Basis of taxation
South African residents are taxed on their worldwide income.
Non-South African residents are taxed on their South African sourced income.
A company will be a South African resident if it is incorporated in South Africa or if it has its place of effective management in South Africa.
An individual will be a South African resident if he or she is ordinarily resident here or is physically present here for a specified number of days over a five year period.
Any person who is deemed to be a resident of another state through the application of a double tax agreement will not be treated as a South African resident.
Agreements to avoid double tax
South Africa has entered into double tax agreements with most of its trading partners.
In terms of these arrangements a foreign resident will be taxable in South Africa only if it conducts business through a permanent establishment in South Africa (note there are a few exceptions such as withholding taxes).
Tax rates
South African companies are currently taxed at a rate of 28%.
Dividends Withholding Tax (WHT) is levied on dividends declared at a rate of 15%.
The dividend tax of 15% will generally be withheld by the company paying the dividend or a paying intermediary, and the net dividend will be paid to the shareholder.
South African branches of foreign companies are taxed at a rate of 28%. No dividend withholding tax is imposed on the remittance of branch profits.
Capital gains earned by companies are effectively taxed at 18.6%.
Non-residents of South Africa may pay capital gains tax (CGT) on the disposal of:
Immovable property or any interest or right to or in immovable property and
any asset of a permanent establishment through which the non-resident is carrying on a trade in South Africa.
Individuals are taxed on a sliding scale with the highest marginal rate being 40%.
Capital gains earned by individuals are taxed at an effective rate of 13.3%. There are certain exemptions.
Key income tax issues
Interest paid to foreign lenders is not taxable unless they have a permanent establishment in South Africa. From 1 January 2015 interest may be taxable in South Africa, at the withholding tax rate of 15%. This withholding tax is a fi nal tax.
Certain DTA’s will reduce the rate, with some DTA’s reducing the rate to 0%
There is a withholding tax on royalties paid offshore of 12% (may be reduced through the applicable double tax agreement); on 1 January 2015 this will be increased to 15%.
Withholding tax on service fees will be introduced from 1 January 2016, at the rate of 15%. This applies to non-residents providing services within South African. The withholding tax on services may also be reduced per various Double Taxation Agreements, and in certain cases the rate is 0%.
Transfer pricing rules apply and are enforced.
Three provisional tax payments are made each year.
Transfer pricing
The Commissioner for the South African Revenue Service may adjust the consideration in respect of any international transaction between connected parties to reflect on arm’s length price.
This is to ensure that there is a fair return on the activities conducted, the products contributed and the risks assumed in South Africa.
If prices between connected parties from different jurisdictions do not reflect an arm’s length price, the South African taxpayer’s taxable income could be increased.
Transfer pricing adjustments will result in additional tax, interest and penalties.
Although a Transfer Pricing Policy document is not required by law, it is advisable to prepare and maintain such policy documents to defend prices if they are ever challenged.
The general arm’s length provisions will be used to determine whether a company is thinly capitalised.
Other taxes
Businesses must register as an employer with the South African Revenue Service (SARS) and Pay As You Earn (PAYE) must be withheld on a monthly basis from remuneration paid to employees. Social security taxes are also collected through the PAYE system.
Value-Added Tax (VAT) is levied at a rate of 14% on taxable supplies made by vendors.
An importer/exporter has to register with SARS to obtain a customs code number. Customs duties are payable on various goods imported into South Africa. Importers need to ensure that they are using the correct tariff classification of the imported goods and apply for import permits where required on certain goods.
Securities Transfer Tax of 0.25% is levied on the transfer of shares but is not levied on the new issue of shares.
Exchange control
Investment
There is no exchange control over non-residents.
South African subsidiaries or branches of foreign companies are, however, treated as a resident and thus subject to the controls.
Investment may be in the form of share capital only or share and loan capital.
Where a portion of the investment is in loan capital, exchange control approval is required, but this is usually a formality.
Local borrowings
These can be restricted – the maximum is determined in terms of a formula and is linked to the amount of owners’ funds (share capital, loans and accumulated profits). The restriction commences with a foreign holding of 75% or more. The borrowing restrictions have been removed for most companies but are applicable with regard to transactions involving immovable property and certain ‘financial’ transactions, including the purchase of shares.
The limits may be temporarily increased in certain circumstances.
Dividends or branch profits
Freely remittable provided the remittances will not cause the subsidiary or branch to become over borrowed locally.
Interest
Interest on a loan from the holding company is remittable provided that the rate of interest is reasonable in relation to the currency of the loan and the loan was previously authorised.
The interest rate will be reduced where the foreign shareholder lends the funds.
South African sourced interest is generally exempt from tax when received by nonresidents.
A withholding tax, at the rate of 15%, on interest paid to non-residents must be made in respect of all payments that became due and payable after 1 January 2015. The rate may be reduced by an applicable Double Tax Agreement.
Royalties
License agreements must be approved by the Department of Trade & Industry.