Financial Emigration: Should I stay, or should I go?
Whether working abroad or still hunting for jobs overseas, the possibility of a financial emigration always hits centre stage at some point.
Whether working abroad or still hunting for jobs overseas, the possibility of a financial emigration always hits centre stage at some point.
There is an alarming number of South African expatriates relying on the ‘tick-box’ approach to cease their tax residency. Alternatively, others assume that they are no longer tax residents because they reside outside South Africa or do not maintain assets in South Africa. These misconceptions flow from the shady advice that expatriates continue to receive.
In search for opportunities abroad, many South Africans have taken to the seas. It might not be the same as working in a new country, but it offers a change of scenery while earning a foreign income.
In light of recent developments on the sides of both the South Africa Revenue Service (“SARS”) and the South African Reserve Bank (“SARB”), the regulatory burden for the cross-border flow of funds, resulting from transactions concluded between South African residents and foreign parties, has been significantly eased.
As the financial emigration process moves into a new era, Tax Consulting is still fighting for all taxpayers under the old financial emigration regime to ensure they are not discarded. As for the current taxpayers we are in the process of trying to make the transition as smooth as possible.
On 10 September 2021, Mauritius officially reopened its borders to South Africans, ending the 18-month travel ban imposed on SA visitors. The Mauritius Tourism Promotion Authority (MTPA) openly welcomed South African tourists back to the Mauritius shores, which is a token of the relationship between the two countries.
The Standing Committee on Finance held public parliamentary hearings on 31 August 2021 regarding the proposals contained in the Draft 2021 Tax Bills. One of the most hotly debated items on the agenda was the proposal to tax retirement interests where South Africans cease their tax residency. During the public hearings it became evident that […]
In addressing the National Tax Indaba on Monday 20 September, Commissioner of the South African Revenue Service (“SARS”), Edward Kieswetter, noted that their position as an organization is to focus on collecting the “lowest hanging fruit”, which statement may be interpreted in numerous ways, including taxpayers asking themselves if SARS is simply opting for the […]
The 2021 Tax Indaba commenced on 20 September 2021 and the first day of the conference saw an enthralling panel discussion chaired by Jerry Botha, Managing Partner of Tax Consulting South Africa on lifestyle audits.
Citizenship planning has become an important element of every financial plan. Today investors are incorporating the benefits of citizenship planning in their estate planning, retirement planning, legacy planning and tax planning.
Controlled Foreign Companies –
South African Tax Considerations
Controlled Foreign Companies – South African Tax Considerations
South Africa’s tax system includes a Controlled Foreign Company (CFC) regime designed to address the taxation of income earned by foreign companies owned by South African tax residents.
Where a South African tax resident holds or controls a foreign company, they may be subject to income tax in South Africa on the CFC’s foreign income, even if that income has not yet been distributed. This is an anti-avoidance measure to prevent South African tax residents from utilising foreign companies in the avoidance of South African tax.
What is a Controlled Foreign Company?
A CFC is broadly defined in section 9D of the Income Tax Act, No. 58 of 1962, as any foreign company where more than 50% of the total participation rights or voting rights are directly or indirectly held or exercisable by one or more South African tax residents.
Where this threshold is met, and unless a specific exemption applies, the net income of the CFC must be included in the income of the South African resident(s) in proportion to their participation rights, and taxed accordingly.
Taxpayers who fail to accurately account for a CFC’s income risk audit or reassessment by SARS, especially in light of increased global transparency and data sharing through mechanisms such as the Common Reporting Standard.
Key Features of the CFC Regime
Place of Effective Management and Corporate Tax Residency in South Africa
South Africa follows a residence-based system of taxation, meaning that resident companies are subject to tax on their worldwide income.
In terms of section 1 of the Income Tax Act, No. 58 of 1962 (the Act), a company is regarded as a South African tax resident if it is either:
unless a double tax agreement (DTA) provides otherwise.
The concept of POEM is central to determining a company’s tax residency, particularly where cross-border structures are involved. It affects both foreign companies with South African involvement and South African-incorporated entities that may be managed from abroad.
What is Place of Effective Management?
Although not defined in the Act, POEM has been interpreted through South African case law, SARS guidance, and international commentary, particularly the OECD Model Tax Convention and Commentary thereto.
Broadly, POEM refers to the location where key management and commercial decisions necessary for the conduct of the entity’s overall business are made, in substance and not merely in form.
The determination of POEM is a factual enquiry, and is not limited to formalities such as the registered office, place of incorporation, or location of board meetings. Instead, it focuses on:
Application in Cross-Border Contexts
POEM plays a critical role in determining corporate tax residency in both inbound and outbound scenarios:
Both scenarios must be carefully evaluated in light of South African domestic law and any applicable DTA.
Interaction with Double Tax Agreements
Where a company is regarded as resident in both South Africa and another jurisdiction, the relevant DTA will typically contain a tie-breaker clause to resolve the conflict.
Most of South Africa’s DTAs allocate tax residency to the country where the company’s POEM is located. However, some newer treaties apply a Mutual Agreement Procedure (MAP), requiring the tax authorities of both states to determine residence based on additional factors.
Correct DTA application is essential to avoid dual residency exposure and to obtain treaty relief on dividends, interest, royalties, and other income.
Practical Implications for Companies
Incorrect or dual tax residency status can expose a company to:
Permanent Establishment – Tax Exposure in Cross-Border Contexts
As businesses expand across borders, one of the key tax risks they face is the inadvertent creation of a permanent establishment (PE) in a foreign jurisdiction. A PE may trigger foreign income tax exposure for a company even in the absence of incorporation or tax residency in that jurisdiction.
South African companies with offshore activities, or foreign companies with South African operations, must be aware of the PE concept, how it arises, and how it interacts with applicable Double Tax Agreements (DTAs).
What Is a Permanent Establishment?
A PE is generally defined in a DTA as a fixed place of business through which the business of an enterprise is wholly or partly carried on. Common examples include:
South Africa’s DTAs typically follow the OECD Model Tax Convention, and many incorporate updated provisions from the Multilateral Instrument (MLI), which narrows common avoidance strategies and expands the scope of PE risk.
Inbound vs Outbound Permanent Establishment Risk
Even short-term or project-based activities can give rise to PE risks if not carefully managed and monitored.
Consequences of a Permanent Establishment Finding
If a PE is found to exist:
Non-compliance can result in penalties, double taxation, and reputational harm.
In a connected world, even limited physical or digital presence in a foreign country can create tax exposure. Managing PE risk is essential for international tax compliance and operational efficiency.
Controlled Foreign Companies –
South African Tax Considerations
South Africa’s tax system includes a Controlled Foreign Company (CFC) regime designed to address the taxation of income earned by foreign companies owned by South African tax residents.
Where a South African tax resident holds or controls a foreign company, they may be subject to income tax in South Africa on the CFC’s foreign income, even if that income has not yet been distributed. This is an anti-avoidance measure to prevent South African tax residents from utilising foreign companies in the avoidance of South African tax.
What is a Controlled Foreign Company?
A CFC is broadly defined in section 9D of the Income Tax Act, No. 58 of 1962, as any foreign company where more than 50% of the total participation rights or voting rights are directly or indirectly held or exercisable by one or more South African tax residents.
Where this threshold is met, and unless a specific exemption applies, the net income of the CFC must be included in the income of the South African resident(s) in proportion to their participation rights, and taxed accordingly.
Taxpayers who fail to accurately account for a CFC’s income risk audit or reassessment by SARS, especially in light of increased global transparency and data sharing through mechanisms such as the Common Reporting Standard.
Key Features of the CFC Regime
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