[SAPL4][a45y1955]ESTATE DUTY ACT 45 OF 1955[/SAPL4]

 

[ASSENTED TO 15 JUNE 1955]                                 [DATE OF COMMENCEMENT: 1 APRIL 1955]

 

(English text signed by the Governor-General)

 

as amended by

 

Finance Act 59 of 1956
Estate Duty Amendment Act 59 of 1957
Estate Duty Amendment Act 65 of 1960
Revenue Laws Amendment Act 71 of 1961
Finance Act 77 of 1962
Revenue Laws Amendment Act 77 of 1964
Revenue Laws Amendment Act 81 of 1965
Revenue Laws Amendment Act 56 of 1966
Revenue Laws Amendment Act 94 of 1967
Estate Duty Amendment Act 75 of 1968
Revenue Laws Amendment Act 92 of 1971
Revenue Laws Amendment Act 89 of 1972
Revenue Laws Amendment Act 70 of 1975
Revenue Laws Amendment Act 104 of 1976
Revenue Laws Amendment Act 114 of 1977
Revenue Laws Amendment Act 95 of 1978
Revenue Laws Amendment Act 102 of 1979
Revenue Laws Amendment Act 106 of 1980
Revenue Laws Amendment Act 99 of 1981
Revenue Laws Amendment Act 92 of 1983
Revenue Laws Amendment Act 81 of 1985
Revenue Laws Amendment Act 71 of 1986
Transfer of Powers and Duties of the State President Act 97 of 1986
Taxation Laws Amendment Act 86 of 1987
Taxation Laws Amendment Act 87 of 1988
Taxation Laws Amendment Act 136 of 1991
Taxation Laws Amendment Act 97 of 1993
Revenue Laws Amendment Act 140 of 1993
Taxation Laws Amendment Act 20 of 1994
Revenue Laws Amendment Act 46 of 1996
Abolition of Restrictions on the Jurisdiction of Courts Act 88 of 1996
Taxation Laws Amendment Act 27 of 1997
South African Revenue Service Act 34 of 1997
Taxation Laws Amendment Act 30 of 1998
Revenue Laws Amendment Act 53 of 1999
Taxation Laws Amendment Act 30 of 2000

Revenue Laws Amendment Act 59 of 2000

Taxation Laws Amendment Act 5 of 2001

Revenue Laws Amendment Act 19 of 2001

Second Revenue Laws Amendment Act 60 of 2001

 

ACT

 

To impose an estate duty upon the estates of deceased persons, to repeal the Death Duties Act 1922, and to provide for matters incidental thereto.

 

[a45y1955s1]1        Definitions

 

          (1) In this Act and in any regulations made thereunder, unless the context otherwise indicates-

 

          'administration and distribution account'......

 

[Definition of 'administration and distribution account' deleted by s. 3 (a) of Act 92 of 1971.]

 

          'child', in relation to any person, includes any person adopted by him-

 

            (a) under any law of the Republic; or

 

[Para. (a) substituted by s. 5 of Act 86 of 1987.]

 

            (b)    under the law of any country other than the Republic, provided the adopted person is under such law accorded the status of a legitimate child of the adoptive parent and the adoption was made at a time when the adoptive parent was ordinarily resident in such country;

 

[Definition of 'child' inserted by s. 7 (a) of Act 77 of 1964.]

 

          'close corporation' means a close corporation within the meaning of the Close Corporations Act, 1984 (Act 69 of 1984);

 

[Definition of 'close corporation' inserted by s. 6 (a) of Act 97 of 1993.]

 

          'Commissioner' means the Commissioner for the South African Revenue Service;

 

[Definition of 'Commissioner' deleted by s. 7 (b) of Act 77 of 1964, inserted by s. 9 (1) (a) of Act 106 of 1980 and substituted by s. 34 (1) of Act 34 of 1997.]

 

          'company' includes any association incorporated or registered under any law in force in the Republic and any association which, although not so incorporated or registered, carries on business or has an office or place of business or maintains a share transfer register in the Republic;

 

          'domestic policy' means any life policy as defined in section 1 of the Long-term Insurance Act, 1998 (Act 52 of 1998), issued anywhere upon an application made or presented to a representative of an insurer (or to any person on behalf of such a representative) at any place in the Republic, excluding a life policy which has been made payable at a place outside the Republic at the request of the owner, but including any life policy issued outside the Republic which has subsequently been made payable in the Republic at the request of the owner;

 

[Definition of 'domestic policy' inserted by s. 6 of Act 30 of 2000.]

 

          'duty' means estate duty payable under this Act;

 

[Definition of 'duty' amended by s. 1 (1)(a) of Act 65 of 1960 and substituted by s. 3 (b) of Act 92 of 1971.]

 

          'executor' means any person to whom letters of administration or of executorship have been granted by a Master in respect of the estate of a deceased person under any law relating to the administration of estates, or whose appointment as assumed executor of such an estate has been endorsed by a Master under such law, or who liquidates or distributes such an estate in pursuance of a direction of a Master, and includes a person acting or authorized to act under letters of administration or of executorship granted outside the Republic but signed and sealed by a Master for use within the Republic and, in any case where the estate is not required to be administered under the supervision of the Master, the person administering the estate;

 

[Definition of 'executor' substituted by s. 3 (c) of Act 92 of 1971.]

 

          'fair market value', in relation to immovable property on which a bona fide farming undertaking is being carried on in the Republic, means at the option of the executor either-

 

            (a)    the fair market value thereof; or

 

            (b)    an amount to be determined in accordance with the provisions of subsection (2) as representing the aggregate of the fair agricultural or pastoral value of the land and the value which any improvements situated thereon may be expected to add to such value of the land (which aggregate is hereinafter referred to as the surface value), together with the fair market value of any mineral rights attaching to the land, as at the date of the death of the deceased person;

 

[Definition of 'fair market value' inserted by s. 1 (a) of Act 59 of 1957 and amended by s. 1 (1) (b) of Act 65 of 1960 and by s. 7 (1) of Act 87 of 1988.]

 

          'family company', in relation to a deceased person, means any company (other than a company whose shares are quoted on a recognized stock exchange) which at any relevant time was controlled or capable of being controlled directly or indirectly, whether through a majority of the shares thereof or any other interest therein or in any other manner whatsoever, by the deceased or by the deceased and one or more of his relatives;

 

[Definition of 'family company' inserted by s. 7 (c) of Act 77 of 1964, deleted by s. 6 (b) of Act 97 of 1993 and inserted by s. 2 (1) of Act 140 of 1993.]

 

          'liquidation and distribution account' means the account required to be rendered by an executor to a Master in accordance with section 35 of the Administration of Estates Act, 1965 (Act 66 of 1965), or where the provisions of section 68 of the Administration of Estates Act, 1913 (Act 24 of 1913), apply, the account required to be rendered by an executor to a Master in accordance with the last-mentioned section;

 

[Definition of 'liquidation and distribution account' inserted by s. 3 (d) of Act 92 of 1971.]

 

          'Master' in relation to any matter, property or estate, means the Master or Assistant Master of the High Court appointed under the Administration of Estates Act, 1965 who has jurisdiction in respect of that matter, property or estate;

 

[Definition of 'Master' amended by s. 3 (e) of Act 92 of 1971 and by s. 5 of Act 27 of 1997.]

 

          'relative', in relation to any person, means the spouse of such person or anybody related to him or his spouse within the third degree of consanguinity, or any spouse of anybody so related, and for the purpose of determining the relationship between any child referred to in the definition of 'child' in this subsection and any other person, such child shall be deemed to be related to its adoptive parent in the first degree of consanguinity;

 

[Definition of 'relative' inserted by s. 7 (d) of Act 77 of 1964.]

 

          'South African Revenue Service' means the South African Revenue Service established by section 2 of the South African Revenue Service Act, 1997;

 

[Definition of 'South African Revenue Service' inserted by s. 34 (1) of Act 34 of 1997.]

 

          'spouse', in relation to any deceased person, includes a person who at the time of death of such deceased person was the partner of such person-

 

            (a)    in a marriage or customary union recognised in terms of the laws of the Republic;

 

[Para. (a) substituted by s. 3 (a) of Act 5 of 2001.]

 

            (b)    in a union recognised as a marriage in accordance with the tenets of any religion; or

 

[Para. (b) substituted by s. 3 (a) of Act 5 of 2001.]

 

            (c)    in a same-sex or heterosexual union which the Commissioner is satisfied is intended to be permanent:

 

[Para. (c) substituted by s. 3 (a) of Act 5 of 2001.]

 

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 of 'spouse' inserted by s. 1 (1) of Act 59 of 2000 and amended by s. 3 (b) of Act 5 of 2001.]

 

          'Secretary' ......

 

[Definition of 'Secretary' inserted by s. 7 (d) of Act 77 of 1964 and deleted by s. 9 (1) (b) of Act 106 of 1980.]

 

          'stocks or shares' in relation to any company means any part of the share capital or members' interest of that company and includes any debenture, debenture stock or any other like form of marketable security.

 

[Definition of 'stocks or shares' substituted by s. 6 (c) of Act 97 of 1993.]

 

          (2) (a) In the case of any property in respect of which the executor elects the value determined in accordance with paragraph (b) of the definition of 'fair market value' in subsection (1), the executor shall lodge an application in the prescribed form in duplicate for a determination of the surface value of that property with the magistrate of the district in which any such property is situate.

 

          (b) (i) Any magistrate with whom any such application has been lodged shall forward both copies thereof to any land bank valuator selected by him who has been appointed in terms of section seventy of the Land Bank Act, 1944 (Act 13 of 1944), with instructions to make a valuation of the surface value of the property in question.

 

          (ii) The provisions of the Land Bank Act, 1944, applicable to valuators appointed under the said Act and any instructions issued from time to time by the Land Bank to such valuators in connection with the exercise of their duties, shall apply to any such valuator instructed to make a valuation of the surface value of any such property as though he were making a valuation for land bank purposes.

 

          (iii) Fees and travelling expenses shall be paid by the estate of the deceased to any such valuator in accordance with the tariffs applicable to the valuations of property by appraisers appointed under the Administration of Estates Act, 1965.

 

[Sub-para. (iii) amended by s. 1 (1) (c) of Act 65 of 1960 and substituted by s. 3 (g) of Act 92 of 1971.]

 

          (c) Any land bank valuator to whom any such application in duplicate has been referred, shall cause the particulars of his valuation of the surface value of the property in question to be inserted on both copies of the application and shall within three days from the date on which his valuation was made forward one copy to the executor of the estate and the remaining copy to the magistrate for transmission to the Commissioner.

 

          (d) (i) The Commissioner shall thereupon determine the surface value of the property in question, which determination shall be subject to the provisions of paragraph (e), or may refer the matter to the Board of the Land Bank as constituted under section four of the Land Bank Act, 1944 (in this section referred to as the Board), for its determination of such value.

 

          (ii) The Commissioner shall at the same time determine the fair market value of the mineral rights attaching to the property in question and shall advise the executor of the values determined by him under this paragraph and shall indicate in such advice whether the determination of the surface value of the property was made by him or by the Board.

 

          (e) If the executor considers himself aggrieved by the Commissioner's determination of the surface value of any property in terms of paragraph (d), he shall notify the Commissioner thereof in writing within twenty-one days or such further period as the Commissioner may allow from the date of the advice referred to in the said paragraph and the Commissioner shall thereupon cause the matter to be referred to the Board for review.

