Various amendments to the VAT Act in terms of the Taxation Laws Amendment Act 31 of 2013 were promulgated on 12 December 2013 and published in Government Gazette 37158. The amendments came into effect from 1 April 2014 unless otherwise stated.

The most important amendments are listed briefly below:

• Registration and deregistration
  • Non-resident suppliers of certain “electronic services” to South African residents (or if payment originates from South Africa) are required to register for VAT with effect from 1 June 2014.
  • Certain changes to the law have been made regarding the rules for compulsory and voluntary registration, including clarification on how the different thresholds apply.
  • Some changes to the law were made concerning the application of the payments basis of accounting for VAT and cancellation of registration as part of the changes relating to voluntary registration.

For more details, refer to the articles “New rules for VAT registration” and “Regulations and government notices”.

• Supply of services for contingent consideration – The special time of supply rule in section 9(4) deals with a situation where the whole of the consideration for a supply of goods is not determined at the time the goods are delivered to the recipient. The time of supply in such a case is the earlier of the date that payment in terms of the agreement is due, or received, or an invoice relating to the supply is issued. From 1 April 2014 the provision now also applies to a supply of services, but excluding a supply made under an instalment credit agreement or rental agreement.
  
  
• On-board entertainment supplied as part of a taxable transportation service – With effect from 1 April 2014, vendors that supply free on-board entertainment as a part of their taxable transportation services are allowed to deduct the VAT incurred to provide that entertainment, provided the cost is included in the fee for the transport. 
  
  
• Imported goods abandoned, destroyed or damaged – Goods imported into South Africa are subject to VAT at the standard rate when entered for home consumption, even if the goods were abandoned, destroyed or damaged. Schedule 1 to the VAT Act has now been amended so that with effect from 1 April 2014, some relief from VAT is provided. This was effected by inserting a new Item 412.07 and Note 1A which explains the application of Item 412.00. The intention is to ensure that the tax payable is in proportion to the economic value of the goods which enter the country. This means, for example, that if the goods concerned are to be scrapped immediately after importation, VAT is only payable on the scrap value and not the original importation value. This change aligns the VAT Act with similar relief from duties provided in the Customs and Excise Act, 1964. 
  
  
• Exemption for homeowners’ associations – The supply of services by, for example, a sectional title body corporate to its members is generally exempt from VAT under section 12(f) to the extent that the supplies are covered by levies charged to members. The application of this provision has been extended by the insertion of sub-paragraph (iv) to section 12(f) so that it now includes certain supplies made by homeowners’ associations to their members. For further information on this topic, refer to the article “Homeowners’ associations”.
  
  
• Conversion of a share block scheme to a sectional title – Section 8(19) was amended to provide that from 1 April 2014, the conversion of shares in a share block scheme to sectional title is now regarded as being conducted in the course or furtherance of an enterprise. However, the value to be placed on each of the reciprocal supplies is nil under the new section 10(27). This means that if both parties are vendors, neither party will account for output tax or deduct input tax on the supplies concerned.
  
  
• Surrender of goods supplied under an instalment credit agreement – The deemed supply which arises under section 8(10) when goods previously supplied under an instalment credit agreement are repossessed has been expanded to include a situation in which the debtor surrenders the goods to the financier (creditor). The effect is that from 1 April 2014 the surrender of goods previously supplied under an instalment credit agreement will have the same input tax and output tax consequences for the parties as a repossession.
  
  
• Adjustment for temporary letting of dwellings developed for sale – The requirement that developers claiming relief under section 18B must submit a declaration to the Commissioner has been deleted retrospectively with effect from 10 January 2012. Developers are therefore entitled to the relief available under section 18B provided proper records are maintained regarding any dwellings which were originally developed for sale, but which were subsequently temporary let during the relief period (10 January 2012 to 31 December 2014).
  
  
• Timing of input tax deductions on importation – Section 16(3)(a)(iii) was amended to clarify that the VAT which is payable on the importation of goods may only be deducted by the importer once the VAT has actually been paid to SARS. Section 16(2)(d) provides that a bill of entry or other document prescribed in terms of the Customs and Excise Act together with the receipt for the payment of the tax must be held by the vendor making the deduction (or that vendor’s agent) at the time that any return in respect of that importation is furnished.

