Taxation Laws Amendment Draft Bills: public hearings

Meeting report

Draft Taxation Laws Amendment Bills: Public Hearings
South African Tax Practitioners Association (SAIT) submission
Mr Stiaan Klue, Chief Executive, South African Tax Practitioners Association, reported that although the estate duty amendment of the portable spousal deduction was welcomed, it was a matter of concern that it was only applicable in certain circumstances. The danger was that  hardly any couples would benefit from the concession, since it was easily invalidated by any asset not bequeathed to the spouse. SAIT recommended the removal of the requirement of “all assets” listing specific assets to be excluded.

The change to the definition of “small business corporation” was queried, as was the amendment allowing South African Revenue Service (SARS) to prescribe the basis for determining the provisional tax payments by notice in the Government Gazette.

Concerning clubs, SAIT queried the extension of the date for registration to 30 September 2010, and the reason for allowing SARS the discretion to back-date the club’s registration. They submitted that this opened the clubs to uncertainty regarding their tax status. SAIT recommended the retention of the previous legislation.

SAIT noted concern about the "pay-now-argue-later" rule, the discretionary powers of the Commissioner and lack of timeframes.

The use of biometric information was noted, as there were already delays in the VAT registration process. SAIT submitted that this would exacerbate the situation. It also posed  problems as foreign VAT vendors would not be able to comply, and SARS was still in discussion with stakeholders.

SAIT then addressed the amendment on the payment of interest in cases where a taxpayer lodged an objection and was refunded. The specific recommendation was that the amount of the tax under dispute should not influence the Commissioner’s decision whether or not to suspend payment.  The proposed section 36(4)(b) should therefore be deleted. With regard to the payment of interest on penalties, SAIT recommended that no amendment be made to section 39(7)(b) of the VAT Act. The implementation of the new Section 39(8) of the VAT Act should be delayed until the regulations hade been published and had been made subject to public comment. (Clause 38, amending Section 39 of the Value-Added Tax Act)

South African Institute of Chartered Accountants (SAICA) submission
Mr Muneer Hassan, Project Director: Tax, South African Institute of Chartered Accountants presented comments on the provisional tax changes. He stated that provisional taxpayers made up a significant taxpayer base. The Revenue Laws Amendment Act 2008 removed the basic amount and introduced a 20% penalty if taxpayers did not attain 80% accuracy when compared to SARS' final assessment. This automatic penalty was reliant on future uncertainties since taxpayers had to make this tax calculation at a time when the necessary data was not yet available. This had the associated problems of additional workload, system strain, added cost and February year-end pressure. SAICA proposed the retention of the basic amount or the replacement of the penalty with an interest charge. Other concerns covered the increased powers of the Commissioner, broadness of the provision and the effective date.
 
Mr Wessel Smit, National Tax Council Member, South African Institute Of Chartered Accountants, discussed pre-retirement withdrawals and proposed that the R300 000 exemption be retained upon retirement. This should not be influenced by previous lump sum withdrawal benefits received. This was described as a better response to the current economic climate that posed the danger that taxpayers could lose their employment and were often forced to take their retirement lump sum “savings” in cash.

Comments on dividend tax issues concerned transfer pricing and deemed dividends. In both cases, they highlighted the principle that only shareholders (for example a holding company) should be subject to this deemed dividend tax provision.

Referring to Controlled Foreign Companies (CFCs), they submitted that the changes in the definition of foreign business establishment did not take the global recession into account. 

The use of biometric information in VAT registrations, according to SAICA, posed challenges. These included the treatment of foreign VAT vendors and whether this would replace the current VAT registration process or be in addition to it.

SAICA pointed out a need for a rebuttal opportunity, after the SARS/National Treasury response meeting, in the processing of the Bills.

Business Unity South Africa (BUSA) submission
Ms Simi Siwisa, Director: Economic Policy, Business Unity South Africa, reported that BUSA's approach was to highlight the macro issues which were of significant concern to business: namely the fuel levy, electricity levy, fiscal drag and personal income tax relief. With regard to the exemption of certified emission reductions, BUSA submitted detailed comments on the insertion of Sections 12K and 12L into the Income Tax Act, which raised significant concerns. In respect of these two insertions, BUSA supported the concept but had some concerns around implementation. It highlighted concerns around the accreditation of private companies to conduct energy efficiency audits. BUSA believed that the concerns could be easily addressed and presented proposals for amendments to the text.

Discussion
Mr M Oriani-Ambrosini (IFP) stated that the Bills were written in times of prosperity. Because of this, there was a need to assess the impact also in times of recession.

