Implementation of the Foreign Account Tax Compliance Act (FATCA) in South Africa

Background, aims and enactment of FATCA

The Foreign Account Tax Compliance Act (colloquially known as “FATCA”) was enacted by the United States government during 2010, under sections 501-541 of the Hiring Incentives to Restore Employment (“HIRE”) Act.[1]  FATCA was implemented with the aim of counteracting tax avoidance, and aims to improve tax compliance by imposing certain identification- and financial reporting obligations on certain individuals and institutions.[2]

Implementation of FATCA in South Africa

Reflecting the trend towards global financial information-sharing, South Africa and the US entered into an intergovernmental agreement (“the IGA”) on 9 June 2014 (the IGA between the US and South Africa is based on the Model 1 IGA).  The agreement was ratified by Parliament and came into force on 28 October 2014.[3]  The IGA is a bilateral agreement in terms of which South Africa and the US have agreed to exchange certain financial information among one another.  In terms of the IGA FATCA is incorporated into South African domestic law.  Failure on the part of an individual or entity, with the provisions of FATCA as contained in the IGA therefore constitutes a breach of South African law.

Obligations on individuals

As a result of the IGA, all US individuals who have South African financial accounts or other assets above a certain value, in South Africa, must file annual reports about these accounts and assets.[4]

Obligations of financial institutions and entities

Foreign financial institutions (“foreign institutions”) are required to register with the US Internal Revenue Service (“the IRS”), either via the IRS online registration portal, or by filing Form 8957.  Foreign institutions must then report certain information regarding non-US accounts and assets, to the IRS.[5]

Reporting duties of South African financial institutions (as defined in the SARS Guide) (“South African institutions”)[6] are regulated in terms of the IGA and public notices 508 and 509 published in Government Gazette 37778 of 27 June 2014 under the Tax Administration Act 28 of 2011 (“the TAA”).[7]

In accordance with the above provisions, South African institutions must maintain records and collect information specified in the IGA, and submit the relevant information and records to the South African Revenue Service (“SARS”).  The collection and maintenance of records must be done in accordance with the due diligence requirements stipulated in the TAA, as set out in Business Requirement Specification:  Foreign Account Tax Compliance Act Automatic Exchange of Information (BRS:  FATCA AEOI).[8]

SARS will in turn share the information with US Treasury via automatic exchange of information under Article 26 of the existing Convention for the Avoidance of Double Taxation and Prevention of Fiscal Evasion between South Africa and the US.

Reportable information and format of disclosure

Article 2 of the IGA specifies items that should be reported.  These items include financial accounts held by specific US persons, the name, address, US Taxpayer Identification Number (“TIN”) of the accountholder, name and Global Intermediary Identification Number (“GIIN”) of the reporting institution and the account balance or value at the end of the financial year.[9]  Further in accordance with Article 4, payments to non-participating financial institutions must be reported to the IRS.

The South African institution will use forms in the W-series (W-9, W-8BEN and/or W-8BEN-E) for collecting information on its US clients.  The particular form and supporting documents will depend on the classification of the particular US entity.  The IRS has published guidelines regarding the completion of its series of forms which are available on the IRS webpage.

Non-compliance

Failure to comply with the provisions of FATCA may expose an individual or South African institution to penalties for non-compliance.  The penalties have been published in Public Notice 597 Government Gazette 38983 of 10 July 2015, under the TAA.[10]  A South African institution which fails to register with the IRS may also do so to its detriment in that non-registration may subject it to a 30% withholding penalty imposed on any US-sourced income in countries that have not entered into an IGA in terms of FATCA.

