Die omvang van rente onderhewig aan, en die tydsberekening en koers van die heffing van terughoudingsbelasting op rente ingevolge artikel 50A-H van die Inkomstebelastingwet, no. 58 van 1962

[摘要] ENGLISH ABSTRACT: Section 50A-H of the Income Tax Act 58 of 1962 (hereafter referred to as the Act) containsthe stipulations regulating the reinstitution of a withholding tax on interest in South Africa.The section can be found in Chapter II in section IVB of the Act and the effective date is1 March 2015.Until the introduction of the withholding tax on interest, any interest of a South Africansource, apart from two exceptions, paid to non residents are exempt from normal tax. Thepurpose of the exemption is to encourage foreign investment. Since the exemption does notcreate a fair balance between the attraction of foreign investment and the need to protectthe tax base against potential erosion, a withholding tax on interest is reinstated.Due to uncertainty with regard to the meaning of certain concepts and phrases that are usedin Section 50A-H, this research assignment was aimed at defining the meaning of the phrase'due and payable, as used in section 50B.The second aim was to define the meaning of the phrase 'subject to tax as used in Section23M, as in some instances it is linked to section 50E, which is part of Part IVB.The third aim was fourfold and is related to the scope of interest that is subject to section50A-H. Firstly, research was done on the meaning of the concept 'interest as the conceptis not defined specifically in Part IVB. Secondly, the treatment of interest received in theform of an annuity was researched. Thirdly, research was done on the effect that theapplication of a South African discretionary trust that distributes interest to non-residentbeneficiaries can have on the stipulations of section 50A-H. Two aspects were researched,namely if a trust distribution constitutes a payment as described in article 50B, and whethera non-resident beneficiary is entitled to the exemption contained in section 50D(1) if theinterest is received via a South African discretionary trust. Lastly, research was done on theinteraction between and contradictory wording of section 50D(3) and 10(1)(h).It was determined that the phrase 'due and payable means the right to demand immediatepayment of a said amount. In the context of section 50B it means that withholding tax withinterest must be withheld when the non-resident has the right to demand immediate paymentof the interest and not when the interest accrues to the non-resident on a daily basis withregard to section 24J.It was determined that actual payment of tax is required before a said amount is consideredto be 'subject to tax. In the context of section 23M, where section 50E provides for awithholding rate of 0 percent, the limitation on the interest deduction will be applicable.Considering common law interest and interest as defined in both section 24J of the Act andsection 11 of the model convention of the OECD, it was determined that the stipulations ofsection 50A-H are applicable to interest as described in section 24J. This finding wasconfirmed by proposed amendmendt to the Act. It was furthermore determined that interestreceived in the form of an annuity is subject to both normal and withholding tax. It wasdetermined that the contradictory wording used in section 50D(3) and section 10(1)(h) mayresult in double non-taxation of a specified amount of interest in certain specificcircumstances.It was determined that a distribution by a trust will in all probability qualify as a payment asis described in section 50B. Consequently, a trust must withhold withholding tax on interestif a distribution of South African interest income to a non-resident beneficiary occurs.In the investigation to determine whether a non-resident beneficiary is still entitled to theexemption as contained in section 50D(1) if the non-resident has received the interest via aSouth African discretionary trust, the concept of fiscal transparency was the deciding factor.It was determined, due to South African law, that the legal form of the trust cannot bedisregarded. This could result in a non-resident being held liable for withholding tax oninterest where it is distributed through a trust even though the trust received the interest froman exempt entity.It is suggested that this study highlighted principles that may possibly clarify the confusionsurrounding the uncertainties. This information could be useful for role players in the SouthAfrican tax environment if issues arising from the deficiencies in practice emerge and/or iflegislature considers amendments to section 50A-H.

[发布机构] Stellenbosch University