Tax / 23 November 2018, 08:00am / Willem Oberholzer
When meeting with the grey-suited tax experts you are likely to encounter a specialist who is brilliant and intimidating. You may well be unworldly, disingenuous in your perception of taxation, and you may well realise that you want this professional, despite the enigmatic reserve.
If the corners of your mouth are pulling into a smile, you know where the above paragraph originates, don't you?
Shocked, yet thrilled by his tax views, you may find yourself wanting to hesitate. It is with the trappings of success that we come to a point where we have to structure our affairs, to make our returns more satisfying.
There are, however, two schools of thought - let’s call them the schools of “Vanilla” and “Spice”.
Ms B works for a salary and there are no other forms of income other than a salary. She has subscribed to the missionary interactions for there is little if anything that can be done in as far as structuring salaries is concerned.
Her tax affairs are Vanilla - like a tub of ice cream. It's comfortable, familiar and there is nothing wrong with vanilla. Your deductions are limited to retirement funding contributions, travel allowances, medical allowances etc. You are taxed on everything you receive from your employer for your services. Your deductions are limited.
Why can you not structure a salary? There is one overriding principle, you are not conducting a trade and as such there are minimal deductions that qualify. Vanilla is safe - there are no risks as long as you don't lie.
Mrs Jones is a trader and she articulated her requests.
She wants to structure her affairs. She wants to add some Spice to her economic life; she wants more.
He pays close attention to her pleas and list of expectations. He stands up, straightens his thick silk tie, smiles and she notices the fire of enthusiasm dancing in his eyes.
“Come with me. Let me show you the playbook.” A word of warning if I may. There is a line between tax planning and tax evasion. They are not two sides of the same coin. Tax evasion is illegal and tax planning is legal.
If you are carrying on a trade that the Income Tax Act defines - as including every profession, trade, business, calling, occupation or venture - you have in terms of Section 11 of the Income Tax Act been granted admittance to the playroom. Provided that you have derived income from your “trade”.
Section 11(a) is the broadest section of them all and makes everyone smile on the economic playground. You can per 11(a) deduct from your income, expenditure and losses that you actually incur, in the production of your income, provided that the expenditure and losses are not of a capital nature.
If they are of a capital nature then, for now, let’s say that they can only be deducted from the capital income to which they directly relate (8th schedule).
The playbook has many beautiful spicy items to contemplate. You can have your fill if you are skilled in the art and/or have been guided by a steady and ethical hand.
There are, however, rules.
You have to know what the limitations of Section 23 are. Contravening Section 23 is taboo.
To understand the shades of tax, you have to live, breath, experience and practise it.
You have to have seen the shackles of disputes and felt the lash by the arbitrations and have developed a distaste for the foul taste of frivolous objections.
In the words of EL James, “Laters, baby.”
Willem Oberholzer is a CA (SA), MCom (Tax) director of Probity Advisory, and Kreston South Africa.