2022 BUDGET SPEECH IMPLICATIONS FOR SOUTH AFRICANS WORKING INTO AFRICA IN MINING AND RELATED SERVICES
EVENT DETAILS:
PLATFORM:
MS Teams
DATE:
Wednesday, 4 May 2022
TIME:
18:00-19:00 (GMT+2)
ATTENDANCE FEE:
Free
The Budget 2022/23 as well as developments the past year in SARS practices contains some important updates for South Africans working internationally. We have held bespoke webinars for various international groups in the past month in Dubai, Qatar and London; and have been asked by clients, prospective clients and employers to share the critical market updates, especially pertaining to rotational and other international South Africans into Africa.
The session will cover the key areas of Budget 2022/23 and SARS practice changes which impact South Africans working in Africa, including tax return compliance, SARS audit approach, using of Double Tax Treaties and related compliance aspects. The latest SARS Rulings on expatriate housing, home flights and expatriate benefits provided on-site will also be covered. Examples and SARS audit strategies and criminal prosecution examples will be shared, to ensure that each attendee is well equipped on ensuring full compliance and optimal planning.
Jerry Botha, Managing Partner – Budget 2022/23 update and key discussion on SARS audit strategies and the time limit on retirement withdrawal planning, exchange control and international strategies. He will also address 2 specific announcements aimed at the wealthy and an additional 3 announcements specifically aimed at expatriates.
Thomas Lobban, Legal Manager for Cross-Border taxation – the SARS Certificate of Non-residency, demystifying the uncertainty created by some advisors on Double Tax Relief (and examples of Tax Residency Certificates) vs Financial Emigration vs. tax filing as a South African tax resident.
Sidney Fletcher and Donaldson Madungwe (Senior Tax Consultants), practical tax compliance aspects in dealing with SARS, focus areas and getting tax compliance proactively right.
The efforts of National Treasury and SARS remains very much focussed on international South Africans and this now being the 5th consecutive year where dedicated announcements were made aimed at South Africans abroad. We will deal with both the high level announcements, but also the practical strategies to ensure tax and financial optimisation.
Jerry Botha
Jerry has over 20 years’ experience in the field of taxation, holds his own FSCA License, is a Master Reward Practitioner and serves on the Executive Board of the South African Reward Association (“SARA”), Chairs the SARA Employee Benefit Committee, and is a Certified Payroll Practitioner and Tax Practitioner. He is the managing partner of South Africa’s largest independent tax practice, enjoys presenting and is passionate about tax and international individuals. He has also authored the Lexis Nexis “Expatriate Tax” textbook, as critically acclaimed by Judge Dennis Davis.
Thomas Lobban
Thomas holds an LLB and LLM Tax Law degree and is a SARS registered tax practitioner in South Africa, with both practical tax and consulting experience. He has dealt with various legal conflicts of interest and moved from corporate practice to the consulting industry where he has entrenched himself within tax law, specializing in individual cross-border and crypto asset taxation.
Thomas joined Tax Consulting SA after obtaining his Masters degree, to focus on tax law and the intricacies thereof. He is a co-author of the LexisNexis Expatriate Tax textbook, and in particular its chapter on the interpretation and application of Double Taxation Agreements, which is of particular relevance to South Africans living and working abroad.
Sidney Fletcher
Sidney is a versatile and results-driven qualified Senior Tax Practitioner. He has more than 20 years of experience working for SARS and was responsible for Taxpayer Education for a big part of that period. He is a dedicated professional with extensive knowledge and his affinity for Individual Taxes makes him an excellent tax planner and skilled at tax optimisation. Committed to the best care for clients through transparent communication. Skilled in negotiation with a strong ability to problem solve to assist clients with tax problems.
Controlled Foreign Companies –
South African Tax Considerations
Controlled Foreign Companies – South African Tax Considerations
South Africa’s tax system includes a Controlled Foreign Company (CFC) regime designed to address the taxation of income earned by foreign companies owned by South African tax residents.
Where a South African tax resident holds or controls a foreign company, they may be subject to income tax in South Africa on the CFC’s foreign income, even if that income has not yet been distributed. This is an anti-avoidance measure to prevent South African tax residents from utilising foreign companies in the avoidance of South African tax.
What is a Controlled Foreign Company?
A CFC is broadly defined in section 9D of the Income Tax Act, No. 58 of 1962, as any foreign company where more than 50% of the total participation rights or voting rights are directly or indirectly held or exercisable by one or more South African tax residents.
