The Market Has Spoken: Experienced Hands Needed to Navigate SARS’ Enhanced AIT Process
The market saw mixed reactions following the implementation of the enhanced Approval of International Transfers (AIT) process on 24 April 2023.
The market saw mixed reactions following the implementation of the enhanced Approval of International Transfers (AIT) process on 24 April 2023.
SARS has made it easier to clamp down on individuals it deems as “sophisticated taxpayers”, specifically those with the ability “to apply for more than the yearly R1 million single discretionary allowance”. This is per the SARS media statement on 3 May 2023, and is one of the reasons given for the new Approval for […]
On 24 May 2023, the South African Revenue Service (SARS) released Interpretation Note 129 (IN129), which provides clarity on the interpretation and application of the phrase “maximum tax rate applicable to the taxpayer” in section 222(5) of the Tax Administration Act 28 of 2011 (“TAA”). This is specific to when the applicable tax rate to […]
On 24 April 2023, the new enhanced Tax Clearance Status System, was introduced, this being the Approval for International Transfer, or AIT application, as it has been coined. Without much fanfare, SARS’ immediate implementation of this new process may have come as a shock to the market, generating some uncertainty amongst financial professionals.
The continued rollout of loadshedding in South Africa has forced businesses to dig-deep into their pockets to keep their doors open amidst the country’s energy crisis. With productivity at an all-time low, the economy, at large, is desperate for a feasible solution. In an attempt to encourage greater private investment by businesses in renewable energy […]
There are two significant SARS changes in the past 6 months impacting South Africans both local and anyone abroad on trusts, which directly impacts the beneficiaries of a trust.
The South African Revenue Service (“SARS”) introduced the new Approval for International Transfer (“AIT”) process on 24 April 2023, which requires a significant change in disclosure for South Africans taking money abroad.
In a recent media release, dated 11 May 2023, and focused on VAT Refunds and Registrations, the South African Revenue Service (“SARS”) stated that it is committed to paying legitimate refunds to qualifying taxpayers, as and when they become due. In line with this commitment, SARS reported that during the 2022/23 financial year, a record […]
Since the South African Revenue Service (SARS) announced the changes to the Tax Compliance Status (TCS) process, the media has been abuzz. To cut through this noise, Tax Consulting South Africa and the Financial Planning Institute of South Africa (FPI) held a short webinar on 10 May 2023 unpacking all these changes, with a step-by-step […]
The South African Revenue Service (SARS) recently made several changes to its Tax Compliance Status (TCS) process. According to their media statement on 3 May 2023, SARS states that these changes, or “enhancements”, aim to “dramatically improve turnaround times” for compliant taxpayers and traders seeking to transfer funds out of South Africa.
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