The SARS Non-Resident Confirmation Letter
Your Golden Ticket to Tax-Free Peace
The 2023 tax season is fast approaching – Do you have the ‘golden’ letter to confirm you are a non-resident for tax purposes?
The 2023 tax season is fast approaching – Do you have the ‘golden’ letter to confirm you are a non-resident for tax purposes?
Co-Presenter:
Thomas Lobban
Co-Presenter:
Martin Bezuidenhout
Co-Presenter:
Delano Abdoll
Date & Time:
6 July 2023 | 10:00 (SA Time)
Platform:
On your PC via Zoom | FREE
With the tax filing season right around the corner, it’s imperative that South African expatriates understand the intricacies of the SARS Non-Resident Confirmation Letter. This “Golden Ticket” is your final piece of evidence needed to confirm you are no longer liable to pay tax in South Africa on your foreign earnings.
This session will unpack how to practically obtain this golden ticket, along with its importance if you apply for relief under a Double Taxation Agreement (DTA). Further, it will cover the steps one needs to avoid the dreaded “rejection” letter where you get it wrong.
Whether you are new to working abroad, or a seasoned “SAFFA” needing to confirm if you have correctly ceased tax residency, this session is ideal for you. This is an opportunity to hear directly from leading experts, who deal with expatriate tax and DTAs for South Africans on a daily basis.
History and context: SARS targeting South Africans working abroad;
Why SARS have greyed out the non-resident tick box
The ‘golden’ Tax non-resident confirmation letter SARS – why do you need it;
How to deal with SARS rejecting your application; and
What is the new “Approval of International Transfer” process recently implemented by SARS and how does it affect your emigration application.
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.
Martin Bezuidenhout
Martin holds a BCom Law degree and LLB degree from North West University and is an admitted Attorney and Conveyancer of the High Court of South Africa. Martin forms part of the Expatriate Tax team at Tax Consulting SA as an Expatriate Tax Attorney, where he assists clients with intricate tax residency matters in particular the application of Section 10, and the cessation of tax residency.
Martin recently represented Tax Consulting SA at the SAIT Tax Indaba, where he sat on a panel that was discussing “Ordinary emigration and taxing grey hairs”.
Delano Abdoll
Delano is a highly skilled attorney admitted to the High Court of South Africa, with extensive knowledge and expertise in tax law. He holds a Bachelor of Arts in Law, a Bachelor of Laws, and a Master of Laws degree in Procedural Law, all obtained from the University of Pretoria.
Delano has a strong focus on expatriate tax and individual cross-border taxation, making him an expert in dealing with complex tax issues faced by individuals who work or reside across international borders. With his comprehensive understanding of tax laws and regulations, he is able to provide exceptional advice and support to clients in need of expert tax planning and management.
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