Income Tax Act, 1962 (Act No. 58 of 1962)Chapter II : The TaxesPart I : Normal Tax8B. Taxation of amounts derived from broad-based employee share plan |
| (1) | Notwithstanding section 9C, there must be included in the income of a person for a year of assessment any gain made by that person during that year from the disposal of any qualifying equity share or any right or interest in a qualifying equity share, which is disposed of by that person within five years from the date of grant of that qualifying equity share, otherwise than— |
| (a) | in exchange for another qualifying equity share as contemplated in subsection (2); |
| (b) | on the death of that person; or |
| (c) | on the insolvency of that person. |
[Section 8B(1) substituted by section 10(1) of the Revenue Laws Amendment Act, 2007 (Act No. 35 of 2007) - effective 1 October 2007]
| (2) | If a person disposes of a qualifying equity share in exchange solely for any other equity share in that employer or any company that is an associated institution as defined in the Seventh Schedule in relation to that employer, that other equity share acquired in exchange is deemed to be— |
| (a) | a qualifying equity share which was acquired by that person on the date of grant of the qualifying equity share disposed of in exchange, and |
| (b) | acquired for a consideration equal to any consideration given for the qualifying equity share disposed of in exchange. |
[Section 8B(2) substituted by section 11(1)(a) of the Taxation Laws Amendment Act, 2010 (Act No. 7 of 2010)]
| (2A) | If a person acquires any equity share by virtue of any qualifying equity share held by that person, that other equity share so acquired is deemed to be a qualifying equity share which was acquired by that person on the date of grant of the qualifying equity share so held by that person. |
[Section 8B(2A) inserted by section 11(1)(c) of Act No. 31 of 2005 - effective 8 November 2005]
| (2B) | If a person disposes of any right or interest in a qualifying equity share, the amount of consideration incurred in respect of the acquisition of that qualifying equity share that is attributable to that right or interest must be determined in accordance with the ratio that the amount received for the disposal of that right or interest bears to the market value of that qualifying equity share immediately before that disposal. |
[Section 8B(2B) inserted by section 11(1)(c) of Act No. 31 of 2005 - effective 8 November 2005]
(3) For the purposes of this section—
"broad-based employee share plan" of an employer means a plan in terms of which—
| (a) | equity shares in that employer, or in a company that is an associated institution as defined in the Seventh Schedule in relation to the employer, are acquired by employees of that employer; |
[Section 8B(3)(a) substituted by section 7 of the Taxation Laws Amendment Act, 2019 (Act No. 34 of 2019), GG 42951, dated 15 January 2020]
| (b) | employees who participate in any other equity scheme of that employer or of a company that is an associated institution as defined in the Seventh Schedule in relation to that employer are not entitled to participate and where at least 80 per cent of all other employees who are employed by that employer on a permanent basis on the date of grant (and who have continuously been so employed on a full-time basis for at least one year) are entitled to participate; |
[Section 8B(3)(b) substituted by section 10(1)(b) of the Revenue Laws Amendment Act, 2008 (Act No. 60 of 2008) - effective 21 October 2008]
| (c) | the employees who acquire the equity shares as contemplated in paragraph (a)are entitled to all dividends and foreign dividends and full voting rights in relation to those equity shares; and |
[Section 8B(3)(c) substituted by section 18(1) of the Taxation Laws Amendment Act, 2011 (Act No. 24 of 2011) - effective 1 April 2012]
| (d) | no restrictions have been imposed in respect of the disposal of those equity shares, other than— |
| (i) | a restriction imposed by legislation; |
| (ii) | a right of any person to acquire those equity shares from the employee or former employee who acquired the equity shares as contemplated in paragraph (a)— |
| (aa) | in the case where the employee or former employee is or was guilty of misconduct or poor performance, at the lower of market value on the date of grant or the market value on the date of acquisition by that employer; or |
| (bb) | in any other case, at market value on the date of acquisition by that person; or |
[Section 8B(3)(d)(ii) substituted by section 10(1)(c) of the Revenue Laws Amendment Act, 2008 (Act No. 60 of 2008) - effective 21 October 2008]
| (iii) | a restriction in terms of which the employee or former employee who acquired the equity shares as contemplated in paragraph (a) may not dispose of those equity shares for a period, which may not extend beyond five years from the date of grant; |
[Section 8B(3)(d)(iii) substituted by section 10(1)(c) of the Revenue Laws Amendment Act, 2008 (Act No. 60 of 2008) - effective 21 October 2008]
"date of grant" in relation to an equity share means the date on which the granting of that equity share is approved by the directors of the employer company or some other person or body of persons with comparable authority;
[Definition substituted by section 11(1)(b) of the Taxation Laws Amendment Act, 2010 (Act No. 7 of 2010) - effective 1 January 2011]
"gain" in relation to the disposal by a person of a qualifying equity share or a right or interest in a qualifying equity share, means the amount by which any amount received by or accrued to that person from that disposal exceeds the consideration given by him or her for that qualifying equity share, right or interest (otherwise than in the form of services rendered or to be rendered or anything done or to be done or not to be done);
[Definition inserted by section 11(1)(f) of Act No. 31 of 2005 - effective 8 November 2005]
"market value" in relation to an equity share means the price which could be obtained upon the sale of that equity share between a willing buyer and a willing seller dealing freely at arm’s length in an open market and without having regard to any restrictions imposed in respect of that equity share;
"qualifying equity share", in relation to a person, means an equity share acquired in a year of assessment in terms of a broad-based employee share plan, where the market value of all equity shares (as determined on the relevant date of grant of each equity share and excluding the market value of any qualifying equity share acquired in the circumstances contemplated in subsection (2A)), which were acquired by that person in terms of that plan in that year and the four immediately preceding years of assessment, does not in aggregate exceed R50 000.
[Definition substituted by section 10(1)(d) of the Revenue Laws Amendment Act, 2008 (Act No. 60 of 2008) - effective 21 February 2008]
| (4) | The provisions of section 25 do not apply in respect of any amount received or accrued from the disposal of any qualifying equity share after the date of death of the person contemplated in subsection (1). |
[Section 8B inserted by section 8(1) of Act No. 32 of 2004 - effective 26 October 2004]