For more details, refer to the following documents on the SARS website under “Legal & Policy”:

• Taxation Laws Amendment Act, 2013 (Act 31 of 2013)
• Explanatory Memorandum on the Taxation Laws Amendment Bill, 2013

Refer also to the Tax Administration Laws Amendment Act, 2013 (Act 39 of 2013) which was promulgated on 16 January 2014 and published in Government Gazette 37236.

In addition to the changes to the VAT Act mentioned under the heading “Amendments”, proposed amendments contained in the 2014 Draft Taxation Laws Amendment Bill (TLAB) and the draft Tax Administration Laws Amendment Bill (TALAB) were published for public comment on 17 July 2014. These bills give effect to the tax proposals announced in the 2014 Budget, and in the 2014 Budget Review.

A summary of the main issues is provided in the draft Explanatory Memorandum. The 2014 draft TLAB, TALAB and Explanatory Memoranda can be found under “Preparation of Legislation” on the “Legal & Policy” page on the SARS website. Written comments should be submitted by close of business on 17 August 2014.

In addition to the items mentioned in the article “Amendments”, certain changes regarding the application of the VAT Act have been introduced by way of secondary legislation as follows:

• Electronic services – The final version of the “Electronic Services Regulations” was published as Government Notice GN R 221 in Government Gazette 37489 on 28 March 2014 with an implementation date of 1 June 2014. These regulations list the prescribed services which fall within the meaning of “electronic services” in section 1(1) of the VAT Act. (Refer to the sub-heading “Electronic services” in the article “New rules for VAT registration”.)
  
  
• Importation of equipment for exploration or production of petroleum – Government Notice GN R 288 was published in Government Gazette 37554 on 17 April 2014. The Notice amends paragraph 8 of Schedule 1 to the VAT Act by the insertion of rebate item 460.23. This item provides for an exemption from the levying of VAT on equipment imported on or after 1 January 2014 which is used in the exploration for, or production of petroleum. Similar relief is provided in the Customs and Excise Act in the form of a full rebate of customs duty. The exemption from VAT and the rebate of duty is subject to the conditions set out in the notes to rebate item 460.23.
  
  
• Indirect exports – Regulations (the Export Regulations) made under section 74(1) read with paragraph (d) of the definition of “exported” in section 1(1) of the VAT Act were published as Government Notice GN R 316 in Government Gazette 37580 with effect from 2 May 2014. The Export Regulations deal with the circumstances under which certain indirect exports of goods may be zero-rated and set out the refund rules and procedures which apply when goods which were charged with VAT at the standard rate are subsequently exported by a qualifying purchaser. A brief summary of the effect of the new Export Regulations is that the Export Regulations –
  • replace the previous Export Incentive Scheme published as Government Notice 2761 in Government Gazette 19471 dated 13 November 1998;
  • apply to supplies for which the time of supply occurs on or after 2 May 2014, subject to certain specific rules regarding progressive supplies; and
  • extend –
    • the application of the zero rate to the indirect export of movable goods by road and rail provided certain strict requirements are met,
    • the time periods within which movable goods must be exported from the Republic and within which the required documentation must be obtained in specific circumstances; and
    • the period within which a VAT refund application must be submitted to the VAT Refund Administrator in specific circumstances.

For further details refer to “Secondary Legislation” on the Legal & Policy page of the SARS website.

General

As mentioned in the article “Amendments”, a number of new rules have been introduced regarding VAT registration and deregistration, namely –

• the treatment of non-residents that supply “electronic services” (e-commerce or digital products);
• the application of the new rules with regard to voluntary registration; and
• the application of the voluntary registration rules in cases where, as a result of the nature of the business, the applicant will only commence making taxable supplies after a period of 12 months, or the R50 000 threshold will only be exceeded after 12 months.