 

          (f) (i) For the purposes of its determination under paragraph (d) or (e), the Board shall apply the same principles and follow the same practice and procedure as in the case of a determination by it of the value of property for land bank purposes.

 

          (ii) Any person duly authorized thereto by the Board shall at all reasonable times have full access to the property the value of which is being determined by the Board.

 

          (g) There shall be no appearance by or on behalf of either party before the Board, whose decision shall be communicated in duplicate to the Commissioner, who shall forward one copy thereof to the executor.

 

[Para. (g) substituted by s. 8 of Act 88 of 1996.]

[Sub-s. (2) added by s. 1 (b) of Act 59 of 1957.]

 

[a45y1955s2]2        Levy of estate duty

 

          (1) There shall be charged, levied and collected in respect of the estate of every person who dies on or after the first day of April, 1955, a duty to be known as an estate duty.

 

          (2) Estate duty shall be charged upon the dutiable amount of the estate calculated in accordance with the provisions of this Act and shall be levied at the rate set out in the First Schedule.

 

[Sub-s. (2) amended by s. 8 (1) of Act 87 of 1988.]

 

[a45y1955s3]3        What constitutes an estate

 

          (1) For the purposes of this Act the estate of any person shall consist of all property of that person as at the date of his death and of all property which in accordance with this Act is deemed to be property of that person at that date.

 

          (2) 'Property' means any right in or to property, movable or immovable, corporeal or incorporeal, and includes-

 

            (a)    any fiduciary, usufructuary or other like interest in property (including a right to an annuity charged upon property) held by the deceased immediately prior to his death;

 

            (b)    any right to an annuity (other than a right to an annuity charged upon any property) enjoyed by the deceased immediately prior to his death which accrued to some other person on the death of the deceased,

 

but does not include-

 

            (c)    in the case of a deceased who was not ordinarily resident in the Republic at the date of his death, any right in immovable property situate outside the Republic;

 

[Para. (c) substituted by s. 2 (a) of Act 65 of 1960.]

 

            (d)    any right in movable property physically situate outside the Republic if the deceased was not ordinarily resident in the Republic at the date of his death;

 

[Para. (d) amended by s. 2 (b) of Act 65 of 1960.]

 

            (e)    any debt not recoverable or right of action not enforceable in the Courts of the Republic if the deceased was not ordinarily resident in the Republic at the date of his death;

 

[Para. (e) substituted by s. 2 (c) of Act 65 of 1960.]

 

            (f)    any goodwill, licence, patent, design, trademark, copyright or other similar right not registered or enforceable in the Republic or attaching to any trade, business or profession in the Republic if the deceased was not ordinarily resident in the Republic at the date of his death;

 

[Para. (f) amended by s. 2 (d) of Act 65 of 1960.]

 

            (g)    in the case of a deceased who was not ordinarily resident in the Republic at the date of his death-

 

                  (i)      any stocks or shares held by him in a body corporate which is not a company; and

 

                  (ii)      any stocks or shares held by him in a company, provided any transfer whereby any change of ownership in such stocks or shares is recorded is not required to be registered in the Republic;

 

[Para. (g) substituted by s. 2 (e) of Act 65 of 1960.]

 

            (h)    any rights to any income produced by or proceeds derived from any property referred to in paragraph (e), (f) or (g).

 

          (3) Property which is deemed to be property of the deceased includes-

 

            (a)    so much of any amount due and recoverable under any policy of insurance which is a 'domestic policy', upon the life of the deceased as exceeds the aggregate amount of any premiums or consideration proved to the satisfaction of the Commissioner to have been paid by any person who is entitled to the amount due under the policy, together with interest at six per cent per annum calculated upon such premiums or consideration from the date of payment to the date of death: Provided that the foregoing provisions of this paragraph shall not apply in respect of any amount due and recoverable under a policy of insurance, if-

 

                  (i)      the amount due under such policy is recoverable by the surviving spouse or child of the deceased under a duly registered ante-nuptial or post-nuptial contract; or

 

                (iA)      the Commissioner is satisfied that the policy was taken out or acquired by a person who on the date of death of the deceased was a partner of the deceased, or held any share or like interest in a company in which the deceased on that date held any share or like interest, for the purpose of enabling that person to acquire the whole or part of-

 

                           (aa)  the deceased's interest in the partnership concerned; or

 

                           (bb)  the deceased's share or like interest in that company and any claim by the deceased against that company,

 

                           and that no premium on the policy was paid or borne by the deceased; or

 

[Sub-para. (iA) inserted by s. 2 (1) (a) of Act 92 of 1983 and substituted by s. 4 (1) (a) of Act 81 of 1985.]

 

                  (ii)      except where the provisions of paragraph (i) or (iA) of this proviso apply, the Commissioner is satisfied and remains satisfied that such policy was not effected by or at the instance of the deceased, that no premium on such policy was paid or borne by the deceased, that no amount due or recoverable under such policy has been or will be paid into the estate of the deceased and that no such amount has been or will be paid to, or utilized for the benefit of, any relative of the deceased or any person who was wholly or partly dependent for his maintenance upon the deceased or any company which was at any time a family company in relation to the deceased;

 

[Sub-para. (ii) amended by s. 2 (1) (b) of Act 92 of 1983.]

[Para. (a) amended by s. 2 (1) (a) of Act 81 of 1965, substituted by s. 4 (1) (a) of Act 92 of 1971 and amended by s. 7 of Act 30 of 2000.]

 

            (a)bis        so much of any benefit which is due and payable by, or in consequence of membership or past membership of, any fund on or as a result of the death of the deceased as exceeds the aggregate amount of any contributions or consideration proved to the satisfaction of the Commissioner to have been paid by the beneficiary, together with interest at six per cent per annum calculated upon such contributions or consideration from the date of payment to the date of death: Provided that-

 

                  (i)      this paragraph shall not apply in respect of any annuity provided by or in consequence of membership or past membership of a pension fund, a provident fund or a retirement annuity fund as respectively defined in section 1 of the Income Tax Act, 1962 (Act 58 of 1962);

 

                  (ii)      this paragraph shall apply in respect of the commutation of any annuity which on or after the date of the death of the deceased is provided or may be provided by or in consequence of membership or past membership of a fund referred to in paragraph (i) of this proviso, and that for the purposes of this paragraph any amount payable by way of such a commutation shall be deemed to be a benefit which is due and payable as aforesaid;

 

[Para. (a)bis inserted by s. 2 (1) (b) of Act 81 of 1965, substituted by s. 3 (1) of Act 102 of 1979, by s. 10 (1) of Act 106 of 1980 and by s. 2 (1) (c) of Act 92 of 1983, amended by s. 6 of Act 27 of 1997 and substituted by s. 13 of Act 30 of 1998.]

 

            (b)    any property donated under a donatio mortis causa;

 

            (c)    ......

 

[Para. (c) amended by s. 8 (a) and (b) of Act 77 of 1964, by s. 3 (1) of Act 89 of 1972 and by s. 4 (1) (b) of Act 81 of 1985 and deleted by s. 9 (1) (a) of Act 87 of 1988.]

 

            (cA)  the amount of any claim acquired by the estate of the deceased under section 3 of the Matrimonial Property Act, 1984, against the deceased's spouse or the estate of his deceased spouse, in respect of any accrual contemplated in that section;

 

[Para. (cA) inserted by s. 4 (1) (c) of Act 81 of 1985.]

 

            (cB)  ......

 

[Para. (cB) inserted by s. 9 (1) (b) of Act 87 of 1988 and deleted by s. 7 (a) of Act 97 of 1993.]

 

            (d)    property (being property not otherwise chargeable under this Act or the full value of which is not otherwise required to be taken into account in the determination of the dutiable amount of the estate) of which the deceased was immediately prior to his death competent to dispose for his own benefit or for the benefit of his estate; and

 

[Para. (d) substituted by s. 2 (f) of Act 65 of 1960.]

 

          (4) ......

 

[Sub-s. (4) amended by s. 8 (c) of Act 77 of 1964 and by s. 4 (1) (b) of Act 92 of 1971, substituted by s. 9 (1) (c) of Act 87 of 1988 and deleted by s. 7 (b) of Act 97 of 1993.]

 

          (5) For purposes of paragraph (d) of subsection (3)-

 

            (a)    the term 'property' shall be deemed to include the profits of any property;

 

            (b)    a person shall be deemed to have been competent to dispose of any property-

 

                  (i)      if he had such power as would have enabled him, if he were sui juris, to appropriate or dispose of such property as he saw fit whether exercisable by will, power of appointment or in any other manner;

 

                  (ii)      if under any deed of donation, settlement, trust or other disposition made by him he retained the power to revoke or vary the provisions thereof relating to such property;

 

            (c)    the power to appropriate, dispose, revoke or vary contemplated in paragraph (b) shall be deemed to exist if the deceased could have obtained such power directly or indirectly by the exercise, either with or without notice, of power exercisable by him or with his consent;

 

            (d)    the expression 'property of which the deceased was immediately prior to his death competent to dispose' shall not include the share of a spouse of a deceased in any property held in community of property between the deceased and such spouse immediately prior to his death.

 

[Sub-s. (5) inserted by s. 2 (g) of Act 65 of 1960.]

 

[a45y1955s4]4        Net value of an estate

 

          The net value of any estate shall be determined by making the following deductions from the total value of all property included therein in accordance with section 3, that is to say-

 

            (a)    so much of the funeral, tombstone and death-bed expenses of the deceased which the Commissioner considers to be fair and reasonable;

 

[Para. (a) substituted by s. 8 (1) (a) of Act 97 of 1993.]

 

            (b)    all debts due by the deceased to persons ordinarily resident within the Republic which it is proved to the satisfaction of the Commissioner have been discharged from property included in the estate;

 

            (c)    all costs which have been allowed by the Master in the administration and liquidation of the estate, other than expenses incurred in the management and control of any income accruing to the estate after the date of death;

 

            (d)    all expenditure incurred in carrying out the requirements of the Master or the Commissioner in pursuance of the provisions of this Act;

 

            (e)    the amount included in the total value of all property of the deceased as representing the value of any right in or to property situate outside the Republic acquired by the deceased-

 

                  (i)      before he became ordinarily resident in the Republic for the first time; or

 

                  (ii)      after he became ordinarily resident in the Republic for the first time, by-

 

                           (aa)  a donation if at the date of the donation the donor was a person (other than a company) not ordinarily resident in the Republic; or

 

                           (bb)  inheritance from a person who at the date of his death was not ordinarily resident in the Republic; or

 

[Sub-para. (ii) substituted by s. 1 (1) (a) of Act 104 of 1976.]

 

                 (iii)      out of the profits and proceeds of any such property proved to the satisfaction of the Commissioner to have been acquired out of such profits or proceeds;

 

[Para. (e) substituted by s. 3 of Act 65 of 1960.]

 

            (f)    any debts due by the deceased to persons ordinarily resident outside the Republic which have been discharged from property included in the estate to the extent that the amount of such debts is proved to the satisfaction of the Commissioner to exceed the value of any assets of the deceased outside the Republic and not so included;

 

            (g)    the value of any interest included as property of the deceased under paragraph (a) of subsection (2) of section three where such interest was held by the deceased by virtue of a donation to him by the person to whom the right of enjoyment of the property in which the deceased held the interest, accrues or, where the interest consists of a right to an annuity charged upon property, by the person who is the owner of that property;

 

            (h)    the value of any property included in the estate which has not been allowed as a deduction under any other provision of this section which accrues or accrued to-

 

                  (i)      any public benefit organisation which is exempt from tax in terms of section 10 (1) (cN) of the Income Tax Act, 1962 (Act 58 of 1962); or

 

[Sub-para. (i) substituted by s. 8 (1) (b) of Act 97 of 1993 and by s. 8 (1) (a) of Act 30 of 2000.]

