By Doné Howell, Director, Head of Individuals, Trusts and Estates, BDO South Africa
Of interest to the individual taxpayer and especially one who has surplus funds available for investment is the proposed changes to the tax deduction available in respect of investments in a section 12J venture capital company (VCC). A cap of R2.5million per annum per investor has been proposed.
If the proposal is approved, the amendment will be effective retrospectively to 21 July 2019 (the draft bill release date) thereby mitigating opportunities for the investor to have made a substantial lump sum investment before the changes were introduced.
The main reason for the introduction more than 10 years ago of the VCC legislation and its beneficial tax dispensation, was to raise funding to support “the socio-economic development of small business which otherwise would not have had access to market funding due to either or both their size and inherent risk” (quoted from the Explanatory Memorandum).
Based on the substantial amounts invested, it seemed that many individual taxpayers were whole-heartedly behind this initiative. Whether looking to diversify their investment portfolio or simply to legitimately reduce their tax liability, many taxpayers took advantage of the opportunity to purchase shares in VCCs as the cost of the investment served as an immediate upfront tax deduction while no recoupment of such tax deduction is required where the shares are sold after five years.
On the eventual disposal of the VCC shares, the tax rules would be the same as for selling shares on the JSE. So if the individual taxpayer held the VCC shares for long-term investment purposes, they would be liable for capital gains tax. If the shares were held for speculative purposes, the profit or loss would be subject to normal income tax.
Therefore, an individual taxpayer who is subject to normal tax at the maximum marginal tax rate of 45% would benefit from an immediate 45% tax saving on such investment. The proposal now limits such annual tax saving to a maximum of R1.125million.
National Treasury has indicated its reasoning and thoughts behind the proposal, which seems more driven by the inability to counter tax avoidance at the VCC level rather than at investor level. Surely it is the investor who should continuously be incentivised to invest in such government-backed initiatives, because where else will the funding come from?
National Treasury and SARS should surely focus on implementing and monitoring the anti-avoidance measures at the VCC level to ensure that the criteria to qualify as a VCC are strictly met. The fact that this VCC regime is also subject to a 12-year sunset clause, ending in June 2021, begs the question why National Treasury would make such drastic changes to the funding mechanism now, rather than waiting until the entire regime is up for reconsideration in less than 24 months.
Lack of clarity
On a practical note, since the R2.5million cap is applicable to any cost incurred on or after 21 July 2019, what will happen where an individual taxpayer has bought shares on 19 July 2019 for R5million and a further R2.5million shares on 22 July 2019? Would the taxpayer qualify for an overall deduction of R7.5million in the current 2020 year of assessment or only the R2.5million? This is unclear from the draft legislation.
Furthermore, would the individual taxpayer qualify to claim as a tax deduction the balance of the expenditure in excess of the R2.5 million in the subsequent year of assessment, similar to the tax dispensation afforded to donations made to approved public benefit organisations?
These and many more questions will be posed to National Treasury by ourselves and our registered controlling body, the South African Institute of Tax Practitioners, as clarity is vital before an individual taxpayer should consider investing more in a VCC.
This post was based on a press release issued by BDO South Africa.