In addition to the amendments to the definition of “enterprise” and sections 23 and 24 of the VAT Act which give effect to the changes regarding the registration for certain suppliers of electronic services, two regulations dealing with voluntary registration were also published for public comment on 16 May 2014. These regulations are currently being finalised. The new rules on voluntary registration dealt with in these draft regulations are underpinned by the 2013 Budget announcement that a balance needs to be achieved between streamlining the VAT registration process to ease the compliance burden for vendors and efforts to prevent fraudulent VAT registrations and refund claims.

The draft regulations provide the necessary detail on how the VAT law should be applied regarding –

• the proof that a person must provide in order to be successfully registered;
• the objective tests that will be applied to any person applying for voluntary registration when considering whether the R50 000 minimum threshold will be met; and
• the specific types of enterprise activities which the Commissioner would consider as having a long lead time before any taxable supplies can be made.

(Note that the regulations do not apply in cases where the R50 000 threshold has already been met. In these cases, the current rules will continue to apply, which means that proof in the form of sales records, invoices issued etc must be held by the applicant.)

The amendments which introduce the new rules as well as the implications of the two regulations on voluntary VAT registration are discussed briefly below.

Electronic services

The definition of “enterprise” was amended by the insertion of paragraph (vi) to provide that non-resident suppliers of certain “electronic services” to South African residents (or where payment originates from South Africa) will be required to register as a vendor and to charge VAT on the supplies. This means that South African residents who purchase any “electronic services” from non-resident suppliers that are registered or liable to register for VAT in South Africa will no longer account for VAT on imported services. Instead, the non-resident suppliers will account for the VAT by submitting a return and making payment on e-Filing in the tax period that payment for the supplies are made.

A definition of the term “electronic services” has also been included in the VAT Act, which in turn, refers to various electronic services listed in the Electronic Services Regulations under the following headings:

• Educational services – for example, webinars, webcasts, internet or distance based teaching programmes provided by persons that are not regulated by an educational authority in the supplier’s country.
• Games and games of chance – for example, internet games of skill or chance and online gambling.
• Internet-based auction services – this is an online market place conducted through an electronic agent which involves the supply of goods or services to customers by way of a bidding process.
• Miscellaneous services – for example, the right to view, listen to, or download e-books, music or audio-visual content such as films and images.
• Subscription services – for example, subscriptions to electronic publications such as newspapers, journals, magazines and social networking services.

The VAT registration threshold for these non-resident e-commerce suppliers is R50 000 and abridged tax invoices should be issued instead of full tax invoices when making supplies. The introduction of these new rules will not affect the registration threshold or the requirements for issuing tax invoices for local suppliers of electronic services. Non-resident suppliers of digital products and other types of electronic services which are not listed in the draft regulations are currently not liable to register for VAT. In these cases, the imported services provisions will continue to apply for the recipient.

For more details, refer to the draft Electronic Services Regulations published on the SARS website under the heading “Secondary Legislation” as well as the External Guide – VAT Registration Guide for Foreign Suppliers of Electronic Services – VAT-REG-01-G02 dated 7 April 2014.

For more details of the main issues raised by the public and the future direction of the taxation of electronic services in general, refer to the National Treasury website (www.treasury.gov.za) for the media statement which was issued on 28 March 2014.

Compulsory registration

Section 23(1)(b) has been amended to provide that unless a person has certainty in the form of a written contractual obligation to make taxable supplies exceeding R1 million in the next 12 months, that person is not compelled to register. Any person who would have qualified as a compulsory registrant under the previous wording of this provision is now considered under the rules for voluntary registration.

Voluntary registration and the R50 000 threshold

Section 23(3)(b) was amended to allow small businesses to register for VAT in certain circumstances, even if the minimum threshold of R50 000 has not yet been met. This will be allowed, provided the Commissioner is satisfied that it is reasonable to expect the applicant to exceed the R50 000 threshold within 12 months from the date of registration.

The draft regulation which was issued on 16 May 2014 for public comment sets out a number of objective tests which will be applied in determining when a person will be “reasonably expected” to make taxable supplies in excess of the voluntary registration threshold of R50 000. The Commissioner may allow a person to register for VAT if that person is able to meet the requirements of any of these tests. This could include, for example, proof of business start-up costs incurred or financing arrangements concluded, historical sales information, or a written contract concluded to make taxable supplies in excess of R50 000 in a 12-month period.