 

                  (ii)      ......

 

[Sub-para. (ii) deleted by s. 8 (1) (b) of Act 30 of 2000.]

 

                 (iii)      the State or any local authority within the Republic; or

 

                 (iv)      ......

 

[Sub-para. (iv) deleted by s. 8 (1) (b) of Act 30 of 2000.]

 

                 (v)      ......

 

[Sub-para. (v) added by s. 3 (1) (b) of Act 20 of 1994 and deleted by s. 7 (b) of Act 27 of 1997.]

 

[Para. (h) amended by s. 9 (a) of Act 71 of 1961 and by s. 3 (1) (a) of Act 81 of 1965 and substituted by s. 6 (1) (a) of Act 86 of 1987 and by s. 10 (1) (a) of Act 87 of 1988.]

 

            (i)     the amount by which the value of any property included in the estate has been enhanced by any improvements made to the property concerned-

 

                  (i)      at the expense of the person to whom such property accrues on the death of the deceased; and

 

                  (ii)      during the lifetime of the deceased and with his consent;

 

            (j)    the amount by which the value of any fiduciary, usufructuary or other like interest which ceased upon the death of the deceased has been enhanced by any improvements made to the property concerned-

 

                  (i)      at the expense of the person to whom the benefit arising by reason of the cessation of such interest upon the death of the deceased, accrues; and

 

                  (ii)      during the lifetime of the deceased and with his consent;

 

            (k)    ......

 

[Para. (k) substituted by s. 9 (1) (a) of Act 77 of 1964, by s. 3 (1) (b) of Act 81 of 1965, by s. 2 (1) (a) of Act 94 of 1967 and by s. 2 (1) (a) of Act 70 of 1975, amended by s. 4 (1) (a) of Act 102 of 1979 and by s. 11 (1) (a) of Act 106 of 1980 and deleted by s. 10 (1) (b) of Act 87 of 1988.]

 

            (l)     ......

 

[Para. (l) added by s. 2 of Act 59 of 1957, substituted by s. 9 (b) of Act 71 of 1961, by s. 9 (1) (a) of Act 77 of 1964, by s. 3 (1) (c) of Act 81 of 1965, by s. 2 (1) (b) of Act 94 of 1967, by s. 5 (1) (b) of Act 92 of 1971, by s. 2 (1) (b) of Act 70 of 1975 and by s. 1 (1) (b) of Act 104 of 1976, amended by s. 4 (1) (b) of Act 102 of 1979, by s. 11 (1) (b) of Act 106 of 1980 and by s. 3 (1) of Act 99 of 1981 and deleted by s. 10 (1) (c) of Act 87 of 1988.]

 

            (lA)   the amount of any claim against the estate acquired under section 3 of the Matrimonial Property Act, 1984 (Act 88 of 1984), by the surviving spouse of the deceased or by the estate of his deceased spouse, in respect of an accrual contemplated in that section;

 

[Para. (lA) inserted by s. 5 (1) (a) of Act 81 of 1985.]

 

            (m)   the value of any usufructuary or other like interest in property and of any right to an annuity charged upon property, included as property of the deceased under section 3 (2) (a), if such interest or right was created by a predeceased spouse of the deceased and-

 

                  (i)      the property over which the deceased enjoyed such interest or right formed part of the estate of such predeceased spouse; and

 

                  (ii)      no deduction in respect of the value of such interest or right was allowable in the determination of the net value of the estate of the predeceased spouse under the provisions of paragraph (q) of this section;

 

[Sub-para. (ii) substituted by s. 14 (1) of Act 30 of 1998.]

 

[Para. (m) added by s. 2 of Act 59 of 1957 and substituted by s. 6 (1) (b) of Act 86 of 1987 and by s. 10 (1) (d) of Act 87 of 1988.]

 

            (n)    ......

 

[Para. (n) added by s. 2 of Act 59 of 1957 and deleted by s. 10 (1) (e) of Act 87 of 1988.]

 

            (o)    any amount included in the estate in respect of-

 

                  (i)      the value of books, pictures, statuary or other objects of art; or

 

                  (ii)      so much of the value of any shares in a body corporate as is attributable to such body's ownership of books, pictures, statuary or other objects of art;

 

                   if such books, pictures, statuary or other objects of art have been lent under a notarial deed to the State or any local authority within the Republic or to any institution referred to in subparagraph (ii) of paragraph (h) for a period of not less than thirty years, and the deceased died during such period;

 

[Para. (o) added by s. 9 (c) of Act 71 of 1961 and amended by s. 10 (1) (f) of Act 87 of 1988.]

 

            (p)    so much of the value of any property deemed to be property of the deceased by virtue of the provisions of section 3 (3) as has not been deducted under any of the other provisions of this section and as the Commissioner is satisfied has been taken into account under the provisions of section 5 (1) (f)bis in the determination of the value of any company shares or a member's interest in a close corporation included as property in the estate;

 

[Para. (p) added by s. 9 (1) (b) of Act 77 of 1964 and substituted by s. 8 (1) (c) of Act 97 of 1993.]

 

            (q)    so much of the value of any property included in the estate which has not been allowed as a deduction under the foregoing provisions of this section, as accrues to the surviving spouse of the deceased: Provided that-

 

                  (i)      the deduction allowable under the provisions of this paragraph shall be reduced by so much of any amount as the surviving spouse is required in terms of the will of the deceased to dispose of to any other person or trust;

 

                  (ii)      no deduction shall be allowed under the provisions of this paragraph in respect of any property which accrues to a trust established by the deceased for the benefit of the surviving spouse, if the trustee of such trust has a discretion to allocate such property or any income therefrom to any person other than the surviving spouse.

 

[Para. (q) added by s. 5 (1) (b) of Act 81 of 1985 and substituted by s. 6 (1) (c) of Act 86 of 1987.]

 

[S. 4 amended by s. 5 (1) (a) of Act 92 of 1971.]

 

[a45y1955s4A]4A     Dutiable amount of an estate

 

          The dutiable amount of any estate shall be determined by deducting from the net value of the estate, as determined in accordance with section 4, an amount of R1 million.

 

[S. 4A inserted by s. 6 (1) of Act 92 of 1971, amended by s. 3 (1) of Act 95 of 1978, by s. 5 (1) of Act 102 of 1979, by s. 12 (1) of Act 106 of 1980, by s. 4 (1) of Act 99 of 1981, by s. 6 (1) of Act 81 of 1985 and by s. 2 (1) of Act 71 of 1986 and substituted by s. 11 (1) of Act 87 of 1988.]

 

[a45y1955s5]5        Determination of value of property

 

          (1)      The value of any property for the purposes of the inclusion thereof in the estate of any person in terms of section 3 or the deduction thereof in terms of section 4, determined as at the date of death of that person, shall be-

 

            (a)    in the case of property, other than such property as is referred to in paragraph (f)bis or the proviso to paragraph (g), disposed of by a purchase and sale which in the opinion of the Commissioner is a bona fide purchase and sale in the course of the liquidation of the estate of the deceased, the price realized by such sale;

 

[Para. (a) amended by s. 4 (a) of Act 65 of 1960.]

 

            (b)    in the case of any such fiduciary, usufructuary or other like interest in property as is referred to in paragraph (a) of section 3 (2), an amount determined by capitalizing at twelve per cent the annual value of the right of enjoyment of the property in which the deceased held any such fiduciary, usufructuary or other like interest, to the extent to which the person who upon the cessation of the said interest of the deceased in consequence of the death of the deceased becomes entitled to any right of enjoyment of such property of whatever nature, over the expectation of life of such person, or if such right of enjoyment is to be held for a lesser period than the life of such person, over such lesser period: Provided that in any case in which it is proved to the satisfaction of the Commissioner that such person paid any consideration for the right of ownership in the property whereby he became entitled to the right of enjoyment of the property upon the death of the deceased, the value shall be so much of the value so arrived at as exceeds the amount of such consideration together with interest thereon calculated at six per cent per annum from the date of payment of such consideration to the date of death of the deceased: Provided further that where upon the cessation of the interest of the deceased in any property, there accrues to the holder of the bare dominium therein, the full ownership in that property, the value of the advantage or benefit so accruing by reason of the cessation of the interest held by the deceased, shall not exceed the difference between the fair market value of that property as at the date of such cessation and the value of the bare dominium as at the date when such bare dominium was first acquired under the disposition creating the said interest held by the deceased: Provided further that if upon the cessation of the interest held by the deceased it is not possible to ascertain until some future date the person or some or all of the persons who will become entitled to the right of enjoyment of the property, the value shall be determined by capitalizing at twelve per cent over a period of fifty years the annual value of the right of enjoyment of the property in which such interest was held, unless the Commissioner and the executor agree that, having regard to the circumstances of the case, it would be reasonable to adopt a lesser period than fifty years, in which event such lesser period, as agreed, may be adopted accordingly;

 

[Para. (b) amended by s. 3 (a) of Act 59 of 1957 and by s. 4 (b) of Act 65 of 1960 and substituted by s. 7 (1) (a) of Act 114 of 1977.]

 

            (c)    in the case of any right to any annuity referred to in paragraph (a) of subsection (2) of section three, an amount equal to the value of the annuity capitalized at twelve per cent-

 

                  (i)      in the case where the said right accrues to some other person on the death of the deceased, over the expectation of life of the person to whom the said right accrues on the death of the deceased, or if it is to be held for a lesser period than the life of such person, over such lesser period;

 

                  (ii)      in the case where the said right does not so accrue to some other person, over the expectation of life of the person who on the death of the deceased is the owner of the property upon which such annuity was charged;

 

[Para. (c) amended by s. 7 (1) (b) of Act 114 of 1977.]

 

            (d)    in the case of any right to any annuity referred to in paragraph (b) of subsection (2) of section three, an amount equal to the value of the annuity capitalized at twelve per cent, over the expectation of life of the person to whom the right to such annuity accrues on the death of the deceased, or if it is to be held for a lesser period than the life of such person, over such lesser period;

 

[Para. (d) amended by s. 7 (1) (c) of Act 114 of 1977.]

 

            (d)bis        in the case of any annuity to which the provisions of section 3 (3) (a) or (a)bis apply, an amount equal to the value of the annuity capitalized at twelve per cent over the expectation of life of the annuitant, or if the annuity is payable for a lesser period than the life of the annuitant, over such lesser period: Provided that if within five years after the death of the deceased the annuity ceases to be payable because of the death of the annuitant within that period or, where the annuitant is the widow of the deceased, because of her remarriage within that period, the value of the annuity shall be deemed to be an amount equal to the lesser of-

 

                  (i)      the aggregate of the amounts which accrued to the annuitant in respect of the annuity and any amounts which accrued to him or his estate upon or as a result of the termination of the annuity; or

 

                  (ii)      the said capitalized value of the annuity;

 

[Para. (d)bis inserted by s. 4 (1) of Act 81 of 1965, substituted by s. 2 (1) of Act 56 of 1966 and amended by s. 7 (1) (d) of Act 114 of 1977.]

