This information was provided to us courtesy of JJ Accounting Services Mauritius.
The draft Taxation Laws Amendment Bill (“TLAB”) was published on 31 July 2020. As announced in the Budget Speech, any South African leaving in future will be subject to a much stricter process from 1 March 2021 onwards.
The amendment comes as no surprise, as government made its intentions clear in the February 2020 Budget Speech, per Annexure C to the Budget Review: “As a result of the exchange control
announcements in Annexure E, the concept of emigration as recognised by the Reserve Bank will be phased out. It is proposed that the trigger for individuals to withdraw these funds be reviewed”.
Under the current dispensation, taxpayers may withdraw their retirement funds prior to their retirement date, upon emigration for exchange control purposes, where such emigration is recognised by the South African Reserve Bank. This concession is provided for in the respective definitions of “pension preservation fund”, “provident preservation fund” and “retirement annuity fund” (collectively referred to as “retirement funds”) in section 1 of the Income Tax Act No. 58 of 1962 (“the Act”). Each definition makes provision for withdrawal where a person “is or was a resident who emigrated from the Republic and that emigration is recognised by the South African Reserve Bank for purposes of exchange control”.
In essence, the above proviso permits a person to withdraw his retirement benefit upon completion of a process of emigration through the South African Reserve Bank.
The proposed amendment follows the February 2020 Budget Speech, where the government made its intentions clear to overhaul this process as part of the modernisation of its exchange control system, as stated in Annexure C to the Budget Review: “As a result of the exchange control announcements in Annexure E, the concept of emigration as recognised by the Reserve Bank will be phased out. It is proposed that the trigger for individuals to withdraw these funds be reviewed”.
The TLAB, specifically paragraphs (h), (k) and (m) of section 2(1), gives effect to this decision, by amending the proviso to the aforementioned definitions in section 1 as follows: “is a person who is [or was] not a resident [who emigrated from the Republic and that emigration is recognised by the South African Reserve Bank for purposes of exchange control] for an uninterrupted period of three years or longer” (emphasis added).
In other words, reference to the emigration process is substituted with a new test that requires a person to prove they have been non-resident for tax purposes for an unbroken period of at least three years. This new test will apply from 1 March 2021. How this must be proved other than ‘financial emigration’ remains unclear at this stage.
Practically, as from the effective date of 01 March 2021, retirement benefits will be locked in South Africa for at least three years. The proposed amendment signals a big policy shift from a fiscal perspective, but this is one piece to a bigger puzzle that should have those who seek to emigrate on high alert.
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