He referred to the comments on provisional tax and asked if his understanding was correct when he deduced that this meant asking small businesses to pay more administrative costs in order to accurately guess what they had to pay to SARS. If businesses were wrong, they would have to pay a huge penalty. He pointed out that if a new contract came in near the end of the financial year, businesses might have no option but to turn down this work, as it would affect their figures. This would stifle business and as such, seemed absurd. He asked what the rationale was for the introduction of this change to the previous system.

Mr Hassan replied that he was pleased that the Committee had picked up on this problem, and had in particular raised the issue of last minute transactions. Related to this, he commented that items such as capital gains transactions, audit counts and stock counts could only be processed once the data became available. Much of the data necessary for these calculations was only available after year-end and the resulting adjustments could be quite dramatic. This created huge strain on small businesses to do this in the 11th month of the financial year. Businesses would have to make a “thumb-suck” assessment and hope that this would be within 80% of SARS final assessment. This was not discretionary. The system would implement this automatically.

Dr D George (DA) referred to the comments on provisional tax. He asked if the SARS/National Treasury proposals were too complex to work. He further solicited responses on whether this would unnecessarily affect compliance and be unfriendly to small businesses and entrepreneurs. If this was the case, then he would welcome suggestions as to a better approach.

Mr Hassan replied that the taxpayers used to be able to rely on a basic amount. This was a safe harbour as taxpayers could choose to pay this basic amount if the estimate was higher than the basic amount. If taxpayers chose to pay less than the basic amount, then a penalty could be incurred.  This was a five-minute exercise. Under the current proposals, taxpayers would have to know how to do a complex tax computation in the 11th month of the financial year-end. Due to the need for the assistance of tax practitioners, there was now risk involved for the tax practitioner tied to the consequences for getting the estimate wrong.

Ms Z Dlamini-Dubazana (ANC) agreed that clarity on the more technical matters discussed was necessary. She referred specifically to the SAICA comment on the year-end pressure and asked what was meant by this comment.

Mr Hassan replied that this referred to the additional workload for taxpayers, which would require them to hire tax practitioners to assist. Even SARS would be under pressure, as they would have to have a process for detailed penalties hearings.

Ms Dlamini-Dubazana asked what was meant by the reference to the Commissioner having more power.

Mr Hassan replied that the Commissioner's power was too wide. The Commissioner would now have the power to make laws – effectively to determine the designated class of taxpayer and the prescribed basis, merely by publishing those in the Gazette. This was also easily subject to frequent updating.

Mr Oriani-Ambrosini referred to the amendments to the pre-retirement withdrawal exemption and stated that generally the change made sense to him. He asked how this would be applied to people who were involuntarily retrenched. He suggested that perhaps there could be a sunset clause - possibly to delay the amendment by three years.

Ms Dlamini-Dubazana stated that the pre-retirement withdrawal exemption could be seen as the country exercising its right to generate revenue. She felt that the desired changes would promote pre-retirement withdrawals, prevent people from investing in their retirement and result in increased social grant dependence.

Mr Smit responded that there was no benefit if the amount was taken in cash. The only benefit available currently was realise if people choose not take the amount in cash but to transfer it to another qualifying fund. In most cases, when people were retrenched, they needed the cash to live on, and there was no provision made for that. In regard to the R 300 000 lump sum benefit, he clarified that taxpayers should get lower bracket benefits when they made pre-retirement withdrawals. SAICA was of the view that the two tables could work cumulatively, because the taxpayers received the withdrawal benefit at a lower rate. Therefore, people should still get the R300 000 and progressively be taxed in higher brackets.

Mr Oriani-Ambrosini referred to the estate duty amendment, specifically the portable spousal deduction. He stated that he understood the rationale for this. He noted that South Africa was experiencing harsh times and the realities of extended families had to be considered. With this in mind, he asked if consideration should not be given to a limited exemption that applied to children.

Mr Klue replied that the amendment proposal was aimed solely at simple estates and carried the requirement of all the assets being transferred to the spouse. It was a welcome proposal but it created difficulty if not all the assets were transferred.

Dr D George (DA) referred to the comments on the use of biometric information. He asked if the problem was the method of collection, or the collection of the information itself. If it was the method, he asked for the proposal on a better method.

Mr Klue replied that this was broadly speaking a good idea. It currently took three months to complete registration as a VAT vendor. SAIT anticipated that this situation could worsen if SARS proceeded with requesting biometric information. SAIT suggested that the proposal be left aside for the moment, to allow SARS to engage with stakeholders on the current issues. He noted that SAICA had asked if this would be an addition to the current registration process or if this would replace it. The next meeting, scheduled for 30 June, would provide an opportunity to discuss this further.