 

            (e)    in the case of any property referred to in section 3 (3) (b), an amount determined in the manner prescribed in section 62 of the Income Tax Act, 1962 (Act 58 of 1962);

 

[Para. (e) substituted by s. 10 of Act 77 of 1964, by s. 12 (1) (a) of Act 87 of 1988 and by s. 9 (a) of Act 97 of 1993.]

 

            (f)    in the case of a right of ownership in any movable or immovable property which is subject to a usufructuary or other like interest in favour of any person, the amount by which the fair market value of the full ownership of such property exceeds the value of such interest, determined-

 

                  (i)      in the case of a usufructuary interest, by capitalizing at twelve per cent, the annual value of the right of enjoyment of the property subject to such usufructuary interest over the expectation of life of the person entitled to such interest, or if such right of enjoyment is to be held for a lesser period than the life of such person, over such lesser period;

 

[Sub-para. (i) amended by s. 7 (1) (e) of Act 114 of 1977.]

 

                  (ii)      in the case of an annuity charged upon the property, by capitalizing at twelve per cent, the amount of the annuity over the expectation of life of the person entitled to such annuity, or if it is to be held for a lesser period than the life of such person, over such lesser period; or

 

[Sub-para. (ii) amended by s. 7 (1) (e) of Act 114 of 1977.]

 

                 (iii)      in the case of any other interest, by capitalizing at twelve per cent, such amount as the Commissioner may consider reasonable as representing the annual yield of such interest, over the expectation of life of the person entitled to such interest, or if such interest is to be held for a lesser period than the life of such person, over such lesser period;

 

[Sub-para. (iii) amended by s. 7 (1) (e) of Act 114 of 1977.]

[Para. (f) amended by s. 1 (b) of Act 19 of 2001.]

 

            (f)bis in the case of shares in any company not quoted on any stock exchange, the value of such shares in the hands of the deceased at the date of his death, subject to the following provisions, namely-

 

                  (i)      no regard shall be had to any provision in the memorandum and articles of association, founding statement, association agreement or rules of the company, as the case may be, restricting the transferability of shares therein, but it shall be assumed that such shares were freely transferable;

 

[Sub-para. (i) substituted by s. 9 (b) of Act 97 of 1993.]

 

                  (ii)      no regard shall be had to any provision in the memorandum and articles of association, founding statement, association agreement or rules of the company, as the case may be, whereby or whereunder the value of the shares of the deceased or any other member is to be determined;

 

[Sub-para. (ii) substituted by s. 9 (b) of Act 97 of 1993.]

 

                 (iii)      if upon a winding-up of the company the deceased would have been entitled to share in the assets of the company to a greater extent pro rata to shareholding or membership than other shareholders or members, no lesser value shall be placed on the shar\es held by the deceased than the amount to which he would have been so entitled if the company had been in course of winding-up and the said amount had been determined as at the date of his death;

 

[Sub-para. (iii) substituted by s. 9 (b) of Act 97 of 1993.]

 

                 (iv)      no regard shall be had to any provision or arrangement resulting in any variation in the rights attaching to any shares through or on account of the death of the deceased;

 

[Sub-para. (iv) substituted by s. 10 (b) of Act 71 of 1961.]

 

                 (v)      there shall be taken into account any power of control exercisable by the deceased and the company whereunder he was entitled or empowered to vary or cancel any rights attaching to any class of shares therein, including by way of redemption of preference shares, if, by the exercise of such power he could have conferred upon himself any benefit or advantage in respect of the assets or profits of the company;

 

                 (vi)      ......

 

[Sub-para. (vi) deleted by s. 10 (c) of Act 71 of 1961.]

 

[Para. (f)bis inserted by s. 4 (c) of Act 65 of 1960 and amended by s. 10 (a) of Act 71 of 1961 and by s. 1 (c) of Act 19 of 2001.]

 

            (f)ter        in the case of any property referred to in paragraph (d) of subsection (3) of section three which consists only of profits, an amount determined by capitalizing at twelve per cent. such amount as the Commissioner may consider reasonable as representing the annual value of such profits over the expectation of life of the deceased immediately prior to the date of his death, and in the case of any other property referred to in the said paragraph the amount remaining after deducting from the fair market value of that property as at the date of death of the deceased the expenses and liabilities which the deceased would have had to bear or assume if he had at that date exercised his power of disposition;

 

[Para. (f)ter inserted by s. 4 (c) of Act 65 of 1960 and amended by s. 7 (1) (f) of Act 114 of 1977.]

 

            (g)    in the case of any other property, the fair market value of such property as at the date of death of the deceased person: Provided that in any case in which, as a result of conditions imposed by any person whomsoever, the value of any property could or would be reduced for any reason or after the moment of death, the value of such property shall, unless the Commissioner otherwise directs, be determined as though those conditions had not been imposed.

 

[Para. (g) amended by s. 4 (d) of Act 65 of 1960 and by s. 1 (d) of Act 19 of 2001.]

[Sub-s. (1) amended by s. 1 (a) of Act 19 of 2001.]

 

          (1A) Where any company referred to in paragraph (f)bis of subsection (1) owns immovable property on which bona fide farming operations are being carried on in the Republic, the value of such immovable property shall, in so far as it is relevant for the purposes of determining in terms of that subsection the value of any shares in such company, be determined in the manner prescribed in the definition of 'fair market value' in section 1.

 

[Sub-s. (1A) inserted by s. 7 (1) of Act 81 of 1985.]

 

          (2) For the purposes of paragraphs (b) and (f) of subsection (1) and for purposes of determining the value of any deduction contemplated in section 4, the annual value of the right of enjoyment of a property means an amount equal to twelve per cent upon the fair market value of the full ownership of the property which is subject to any fiduciary, usufructuary or other like interest: Provided that where the Commissioner is satisfied that the property which is subject to any such interest could not reasonably be expected to produce an annual yield equal to 12 per cent on such value of the property, the Commissioner may fix such sum as representing the annual yield as may be reasonable, and the sum so fixed shall be deemed to be the annual value of the right of enjoyment of such property: Provided further that where the property which is subject to any such interest consists of books, pictures, statuary or other objects of art, the annual value of the right of enjoyment thereof shall for the purposes of paragraph (b) of subsection (1) be deemed to be the average net receipts (if any) derived by the person entitled to such right of enjoyment of such property during the three years immediately preceding the date of death of the deceased.

 

[Sub-s. (2) amended by s. 7 (1) (g) of Act 114 of 1977, by s. 2 of Act 136 of 1991, by s. 1 (e) of Act 19 of 2001 and by s. 12 (1) (b) of Act 60 of 2001.]

 

          (3) Where for the purposes of subsection (1) any calculation is required to be made over the expectation of life of any person, such calculation shall, in the case of a person who is not a natural person, be made over a period of fifty years.

 

          (4) Whenever the value of any property included in the estate of a deceased is reduced as a result of the continuance after the death of that person of any right (other than a fiduciary, usufructuary or other like interest) to the use or occupation of property for no consideration or for a consideration which in the opinion of the Commissioner is not an adequate consideration, the value of such property shall for the purposes of subsection (1) be determined as though the said right had not been granted.

 

[Sub-s. (4) added by s. 3 (b) of Act 59 of 1957 and substituted by s. 12 (1) (b) of Act 87 of 1988.]

 

          (5) For the purposes of subsection (1) (f)bis, the term 'shares' includes any members' interests or any class of shares, stock, debenture stock, debentures or right to purchase members' interests or to subscribe for or purchase shares, stocks or debentures, and the term 'company' includes any company or close corporation incorporated in the Republic or elsewhere.

 

[Sub-s. (5) inserted by s. 4 (e) of Act 65 of 1960, amended by s. 10 (d) of Act 71 of 1961 and substituted by s. 9 (c) of Act 97 of 1993.]

[S. 5 amended by s. 12 (1) (a) of Act 60 of 2001.]

 

[a45y1955s6]6        Administration of Act

 

          (1) The Commissioner shall be responsible for the administration of this Act.

 

          (2) The powers conferred and the duties imposed upon the Commissioner by this Act may be exercised or performed by the Commissioner personally or by any officer acting under a delegation from or under the control or direction of the Commissioner.

 

          (3) Any decision made and any notice or communication issued or signed by any such officer may be withdrawn or amended by the Commissioner, or by the officer concerned, and shall, until it has been so withdrawn, be deemed to have been made, issued or signed by the Commissioner.

 

[a45y1955s7]7        Rendering of returns

 

          (1) Every executor or, if he is called upon by the Commissioner to do so, any person having the control of or any interest in any property included in the estate, shall submit to the Commissioner a return in a form, prescribed by him, disclosing the amount claimed by the person submitting the return to represent the dutiable amount of the estate together with full particulars regarding-

 

            (a)    the property of the deceased as at the date of his death;

 

            (b)    property which, in accordance with subsection (3) of section three, is deemed to be property of the deceased as at that date;

 

            (c)    any deduction claimed in terms of section four.

 

          (2) If after having been called upon to do so by the Commissioner, any person referred to in subsection (1) fails to submit to the Commissioner the return referred to in that subsection within the period prescribed by the Commissioner, the Commissioner may estimate the dutiable amount of the estate of the deceased in such sum as he may consider to be fair and reasonable, and thereupon duty shall be assessed upon the dutiable amount of the estate as so estimated.

 

[a45y1955s8]8        Determination of dutiable amount

 

          (1) If the Commissioner on receipt of any return referred to in section seven-

 

            (a)    is dissatisfied with any value at which any property other than property whereof the fair market value has been determined in accordance with the provisions of subsection (2) of section one is shown in any such return; or

 

[Para. (a) amended by s. 4 of Act 59 of 1957.]

 

            (b)    is of the opinion that the amount claimed to represent the dutiable amount as disclosed in the return does not represent the correct dutiable amount,

 

he shall adjust such value or amount and determine the dutiable amount accordingly.

 

          (2) ......

 

[Sub-s. (2) deleted by s. 12 (a) of Act 77 of 1962.]

 

          (3) Any dutiable amount determined by the Commissioner under subsection (1) shall be the amount on which duty shall be assessed.

 

[Sub-s. (3) amended by s. 12 (b) of Act 77 of 1962.]

 

[a45y1955s8A]8A     General provisions with regard to information, documents or things

 

          (1) For the purposes of this section and sections 8B, 8C, 8D, 8E and 28-

 

          'administration of this Act' means the-

 

            (a)    obtaining of full information in relation to all property of the estate of any deceased person as at the date of his death or property which is deemed to be property of that person;

 

            (b)    ascertaining of the correctness of any return, financial statement, document, declaration of facts or valuation;

 

            (c)    determination of the liability of any person for any duty and any penalty or interest in relation thereto leviable under this Act;

 

            (d)    collecting of any such liability;

 

            (e)    ascertaining whether an offence in terms of this Act has been committed;

 

            (f)    ascertaining whether a person has, other than in relation to a matter contemplated in paragraphs (a), (b), (c), (d) and (e) of this definition, complied with the provisions of this Act;

 

            (g)    enforcement of any of the Commissioner's remedies under this Act to ensure that any obligation imposed upon any person by or under this Act, is complied with; and

 

            (h)    performance of any other administrative function which is necessary for the carrying out of the provisions of this Act;

 

          'authorisation letter' means a written authorisation granted by the Commissioner, or by any person designated by the Commissioner for this purpose, or by a person occupying a post designated by the Commissioner for this purpose, to an officer to inspect, audit, examine or obtain, as contemplated in section 8C, any information, documents or things;

 

[Definition of 'authorisation letter' substituted by s. 13 of Act 60 of 2001.]

