Transfer Duty Act, 1949 (Act No. 40 of 1949)1. Definitions |
| (1) | In this Act, unless the context otherwise indicates— |
"Commissioner"
means the Commissioner for the South African Revenue Service appointed in terms of section 6 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997), or the Acting Commissioner designated in terms of section 7 of that Act;
[Definition substituted by section 271 of Act No. 28 of 2011]
"company"
includes—
| (a) | any association, corporation or company (including a close corporation) incorporated or deemed to be incorporated by or under any law in force or previously in force in the Republic or in any part thereof, or any body corporate formed or established or deemed to be formed or established by or under any such law; or |
| (b) | any association, corporation or company incorporated under the law of any country other than the Republic or any body corporate formed or established under such law; or |
| (c) | any association (not being an association referred to in paragraph (a)) formed in the Republic to serve a specified purpose, beneficial to the public or a section of the public; |
[Definition inserted by section 1(a) of Act No. 5 of 2001]
"date of acquisition"
means—
| (a) | in the case of the acquisition of property (other than the acquisition of property contemplated in paragraph (b)) by way of a transaction, the date on which the transaction was entered into, irrespective of whether the transaction was conditional or not or was entered into on behalf of a company already registered or still to be registered and, in the case of the acquisition of property otherwise than by way of a transaction, the date upon which the person who so acquired the property became entitled thereto: Provided that where property has been acquired by the exercise of an option to purchase or a right of pre-emption, the date of acquisition shall be the date upon which the option or right of preemption was exercised; |
| (b) | in the case of the acquisition of property in terms of item 8 of Schedule 1 to the Share Blocks Control Act, 1980 (Act No. 59 of 1980), and if section 9A of this Act does not apply to that acquisition, the date of the written request referred to in sub-item (1)(b) of the said item 8; |
| (c) | [Paragraph (c) deleted by Proclamation R. 11 of 1944] |
"declared value"
in relation to property means the value of the property as declared in the declaration completed in terms of section fourteen by the person who has acquired the property;
"deeds registry"
includes the Mineral and Petroleum Titles Registration Office established by section 2 of the Mining Titles Registration Act, 1967 (Act No. 16 of 1967);
[Definition substituted by section 1(a) of the Taxation Laws Amendment Act, 2011 (Act No. 24 of 2011), Notice No. 16, GG34927, dated 10 January 2012 - comes into operation on 1 October 2012 and applies in respect of research and development on or after 1 October 2012, but on or before 1 January 2024 - deemed to have come into operation on 14 December 2011 (section 34(2) of the Taxation Laws Amendment Act 2022 (Act No. 20 of 2022), Notice No. 1541, GG47826, dated 5 January 2023]
| (a) | in relation to property as defined in paragraphs (a) and (c) of the definition of "property", means the fair market value of that property as at the date of acquisition thereof; |
| (b) | in relation to a share or member's interest in a company as contemplated in paragraph (d) or (e) of the definition of "property", means so much of the fair market value as at the date of acquisition of that share or member's interest, of any property held by that company which constitutes— |
| (i) | residential property; |
| (ii) | a share or member's interest in any company as contemplated in paragraph (d) or (e) of the definition of "property"; or |
| (iii) | a contingent right in property of a trust as contemplated in paragraph (f) of the definition of "property", |
(without taking into account any lease agreement, any liability in respect of any loan or any right to or an interest in the use of immovable property conferred on the owner of a share in a share block company as contemplated in section 1 of the Share Blocks Control Act, 1980 (Act No. 59 of 1980), in relation to that residential property or any residential property of any company or trust contemplated in subparagraph (ii) or (iii)), as is attributable to that share or member's interest;
| (c) | in relation to any contingent right to any property, which constitutes— |
| (i) | residential property; |
| (ii) | a share or member's interest contemplated in paragraph (d) or (e) of the definition of "property"; or |
