During the 2003 tax year, Mr Johnson leased a dilapidated but well-
situated shopping centre for a period of 10 years. He intended to sub-let itat a profit. Mr
Johnson had to renovate the property in order to render it suitable for letting. His
expenditure in this regard during the 2003 tax
year included an amount of R30 000 for the replacement of broken windows, an amount
of R80 000 for the painting of the building, an
amount of R250 000 for the replacement of broken and damaged roof tiles, and an
amount of R3 000 on a new burglar alarm control box to
replace a broken-down one that could no longer be repaired. Mr Johnsononly started
to look for tenants for the building upon completion of the renovations during the 2004
tax year.
a) What are the requirements for the deduction of the cost of repairs in terms of
section 11(d) of the Act?
S11 (d) – Repairs
Repairs to property used for the purposes of the taxpayer’s trade may be deducted in
the tax year in which it actually incurred. Any costs pertaining to the improvements of a
capital asset will not be deductible.
Expenses incurred by a mine for the rehabilitation of mining soil, water, sea or air is
regarded as repairs.
Therefore nothing could be deducted in the 2003/2004 tax year as repairs as everything
for which money was laid out was improvements or replacement of the entire object.
b) Explain whether the various items of expenditure in respect of therenovation of the
building during the 2003 tax year will qualify as deductible repairs in terms of
section 11(d) of the Act.
The general deduction formula is defined as:
any expenditure or loss
which has actually been incurred or suffered
inside or outside the Republic
in the production of income from the carrying on of any trade
to the extent that the monies claimed as a deduction were laid out for the purposes of
the taxpayer’s trade
Which is not of a capital nature
It can be said that there was an expenditure which was actually
incurred within the Republic with the idea of laying out the money in order to produce
income for the taxpayers trade. However, one must
determine whether the amounts laid out where of a capital nature or not
, and if they are allowable deductions in terms of section 11 or prohibiteddeductions in terms of
section 23.
Your allowable deductions in terms of section 11 include: repairs (s11(d)) – none of the
mentioned expenditure constitute repairs. As well as improvements made to a leased
property (s11(h)).
An expense can’t be deducted if it is an expense of a capital nature.
If an expense is of an income nature then it can be deducted (because you are taxed
on income). I.e. if you spend money you may deduct the original amount spent.
In New State Areas Ltd v CIR: the court held that if the expense was incurredto acquire a
capital asset then the expense is of a capital nature (not deductible).
In CIR v George Forest Timber Co Ltd: if an expense is incurred as a once-off expense and
is not a recurring expense, it is off a capital nature.
In Herron Investments (Pty) Ltd v SIR: (the enduring benefit test). The taxpayer rented out
property to Pine Forbes (insurance brokers) and the lessee (Pine Forbes) wanted to move
out of the premises because they were not modern enough. The taxpayer made
alterations to the building and tried to claim the cost, i.e. deduct the costs of the
deductions. The court acceptedthat the expenses were incurred for the purposes of trade
and that the expense of the upgrade was in the production of income. The court held:
the expenses were of a capital nature and could therefore not be deducted, because it was
an advantage of an enduring benefit.
Therefore I would say that based on the fact that it is not a repair and is not included
elsewhere in the list of section 11 specific deduction and in line with the decision of
Herron Investments that such amounts are of a capital nature and therefore not
deductable. The only time such
expenditures would be deductable is where the improvements where made subject to
a lease agreement in terms of s11(h).
S11 (h): The actual expenses of improvements made in terms of a leasing agreement by the
lessee can be deducted from the lessee’s gross income. The amount can only be deducted
in the year in which it was actually incurred.
c) During the 2004 tax year Mr Johnson entered into a contract forthe
cession of his rights under the lease for an amount of R2
million. Discuss whether the amount of R2 million
- will be taxable in Mr Johnson’s hands in terms of the general
part of the definition of “gross income” in section 1 or in termsof any
specific inclusion in that definition; AND
The general definition of gross income:
The year or period of assessment
In the case of any resident
The total amount, in cash or otherwise
Received by, accrued to or in favour of such resident
Or any person other than a resident (source)
Excluding receipts or accruals of a capital nature
But including specific inclusions
, Here we can say that we are dealing with the year of assessment, Mr Nkomo is a
resident, the amount was payable in cash, and it is not of a capital nature. However,
the question is who is liable for tax if the money is paid over or ceded to a new
vendor.
Allocation of income once accrued
Once an amount has accrued to or been received by the taxpayer, the allocation will
have no effect on his tax liability.
In CIR v Witwatersrand Association of Racing Clubs 1960 (3) SA 296 (A) –the
taxpayer held a race for the purposes of donating the profits to charity. Before he held
the race, it was decided to hand all the profits to charity. The court held: the fact
that the taxpayer had a moral duty to hand the profits to charity did not alter the fact
that the money first accrued to him, before it was given to charity. It was thus
TAXABLE IN HIS HANDS (1st accrued to the taxpayer).
Transfer of a right before accrual
The question is whether, in SA, one can legally transfer or cede something before it
is entitled or accrued to him is subject to debate. It isaccepted that one can transfer a
contingent right but this leads to consequences in the income tax field.
- will be deductible in terms of the general deduction formula or any specific
deduction of the Act, in the hands of the person towhom rights were ceded.
Give reasons for your answer
The general deduction formula is defined as:
any expenditure or loss
which has actually been incurred or suffered
inside or outside the Republic
in the production of income from the carrying on of any trade
to the extent that the monies claimed as a deduction were laid outfor the
purposes of the taxpayer’s trade
Which is not of a capital nature
Rent is always revenue if you receive you can declare it and if you pay it you
can deduct it from your year off assessment. If the rights
are ceded to him then he will be liable for income tax on the amount ceded, provided
that he complies with all of the other requirements ofthe formula.
QUESTION 3
1. Ms Ntwagae was retrenched as hairdresser on 31 March 2004 as part ofa general
reduction in personnel by Funky Salon (Pty) Ltd owing to a slump in the business.
Ms Ntwagae received R100 000 upon retrenchment as compensation for the
termination of her employment and in respect of a restraint of trade in terms of which
she was prohibited from engaging in any hairdressing activities in Cape Town for
two years after termination of her employment. Explain whether a
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