Dr George referred to the dissatisfaction with the processing of the Taxation Laws Amendment Bills. He had understood that there was an opportunity for dialogue between the industry and SARS between the time of the public hearings and the SARS/National Treasury response. He opined that this was meant to be the substitute for the rebuttal. He asked if this was happening, and if it was working, then the reasons for this. He added that, realistically, consensus would not be reached on certain issues and these issues would be left to the Committee to decide upon finally.

Mr Hassan responded that the process did work well. SAICA would have the opportunity to engage with SARS and the National Treasury on the following Tuesday, 30 June. However, this did not necessarily deal with all the issues, and it was not a requirement that consensus be reached. For this reason, he asked that industry also be given the opportunity to speak at the meeting to hear the SARS response, provisionally planned for 8 July 2009.

Ms Dlamini-Dubazana asked whether BUSA considered the government's priorities when they compiled their submission. If so, they would be aware that the National Treasury was implementing the government's mixed economy approach. South Africa was a developing country. She queried the rationale of how the fuel levy and the RAF levy impacted upon household confidence, saying that she did not believe that they had an impact, and that BUSA had made a contradictory statement when noting their concerns about this in the current economic climate. She felt that the presentation was supposed to concentrate on what was happening in the country at present. South Africa faced a crisis and needed crisis mitigation management. This understanding seemed to her to be lacking in the BUSA submission.

Ms Siwisa responded that BUSA was aware of the objectives outlined in the State of the Nation Address. She stated that the people hardest hit by the fuel levy would be the poorest in the country; the people who spent over 60% of their income on transport costs, such as the taxi industry and ordinary commuters. If the fuel price continued to increase at the current rate, it would reduce the amount of disposable income available to households. Consumer spending would be discouraged, negatively impacting on demand in the economy. Eventually, down the supply chain, this would have an overall negative impact on economic growth.
BUSA believed that their submission highlighted the challenges to crisis mitigation and the issue of administrated prices, specifically the fuel levy, was an additional burden on the consumer.

Ms Dlamini-Dubazana asked if BUSA had adequately researched the turnaround strategy of the Road Accident Fund (RAF). She was of the view that only once the strategy was implemented could it be evaluated for any possible gaps, and therefore was interested to hear what gaps they thought existed. 

Ms Siwisa responded that BUSA did not regard RAF as having stabilised at this stage. BUSA's concern was the continued provision of funds to entities that did not show improvement.

Ms Dlamini-Dubazana referred to BUSA's comments on the electricity levy. She felt that SARS was instituting measures to ensure that the country did not crumble. Other approaches could ensure that the poor did not become poorer.

Ms Siwisa responded that this was a matter of short-term versus long-term interests. BUSA’s membership included had both small and big business. The concern with the electricity levy was the short to medium term impact on the Producer Price Index (PPI), manufacturing profits and job creation. Generally, energy costs made up about 25% of businesses' cost base. If energy costs increased, businesses would have to cut costs somewhere else. This was likely to mean job losses, and ordinary people would be affected. It was not as simple as policy that was anti-poor or pro-business.

Ms Dlamini-Dubazana referred to BUSA's concerns around the exclusion of the private sector in the accreditation to perform energy efficiency audits. She was unsure as whether this was a valid concern. She pointed out that although industry had to be consulted on these matters, it was National Treasury and SARS who had to implement the amendments. The Department accounted to Parliament and Parliament, because the Members would in turn have to account to their constituencies, had had to focus on the broader economic issues.

Ms Siwisa responded that the Department of Energy did not have the capacity to conduct energy efficiency audits. This was a highly technical area that was extremely expensive to operate. The Energy Act, passed in 2008, established the South Africa National Development Institute (SANEDI). This institute would be costly to the taxpayer. The private sector could work with government to ensure that the process worked well. If the private sector was not included, there would be a backlog in applications and SANEDI on its own, would not be able to implement what had been proposed.

Meakin & Co submission
Meakin & Co, an independent Cape Town based think-tank lodged an objection to the Income Tax Amendment Act 2009/2010. They were represented by Mr Peter Meakin, Mr Brian Amery, Mr Rob Small and Mr Etienne Bruwer.

Mr Peter Meakin and Mr Brian Amery began the presentation with their argument as to why the current tax system was seen as flawed. It was their opinion that South Africa had become a tax haven for landowners. They contended that all increases in land value were caused by the state building infrastructure, or population increases – not by the owner - and yet government was allowing owners to keep those gains. In a system where only the rich could afford land, this allowed the rich to make payments on account for tax and recover these when they sold their land.