 

          'documents' include any document, book, record, account, deed, plan, instrument, trade list, stock list, affidavit, certificate, photograph, map, drawing and any 'computer print-out' as defined in section 1 of the Computer Evidence Act, 1983 (Act 57 of 1983);

 

          'information' includes any data stored by means of a 'computer' as defined in section 1 of the Computer Evidence Act, 1983;

 

          'judge' means a judge of the High Court and includes a judge in chambers;

 

[Definition of 'judge' substituted by s. 15 of Act 30 of 1998.]

 

          'officer' means an officer contemplated in section 6 (2);

 

          'premises' include any building, premises, aircraft, vehicle, vessel or place;

 

          'things' include any corporeal or incorporeal thing and any document relating thereto;

 

          'warrant' means a written authorisation issued by a judge to search for and seize any information, documents or things in terms of section 8E.

 

          (2) For the purposes of sections 8B, 8C, 8D and 8E, where any information, documents or things are not in one of the official languages, the Commissioner or any officer may by notice in writing require the executor of the estate or, on such executor's default, any other person, to produce, within a reasonable period, a translation thereof in one of the official languages determined by the Commissioner or such officer.

 

          (3) Any translation referred to in subsection (2) shall be-

 

            (a)    produced at such time and premises as may be specified by the Commissioner or any officer; and

 

            (b)    prepared and certified by a sworn translator or another person approved by the Commissioner or such officer.

 

          (4) For the purposes of sections 8D and 8E, the Commissioner may delegate the powers vested in him by those sections, to any other officer.

 

[S. 8A, formerly s. 8bis, amended by s. 13 of Act 77 of 1962 and substituted by s. 7 of Act 46 of 1996.]

 

[a45y1955s8B]8B     Furnishing of information, documents or things by any person

 

          The Commissioner or any officer may, for the purposes of the administration of this Act in relation to the estate of any deceased person, require the executor of such estate or any other person to furnish such information (whether orally or in writing) documents or things as the Commissioner or such officer may require.

 

[S. 8B inserted by s. 7 of Act 46 of 1996.]

 

[a45y1955s8C]8C     Obtaining of information, documents or things at certain premises

 

          (1) The Commissioner, or an officer named in an authorisation letter, may, for the purposes of the administration of this Act in relation to the estate of a deceased person, require the executor of such estate or any other person, with reasonable prior notice, to furnish, produce or make available any such information, documents or things as the Commissioner or such officer may require to inspect, audit, examine or obtain.

 

          (2) For the purposes of the inspection, audit, examination or obtaining of any such information, documents or things, the Commissioner or an officer contemplated in subsection (1), may call on any person-

 

            (a)    at any premises; and

 

            (b)    at any time during such person's normal business hours.

 

          (3) For the purposes of subsection (2), the Commissioner or any officer contemplated in subsection (1), shall not enter any dwelling-house or domestic premises (except any part thereof as may be occupied or used for the purposes of trade) without the consent of the occupant.

 

          (4) Any officer exercising any power under this section, shall on demand produce the authorisation letter issued to him.

 

[S. 8C inserted by s. 7 of Act 46 of 1996.]

 

[a45y1955s8D]8D     Inquiry

 

          (1) The Commissioner or an officer contemplated in section 8A (4) may authorise any person to conduct an inquiry for the purposes of the administration of this Act.

 

          (2) Where the Commissioner, or any officer contemplated in section 8A (4), authorises a person to conduct an inquiry, the Commissioner or such officer shall apply to a judge for an order designating a presiding officer before whom the inquiry is to be held.

 

          (3) A judge may, on ex parte application by the Commissioner or any officer contemplated in section 8A (4), grant an order in terms of which a person contemplated in subsection (7) is designated to act as presiding officer at the inquiry contemplated in this section.

 

          (4) An application under subsection (2) shall be supported by information supplied under oath or solemn declaration, establishing the facts on which the application is based.

 

          (5) A judge may grant the order referred to in subsection (3) if he is satisfied that there are reasonable grounds to believe that-

 

            (a)   (i)      there has been non-compliance by any person with his obligations in terms of this Act; or

 

                  (ii)      an offence in terms of this Act has been committed by any person;

 

            (b)    information, documents or things are likely to be revealed which may afford proof of-

 

                  (i)      such non-compliance; or

 

                  (ii)      the committing of such offence; and

 

            (c)    the inquiry referred to in the application is likely to reveal such information, documents or things.

 

          (6) An order under subsection (3) shall, inter alia-

 

            (a)    name the presiding officer;

 

            (b)    refer to the alleged non-compliance or offence to be inquired into;

 

            (c)    identify the person alleged to have failed to comply with the provisions of the Act or to have committed the offence; and

 

            (d)    be reasonably specific as to the ambit of the inquiry.

 

          (7) Any presiding officer shall be a person appointed by the Minister of Finance in terms of section 83A (4) of the Income Tax Act, 1962 (Act 58 of 1962).

 

          (8) For the purposes of an inquiry contemplated in this section, a presiding officer designated under subsection (3) shall-

 

            (a)    determine the proceedings as he may think fit;

 

            (b)    have the same powers-

 

                  (i)      to enforce the attendance of witnesses and to compel them to give evidence or to produce evidential material; and

 

                  (ii)      relating to contempt committed during the proceedings,

 

                   as are vested in a President of the Special Court contemplated in section 83 of the Income Tax Act, 1962, and for those purposes sections 84 and 85 of that Act shall apply mutatis mutandis; and

 

[Para. (b) substituted by s. 9 (a) of Act 30 of 2000.]

 

            (c)    record the proceedings and evidence at an inquiry in such manner as he may think fit.

 

          (9) Any person may, by written notice issued by the presiding officer, be required to appear before him in order to be questioned under oath or solemn declaration for the purposes of an inquiry contemplated in this section.

 

          (10) The notice contemplated in subsection (9) shall specify the-

 

            (a)    place where such inquiry will be conducted;

 

            (b)    date and time of such inquiry; and

 

            (c)    reasons for such inquiry.

 

          (11)    Any person whose affairs are investigated in the course of an inquiry contemplated in this section, shall be entitled to be present at the inquiry during such time as his affairs are investigated, unless on application by the person contemplated in subsection (1), the presiding officer directs otherwise on the ground that the presence of the person and his representative, or either of them, would be prejudicial to the effective conduct of the inquiry.

 

[Sub-s. (11) substituted by s. 9 (b) of Act 30 of 2000.]

 

          (12) Any person contemplated in subsection (9) has the right to have a legal representative present during the time that he appears before the presiding officer.

 

[Sub-s. (12) substituted by s. 9 (b) of Act 30 of 2000.]

 

          (13) An inquiry contemplated in this section shall be private and confidential and the presiding officer shall at any time on application by the person whose affairs are investigated or any other person giving evidence or the person contemplated in subsection (1), exclude from such inquiry or require to withdraw therefrom, all or any persons whose attendance is not necessary for the inquiry.

 

[Sub-s. (13) substituted by s. 9 (b) of Act 30 of 2000.]

 

          (14) Any person may, at the discretion of the presiding officer, be compensated for his reasonable expenditure related to the attendance of an inquiry, by way of witness fees in accordance with the tariffs prescribed in terms of section 51 of the Magistrates' Courts Act, 1944 (Act 32 of 1944).

 

          (15) Subject to subsection (16), the evidence given under oath or solemn declaration at an inquiry may be used by the Commissioner in any subsequent proceedings to which the executor of the estate of the deceased person whose affairs are investigated is a party or to which a person who had dealings with such person is a party.

 

[Sub-s. (15) added by s. 9 (c) of Act 30 of 2000.]

 

          (16) (a) No person may refuse to answer any question during an inquiry on the grounds that it may incriminate him.

 

          (b) No incriminating evidence so obtained shall be admissible in any criminal proceedings against the person giving such evidence, other than in proceedings where that person stands trial on a charge relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement in connection with such questions and answers.

 

[Sub-s. (16) added by s. 9 (c) of Act 30 of 2000.]

 

          (17) An inquiry in terms of this section shall proceed notwithstanding the fact that any civil or criminal proceedings are pending or contemplated against or involving any person contemplated in subsection (6) (c) or any witness or potential witness or any person whose affairs may be investigated in the course of such inquiry.

 

[Sub-s. (17) added by s. 9 (c) of Act 30 of 2000.]

[S. 8D inserted by s. 7 of Act 46 of 1996.]

 

[a45y1955s8E]8E     Search and seizure

 

          (1) For the purposes of the administration of this Act, a judge may, on application by the Commissioner or any officer contemplated in section 8A (4), issue a warrant, authorising the officer named therein to, without prior notice and at any time-

 

            (a)   (i)      enter and search any premises; and

 

                  (ii)      search any person present on the premises, provided that such search is conducted by an officer of the same gender as the person being searched,

 

                   for any information, documents or things, that may afford evidence as to the non-compliance by any person with his obligations in terms of this Act;

 

            (b)    seize any such information, documents or things; and

 

            (c)    in carrying out any such search, open or cause to be opened or removed and opened, anything in which such officer suspects any information, documents or things to be contained.

 

[Sub-s. (1) amended by s. 16 (a) of Act 30 of 1998.]

 

          (2) An application under subsection (1) shall be supported by information supplied under oath or solemn declaration, establishing the facts on which the application is based.

 

          (3) A judge may issue the warrant referred to in subsection (1) if he is satisfied that there are reasonable grounds to believe that-

 

            (a)   (i)      there has been non-compliance by any person with his obligations in terms of this Act; or

 

                  (ii)      an offence in terms of this Act has been committed by any person;

 

            (b)    information, documents or things are likely to be found which may afford evidence of-

 

                  (i)      such non-compliance; or

 

                  (ii)      the committing of such offence; and

 

            (c)    the premises specified in the application are likely to contain such information, documents or things.

 

          (4) A warrant issued under subsection (1) shall-

 

            (a)    refer to the alleged non-compliance or offence in relation to which it is issued;

 

            (b)    identify the premises to be searched;

 

            (c)    identify the person alleged to have failed to comply with the provisions of the Act or to have committed the offence; and

 

            (d)    be reasonably specific as to any information, documents or things to be searched for and seized.

 

          (5) Where the officer named in the warrant has reasonable grounds to believe that-

 

            (a)    such information, documents or things are-

 

                  (i)      at any premises not identified in such warrant; and

 

                  (ii)      about to be removed or destroyed; and

 

            (b)    a warrant cannot be obtained timeously to prevent such removal or destruction,

 

such officer may search such premises and further exercise all the powers granted by this section, as if such premises had been identified in a warrant.

 

          (6) Any officer who executes a warrant may seize, in addition to the information, documents or things referred to in the warrant, any other information, documents or things that such officer believes on reasonable grounds afford evidence of the non-compliance with the relevant obligations or the committing of an offence in terms of this Act.

 

          (7) The officer exercising any power under this section shall on demand produce the relevant warrant (if any).

 

          (8) The Commissioner, who shall take reasonable care to ensure that the information, documents or things are preserved, may retain them until the conclusion of any investigation into the non-compliance or offence in relation to which the information, documents or things were seized or until they are required to be used for the purposes of any legal proceedings under this Act, whichever event occurs last.