Footnotes

Downloads

Form 8957 Foreign Account Tax Compliance Act (FATCA) Registration

Download

Form W-8BEN Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Individuals)

Download

Form W-8BEN-E Certificate of Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities)

Download

Updated Information On Use of Form W-8eci

Download

Updated Information On Use of Form W-8exp

Download

Updated Information On Use of Form W-8imy

Download

W-9 Request for Taxpayer Identification Number and Certification

Download

Implementation of Tax Harmonisation of Retirement Fund Contributions and Benefits

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National Treasury would like to inform all members of the public that the tax harmonisation reforms of retirement funds will be implemented from 1 March 2016. This is in terms of the current law legislated in 2013, and amended in 2014 by shifting the effective date to 1 March 2016 (i.e. the Taxation Laws Amendment Act, No.39 of 2013, as amended by Act No. 43 of 2014). It should be noted that the 2015 Taxation Laws Amendment Bill does not amend the scheduled implementation date, but only amends the R150 000 de minimis threshold to R247 500; closes certain coverage gaps; and requires a review of the legislation after two years from the effective date, and to report this review to Parliament.

 

Find below a copy of the full media release and explanatory notes released by Treasury:

Medical Aid Rates Increase 2016

It is that time of the year again when Medical Aid Schemes are releasing their premium rates for the 2016 calendar year. In a comparison, conducted by Remuneration Consultants South Africa, the 2015 and 2016 contribution rates of seven of the most prominent Medical Aid Companies in South Africa revealed an on average contribution rate increase between 7.26% and 10.92%. The graph below ranks the seven Medical Aid Schemes from the highest to the lowest increase.

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The Medical Aid contribution rate increases for the prominent South African Medical Aid Schemes is at rates that are significantly higher than the official consumer price index (CPI) inflation average which according to Statistics South Africa has been reported at 4.5% for the period, January 2015 to October 2015 (average CPI is illustrated by the red line in the graph above). Members may therefore be subject to annual rate increases during 2016 that are well above the rate inflation. This potentially will place a burden on members’ cash flow and raise questions on the value they receive for their money.

Medium Term Budget Statement

Whilst political opportunism, some would argue, delayed the Minister of Finance, Nhlanhla Musa Nene, from delivering his medium term budget statement in parliament in October 2015, the Minister eventually had an opportunity to address parliament. Amidst the building chaos outside of the parliament building and the weakening rand, the Minister announced a few important and interesting tax related matters. Click here for a summary and our comments.

Medium term budget statement – tax essentials synopsis

How to Hire a Financial Advisor Who Won’t Rip You Off

How to Hire a Financial Advisor Who Won’t Rip You Off

Let’s face it: as a general populace, we aren’t great at managing money. But it’s no wonder why: From taxes to investing to debt-busting, there’s a lot that goes into financial planning. And while we’re all for learning to do it yourself, there are a number of reasons you’d enlist the help of an advisor. Here’s when you might need one, where to find one, and how to make sure you pick one that meets your needs.

When Is It Time to Hire a Financial Advisor?

The basics of personal finance aren’t terribly difficult, and with a little research, you can master financial milestones like getting out of debt or even investing. But there are some specific instances in your life in which it might make sense to hire an advisor. Forbes outlines a few:

  • You’re recently married: You’ll probably have a lot of questions about merging accounts, responsibilities for the other person’s finances, communicating about money, filing taxes and so on. A financial advisor can lay down the basics and help you manage your finances as a married couple.
  • You’re starting a new business: Or freelancing. When I decided to leave a full-time job and work as a freelancer, talking to an advisor would’ve been smart. Rather than navigate the confusing maze of how taxes work on my own, a financial advisor could have talked me through it and saved me a lot of time and headache. When you decide on self-employment, whether it’s freelancing or launching a business, talking to a financial advisor is a good idea.
    Along those same lines, Forbes says it might make sense to talk to an advisor when you switch careers in general. They can help you prepare for the switch and stay afloat during the transition.
  • Your family has grown: If you become a parent, there are a lot of financial considerations to make. How will your taxes change? How do you start saving for college? Do you need an estate plan? A financial advisor can help you answer those questions and more.
  • You’re planning a big purchase: A house is probably the most common example. It’s a daunting process with a lot of little details to consider. An advisor can give you insight on the best place to park your savings or how to prepare for the mortgage process.
  • You’ve come into a big windfall: Maybe you’ve won or inherited a huge amount of money—more than you’ve ever had—and you have no idea how to start managing it.