| (iii) | a contingent right in property of a trust as contemplated in paragraph (f) of the definition of "property", |
held by a discretionary trust, means the fair market value of that property (without taking into account any lease agreement or any liability in respect of any loan in relation to that residential property or any residential property of any company or trust contemplated in subparagraph (ii) or (iii)), as at the date of acquisition of that contingent right; or
| (d) | in relation to a share in a company as contemplated in paragraph (g) of the definition of "property", means so much of the fair market value, as at the date of acquisition of that share, of any property held by that company which constitutes property as contemplated in paragraphs (a) and (c) of that definition (without taking into account any lease agreement or any liability in respect of any loan in relation to that residential property) as is attributable to that share: |
Provided that—
| (a) | the fair market value of any property of a company or a trust which constitutes a contingent right in property of a trust, as contemplated in paragraphs (b)(iii) and (c)(iii), shall be equal to the fair value of that contingent right as determined in terms of paragraph (c) of this definition; and |
| (b) | where property, has been acquired by the exercise of an option to purchase or a right of pre-emption, the fair value in relation to that property shall be the fair market value thereof as at the date upon which the option or right of preemption was acquired by the person who exercised the option or right of pre-emption; |
[Definition substituted by section 1(b) of Act No. 24 of 2011
"mining asset"
means any building, shaft, excavation, borehole, structure, fixture or other improvement or work used or intended to be used for purposes of mining, or purposes incidental thereto, including the accommodation of mine personnel, but does not include any building or structure on land in a proclaimed township;
[Definition inserted by section 11 of Act No. 80 of 1959]
"person"
includes the estate of a deceased or insolvent person and any trust;
[Definition inserted by section 8(1)(a) of Act No. 37 of 1996]
"property"
means land in the Republic and any fixtures thereon, and includes—
| (a) | any real right in land but excluding any right under a mortgage bond or a lease of property other than a lease referred to in paragraph (c); |
[Paragraph (a) substituted by section 1(c) of Act No. 24 of 2011]
| (b) | [Paragraph (b) deleted by section 1(d) of Act No. 24 of 2011] |
| (c) | any right to minerals (including any right to mine for minerals) and a lease or sub-lease of such a right; |
| (d) | a share (other than a share contemplated in paragraph (g)) or member's interest in a residential property company; |
| (e) | a share (other than a share contemplated in paragraph (g)) or member's interest in a company which is a holding company (as defined in the Close Corporations Act, 1984 (Act 69 of 1984), or as defined in the Companies Act, 2008 (Act No. 71 of 2008), as the case may be), if that company and all of its subsidiary companies (as defined in the Close Corporations Act, 1984, or Companies Act, 2008), would be a residential property company if all such companies were regarded as a single entity; |
[Paragraph (e) substituted by section 1 of the Tax Administration Laws Amendment Act, 2022 (Act No. 16 of 2022), Notice No. 1542, GG47827, dated 5 January 2023]
| (f) | a contingent right to any residential property or share or member's interest, contemplated in paragraph (d) or (e), held by a discretionary trust (other than a special trust as defined in section 1 of the Income Tax Act, 1962 (Act No. 58 of 1962)), the acquisition of which is— |
| (i) | a consequence of or attendant upon the conclusion of any agreement for consideration with regard to property held by that trust; |
| (ii) | accompanied by the substitution or variation of that trust's loan creditors, or by the substitution or addition of any mortgage bond or mortgage bond creditor; or |
| (iii) | accompanied by the change of any trustee of that trust; and |
| (g) | a share in a share block company as defined in the Share Blocks Control Act, 1980 (Act No. 59 of 1980); |
"registration officer"
means the person who is in charge of a deeds registry;
"Republic"
means the territory of the Republic of South Africa and includes the territorial waters, the contiguous zone and the continental shelf referred to respectively in sections 4, 5 and 8 of the Maritime Zones Act, 1994 (Act No. 15 of 1994);