Applicants that are successful in applying for voluntary registration in terms of these tests will need to take note of the following:

• The applicant will be required to account for VAT on the payments basis. This is despite the fact that the person would not otherwise qualify to be registered on the payments basis. (For example, in the case of a legal entity such as a company.)
•  Once the threshold of R50 000 is exceeded, the vendor must convert to the invoice basis of accounting. However, this will not apply if the vendor meets the requirements in section 15(2) to continue accounting for VAT on the payments basis.
• The Commissioner may deregister the person as a vendor if the R50 000 threshold is not exceeded after a period of 12 months, or if the vendor fails to submit a return. (Refer to section 24(5) for more details.)

Threshold of R50 000 only exceeded after a period of 12 months

Section 23(3)(d) was amended to provide for cases in which a person is continuously or regularly carrying on an activity which is only likely to lead to the making of taxable supplies after a period of time (exceeding 12 months).

The draft regulation which was issued on 16 May 2014 sets out the type of enterprise activities which the Commissioner may regard as qualifying for registration under the following headings:

• Agriculture
• Forestry
• Aquaculture
• Mining
• Construction
• Property development
• Infrastructure development

Single registration process

In addition to the changes regarding VAT registration mentioned above, the way taxpayers/legal entities register for tax and customs and update their existing details has also changed from 12 May 2014. SARS has introduced a “Single Registration” of a taxpayer across all taxes they pay and legal entities they’re associated with. A taxpayer/legal entity will only have to register once as a new taxpayer and thereafter add only the relevant details when adding other tax products such as VAT. It will also be easier to update existing details.

Background

The supply of certain services by entities such as residential sectional title body corporates and share block companies to their members are generally exempt from VAT under section 12(f) if the supplies are funded by levies collected from members. (The exemption does not, however, apply to timeshare schemes.) The entity concerned may, however, elect that the supplies be treated as taxable provided the decision to override the exemption is submitted to the Commissioner for approval.

In the article “Amendments” it was mentioned that the exemption under section 12(f) has now been extended by the insertion of paragraph (iv) to include HOAs from 1 April 2014. As a result, SARS has received a number of enquiries from HOAs and their representatives. The information below is therefore provided to explain some of the main implications of this change and sets out the approach that SARS will adopt in implementing the law.

VAT payable on assets upon deregistration

One of the implications of the exemption is that HOAs are required to cancel their VAT registrations with effect from 1 April 2014. As a result, output tax on assets held by such HOAs will become payable in the final tax period in accordance with section 8(2), based on the lesser of cost or open market value of the assets held as at 31 March 2014. The tax which is payable under section 8(2) must be included with any tax which is due by the HOAs when submitting the VAT return and payment for the final tax period.

Form VAT123e must also be completed and submitted to SARS indicating –

• in Part A – the reason “All enterprise activities have ceased on 1 April 2014”; and
• in Part B – insert the value of enterprise assets retained or held as at 31 March 2014.

Penalty and interest 

A new section 8(2G) has been introduced to provide that the VAT which is payable on assets as a result of section 8(2) may be paid in six equal monthly instalments, or in so many monthly instalments as the Commissioner may allow. The implication of section 8(2G) is that if proper payment arrangements are made with SARS to pay off the VAT on assets as agreed, SARS will waive any administrative penalty and interest which may be imposed. These special arrangements only apply to the VAT which is payable on the HOAs’ assets under section 8(2) and does not extend to the late payment of any VAT for past tax periods or any other deferred payment arrangements which the HOAs may have had with SARS at the time.

Election to be taxable

HOAs that are currently registered that do not want to deregister as at 1 April 2014 will not be required to go through the full registration process again. However, the decision to elect to be taxable must be submitted in writing to the Commissioner for approval as provided in the first proviso to section 12(f). There is no specific form to be completed or format for the application, but the application should at least indicate the reason why the HOA wants to override the exemption and provide a written confirmation from the trustees or other decision-making body of the HOA that the members of the HOA have elected to tax the supplies concerned. In a case where the election is to be partially taxable, the details regarding the relevant taxable and exempt supplies made by the HOA should be clearly explained.