These are some common milestones that prompt people to hire an advisor, but you may have your own reasons, unrelated to any major life event. Personal finance blog Money Under 30 explains:

In my opinion, there are three reasons to hire a financial advisor:

1. You feel “lost” in planning for your financial future; you need a roadmap.

2. You just don’t want to deal. When it comes to money, you’re not the DIY type, and you just want a professional to take care of it.

3. You like managing your money, but realize that your financial plan would benefit from an impartial and unemotional third-party opinion.

Again, it’s great to research and come up with your own financial plan, but an advisor can save you a lot of time and energy. Whether you feel lost, or the DIY approach is stressing you out, or you’re just really busy, there are plenty of valid reasons for finding help.

The Difference Between an Advisor, a Planner, and All Those Other Financial Pros

You’ve probably heard the term financial advisor and financial planner used in the same context, so what’s the difference between the two?

Simply put, a financial advisor is a general term used to describe any professional who gives you financial advice. And this can be used to describe a number of different financial professions, as the Motley Fool explains:

So these people can be called financial advisors, wealth managers, investment managers, financial planners, financial life coaches, all these types of things. And just about anyone can say that they are such a thing. There’s no common terminology for a lot of these things. There are no laws around it. Just because someone says they provide financial advice — it may not be that they actually provide financial advice. They might just be selling you something. They might be what’s traditionally considered a broker or an agent.

On the other hand, a Certified Financial Planner® is a little more specific: it’s a professional who’s certified by the Certified Financial Planner Board of Standards, Inc, so not just anyone can call themselves a CFP. And you probably want a qualified CFP dealing with your finances, because they have a fiduciary duty, meaning they’re legally required to act in your best interest. That’s huge. A stock broker, wealth manager, or any other non-certified advisor or planner isn’t required to meet this standard. That doesn’t necessarily mean all of those professionals aren’t worth their salt, but CFPs are usually very particular about their titles, and understandably so: their certification shows they’re reliable. If they mess up, they lose that certification.

To make things even more confusing, there are also CPAs—Certified Public Accountants. Most people know that CPAs help prepare taxes, but they can do more than that, and some of them may offer advising services. Generally speaking, though, CPAs are mostly hired for tax-related financial tasks, while a CFP can handle more of your financial planning.

How Much an Advisor Costs

The cost of an advisor varies depending on what kind of advisor you have. Again, financial advisor is a pretty general term, so the cost is going to vary from free to upwards of $150 to $200 an hour.

Some brokerage firms like Fidelity or Vanguard offer free or discounted financial advisory services. Of course, you get what you pay for, and they’ll primarily suggest you buy their own funds. That’s not always a bad thing, but take their service for what it’s worth, which is really just a reminder to invest with them. Plus, because they’re mostly interested in investments, they’re probably not going to help with basic budgeting or savings.

Commission and Fee-Based Advisors

Other advisors, and even CFPs, work on commissions, and they’re essentially salespeople who get paid for recommending specific investment or insurance products, like annuities. For that reason, they’re not usually recommended.

Fee-based advisors can get commissions, too, and they also get paid according to a percentage of your investment accounts they manage. This is also known as “assets under management” or AUM commissions. It’s usually 1-2% of whatever amount is in your AUM.

It’s hugely important to ask your advisor how they’re paid. Ideally, you want a fee-only advisor.

Fee-Only Advisors

Lastly, there are fee-only advisors, who simply charge a flat fee or an hourly fee for the time spent managing your finances. Because most CFPs are required to follow that fiduciary standard, they’re also fee-only and highlight the fact that they don’t accept commissions. While there are some reliable commission and fee-based firms out there, you probably want to find a fee-only CFP.

Okay, so let’s say an advisor charges an hourly, fee-only rate. That alone doesn’t tell you much. How long will it take them to complete the work? Obviously, advisors vary, but you can probably expect to spend upwards of $1,500 total. Here’s a real world example from a certified, fee-only advisor:

$1,800 to $2,400

Since I charge $150 an hour (you can request my Form ADV if you’d like and check my numbers), that means the financial planning engagement is going to take between 12 and 16 hours to complete. This includes our initial discussion, gathering up all of the applicable information from you, doing an interim report, getting your buy-in for where I’m going, and presenting you with a final report. It also includes any models I’m going to build to support my recommendations to you.