They reviewed the rules of good taxation. They then proposed the abolition of all income taxes and the introduction of a single land tax. The purpose, advantages and constitutional compliance of this single land tax was outlined.

Mr Rob Small briefed the Committee on the ways people could be taught to make the land productive and generate income using the land.

Mr N Koornhof (COPE) called a point of order, as he felt that the submission was not relevant to the proceedings. He asked if another slot could be assigned to this submission.

The Chairperson responded that he took the Member's point but as the presentation was almost concluded, they would be allowed to finish. Furthermore, the Committee would not engage on this presentation. This engagement could be arranged for a later date.

Mr Etienne Bruwer provided supplementary information on his successes using natural materials and communities' own capacity to build architecturally sound structures to uplift these communities.

Meakin & Co concluded by summarising that land should be free to all, so that all the people of South Africa could have access to the means to make a living. Applying a single land tax to replace the existing income tax structure was, in their view, the best proposal to achieve these aims.

Deloitte and Touche submission
Ms Anne Bennett, Tax Director, Deloitte and Touche, highlighted the perceived problems with the proposed change to the definition of trading stock and the impact on the treatment of mining stockpiles. Deloitte and Touche was of the opinion that the suitability of this amendment was highly debatable, due to its far reaching implications and the lack of consultation with industry.

Section 24B (2) was seen as a fundamentally flawed section, as the taxpayer got no base cost for Capital Gains Tax (CGT) purposes in shares or debt issues. It was not clear what "mischief" was being targeted and this would cause difficulties in ordinary commercial transactions.

With regard to dividends tax, they submitted that the definition of “dividend” was overly broad, and should be limited to payments other than those out of contributed tax capital (CTC). Other comments on dividends tax included problems with withholding tax issues and deemed dividends.

Deloitte and Touche also commented on the Controlled Foreign Company (CFC) rules, involving changes to Section 9D. The conversion from rulings to exemptions was welcomed.

The removal of paragraphs (b) to (e) of the definition of a foreign business establishment (FBE) was queried, as these paragraphs related to businesses in agriculture, mining, construction and shipping amongst others. As the results could be quite inequitable, this needed to be discussed.
The proposal that FBE status would be denied if the sole or main purpose behind the location of the CFC was to postpone or reduce “any tax imposed by any sphere of government …in any other country” was not in South Africa’s interests and amounted to policing foreign tax collection.

In relation to the denial of deductions for short term insurance reserves for captive insurance companies, it was not clear why CFCs conducting insurance business should be treated more harshly than SA companies conducting the same business. This was not an appropriate response to tax avoidance and abuse of the tax system.

On the repeal of Secondary Tax to Companies (STC) exemption, Deloitte and Touche submitted that there was no justification for removing the exemption prior to the abolition of STC. The exemption should disappear along with the STC credit when the new dividends tax came into operation.

Webber Wentzel submission
Mr Ed Liptak, Director, Webber Wentzel, presented a submission entirely concerned with the proposed amendments to the film incentives. He presented a brief overview of the South Africa film industry and South Africa’s potential for earnings as a production location for foreign films. He highlighted the fact that, although the global economy was in economic downturn, the film industry remained buoyant. Section 24F proposed a 100% write-off for film cost in year of completion. This sounded generous, but was not a real incentive in itself, as it simply matched the revenue to the expense. Section 24F had not attracted private investment during the past five years, and financial institutions had actually exited the industry, leading to loss of skills, expertise and potential investors.

Webber Wentzel's four anti-avoidance proposals notably included a proposal for a "claw-back” of the deferral, the introduction of an "at-risk" rule and a new reporting requirement. The proposal for reporting envisaged that any film owner who was entitled to a deduction in terms of this section must submit to the Minister any information relating to that film required by the Minister, in the form and manner, and at the place and time that the Minister prescribed.

Mr Liptak detailed the Department of Trade and Industry (DTI) application process and the SARS ruling application process and felt that there was some redundancy here that could be addressed.
The rationale for the exclusion of financial institutions from ownership was queried. Webber Wentzel felt that a more targeted approach was necessary. Moving forward, they felt that the extension of the deferral period was a positive first step, but was not enough. There was a need to engage with the industry and adopt a more balanced tone and approach.

PricewaterhouseCoopers (PwC) submission
Mr David Lermer, Southern Africa Region Global Tax Services Leader: PricewaterhouseCoopers (PwC) stated that the short consultation period was once again an issue, as mentioned in the previous presentation to the Committee in 2008.

