| Summary: | The aim of this treatise is to identify the income tax implications of the persons becoming South African tax residents. It will provide a clear understanding of the income tax implications for natural and non-natural persons wishing to take up residence in South Africa. The definition of “resident” in section 1 of the Income Tax Act, 1962, has a direct impact on the tax implications bearing down on any foreigner planning to reside within the Republic of South Africa, especially in relation to the prevention of the double taxation. The following issues or areas have been identified, these issues are summarised below. The persons receiving foreign pensions may be exempt from normal tax under section 10 (1)(gC) and in terms of the tax treaty, they may also escape taxation in their former country of residence. The treatise will look at various treaties that exist between the South Africa and other countries and to discuss the taxing rights. There is a case of double non-taxation and good reason for immigrants to come and avoid tax in South Africa. It is suggested that the legislation and the double tax agreements should be amended. A person who becomes a resident will receive a step-up in base cost for assets other than South African immovable property and assets of a permanent establishment in South Africa under paragraph 12(2)(a) of the Eighth Schedule. The main purpose of the legislation is to ensure that these assets are correctly valued, determining the base cost, when the person becomes a tax resident. The valuation of these assets carries with it the problem of securing sufficient evidence long after the valuation. Most of the tax planning for such for immigrants revolves around estate duty and donations tax. The person would donate his assets to an offshore discretionary trust before taking up residence in South Africa. The advantage is that donations tax will be avoided because there are exemptions in terms of section 56, for assets acquired before becoming a resident. The income and capital gains vested in nonbeneficiary can be taxed in the hands of the donor in terms of section 7 and paragraph 72 of the Eighth Schedule. The donor should be aware of the antiavoidance measures; section 7(2) to 7(8) and paragraph 72 of the Eighth Schedule will deem a different person other than the person who is entitled to the income to be taxable on that person. The income and gains received by the beneficiary of a trust can be taxable in the hands of the donor. The assets owned by the trust will be sheltered from South African estate duty. The foreign discretionary trust, as a non-resident, will not be liable for tax in South Africa. The beneficiaries of such a trust will be liable for income tax from the trust distributions, once they have acquired a vested right to the income. The liability of income tax is deferred to the year when the trustees decide to make distributions. The distribution by the trustees in a subsequent year creates a delay or postponement for taxes which should be paid by the beneficiaries. The trustees are most likely to make distributions in a tax year when the tax rates are low. There are tax opportunities for the immigrants who intend to take up residence. The tax resident might be subject to withholding taxes on foreign income from the previous country of residence, but might be subject to Double Tax Agreement between South Africa and other countries.
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