Again, this is just one example, but it gives you a ballpark idea of what you can expect to spend.

What to Expect When You Visit a Financial Advisor

Once you hire a financial advisor, their first order of business is to get a clear idea of your financial health. You’ll get a questionnaire asking about the following:

  • Assets and accounts: How much money you have, what kind of debt you have
  • Income: What your salary looks like, whether you have any additional sources of income or gifts
  • Tax situation: Withholdings, deductions, and all other tax details
  • Estate planning: Your will, beneficiary information, etc.
  • Investing: Your investments, risk tolerance, retirement goals.

Once your advisor has a thorough idea of what your financial situation looks like, that’s when the advising comes in. They’ll recommend a course of action, and after talking to you about different areas of your finances, they’ll draft a plan. According to Investopedia, this should include a summary of the most important findings from your questionnaire. The plan will wrap up your current situation, including your net worth, assets, liabilities, and so on. It will also include the goals that you discussed with the planner, whether those goals are investing goals or simply saving up an emergency fund.

If it applies, the summary should also include a thorough analysis of your investment risk tolerance, estate planning details, and other info related to your financial plans. You can also expect to see a potential best and worst case scenario for your retirement savings, along with detail on how you’ll withdraw the money at retirement.

Once your advisor comes up with a plan, they’ll work with you on implementing it and then they’ll periodically monitor your financial health and send you a periodic report.

If your financial planner handles investing, they might help you open and fund an investment account, too. They’ll come up with an ideal, customized portfolio that includes specifics on what kind of assets you should have (stocks, bonds, alternatives, real estate funds, etc.). Every firm has a different investment policy, so the approach may vary. Some firms only work with one fund company and limit your investments to that company.

It pays to do a little research on your own, because some firms may charge fees for your investment return. At the very least, learn the basics of investing on your own. You want to make sure to vet your advisor carefully, and part of that is finding out how they invest your money and how they’re paid.

Where to Start Your Search

A good recommendation from a trusted friend or family member can go a long way, but if you want to vet the reliability of your advisor (and you do), you should start with the NAPFA, the National Association of Personal Financial Advisors. Other sites, like NerdWallet, GOBankingRates, or FutureAdvisor will help you find planners and accredited advisors, too. However, NAPFA is probably the most straightforward site, because all advisors listed their database are certified, fee-only, and each year they sign and renew a Fiduciary Oath.

Once you start your search, you want to pick a few potential candidates, then do a little research. Check their company web site and bio. NAPFA recommends specifically reviewing their Form ADV (registration with the SEC). You can do this at the SEC website, but many CFPs will offer the form on their site. Once you narrow down your list to a few advisors, you’ll want to call and schedule quick phone interviews.

How to Interview Your Potential Advisor

When you talk to a potential advisor, there are a handful of important topics you’ll want to cover. Again, you should have them clarify how they’re paid. Specifically, ask about their fee structure. Even if you’re sure they’re fee-only, get them to confirm it. Obviously, you want to look at their accreditation, too. Beyond making sure you’re working with a true CFP, if the advisor sells an investment product, you also want to make sure they’re registered with the Financial Industry Regulatory Authority (FINRA). If they’re managing more than $100,000 in assets, make sure they’re registered with the Security and Exchange Commission (SEC).

NAPFA suggests some additional, specific questions, too. Highlights include:

  • Do you provide comprehensive financial planning or just investment management?
  • How will you help me reach my financial goals?
  • What happens to my relationship with the firm if something happens to you?
  • Are you held to a fiduciary standard at all times?

In general, talk about your specific financial needs and make sure they’re able to help you with them. However, you also want to weed out a good financial advisor from a bad one. In doing this, discuss these topics during the interview:

  • Their length of service: Do they have a proven track record?
  • Their typical client: You want to make sure they’re used to working with clients with needs similar to your own.
  • Their investing philosophy: This is why it helps to learn the basics of investing. We recommend a long-term buy and hold portfolio, and so do most personal finance experts. You want to make sure your advisor’s investment philosophy matches your own.