 

          (9) (a) Any person may apply to the relevant division of the High Court for the return of any information, documents or things seized under this section.

 

[Para. (a) amended by s. 16 (b) of Act 30 of 1998.]

 

          (b) The court hearing such application may, on good cause shown, make such order as it deems fit.

 

          (10) The executor of the estate to which the information, documents or things seized under this section relate, may examine and make extracts therefrom and obtain one copy thereof at the expense of the State during normal business hours under such supervision as the Commissioner may determine.

 

[S. 8E inserted by s. 7 of Act 46 of 1996.]

 

[a45y1955s9]9        Assessment of duty by Commissioner

 

          (1) The Commissioner shall assess the duty payable under this Act and shall in respect of every estate liable for the duty issue a notice of assessment to the executor or, if there is no executor, to any person liable for the duty.

 

          (2) The duty assessed shall be paid on such date and at such place as may be prescribed in the notice of assessment, and may be paid in one sum or in such instalments as may be determined by the Commissioner having regard to the circumstances of the case.

 

          (3) A notice of assessment shall be issued in respect of each return submitted in respect of any estate in which liability for duty is disclosed, due regard being had in the calculation of the duty to any duty chargeable on any previous returns submitted in respect of the same estate.

 

[a45y1955s9A]9A     Additional assessments

 

          If at any time the Commissioner is satisfied-

 

            (a)    that the value of any property which was subject to duty and should have been assessed to duty under this Act has not been assessed to duty; or

 

            (b)    that any amount of duty which was chargeable and should have been assessed under this Act has not been assessed,

 

he shall raise an assessment or assessments in respect of the said value or amount, notwithstanding that an assessment or assessments in respect of the value or amount in question may have been made upon the executor or person liable for the duty, and notwithstanding the provisions of section 24 (9): Provided that the Commissioner shall not raise an assessment under this subsection-

 

          (i)      after the expiration of five years from the date of the assessment notice in terms of which any value or amount which should have been assessed to duty under such assessment was not so assessed or in terms of which the amount of duty assessed was less than the amount of such duty which was properly chargeable, unless the Commissioner is satisfied that the fact that the value or amount which should have been assessed to duty was not so assessed or the fact that the full amount of duty chargeable was not assessed, was due to fraud or misrepresentation or non-disclosure of material facts; or

 

          (ii)      if the value or amount which should have been assessed to duty under the assessment referred to in paragraph (i) of this proviso was, in accordance with the practice generally prevailing as established by the Commissioner at the date of the assessment, not assessed to duty, or the full amount of duty which should have been assessed under such assessment was, in accordance with such practice, not assessed; or

 

         (iii)      in respect of any value or amount, if any previous assessment made on the executor or person concerned has in respect of that value or amount been amended or reduced pursuant to any order made by a special court for hearing income tax appeals constituted under the provisions of section 83 of the Income Tax Act 1962 (Act 58 of 1962), unless the Commissioner is satisfied that the order in question was obtained by fraud or misrepresentation or non-disclosure of material facts.

 

[S. 9A inserted by s. 7 of Act 86 of 1987.]

 

[NB: S. 9A has been amended by s. 14 (1) of the Second Revenue Laws Amendment Act 60 of 2001, a provision which will be put into operation by proclamation. See PENDLEX.]

 

[a45y1955s10]10     Payment of interest

 

          (1) If any duty remains unpaid at the expiration of a period of thirty days from the date of payment notified in accordance with subsection (2) of section nine, there shall be payable, in addition to the unpaid duty, interest at the rate of six per cent per annum on the amount of unpaid duty calculated from the date of the expiration of the said period to the date of payment: Provided that, where the assessment of duty is delayed beyond a period of twelve months from the date of death, interest at the rate of six per cent per annum shall be payable as from a date twelve months after the date of death on the difference (if any) between the duty assessed and any deposit (if any) made on account of the duty payable within the said period of twelve months.

 

          (2) Whenever the Commissioner is satisfied that the delay in the payment of duty within the period of thirty days from the date of payment notified in accordance with subsection (2) of section nine, or within the period of twelve months from the date of death, as the case may be, has not been occasioned either by the executor or by any person liable for the duty, he may allow an extension of time within which the duty may be paid without interest if, before the expiration of the said period of thirty days or the said period of twelve months, as the case may be or such further period as the Commissioner may allow-

 

            (a)    a deposit on account of the duty payable is made of an amount which, in the opinion of the Commissioner, is reasonable, regard being had to the amount of the duty payable; and

 

            (b)    application is made in writing to the Commissioner for such extension of time.

 

[a45y1955s11]11     Person liable for duty

 

          The person liable for the duty shall be-

 

            (a)    where duty is levied on property of the deceased which falls under subsection (2) of section three-

 

                  (i)      as to any property referred to in paragraph (a) or (b) of that subsection, the person to whom any advantage accrues by the death of the deceased;

 

                  (ii)      as to any other property, the executor;

 

            (b)    where duty is levied on property which, in accordance with subsection (3) of section three, is deemed to be property of the deceased-

 

                  (i)      as to property referred to in paragraph (a) of that subsection, the executor: Provided that where the amount due under the policy is recoverable by any person other than the executor, the person liable for the duty shall be the person entitled to recover the amount due under the policy;

 

                (iA)      as to property referred to in paragraph (a)bis of that subsection, the executor: Provided that where the benefit in question accrues to any person other than the executor, the person liable for the duty shall be such other person;

 

[Sub-para. (iA) inserted by s. 3 (1) of Act 56 of 1966.]

 

                  (ii)      as to any property referred to in paragraph (b) of that subsection, the donee;

 

[Sub-para. (ii) substituted by s. 13 (1) of Act 87 of 1988 and by s. 3 of Act 37 of 1995.]

 

                 (iii)      as to any property referred to in paragraph (cA) or (d) of that subsection, the executor.

 

[Sub-para. (iii) substituted by s. 3 of Act 37 of 1995.]

 

[a45y1955s12]12     Duty payable by executor

 

          Notwithstanding anything to the contrary contained in section eleven, any duty payable under this Act shall be payable by and recoverable from the executor of the estate subject to the duty: Provided that the liability under this section of any executor shall be a liability in his capacity as executor only and for an amount not exceeding the available assets in the estate.

 

[a45y1955s13]13     Right of recovery by executor

 

          (1) Every executor who is required to pay duty in respect of any property referred to in paragraph (a) (i), or in the proviso to paragraph (b) (i) or (b) (iA), or in paragraph (b) (ii), of section 11, shall be entitled to recover from the person liable therefore the duty attributable to such property.

 

[Sub-s. (1) substituted by s. 7 (1) (a) of Act 92 of 1971.]

 

          (2) The duty attributable to any such property shall be a sum which bears to the full duty payable in respect of the estate (before the deduction in accordance with the provisions of section 16 of any amount in respect of transfer duty or donations tax) the same ratio as that portion of the net value of the estate (as determined under section 4) which is attributable to the inclusion in the estate of the value of the said property, bears to the net value of the estate as so determined, reduced, in any case in which there is, in accordance with the said section 16, deducted from the duty payable in respect of the estate, any amount of transfer duty or donations tax paid in respect of any property included in the estate which has accrued to the person liable for the duty attributable to that property, by the amount of the transfer duty or donations tax so paid.

 

[Sub-s. (2) substituted by s. 7 (1) (b) of Act 92 of 1971.]

 

          (3) Whenever duty is in terms of section 11 (b) (i) payable by more than one person on the value of any property referred to in section 3 (3) (a), the amount of duty payable by each such person shall be such proportion of the total duty attributable to the total value of the said property, as bears to the said total duty the same ratio as so much of the amount which such person is entitled to recover under any policy as is included in the estate under section 3 (3) (a), bears to the total value of the said property.

 

[Sub-s. (3) substituted by s. 14 (1) of Act 87 of 1988.]

 

[a45y1955s14]14     Right to mortgage property

 

          To provide for the payment of any duty, the person liable therefor may, with the consent of the Master, borrow any moneys or mortgage any property in respect of which the liability for duty arises, notwithstanding any provision to the contrary contained in any deed or testamentary disposition or in any law.

 

[a45y1955s15]15     Recovery of duty paid in certain cases

 

          Any person who has disposed of property in respect of which a liability for duty in accordance with subparagraph (ii) of paragraph (b) of section eleven, thereafter arises, without having received full consideration therefor, may recover from the person to whom he has disposed of such property the amount of duty payable by him in respect thereof.

 

[a45y1955s16]16     Deduction of transfer duty and donations tax

 

          There shall be deducted from any duty payable under this Act-

 

            (a)    any transfer duty which is proved to the satisfaction of the Commissioner to have been paid in respect of the acquisition from the deceased or his estate of any property included in the estate for the purposes of the assessment of duty, by any person liable for the duty attributable to that property;

 

            (b)    ......

 

[Para. (b) amended by s. 11 of Act 77 of 1964 and deleted by s. 15 (1) of Act 87 of 1988.]

 

            (c)    without in any way modifying or adding to the rights of any person under an agreement entered into by the Government of the Republic with the Government of any other country or territory relating to the prevention of or relief from double taxation in respect of estate duty, any amount of any death duties proved to the satisfaction of the Commissioner to have been paid to any other State in respect of any property situate outside the Republic and included in the estate of any person who at the date of his death was ordinarily resident in the Republic: Provided that the deduction under this paragraph shall not exceed the duty imposed on such property by this Act.

 

[Para. (c) added by s. 5 (c) of Act 65 of 1960.]

 

[a45y1955s17]17     No account to be filed by Master before duty is paid or secured

 

          The Master shall not file any liquidation and distribution account in his office or grant a discharge to any executor until he is satisfied that the duty payable under this Act has been paid or secured to the satisfaction of the Commissioner or that the Commissioner consents to the discharge.

 

[S. 17 amended by s. 8 of Act 92 of 1971.]

 

[a45y1955s18]18     No property to be delivered by executor before duty provided for

 

          Before delivering or transferring any property of the deceased to any heir or legatee the executor shall satisfy the Commissioner that due provision has been made for the payment of any duty payable under this Act.

 

[a45y1955s19]19     Personal liability of executor

 

          Every executor who pays over or parts with the possession or control of any property under his administration without first paying any duties payable under this Act shall be personally and jointly and severally liable with any other person to whom he has paid over, or to whom he has delivered, any such property, for the amount of the duty ascertained by the Commissioner to be payable in respect thereof.

 

[a45y1955s20]20     Expenditure incurred by executor

 

          Every executor who is required to incur any expenditure in respect of any property which falls under paragraph (a) or (b) of subsection (2) or under subsection (3) of section three, shall be entitled to recover such expenditure from the person liable, in accordance with section eleven, for the duty payable in respect of such property.

 

[a45y1955s21 and 22]21 and 22      ......

 

[Ss. 21 and 22 repealed by s. 8 of Act 81 of 1985.]

 

[a45y1955s23]23     Returns by insurers

 

          Every person who carries on in the Republic any insurance business shall whenever he, on the death of any person, makes payment of any claim under any policy of insurance which is a 'domestic policy', upon the life of that person, advise the Commissioner, in such form as the Commissioner may require, of such payment.

 

[S. 23 amended by s. 6 of Act 81 of 1965 and substituted by s. 10 of Act 30 of 2000.]