Although any application to override the exemption is a decision and not a ruling, the application must be submitted to VATRulings@sars.gov.za. The written decision by the executives of the HOA, or alternatively, a copy of the minutes of the Annual General Meeting or Special General Meeting of the HOA at which the decision was made should be submitted as part of the application. (Refer also to the article “Rulings” for an explanation of the difference between a “ruling” and a “decision”.) In these cases, the HOAs concerned should continue to charge VAT, deduct input tax, submit returns and make VAT payments until otherwise advised by the Commissioner in response to the application to continue to treat the supplies as taxable.

HOAs that are currently not registered and newly formed HOAs that elect to override the exemption must apply in writing to the Commissioner as explained above before submitting a VAT registration application. A copy of the Commissioner’s decision in this regard must be included in the registration application.

HOAs that take no action

HOAs that have not taken any action regarding their VAT status by 30 September 2014 (that is, not submitted form VAT123e or applied to the Commissioner to override the exemption as explained above) will be dealt with as and when they are identified through SARS’s compliance efforts. Once the details of such cases have been considered by the Commissioner, a decision will be made on a case-by-case basis as to whether the deregistration date will be 1 April 2014 or a later date. The outcome in these sorts of cases will depend, for example, on whether the HOA concerned continued to charge VAT, or deduct input tax on goods and services acquired on or after 1 April 2014. The relief provided under section 8(2G) to pay off the VAT liability arising on the enterprise assets under section 8(2) and the waiving of the applicable penalty and interest will not apply in these cases.

The process for applying for a VAT ruling was explained in the last issue of VAT Connect (June 2013). However, it seems that there is still some uncertainty in this regard.

To clarify the position, the basic differences between a VAT Ruling and Advanced Tax Ruling (ATR) are summarised in the table below.

VAT Rulings

Any application for a VAT class ruling or a VAT ruling (VAT Rulings) under section 41B of the VAT Act must include –

• a completed form VAT301;
• and the minimum information prescribed under section 79(4) of the TA Act [excluding section 79(4)(f) and (k) of that Act].

The application must be submitted together with all the relevant attachments by e-mail to VATRulings@sars.gov.za or by facsimile to 086 540 9390 (or (+27) 86 540 9390 if dialling internationally). An application made on behalf of a client must be accompanied by a completed Power of Attorney document. Both form VAT301 and the SARS Power of Attorney template are available on the SARS website.

A distinction must also be made between a “decision” and a “ruling”. A “decision” is made by the Commissioner when applying a specific discretionary power provided for in the law, or when generally administering the law. For example, a vendor that wants to account for VAT on the payments basis under section 15(2) only needs to apply in writing to request conversion to the payments basis of accounting and provide any information which may be required to make a decision in that regard. A full and complete application for a VAT Ruling is not required in such cases.

Applications for VAT Rulings will not be accepted if delivered by any other means, for example, a hard copy delivered to a SARS branch office, head office, or e-mailed to a SARS official. Incomplete applications which are submitted without the form VAT301, or which do not contain all the relevant information required under section 79 of the TA Act will also not be accepted. Also note that applications dealing with issues set out in Public Notice 103 may be rejected.

Non-binding opinions

An application for a non-binding private opinion must be submitted to the legal manager at the SARS branch office where the applicant is registered for VAT. In the case of a non-vendor, the application should be made to the branch office nearest to the applicant’s business address. A non-binding private opinion is not binding on the Commissioner, but is meant to provide informal guidance on VAT, based on a particular set of facts and circumstances.

ATR

ATR applications (including those dealing with VAT), must be submitted on the SARS eFiling system. For more details in this regard, refer to the Comprehensive Guide on Advance Tax Rulings (ATR) which is available on the ATR page of the SARS website.

For further information relating to VAT Rulings, refer to the Quick Reference Guide on the VAT Ruling Application Procedure which can be found under “Legal & Policy Publications” and “Find a Guide” on the Legal & Policy page of the SARS website.

