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Tax window transfers

18 February 2010

I have serious reservations about Mr Alan West's suggested causae for transfers from companies or close corporations in terms of the tax window provided in Section 9(20) of the Transfer Duty Act and paragraph 51 of the Eight Schedule to the Income Tax Act.

The section and paragraph provide the exemption from transfer duty, capital gains tax and secondary tax on companies on particular transactions and not the causa for those transactions. I do not think a resolution by a company or close corporation is a sufficient causa for a transfer. There must be an underlying transaction that gives rise to a transfer. Such a transaction would usually be a sale or a donation. In my opinion there should be a Deed of Alienation signed by both parties which sets out the reason (causa ) for the transfer. Section 2(1) of the Alienation of Land Act provides that, for the alienation of land to be of any force or effect, there must a Deed of Alienation signed by the parties. I would refer to the section and paragraph in the last page of the deed of transfer when stating that the transaction was exempt from transfer duty.

In many cases where a residence is registered in the name of a company or close corporation, that property is the only asset in the name of such entity. Where the shareholder or member wishes to take transfer of the residence into their own name, that entity can probably be deregistered after the registration of the transfer. To assist that process, and the keeping of accounting records, one must bear in mind what the balance sheet of the entity should look like after the transfer.

Prior to the transaction, the property will be reflected as an asset at a certain value, there could be a bond balance and a shareholder or members' loan account as liabilities. Ideally, the entity should sell the property to the shareholder or member at a price that will settle the bond balance and the loan account. After the transfer, the only items left on the balance sheet should be the share capital or member's interest account and a loan account with the same value. When the entity is deregistered, the share capital or member's interest accounts are set off against the loan accounts. In my opinion this is the proper way to structure these transactions.

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