 

[a45y1955s23bis]23bis  Burden of proofs as to exemptions, deductions or reductions

 

          The burden of proof that any amount is exempt from or not liable to duty or is subject to any deduction or other reduction under this Act shall be upon the person claiming such exemption, non-liability, deduction or reduction, and upon the hearing of any appeal from any decision of the Commissioner, the decision shall not be reversed or altered unless it is shown by the appellant that the decision is wrong.

 

[S. 23bis inserted by s. 14 of Act 77 of 1962.]

 

[a45y1955s24]24     Objection to assessment, and appeal to income tax special court from Commissioner's decision

 

          (1) (a) Every executor or other person liable for duty under this Act who is aggrieved by any assessment of such duty in terms of section 9 may, within 30 days after the date of the assessment notice, lodge with the Commissioner an objection in writing which shall specify in detail the grounds upon which it is made.

 

          (b) No objection shall be considered by the Commissioner which is not delivered at his office or posted to him in sufficient time to reach him on or before the last day appointed for lodging objections, unless the Commissioner is satisfied that there are reasonable grounds for the delay in lodging the objection: Provided that any decision of the Commissioner under this paragraph shall be subject to objection and appeal.

 

[Sub-s. (1) substituted by s. 10 (a) of Act 97 of 1993.]

 

          (2) The Commissioner may allow such objection, or disallow it, or allow it in part and disallow it in part.

 

          (3) The Commissioner shall give written notice to the objector of his decision on such objection.

 

          (4) If the objector is dissatisfied with such decision of the Commissioner he may appeal therefrom to the special court for hearing income tax appeals constituted under the provisions of section eighty-three of the Income Tax Act, 1962 (Act 58 of 1962), for the area in which the estate concerned is being administered: Provided that where any such appeal relates to the valuation of immovable property, or of both movable and immovable property, the membership of the special court by which the appeal is to be heard shall for the purposes of the hearing thereof be increased by the appointment thereto by the Commissioner from amongst persons approved by the President of two additional members who shall-

 

            (a)    if the immovable property in question is property which is situated outside the area of jurisdiction of any body (other than a divisional council) contemplated by section 84 (1) (f) (i) of the Provincial Government Act, 1961 (Act 32 of 1961), and on which farming operations are carried on, be persons who are bona fide farmers; or

 

[Para. (a) substituted by s. 10 (b) of Act 97 of 1993.]

 

            (b)    if the immovable property in question is not such property as is referred to in paragraph (a), be persons appointed and carrying on business as sworn appraisers; or

 

            (c)    if the immovable property in question consists partly of such property as is referred to in paragraph (a) and partly of such property as is referred to in paragraph (b), be respectively a person who is a bona fide farmer and a person appointed and carrying on business as a sworn appraiser.

 

[Sub-s. (4) amended by s. 12 (a) of Act 77 of 1964 and by s. 8 of Act 27 of 1997.]

 

          (5) (a) Every notice of appeal shall be in writing and shall be lodged with the Commissioner within 30 days after the date of the notice referred to in subsection (3).

 

          (b) No notice of appeal which is not delivered at the Commissioner's office or posted to him in sufficient time to reach him on or before the last day appointed for lodging appeals, shall be of any force or effect whatsoever unless the Commissioner is satisfied that there are reasonable grounds for the delay in lodging the notice of appeal: Provided that any decision of the Commissioner under this paragraph shall be subject to objection and appeal.

 

[Sub-s. (5) substituted by s. 10 (c) of Act 97 of 1993.]

 

          (6) At any such appeal the objector shall be limited to the grounds specified in the written objection lodged with the Commissioner in terms of subsection (1).

 

          (7) The special court hearing the appeal shall inquire into and consider the matter and may confirm, vary or set aside the decision of the Commissioner or give such other decision as, in its opinion, the Commissioner ought to have given, or, if it thinks fit, refer the relevant assessments back to the Commissioner for further investigation and assessment.

 

          (8) The provisions of subsections (8), (9), (10), (11), (12), (14), (15), (16) and (17) of section 83, and of sections 84, 85 and 86A, of the Income Tax Act, 1962, and any regulations made under that Act and relating to any appeal to the special court referred to in subsection (4) and to any appeal in terms of the said  section 86A, shall mutatis mutandis apply with reference to any appeal under this section.

 

[Sub-s. (8) amended by s. 12 (b) of Act 77 of 1964 and substituted by s. 2 (1) of Act 104 of 1976, by s. 8 (a) of Act 86 of 1987 and by s. 9 of Act 53 of 1999.]

 

          (9) Where no objections are made to any assessment or where objections have been allowed or withdrawn, such assessment or altered or reduced assessment, as the case may be, shall, subject to the right of appeal in terms of this section, be final and conclusive.

 

[Sub-s. (9) added by s. 8 (b) of Act 86 of 1987.]

 

[S. 24 amended by s. 17 of Act 59 of 1956, by s. 5 of Act 59 of 1957 and by s. 11 of Act 71 of 1961 and substituted by s. 15 of Act 77 of 1962.]

 

[NB: S. 24 has been substituted by s. 15 (1) of the Second Revenue Laws Amendment Act 60 of 2001, a provision which will be put into operation by proclamation. See PENDLEX.]

 

[a45y1955s25]25     Recovery of duty and interest

 

          (1) Any amount of duty or interest payable in terms of this Act shall, when it becomes due or is payable, be a debt due to the State, and may be recovered by the Commissioner in the manner provided in this section.

 

          (2) (a) If any person fails to pay any duty or interest payable in terms of this Act when it becomes due or is payable by him, the Commissioner may file with the clerk or registrar of any competent court a statement certified by him as correct and setting forth the amount thereof so due or payable by that person, and such statement shall thereupon have all the effects of, and any proceedings may be taken thereon as if it were, a civil judgment delivered in that court in favour of the Commissioner for a liquid debt of the amount specified in the statement.

 

          (b) The Commissioner may by notice in writing addressed to that clerk or registrar, withdraw the statement referred to in paragraph (a) and such statement shall thereupon cease to have any effect: Provided that the Commissioner may institute proceedings afresh under that paragraph in respect of any duty or interest referred to in the withdrawn statement.

 

          (c) The Commissioner may institute proceedings for the sequestration of the estate of any person and shall for the purposes of such proceedings be deemed to be the creditor in respect of any duty or interest payable by such person under the provisions of this Act.

 

          (3) Notwithstanding anything contained in the Magistrates' Courts Act, 1944 (Act 32 of 1944), a statement in respect of any amount may be filed in terms of subsection (2) (a) with the clerk of the magistrate's court having jurisdiction in respect of the person by whom such amount is payable in accordance with the provisions of this Act.

 

          (4) No person may in any proceedings in connection with any statement filed in terms of subsection (3), question the correctness of any assessment on which such statement is based, notwithstanding that an objection and appeal may have been lodged thereto.

 

          (5) Where, in addition to any amount of duty which is payable by any person in terms of this Act, any interest is payable by him in terms of the provisions of this Act, any payment made by that person on or after 1 April 1994 in respect of such duty or interest which is less than the total amount due by him in respect of such duty and interest shall for the purposes of this Act be deemed to be made-

 

            (a)    in respect of such interest; and

 

            (b)    to the extent that such payment exceeds the amount of such interest, in respect of such duty.

 

[Sub-s. (5) added by s. 11 of Act 97 of 1993.]

 

          (6) Any agreement concluded prior to 1 April 1994 between the Commissioner and the person liable for the payment of any duty or interest which provides for the allocation of any payment to be made on or after that date otherwise than in accordance with the provisions of subsection (5) shall, in so far as it provides for such allocation, cease to have effect.

 

[Sub-s. (6) added by s. 11 of Act 97 of 1993.]

 

[S. 25 amended by s. 16 of Act 77 of 1962 and substituted by s. 9 of Act 86 of 1987.]

 

[a45y1955s25A]25A   Refunds and set off

 

          (1) If it is proved to the satisfaction of the Commissioner that any amount of duty paid by an executor in respect of an estate was in excess of the amount properly chargeable under this Act, the Commissioner may, subject to the provisions of subsection (3), authorise a refund to such executor of any duty overpaid: Provided that an amount paid in respect of an assessment accepted by the executor and which was made in accordance with any practice generally prevailing at the date of that assessment, shall be deemed to have been properly chargeable.

 

          (2) The Commissioner shall not authorise any refund under this section unless the claim therefor is made within three years after the date of the assessment under which such duty was payable.

 

          (3) Where any refund contemplated in subsection (1) is due to any executor in respect of any estate of a person and such person has failed to pay any amount of tax, additional tax, duty, levy, charge, interest or penalty levied or imposed under any other law administered by the Commissioner, within the period prescribed for payment of that amount, the Commissioner may set off against the amount which that person has failed to pay, any amount which has become refundable to the executor of his or her estate under this section.

 

          (2) Subsection (1) shall come into operation on 7 November 2001 and shall apply in respect of any claim for a refund received by the Commissioner on or after that date.

 

[S. 25A inserted by s. 16 (1) of Act 60 of 2001.]

 

[a45y1955s26]26     Prevention of, or relief from double taxation

 

          (1) The National Executive may enter into an agreement with the Government of any other country,  whereby arrangements are made with such Government with a view to the prevention, mitigation or discontinuance of the levying, under the laws of the Republic and of such other country, of estate duty in respect of the same property or to the rendering of reciprocal assistance in the administration of, and in the collection of estate duty under the laws relating to estate duty in force in the Republic and in such other country  .

 

[Sub-s. (1) substituted by s. 9 (a) of Act 27 of 1997.]

 

          (2) As soon as may be after the approval by Parliament of any such agreement, as contemplated in section 231 of the Constitution, the arrangements thereby made shall be notified by publication in the Gazette and the arrangements so notified shall thereupon have effect as if enacted in this Act  .

 

[Sub-s. (2) amended by s. 13 of Act 77 of 1964 and substituted by s. 9 (a) of Act 27 of 1997.]

 

          (3) ......

 

[Sub-s. (3) amended by s. 5 of Act 99 of 1981 and deleted by s. 9 (b) of Act 27 of 1997.]

 

          (4) ......

 

[Sub-s. (4) deleted by s. 9 (b) of Act 27 of 1997.]

 

          (5) ......

 

[Sub-s. (5) amended by s. 5 of Act 99 of 1981 and deleted by s. 9 (b) of Act 27 of 1997.]

 

[a45y1955s27]27     Collection of duties under arrangements made under section 26

 

          (1) If the Commissioner has, in accordance with any arrangements made with the Government of any other country or territory by an agreement entered into under section twenty-six with a view to rendering reciprocal assistance in the collection of estate duties, received a request for the collection from any person in the Republic of an amount alleged to be due by him under the laws relating to estate duties in force in such other country or territory, the commissioner may, by notice in writing, call upon such person to state, within a period specified in the notice, whether or not he admits liability for the said amount or for any lesser amount.

 

          (2) The Commissioner may-

 

            (a)    if such person so admits liability; or

 

            (b)   (i)      if such person fails to comply with the notice or in answer to the notice denies his liability for the said amount or for any part thereof; and

 

                  (ii)      if a judge of the High Court sitting in Chambers has certified that he has afforded the person concerned an opportunity of presenting his case, and that on the information submitted to him by the Commissioner and by such person (if any), the amount specified in the certificate appears to be payable by such person in terms of a final determination under the laws relating to estate duties in force in such other country or territory,

 

[Sub-para. (ii) amended by s. 10 of Act 27 of 1997.]