Forbes points out that a good advisor won’t talk 90% of the time during the interview. They’ll listen, ask questions, and offer insight. In addition, there are a few other red flags to look out for, and CFP Robert Brokamp goes over several of them in his podcast. A few of the most common ones:

  • They promise to destroy the market: If your advisor guarantees a high investment return, it’s probably time to move on. The stock market averages about 6-7%, and even that’s not guaranteed.
  • They give you advice without knowing your full financial picture: This goes hand in hand with the 90% of the talking thing. They should have a thorough idea of your financial health so they can offer a customized plan of action.
  • You feel rushed or pressured. If the planner is urging you to get back to them by a specific deadline, or they urge you to act on a limited time opportunity, they’re probably trying to sell you something beyond a solid financial future.

You should always look out for red flags like this, but vetting a fee-only CFP will help make sure you don’t have much to worry about.

It can be intimidating disclosing and handing over your finances to someone else. But sometimes, it makes sense, and there are plenty of experienced and skilled advisors out there who can help manage your money. Take your time with the process, do your research, and it shouldn’t be too hard to find one that’s reliable.

Illustration by Nick Criscuolo.

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In which countries do people pay the most tax?

Income tax is a constant source of controversy and debate, no matter what country you live in. “Should 5% appear too small, be thankful I don’t take it all … You’re working for no one but me,” sang the Beatles in their 1966 hit Taxman, in an attack on the then Labour government’s high tax rates.

The amount of income tax you pay varies wildly between countries, from almost 60% for high earners in certain countries to 0% in some offshore havens and oil-rich nations.

So, which countries take the biggest slice of their workers’ earnings? The table below shows the top 15 countries for marginal personal income tax rates in 2014, as well as selected Nordic and G7 nations.

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Sweden tops the list with a whopping tax rate of 56.86%, followed closely by Nordic neighbour Denmark (56.22%), France (54.01%) and Spain (52%).

For an in-depth look at how business tax rates (rather than personal income tax) vary around the world and what this means for a country’s level of competitiveness, take a look at our Global Competitiveness Report 2015-16.

Author: Ross Chainey, Digital Media Specialist, World Economic Forum

Image: Workers walk across a footbridge towards the Canary Wharf business district in London February 26, 2014. REUTERS/Eddie Keogh

Source: https://agenda.weforum.org/2015/10/in-which-countries-do-people-pay-the-most-tax/?utm_content=buffer4be23&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

The Davis Tax Committee

Introduction

On 17 July 2013 the Minister of Finance, Mr Pravin Gordhan, announced the members of the Tax Review Committee (the Committee) as well as the Committee’s Terms of Reference.

This gave effect to the Minister’s previous announcement in February 2013 when he tabled the 2013/14 Budget that government will initiate a tax review this year “to assess our tax policy framework and its role in supporting the objectives of inclusive growth, employment, development and fiscal sustainability”.

It was decided at the inaugural meeting of the Committee on 25 July 2013 that the Committee will be known as The Davis Tax Committee (DTC).

Background to the review of the tax system

The South African tax system has changed significantly since the recommendations of the last tax commission (The Katz Commission). The changes to the system, arising from the recommendations,  include the establishment of an independent tax and customs administration (the South African Revenue Service), the broadening of the tax base, and the lowering of marginal tax rates. These, and other changes have contributed to the development of a relatively robust and competitive tax system. Today South Africa’s tax policy and tax administration compares favourably with those of many developed and emerging economies.

However, given the pace of globalisation, the relatively modest economic growth after the 2008/09 economic recession, and the significant social challenges such as persistent unemployment, poverty and inequality, there is a need to review what role the tax system can play as part of a coherent and effective fiscal policy framework in addressing these challenges. In line with local and international priorities at the moment, there is an immediate need to address concerns about the growth of small businesses as well as base erosion and profit shifting (BEPS), in the context of corporate income tax, as identified by the Organisation for Economic Co-operation and Development (OECD) and the Group of Twenty (G20).