PwC echoed their colleagues' comments on the second provisional tax estimate, the changes to the definition of trading stock and the consequences for mining stock-piles and the proposals concerning Controlled Foreign Companies. PwC felt, in relation to CFCs, that there was an inappropriate emphasis on "incorporation". They noted that incorporation was a fairly generic classification and that, instead, tax residence should be considered. The focus should be on the substance ("establishment") or actual tax paid ("high tax"). The high tax exemption confirmed the ability to use loss carry-backs and “group” losses as allowed under foreign tax laws. It submitted that loss-utilisation should not be limited to the South African concept of “assessed losses”

PwC noted, specifically, that the 20% penalty for provisional taxpayers who failed to match the 80% accuracy level was a major problem. International precedent allowed for the payment of interest, not a penalty.

Prof Osman Mollagee, Tax Director: PwC, reported on the institution’s proposals on Certified Emission Reductions (CERs), Research and Development, Dividends Tax (Deemed Dividends), Dividends Tax (Capitalisation Shares), Cross-issue of shares, Employer-provided Post Retirement Medical Aid and Foreign Portfolio Shares (see attached presentation for full details)

Independent Producers' Organisation (IPO) submission
Mr Zaheer Goodman, Bhyat Independent Producers' Organisation (IPO), and Mr David Wicht, Chairperson: Independent Producers' Organisation, stated that the IPO currently represented the majority of independent South African film producers. The IPO broadly supported the amendments. It was, however, their experience that financiers avoided the film industry for fear of engaging SARS in a long protracted dispute on interpretation and application of the Act. The IPO therefore urged SARS to set out positive and clear guidelines that encouraged local investment in film within clearly defined parameters.
 
In specific comments, they supported extending the dti rebate tax exemption to film owners. In regard to the proposal that banks and financial institutions would be prohibited from becoming film owners, they submitted that this would prevent much-needed capital from entering the film industry. The IPO supported the extension of the loan period to 15 years.
The IPO proposed that the addition of verification requirements into the film investment process (DTI rebate) would prevent the misuse of the allowance. This could be done without undue administrative burden on SARS.

The second proposal concerned limiting the time and volume of the allowance allocated to financial institutions. This would allow private equity to gain an understanding of the industry in order to assess risks and returns associated with film investment.

Discussion
The Chairperson warned that time was short, and that it was possible that not all questions could be answered in the session.

Mr Oriani-Ambrosini asked if he was correct in his summation that the main issue in the submissions on film incentive was the exclusion of bank ownership and the reporting mechanism.

Mr Oriani-Ambrosini asked what would happen to the balance sheet, domestically and internationally, if the amendment to the definition to trading stock were to stand, with reference to mining stockpiles.

Mr Oriani-Ambrosini referred to comments on recapitalisation, and he asked why there was preference for convincing shareholders to take a dividend in shares rather than in cash.

Dr George asked Deloitte and Touche for suggestions on how the consultation process on the Bills could be clarified.

Dr George referred to unintended consequences and asked if there was an ongoing dialogue taking place currently that could be considered in the future.

Mr Keith Engel, Director: Legislative Oversight and Policy Co-ordination, National Treasury responded that National Treasury and SARS had been improving the process continuously. There was a major burst of legislation in 2004/5 that amounted to a fundamental overhaul of the tax process. Now the National Treasury had reached the point where new legislation was almost reduced to one Bill each year. He said that comment periods had been extended from 10 days to almost 30 days. There would be further opportunities to engage during the upcoming workshop and a few meetings with stakeholders on special issues such as the energy efficiency incentive and the film incentive. He said that stakeholders engaged with him and SARS on a regular basis. He stated that the bigger issue might be the amount of time that they could spend outlining concerns and discussions with the Committee.

Mr Engel said, in relation to the technical matters, that National Treasury and SARS had expanded the explanatory memorandum. It was more detailed and they had noticed that the comments from stakeholders had also improved. He reiterated that SARS/ National Treasury would provide a detailed response to the submissions made.

The Chairperson responded that the National Treasury and SARS would return to the Committee on 8 July to interact on all submissions and give the Committee clarity on issues.

Dr George noted the PwC view that there had to be a better way to treat provisional tax and asked that specific proposals be put forward on how to improve it.

Ms Dlamini-Dubazana proposed that the National Treasury be invited back to give clarity on certain issues, specifically Section 24(b), controlled foreign companies and other technical aspects.

The Chairperson concluded that there was never sufficient time to deal with all issues. The Committee tried to be as near perfect as possible. Industry should continue to interact as mentioned. All those present were welcome to attend the response session on 8 July 2009. He was of the view that all stakeholders had done justice to the process and that the rebuttal concerns could be dealt with informally as mentioned by Mr Engel.

The meeting was adjourned.