SARS establishes a high-net-worth unit
The Minister of Finance announced in his Budget Speech 2021 that: SARS will establish a dedicated unit to improve compliance of individuals with wealth and complex financial arrangements. This would naturally, in my view, include the relationship between RSA residents and their financing arrangements with nonresident trusts.
Loans to nonresident trusts
If the RSA resident and nonresident trust are ‘connected persons’ (that is, the settlor and family are beneficiaries), which is the usual position, the transfer pricing rules of s 31 of the Income Tax Act apply. In essence, s 31 effectively requires that that the rate of interest for financial assistance be as between
‘independent persons dealing at arm’s length’. A practice note issued by SARS in August 1999 suggested that the interest rate for foreign-currency denominated loans be LIBOR plus 2%, but this note has since been withdrawn. The challenge is thus to determine an arm’s-length interest rate.
The ‘official rate of interest’ is defined in s 1(1) in part as follows:
(a) in the case of a debt which is denominated in the currency of the Republic, a rate of interest equal to the South African repurchase rate plus 100 basis points;
(b) in the case of a debt which is denominated in any other currency, a rate of interest that is the equivalent of the South African repurchase rate applicable in that currency plus 100 basis points:
But s 31 (unlike s 7C, for example) does not cross-refer to the ‘official rate of interest’. At best that rate may be an indicator of the rate to be used but not legally obligatory.
Draft interpretation note
SARS has published a draft interpretation note, para 5.4 of which (‘Determining whether the interest rate is arm’s length’) says:
This Note focuses on providing guidance in relation to the determination of an arm’s length amount of debt, however it is important that taxpayers do not lose sight of the fact that in addition to the amount of debt, the interest rate must also be arm’s length.
Again, the facts and circumstances of each case are critical. A taxpayer may have an arm’s length amount of debt but the interest rate may not be arm’s length or vice versa. Alternatively, both the amount of debt and the interest rate may or may not be arm’s length.
Since s 31 does not cross-refer to the official rate of interest and since the practice note no longer applies, the draft interpretation note is presumably the only guide available on this issue. It is in my view, unrealistic to expect an individual taxpayer and trust (as distinct from a multinational company) to
perform functional analysis and comparability tests. Thus a predetermined, set rate should be provided by SARS, adjusted, say, annually, to provide clarity, or even more simply, the official rate of interest should be adopted.