The Committee will operate on the basis of various sub-committees dealing with specific items in the Terms of Reference (TOR).  Each sub-committee will stipulate a date by which submissions must be received from all stakeholders.  Based on wide consultation and submissions received, each sub-committee will prepare an interim report for the approval of the Committee as a whole and subsequent submission to the Minister of Finance.  The Minister of Finance will determine any further steps to be taken with regard to each interim report.

Read more

Where Is The Best Country To Be An Expat?

People take photos with the skyline of the central business district shrouded by haze in Singapore September 10, 2015. The 3-hour PSI reading in Singapore was 174 at 1900 SGT (1100 GMT) on Thursday. REUTERS/Edgar Su - RTSHBZ

A new survey of 21,950 expatriates from around the world has crowned Singapore as the best place to be an expat. The Expat Explorer country league table, commissioned by HSBC and now in its eighth year, uses a variety of criteria including economics, experience and family life. Singapore received a 67% approval from expats living there, who reported being encouraged by the nation’s strong economy and the opportunities available to them for career progression.

In the individual pillars, Switzerland ranked first for best economy, New Zealand for experience (overall quality of life) while Sweden was ranked highest for family life.

Living abroad has benefits beyond career advancement. Over half of expat spouses said that they felt the experience had brought them closer together. Confusion and difficulty over managing finances in a foreign country was cited as the most challenging aspect of living abroad.

The report notes that while the allure of finding better jobs and experiences in other countries is a key factor in moving abroad, even in the top 10 nations, everyone’s experience is different. Potential emigrants should be sure they know that “the grass isn’t greener, just a different colour of green”.

HSBC_Expat_Explorer_2015_report.pdf_-_2015-09-30_11.30.32

Source: HSBC

Foreign Withholding Taxes

South African and multinational businesses operating in the larger African continent were elated by the introduction in 2011 of the section 6quin relief for withholding taxes suffered despite the treaty provisions preventing same.

The elation, however, may be short lived! After offering much welcomed relief and promoting the gateway to Africa initiative for a mere 4 odd years, it is currently proposed that the relief be withdrawn.

While several commentators have pleaded with Treasury not  to withdraw the relief, we are yet to see whether or not parliament will allow the relief or some remnants of it to stay.

In the absence of the section 6quin relief, taxpayers who have relied thereon to date will have no choice but to rely, in the alternative, on the Mutual Agreement Procedure (“MAP”) in double tax treaties to get their own back or alternatively, to take erroneous withholding taxes up with foreign revenue authorities directly.

Our team includes highly experienced and well qualified tax professionals, lawyers and charted accountants who have deep expertise on MAP’s and have assisted several taxpayers in claiming back incorrectly withheld taxes.

Contact us for an appointment.

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Advance Tax Rulings

There have been roughly 45 reported tax cases since January 2014. Of these SARS won twenty seven and taxpayers sixteen. Two of these cases were partial wins. As the charts below indicate, that means 60% of all cases taken to court in the last 19 months have been won by SARS.

One may safely assume that all these cases are backed by one or even multiple tax opinions supporting the taxpayer’s position. SARS obviously disagreed and, more often than not, it appears that the courts agree with SARS.

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Tax opinions issued by tax professionals are fast losing their commercial value, despite relief offered from understatement penalties in terms of the Tax Administration Act. The only sure fire way to constructively manage a tax risk is obtaining a binding ruling from SARS. Where a binding ruling is not possible, non-binding private opinions issued by SARS can go a long way in actively managing a tax risk.

Our team consists of excellently qualified professionals including, charted accountants, actuaries, lawyers and master tax practitioners who have invaluable experience obtained through many years of practice and from some of the largest professional service firms in South Africa.

Tax Consulting South Africa has attained numerous binding and non-binding rulings and opinions from SARS on behalf of various taxpayers who have greatly benefited from our constructive and effective tax risk management strategies.

Please click here for an informative flow chart on the Tax Ruling process.

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