New filing requirements for insolvent taxpayers

SARS published a new guide on 25 January 2019 stating that, as from 25 January 2019, individual taxpayers that are voluntarily or mandatorily sequestrated must submit income tax returns in the following manner: 
 
This document is applicable to:

  • executors representing individuals who have passed away on or after 1 March 2016,
  • appointed trustees/administrators where an individual becomes insolvent and income accrued or business conducted from the date of sequestration .

The SARS Guide may be downloaded here: Guide

Insolvent individual – the tax reference number that was used before sequestration will be closed and can no longer be used going forward.  Any income tax returns that are outstanding before the date of sequestration must be submitted using the income tax reference number used before you were declared insolvent.

Insolvent estate – the trustee of an insolvent estate must apply for a new tax reference number for the insolvent estate.  The new tax reference number will then be used for any interactions with SARS from the date of sequestration until the end of the last day, of that year of assessment. 

This second tax reference number is not compulsory, and is only applicable where the whole or part of any business undertaking of the insolvent person is transferred to the trustee of the insolvent estate.

Individual post-insolvency – you must apply for a new income tax reference number once you have been declared insolvent in order to interact with SARS in respect of tax you may be liable for any returns you need to submit. 

INSOLVENCY

When a natural person becomes insolvent, a possibility of dealing with three taxpayers might arise:

  • the insolvent person for the period before sequestration
  • the insolvent estate
  • the insolvent person for the period after sequestration

The effect of insolvency from an income tax point of view is to terminate the tax status of the insolvent person before sequestration and to substitute it with a new taxpayer from the date of sequestration.

The natural person (insolvent person after sequestration) receives a new taxpayer identity from the date of sequestration. Where there are assets in the insolvent person the assets will be disposed of under the insolvent estate.

A separate tax return must be submitted for each of the periods identified.

THE INSOLVENT PERSON BEFORE SEQUESTRATION

A final tax return must be completed for the insolvent person for the period from the first day of the year of assessment to the day before the date of sequestration.

THE INSOLVENT ESTATE

The insolvent estate is registered as a separate tax entity and a new income tax reference number is allocated to it. The insolvent estate will come into being only if there are capital gains and losses that must be accounted for in case where assets are disposed to third parties.

Its first period of assessment will commence on the date of sequestration and end on the last day of February that follows thereafter. The second and subsequent years of assessment will commence on 1 March of that year and end on the last day of February that follows thereafter. The period of assessment during which the estate is wound up will commence on 1 March of that year and end on the date when the estate is finally wound up.

THE INSOLVENT PERSON AFTER SEQUESTRATION

An insolvent person who enters into employment or carries on a profession or business after his sequestration, is liable for tax on that income in its own right.

The first tax period will run from the date of sequestration to the last day of that year of assessment.

This article is provided for information only and does not constitute the provision of professional advice of any kind.

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