Where this threshold is met, and unless a specific exemption applies, the net income of the CFC must be included in the income of the South African resident(s) in proportion to their participation rights, and taxed accordingly.
Taxpayers who fail to accurately account for a CFC’s income risk audit or reassessment by SARS, especially in light of increased global transparency and data sharing through mechanisms such as the Common Reporting Standard.
Key Features of the CFC Regime
Place of Effective Management and Corporate Tax Residency in South Africa
South Africa follows a residence-based system of taxation, meaning that resident companies are subject to tax on their worldwide income.
In terms of section 1 of the Income Tax Act, No. 58 of 1962 (the Act), a company is regarded as a South African tax resident if it is either:
unless a double tax agreement (DTA) provides otherwise.
The concept of POEM is central to determining a company’s tax residency, particularly where cross-border structures are involved. It affects both foreign companies with South African involvement and South African-incorporated entities that may be managed from abroad.
What is Place of Effective Management?
Although not defined in the Act, POEM has been interpreted through South African case law, SARS guidance, and international commentary, particularly the OECD Model Tax Convention and Commentary thereto.
Broadly, POEM refers to the location where key management and commercial decisions necessary for the conduct of the entity’s overall business are made, in substance and not merely in form.
The determination of POEM is a factual enquiry, and is not limited to formalities such as the registered office, place of incorporation, or location of board meetings. Instead, it focuses on:
Application in Cross-Border Contexts
POEM plays a critical role in determining corporate tax residency in both inbound and outbound scenarios:
Both scenarios must be carefully evaluated in light of South African domestic law and any applicable DTA.
Interaction with Double Tax Agreements
Where a company is regarded as resident in both South Africa and another jurisdiction, the relevant DTA will typically contain a tie-breaker clause to resolve the conflict.
Most of South Africa’s DTAs allocate tax residency to the country where the company’s POEM is located. However, some newer treaties apply a Mutual Agreement Procedure (MAP), requiring the tax authorities of both states to determine residence based on additional factors.
Correct DTA application is essential to avoid dual residency exposure and to obtain treaty relief on dividends, interest, royalties, and other income.
Practical Implications for Companies
Incorrect or dual tax residency status can expose a company to:
Permanent Establishment – Tax Exposure in Cross-Border Contexts
As businesses expand across borders, one of the key tax risks they face is the inadvertent creation of a permanent establishment (PE) in a foreign jurisdiction. A PE may trigger foreign income tax exposure for a company even in the absence of incorporation or tax residency in that jurisdiction.
South African companies with offshore activities, or foreign companies with South African operations, must be aware of the PE concept, how it arises, and how it interacts with applicable Double Tax Agreements (DTAs).
What Is a Permanent Establishment?
A PE is generally defined in a DTA as a fixed place of business through which the business of an enterprise is wholly or partly carried on. Common examples include:
South Africa’s DTAs typically follow the OECD Model Tax Convention, and many incorporate updated provisions from the Multilateral Instrument (MLI), which narrows common avoidance strategies and expands the scope of PE risk.
Inbound vs Outbound Permanent Establishment Risk
Even short-term or project-based activities can give rise to PE risks if not carefully managed and monitored.
Consequences of a Permanent Establishment Finding
If a PE is found to exist:
Non-compliance can result in penalties, double taxation, and reputational harm.
In a connected world, even limited physical or digital presence in a foreign country can create tax exposure. Managing PE risk is essential for international tax compliance and operational efficiency.
Controlled Foreign Companies –
South African Tax Considerations
South Africa’s tax system includes a Controlled Foreign Company (CFC) regime designed to address the taxation of income earned by foreign companies owned by South African tax residents.
Where a South African tax resident holds or controls a foreign company, they may be subject to income tax in South Africa on the CFC’s foreign income, even if that income has not yet been distributed. This is an anti-avoidance measure to prevent South African tax residents from utilising foreign companies in the avoidance of South African tax.
What is a Controlled Foreign Company?
A CFC is broadly defined in section 9D of the Income Tax Act, No. 58 of 1962, as any foreign company where more than 50% of the total participation rights or voting rights are directly or indirectly held or exercisable by one or more South African tax residents.
Where this threshold is met, and unless a specific exemption applies, the net income of the CFC must be included in the income of the South African resident(s) in proportion to their participation rights, and taxed accordingly.
Taxpayers who fail to accurately account for a CFC’s income risk audit or reassessment by SARS, especially in light of increased global transparency and data sharing through mechanisms such as the Common Reporting Standard.
Key Features of the CFC Regime