 

by notice in writing require such person to pay the amount for which he has admitted liability or the amount so specified, as the case may be, on a date, at a place, and to a person specified in the notice, for transmission to the proper authority in such other country or territory.

 

          (3) If such person fails to comply with the notice under subsection (2) the amount in question may be recovered for transmission to the said authority, as if it were a duty payable by such person under this Act but subject, in the case of any amount to which any such certificate relates, to the outcome of any proceedings which such person may institute in such other country or territory for determining his liability for the said amount.

 

          (4) No steps taken in any other country or territory under any arrangements referred to in subsection (1), for the collection of an amount alleged to be due by any person under this Act and no judgment given against any such person in pursuance of such arrangements in such other country or territory for any such amount, shall affect his right to have his liability for any such amount determined in the Union in accordance with the provisions of this Act.

 

[a45y1955s28]28     Penalties

 

          (1) Any person who-

 

            (a)    in relation to any matter dealt with in this Act, makes any fraudulent or false statement or representation knowing it to be fraudulent or false; or

 

            (b)    after having been called upon to do so by the Commissioner in terms of section seven, fails within the period prescribed by the Commissioner, to submit the return required to be submitted in terms of that section or knowingly omits from such return any particulars required by this Act to be included therein,

 

shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

 

[Sub-s. (1) amended by s. 7 (a) of Act 81 of 1965 and by s. 11 (a) of Act 30 of 2000.]

 

          (2) Any person who-

 

            (a)    ......

 

[Para. (a) deleted by s. 9 of Act 81 of 1985.]

 

            (b)    fails to comply with the provisions of section twenty-three; or

 

            (b)bis without just cause shown by him, refuses or neglects to-

 

                  (i)      furnish, produce or make available any information, documents or things;

 

                  (ii)      reply to or answer truly and fully, any questions put to him; or

 

                 (iii)      attend and give evidence,

 

                   as and when required in terms of this Act; or

 

[Para. (b)bis inserted by s. 17 of Act 77 of 1962 and substituted by s. 8 of Act 46 of 1996.]

 

            (c)    fails to comply with any reasonable requirement of the Commissioner or Master made for the purpose of carrying out any provision of this Act; or

 

            (d)    obstructs or hinders the Commissioner or Master in carrying out any provision of this Act,

 

shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.

 

[Sub-s. (2) amended by s. 7 (b) of Act 81 of 1965, by s. 12 of Act 97 of 1993 and by s. 11 (b) of Act 30 of 2000.]

 

[a45y1955s28A]28A   Publication of names of offenders

 

          (1) The Commissioner may from time to time publish by notice in the Gazette a list of persons who have been convicted of any offence in terms of-

 

            (a)    section 28;

 

            (b)    the common law, where the criminal conduct corresponds materially with the offence referred to in paragraph (a),

 

after any appeal or review proceedings in relation thereto have been completed or not been instituted within the period allowed therefor.

 

          (2) Every such list may specify-

 

            (a)    the name and address of the offender;

 

            (b)    such particulars of the offence as the Commissioner may think fit;

 

                   (c) the particulars of the fine or sentence imposed.

 

[S. 28A inserted by s. 17 (1) of Act 30 of 1998.]

 

[a45y1955s29]29     Regulations

 

          The Minister of Finance may make regulations for the better carrying out of the objects and purposes of this Act including regulations as to the valuation of annuities or of fiduciary, usufructuary or other limited interests in property and the hearing of an appeal under section 24.

 

[S. 29 substituted by s. 4 of Act 89 of 1972 and by s. 3 of Act 92 of 1983 and amended by s. 46 of Act 97 of 1986.]

 

[a45y1955s30]30     Forms to be prescribed

 

          The Commissioner may prescribe such forms as he may consider necessary for the proper carrying out of any provision of this Act or the regulations made thereunder.

 

[a45y1955s31]31     Repeal of laws

 

          (1) The laws set out in the Second Schedule are hereby repealed to the extent set out in the third column of the said Schedule: Provided that the said laws shall continue to apply in relation to the estate of any person who died before the first day of April, 1955.

 

          (2) Any agreement entered into and any proclamation issued under section thirty six bis of the Death Duties Act, 1922 (Act 29 of 1922), and in force at the date of commencement of this Act shall be deemed to have been entered into or issued also under section twenty six of this Act.

 

[a45y1955s32]32     Short title and date of commencement

 

This Act shall be called the Estate Duty Act, 1955, and shall be deemed to have come into operation on the first day of April, 1955.

 

NOTE: Government Notice 125 of 27 January 1956 reads as follows: 'It is hereby notified for general information that the Commissioner for Inland Revenue has, under and by virtue of the powers vested in him by subsection (2) of section six of the Estate Duty Act, 1955 (Act 45 of 1955), delegated to the several Masters and Assistant Masters of the Supreme Court and to all officers in the offices of the several Masters and Assistant Masters of the Supreme Court holding administrative rank, the powers, duties and functions set out in the Schedule hereto:

 

Powers, Duties and Functions Delegated

Section of Estate Duty Act, 1955 under which Powers, Delegated Duties and Functions are Exercised

To Admit claims as to the amount of any premiums or consideration paid by persons entitled to the amounts due under any policies of insurance

 Paragraph (a) of subsection (3) of section three

To decide whether the consideration paid for any property is a full consideration for that property

 Paragraph (a) of subsection (4) of section three

To determine whether the amount claimed in respect of funeral and deathbed expenses is fair and reasonable

 Paragraph (a) of section four

To admit claims in respect of any debts which have been discharged from property included in the estate

 Paragraph (b) of section four

To admit as claims so much of any debts due by the deceased to persons ordinarily resident outside the Union as exceed the value of any assets of the deceased outside the Union

 Paragraph (f) of section four

To decide whether a purchase and sale is a bona fide purchase and sale in the course of the liquidation of the estate

 Paragraph (a) of subsection (1) of section  five

To admit any claim that consideration was paid for the right of ownership in property

 Paragraph (b) of subsection (1) of section five

To appoint an impartial person to determine the fair market value of property 

 Paragraphs (f) and (g) of subsection (1) and subsection (2) of section (five)

To determine the annual yield of an interest in property

 Subparagraph (iii) of paragraph (f) of subsection  (1) of section five and subsection (2) of section five

To decide whether any conditions affecting the value of any property were imposed by or at the instance of the deceased.

 Paragraph (g) of subsection (1) of section five

To appoint any person to submit a return in prescribed form

 Subsection (1) of section seven

To receive the returns submitted by executors or other persons

 Subsection (1) of section seven

To call upon any person to submit a return within a prescribed period, to prescribe such period, and to estimate the dutiable value of an estate in the absence of a return

 Subsection (2) of section seven

To adjust the value of any property shown in a return, and to determine the dutiable amount of an estate

 Subsection (1) of section eight

To call upon any person to furnish information

 Subsection (2) of section eight

To assess the duty payable under the Act and to issue notices of assessment

 Subsection (1) of section nine

To allow an extension of time within which duty may be paid without interest in cases where an assessment has not yet been issued

 Subsection (2) of section ten

To decide whether a deposit on account of duty is reasonable

 Paragraph (a) of subsection (2) of section ten

To admit claims as to the amounts of transfer duty and donation tax which may be allowed as deductions from the duty payable

Section sixteen

To ensure that due provision has been made for the payment of duty

 Section eighteen

To ascertain the amount of duty payable in respect of any property which an executor has paid over or with which he has parted without first paying duty thereon

 Section nineteen

To consent to the transfer of stocks or shares

 Subsection (1) of section twenty-one

To consent to the transfer of immovable property

 Subsection (1) of section twenty-two

To determine what reduction shall be made, in terms of the second proviso to the First Schedule, in the amount of duty payable'

 Second proviso to First Schedule

 

NOTE: Government Notice 964 of 22 June 1962 reads as follows:

 

          "It is hereby notified for general information that the Commissioner for Inland Revenue has, under and by virtue of the powers vested in him by subsection (2) of section six of the Estate Duty Act, 1955 (Act 45 of 1955), delegated to the several Commissioners and to all other officers in the offices of the several Commissioners holding administrative rank, the powers, duties and functions set out in the Schedule hereto, to be exercised by the said Commissioners and/or officers of administrative rank in the offices of Commissioners, in relation to the intestate estates of Blacks who died on or after the 1st April, 1955".

 

Powers, Duties and Functions Delegated

Section of Estate Duty Act, 1955, under which Powers, Duties and Functions are Delegated

To consent to the transfer of immovable property

Subsection (1) of section twenty-two

 

First Schedule
RATE OF ESTATE DUTY

 

[First Schedule amended by s. 6 of Act 59 of 1957, by s. 12 of Act 71 of 1961 and by s. 14 (1) of Act 77 of 1964, substituted by s. 8 of Act 81 of 1965, amended by s. 1 (1) of Act 75 of 1968, substituted by s. 9 (1) of Act 92 of 1971 and amended by s. 13 (1) of Act 106 of 1980, by s. 3 (1) of Act 71 of 1986, by s. 16 (1) of Act 87 of 1988, by s. 11 (1) of Act 37 of 1996 and by s. 4 (1) of Act 5 of 2001.]

 

The rate of estate duty shall be 20 per cent of the dutiable amount of the estate: Provided that where duty becomes payable upon the value of any movable or immovable property or on a value determined by reference to the value of any movable or immovable property, and duty has, upon the death of any person (hereinafter referred to as the first-dying person), who died within ten years prior to the death of the deceased, become payable upon the value of that movable or immovable property or upon a value determined by reference to the value of that movable or immovable property (or any movable or immovable property for which the Commissioner is satisfied that that movable or immovable property has been substituted), the duty attributable to the value of that movable or immovable property or, as the case may be, the value determined by reference to the value of that movable or immovable property, but not exceeding (in either case) an amount equal to the value on which duty has become payable on the death of the first-dying person, shall be reduced by a percentage according to the following scale-

 

if the deceased dies within two years of the death of the first-dying person

100 per cent

if the deceased dies more than two years, but
not more than four years after the death of the first-dying person

80 per cent

if the deceased dies more than four years, but
not more than six years after the death of the first-dying person

60 per cent

if the deceased dies more than six years, but
not more than eight years after the death of the first-dying person

40 per cent

if the deceased dies more than eight years, but
not more than ten years after the death of the first-dying person

20 per cent

 

subject to a maximum reduction equal to so much of the duty previously payable upon the death of the first-dying person as is attributable to the value of that movable or immovable property or, as the case may be, to an amount equal to the value determined by reference to the value of that movable or immovable property, and as is proved to the satisfaction of the Commissioner to have been borne by the deceased.

 

Second Schedule
LAWS REPEALED

 

Number and Year of Law

Title

Extent of Repeal

Act 29 of 1922

 Death Duties Act, 1922

 The whole

Act 31 of 1925

 Death Duties Act, 1922, Amendment Act, 1925

 The whole

Act 34 of 1930

 Financial Adjustments Act, 1930

 Section ten

Act 64 of 1934

 Finance Act, 1934

 Section ten

Act 33 of 1939

 Finance Act, 1939

 Section twelve

Act 23 of 1942

 Death Duties Amendment Act, 1942

 The whole

Act 33 of 1944

 Death Duties Amendment Act, 1944

 The whole

Act 46 of 1945

 Finance Act, 1945

 Sections sixteen and seventeen

Act 60 of 1951

 Death Duties Amendment Act, 1951

 The whole

Act 33 of 1954

 Death Duties Amendment Act, 1954

 The whole