Jaco van Niekerk of MacRobert writes:
Ig Kruger's plea for guidance refers.
I refer to your GhostDigest News Update no 351 of 25 March 2010 and in particular the enquiry of Ig Kruger pertaining to the causa for transfers in terms of sec 9(20) of the Transfer Duty Act.
During 2001 SARS made a similar allowance in terms of sec 9(16) and 9(17) of the Transfer Duty Act.
At the time, the Registrar of Deeds, Cape Town issued Circular No 13/2001, a copy of which I attached hereto for your ease of reference. Par 4 of the Circular stated that "the causa of the transfer to read: "Property acquired on (Date of agreement) by transferee in terms of para 51 of the eight schedule of the Income Tax Act 1962."
Accordingly I submit that the same causa can be used in the circumstances, for the transfer duty exemption in terms of sec 9(20) of the Transfer Duty, must be read with par 51(1) and (2) of the Eight Schedule of the Income Tax Act.
I trust that the above will be of assistance.
See Chief Registrar's Circular No. 13 of 2001
Andrew Murray of Miltons Matsemela:
I have already lodged and registered several of these Close Corporation transfers.
I have used the following causa in my PA and Deed, extracted and carried forward from the "sale" agreement:
"and to declare that the above Transferor and Transferees agreed on 23 October 2009 to transfer the above property to the Transferees in terms of Section 51 of Part VII of the Eighth Schedule of the Income Tax Act No. 58 of 1962 and that the value at date of disposal was deemed to be equal to the base cost of the interest therein "
Any comments would be welcome.
and Mark Schäfer writes:
I am currently busy with a transfer in terms of the window period from a Trust to the Founder. I followed the guidelines issued by the Transfer Duty section at Cape Town Sars Office and received my exemption certificate without incident and in regulation time.
I used the same causa as was used during the previous window period - the transaction is currently in the Deeds Office and I expect it to show for registration soon. I see no reason why the issue should be more complicated than the last time we were given this opportunity - unless I am missing something? The writer in Jones correctly suggests that the drafting of an unusual causa can cause a Conveyancer considerable headaches - but it can take various forms. The point of a causa is to explain the reason for the disposal/transfer.
There is no prescribed form for a causa and we as Conveyancers should certainly not be relying on Deeds Office officials to draft causae although we may well rely on precedents prepared by those who have gone before us or our colleagues.
Our conclusions and proposed changes
We would hereby like to thank everybody for their valuable contributions and would like to let you know that you will soon be able to do a Section 9(20) Transfer in GhostConvey.
After careful consideration of everybody's input with regarding the causa, we have decided to implement the causa suggested by Mr Andrew Murray as the causa to be defaulted into the Power of Attorney and Deed of Transfer. However, in agreeing with Mr Mark Schäfer in the fact that the point of a causa is to explain the reason for the transfer, which can differ from transaction to transaction, and that exactly for that reason, there is no prescribed form for a causa, we have decided to still allow users the option to draft their own causa and have that imported into the Power of Attorney. This would allow them to use not only the suggested causa, but not limit them to it thereby allowing them to draft their own unique causa, to suit the specifications of a particular transaction.
Users will be able to deal with this transfer type in exactly the same way as with any normal transfer type in GhostConvey and will be able to manage the particular matter within GhostConvey from start to finish. In addition thereto, the necessary affidavits which are to be submitted to SARS together with the Transfer Duty Exemption Application will also be made available in GhostConvey.
One of our primary goals is to provide our clients with the most comprehensive document generation software package possible and we believe that this addition puts us one step closer to reaching that goal.