[Definition inserted by section 1(c) of Act No. 5 of 2001]
"residential property"
means any dwelling-house, holiday home, apartment or similar abode, improved or unimproved land zoned for residential use in the Republic (including any real right thereto), other than—
| (a) | an apartment complex, hotel, guesthouse or similar structure consisting of five or more units held by a person which has been used for renting to five or more persons, who are not connected persons, as defined in the Income Tax Act, 1962 (Act No. 58 of 1962), in relation to that person; or |
| (b) | any "fixed property" of a "vendor" forming part of an "enterprise" all as defined in section 1 of the Value-Added Tax Act, 1991 (Act No. 89 of 1991); |
[Definition inserted by section 2(1)(c) of Act No. 74 of 2002]
"residential property company"
means any company, other than a REIT as defined in section 1 of the Income Tax Act, 1962 (Act No. 58 of 1962), that holds property that constitutes—
[Words preceding paragraph (a) substituted by section 1 of Act No. 31 of 2013]
| (a) | residential property; or |
| (b) | a contingent right contemplated in paragraph (f) of the definition of "property", |
and where the fair value of that property or contingent right comprises more than 50 per cent of the aggregate fair market value of all the assets, as defined in paragraph 1 of the Eighth Schedule to the Income Tax Act, 1962, (other than financial instruments as defined in section 1 of that Act or any coin made mainly from gold or platinum), held by that company on the date of acquisition of an interest in that company;
[Definition inserted by section 2(1)(c) of Act No. 74 of 2002]
"Secretary"
[Definition deleted by section 4(1)(c) of Act No. 106 of 1980]
"South African Revenue Service"
means the South African Revenue Service established by section 2 of the South African Revenue Service Act, 1997;
[Definition inserted by section 34 of Act No. 34 of 1997]
"spouse"
in relation to any person, means the partner of such person—
| (a) | in a marriage or customary union recognised in terms of the laws of the Republic; |
| (b) | in a union recognised as a marriage in accordance with the tenets of any religion; or |
| (c) | in a same-sex or heterosexual union which the Commissioner is satisfied is intended to be permanent: |
Provided that a marriage or union contemplated in paragraph (b) or (c) shall, in the absence of proof to the contrary, be deemed to be a marriage or union without community of property.
[Definition inserted by section 1(d) of Act No. 5 of 2001]
"Tax Administration Act"
means the Tax Administration Act, 2011;
[Definition inserted by section 271 of Act No. 28 of 2011]
"transaction"
means—
| (a) | in relation to paragraphs (a) and (c) of the definition of "property", an agreement whereby one party thereto agrees to sell, grant, waive, donate, cede, exchange, lease or otherwise dispose of property to another person or any act whereby any person renounces any right in or restriction in his or her favour upon the use or disposal of property; or |
| (b) | in relation to any shares or member's interest contemplated in paragraph (d) or (e) of the definition of "property", an agreement whereby one party thereto agrees to sell, grant, waive, donate, cede, exchange, issue, buy-back, convert, vary, cancel or otherwise dispose of any such shares or member's interest to another person or any act whereby any person renounces any right in or restriction in his or her favour upon the use or disposal of any such shares or member's interest; or |
| (c) | in relation to a discretionary trust, the substitution or addition of one or more beneficiaries with a contingent right to any property of that trust, which constitutes residential property or shares or member's interest contemplated in paragraph (d) or (e) of the definition of "property" or a contingent right contemplated in paragraph (f) of that definition; |
[Definition substituted by section 1(e) of Act No. 24 of 2011]
"trust"
means any trust consisting of cash or other assets which are administered and controlled by a person acting in a fiduciary capacity, where such person is appointed under a deed of trust or by agreement or under the will of a deceased person.
[Definition inserted by section 8(1)(b) of Act No. 37 of 1996]
[Section 1 renumbered to section 1(1) by section 271 of Act No. 28 of 2011]
| (2) | Unless the context indicates otherwise, a word or expression to which a meaning has been assigned in the Tax Administration Act bears that meaning for purposes of this Act. |
[Section 1(2) inserted by section 271 of Act No. 28 of 2011]