your cash will disappear.
  1. Look at your business’s financial position and performance objectively.Do you get maximum returns from your investments? Could you sell those that are not making you money? When times are tough, survival is the only goal.
  1. Examine how your debt is structured.If you have an imbalance between short-term and long-term debt you should restructure your long-term debt so that you can pay back the short-term debt over a longer period. Be careful not to take a loan against long-term assets, except if you are in critical need of money.
  1. Prepare for your meeting with your banker.Make sure you have all cash flow and balance sheets and inventories at hand for your banker. This will make your review time more productive. Write down any ideas regarding your financial position and discuss them with your banker.
  1. Ask your banker about guaranteed loan programs.Your banker could be able to restructure your business debt over a longer period if you are able to secure a credit guarantee on your loan to the bank. If your business is situated in a qualifying rural area, you may qualify for a guaranteed loan. Ask your banker about any additional resources which may be of use to your business.
  1. Review your insurance coverage.Increase your deductibles and your premium will decrease. Items that are low-risk or obsolete should be removed from your inventory list.
  1. Examine your life insurance policies.Some whole life policies have provisions that enable you to borrow against the cash surrender value at very low rates, or you could deduct the cost of the premiums from the cash surrender value. Determine whether your life insurance is worth the money or whether you couldn’t get by at a lower cost. Make sure all key personnel in your company have life insurance so that business can continue in any of the key players’ absence.
  1. Deal with financial problems immediately.As soon as a financial problem arises, deal with it immediately. Keep your banker informed of any problems and make him part of your inner circle of confidants. Use your team as a soundboard to discuss financial difficulties and brainstorm solutions.
  1. Get some perspective.Sometimes you need to get some distance from your work to solve the problems. Take a weekend off or go and watch a movie – whatever you do, leave your worries behind for a short while and focus on something else – it will make you and your business a lot stronger.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THREE FINANCIAL TIPS FOR SMALL BUSINESS ENTREPRENEURS

B1Here are three things which small business owners should consider implementing to improve their chances for long-term success.

  1. Do Not aim to match or beat prices offered by competitors 

Price may win among big retailers that include, as well as countless other larger businesses in a variety of categories – but smaller businesses know all too well they typically can’t compete in this big-box space when it comes to money. Instead? This is where smaller businesses have the chance to thrive in offering other experiences that stand-out from prices alone. Of course, price will factor into the overall impression any business leaves on consumers, but when combined with other experiences price can often become overlooked thanks to the many other factors that can outshine it.

  1. Create a loyalty program that encourages repeat customers 

Big or small, businesses gain the opportunity for increased customer retention and more frequent spending when loyalty programs are offered. You can create one that is digital, mobile, or even old-fashioned by using paper and a hole puncher, but the idea is that you create one that makes sense for your business and your customers.

Another tip to help your loyalty program thrive? Give it extra TLC so that it stands out among your other marketing efforts, including your business newsletters, via social media and of course, whenever you’re tending to customers and during any customer communication. Aim to have it stand out as a well-respected perk to customers experiencing your business.

  1. Have a lean start-up

Big companies like Starbucks test new concepts on smaller markets before launching their products worldwide. Small companies can learn from this approach. Develop a prototype to get the product out, launch it in smaller markets, test it, get feedback, pivot, and then refine it. By using this cost-effective process, you’ll have a refined product or service designed to the taste and needs of potential clients because they told you what they liked and wanted along the way.

As the economy continues to improve, small businesses will have more opportunities to expand and grow. By taking advantage of opportunities that exist now, you’ll improve your chances of success.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Glassman, Barry. “The Best Financial Advice For Small Business Owners Now”. Forbes.com. N.p., 2014. Web. 29 June 2017.

Leinbach-Reyhle, Nicole. “3 Small Business Tips Uniquely Aimed At Entrepreneurs”. Forbes.com. N.p., 2016. Web. 29 June 2017.