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DATE OF DISPOSAL FOR SARS: SALE OR TRANSFER

Feb 24, 2024

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With the financial year end for many businesses fast approaching, and the tax year concluding on this leap-year 29 February 2024, accountants and tax consultants are spinning! We have been approached by clients seeking clarity on what the South African Revenue Services (SARS) deem to be the date of disposal of a property for tax purposes: is it the date that a sale agreement is signed, or is it the date that ownership passes and transfer of the property is registered in a Deeds Registry?

The relevant law is found in paragraph 13(1) of the Eighth Schedule to the Income Tax Act. It reads as follows:

The time of disposal of an asset by means of —

(a) a change of ownership effected or to be effected from one person to another because of an event, act, forbearance or by the operation of law is, in the case of—

  1. an agreement subject to a suspensive condition, the date on which the condition is satisfied;-
  2. any agreement which is not subject to a suspensive condition, the date on which the agreement is concluded;

So the law is clear that it is the date of sale of a property that will determine the tax year within which it falls, not the date of transfer of ownership (ie registration of transfer).

The obvious next question that clients ask us is “can I date this sale agreement in the future, in order that it falls in the next tax year and not this one?”

in South African law, a contract of sale can be dated in the future. The date on a contract is not necessarily a crucial element for its validity. Provided that all parties willingly agree to the terms of the contract and fulfil the requirements for a legally binding agreement including the parties to the agreement, property description and purchase price, a contract can be dated in the future.

Should you have any questions or require any advice, feel free to contact one of the attorneys at FHA for guidance.

 

 

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