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Welcome to our monthly tax newsletter designed to keep you up-to-date and informed on the latest tax matters.
In this article, Prof Pieter van der Zwan writes about Dividend-stripping and share buy-back transactions. The National Treasury introduced anti-avoidance rules that target dividend-stripping and share buy-back transaction with effect from 19 July 2017. These rules result in certain dividends to be taxed as proceeds upon the disposal of shares. Share buy-backs from and extraction of value by significant corporate shareholders will require careful attention going forward.
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Dividend-stripping and share buy-back transactions
Dividends paid by one South African company to another have been exempt from both normal tax and dividends tax since April 2012 when dividends tax came into effect. This has created opportunities for taxpayers to structure transactions in terms of which shares are disposed of in a manner that the value is unlocked in the form of exempt dividends rather than proceeds on the sale of the shares, which would have attracted capital gains tax. As share buy-back transactions constitute dividends for tax purposes, these transactions posed a particular risk to the fiscus.
With effect from 19 July 2017, the National Treasury introduced anti-avoidance rules aimed at curbing the above structuring opportunities. This article briefly reviews the anti-avoidance rules (hereafter referred to as the rules).
Scope of the rules
The rules are triggered by the disposal of shares held in a company by another company. More specifically, the rules will apply where the shareholder company held a qualifying interest in the company whose shares are being disposed at any time within the 18 month period before the disposal. A qualifying share is defined as:
- in an unlisted context, at least 20% of the equity shares or voting rights of a company, unless another person holds a majority of such shares or voting rights in which case only that person will hold a qualifying share
- in a listed context, at least 10% of the equity shares or voting rights in a company.
These thresholds are viewed as providing the shareholder with sufficient influence over the company to be able to divert proceeds upon disinvestment through the company.
The rules target extraordinary exempt dividends. In the case of preference shares where dividends are determined with reference to a rate of interest, any dividends received that exceed an amount determined at 15% will be extraordinary. No reference is made to when the dividend is received.
In the context of any other share, an extraordinary dividend refers to the exempt dividends received as a result of the disposal or during the 18 month period before the disposal, but only to the extent that it exceeds the higher of 15% of the market value of the share disposed of at the beginning of the 18 month period or at disposal.
Effect of the rules
If the rules apply, the extraordinary dividends received in respect of the shares are treated as follows:
- if the shares were held as trading stock, then the extraordinary dividends must be included in the taxpayer’s income
- if the shares were held as a capital asset, then the extraordinary dividends form part of the proceeds on the disposal of the shares for capital gains tax purposes.
It is important to note that these rules apply, even if the transaction in question qualifies for roll-over relief.
Practical implications of this development
Any transaction that involves a share buy-back from a significant corporate shareholder or extraction of value by such a shareholder from the company will require careful consideration going forward. The treatment of this transaction may attract dividends tax or capital gains tax depending on the particular circumstances.
This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.