Since the last issue of VAT Connect the following new documents concerning VAT have been published on the SARS website:

Interpretation Notes

• IN 44 – Application of VAT to the Gambling Industry was updated by the publication of Issue 2 of the Note on 4 February 2014.
  
  
• IN 52 – Approval to End a Tax Period on a Day other than the Last Day of a Month was updated by the publication of Issue 3 of the Note on 10 March 2014.
  
  
• Draft Interpretation Note – VAT Treatment of Bets – issued on 12 March 2014. (Comment period expired on 31 May 2014.)
  
  
• Draft Interpretation Note – VAT on Treatment of Vouchers – issued on 25 March 2014. (Comment period expired on 31 May 2014.)
  
  
• Draft Interpretation Note – Bodies of Persons – issued on 25 March 2014. (Comment period expired on 31 May 2014.)
  
  
• Draft Interpretation Note on the Master Currency Case and Zero-Rating of Supplies Made by Non-Residents – issued on 27 March 2014. (Comment period expired on 31 May 2014.)
  
  
• Draft Interpretation Note on the VAT Treatment of the Supply of Transport Services and Ancillary Transport Services – issued on 27 March 2014. (Comment period expired on 13 June 2014.)
  
  
• Draft Interpretation Note on Input Tax on Motor Cars – issued on 31 March 2014. (Comment period expired on 31 May 2014.)
   
• Draft Interpretation Note on the Application of Section 20(7) or Section 21(5) – issued on 31 March 2014. (Comment period expired on 31 May 2014.)
   
• An updated version (Issue 3) of IN 41 – Application of the VAT Act to the Gambling Industry was issued for comment on 31 March 2014. (Comment period expired on 31 May 2014.)
   
• An updated version (Issue 2) of IN 56 – Recipient-Created Tax Invoices, Credit and Debit Notes was issued for comment on 31 March 2014. (Comment period expired on 31 May 2014.)
   
• Draft Interpretation Note on the Supply of Goods and Services by Professional Foreign Hunters – issued on 5 May 2014. (Comment period expired on 30 June 2014.)
   
• An updated version (Issue 3) of IN 30 – The Supply of Movable Goods as Contemplated in Section 11(1)(a)(i) Read with Paragraph (a) of the Definition of “Exported” in Section 1 and the Corresponding Documentary Proof was issued on 5 May 2014. 

Binding General Rulings

• Draft BGR on the VAT Treatment of the Supply and Importation of Various Types of Frozen Potato Products – issued on 12 March 2014. (Comment period expired on 15 May 2014.)
  
  
• BGR 21 – Address to be Reflected on a Tax Invoice, Credit and Debit Note – issued on 11 March 2014. 
   
• An updated version (Issue 2) of BGR 19 – Approval to End a Tax Period on a Day other than the Last Day of a Month – issued on 10 March 2014.
   
• Draft BGR on VAT Treatment of Supply and Importation of Fruit and Vegetables – issued on 19 March 2014. (Comment period expired on 15 May 2014.)
   
• Draft BGR on VAT Treatment of Supply and Importation of Herbs – issued on 27 March 2014. (Comment period expired on 31 May 2014.)
   
• Draft BGR on Electronic Services – issued on 31 March 2014. (Comment period expired on 15 April 2014.)
   
• An updated version (Issue 2) of BGR 15 – Recipient-Created Tax Invoices, Credit and Debit Notes – issued on 31 March 2014. (Comment period expired on 31 May 2014.) 

Guides and discussion documents

• An updated version of the VAT 413 – Guide for Estates – issued for public comment on 5 March 2014. (Comment period expired on 15 May 2014.)
  
  
• Discussion Paper on the VAT Treatment of Loyalty Programmes – issued for public comment on 31 March 2014. (Comment period expired on 31 May 2014.)
   
• Quick Reference Guide on the VAT Ruling Application Procedure – issued on 31 March 2014.
   
• External Guide – VAT Registration Guide for Foreign Suppliers of Electronic Services – VAT-REG-01-G02 – issued on 7 April 2014.
   
• An updated version of the VAT 404 – Guide for Vendors was issued on 5 May 2014. 

SARS is in the process of finalising the draft documents listed above where the date for submitting comments has passed.