The basis of this article is Section 35A of the Income Tax Act. This section was enacted into law on 1 September 2007 and its purpose is to secure the tax liability of certain non-resident sellers of immovable property in respect of the assessment year during which the immovable is sold.
Section 35A (1) states that:
“Any person (hereinafter referred to as “the purchaser”) who must pay any amount to any other person who is not a resident (hereinafter referred to as “the seller”), or to any other person for or on behalf that seller, in respect of the disposal by that seller of any immovable property in the Republic must, subject to subsection (2), withhold from the amount which that person must so pay, an amount equal to:
(a) 5 per cent of the amount payable, in the case where the seller is a natural person;
(b) 7,5 per cent of the amount so payable, in the case where the seller is company; and
(c) 10 per cent of the amount so payable, in the case where the seller is a trust.”
The section makes provision for the seller to apply to SARS for a directive that no amount be withheld, subject to satisfying SARS’ requirements. I am not going to deal with what those requirements are, since each application is considered on its own merit and after having regard to certain factors.
The amount withheld must be paid to SARS (in case where the purchaser is a resident,
within 14 days from the date on which that amount is withheld and, in the case, where the purchaser is non – resident, within 28 days).
The section further creates a certain obligation on the following parties:
1. The Purchaser who knew or should reasonably have known that the seller is a non-
resident and fails to withhold the amount required;
1.1 The said purchaser will be personally liable for the payment which he/she
failed to withhold; and
1.2 Must pay the amount within the period stated above, failing which, such
purchaser will in addition to the payment required, also be liable for a penalty
equal to 10 % of the amount required by SARS.
2. The Estate Agent and the Conveyancer involved who assists with the disposal of the
immovable property must notify the purchaser in writing, of the fact that a certain
amount ought to be retained.
2.1 The Estate Agent or Conveyancer who falls into this category, will be jointly
and severally liable for payment of the amount which the purchaser is
required to withhold, limited to the amount of the remuneration or other
payment in respect of services rendered by such Estate Agent or
Conveyancer in connection with the disposal of the immovable property.
The Section only applies to the deals where the purchase price exceeds R 2 Million and
does not apply to certain deposits. The Commissioner also has discretion in respect of each matter. I am certain that all the prospective sellers (non – resident), purchasers, estate agents and conveyancers will appreciate the possible consequences which may result in the event that this section is not adhered to and SARS elects to enforce it. It is also clear that this section hits exactly where it hurts most (i.e the pocket of the purchaser, estate agent and conveyancer).
This article is written simply for the purposes of making the readers aware of certain
provisions of the above Act and the law and does not in any way serve as an advice to any reader and in the event that any person requires advice on the above, you may contact us or consult your attorney.
Written by Kim Slaffa, candidate legal practitioner in the firm.
