Section 23H of the Income Tax Act, No 58 of 1962 – deductions claimed for prepaid expenditure

Section 23H of the Income Tax Act is one that is often carefully reviewed by SARS for correct application by businesses.

This portion of the Income Tax Act, No 58 of 1962 governs the extent of the deduction that may be claimed during any particular year of assessment in respect of prepaid expenditure which otherwise qualifies for a deduction in terms of section 11 of the Act.

The purpose is to limit the amount of the deduction during any particular year of assessment to the extent of the goods supplied, services rendered or other benefits the person will become entitled to during such year of assessment.

Application of Section 23H requires that the user understand and applies the requirements of Section 11 (a),(c) or (d), Section 28(2) (a) and (c) and Section 24I, 24J, 24K and 24L.

This article deals with the aspect of prepaid expense and refers to an expense that is incurred in one financial year in respect of an asset that will only be consumed during one or more subsequent financial years, or an expense that relates to a later year than the one in which it was incurred.

It is disclosed as an asset on the balance sheet during the financial year in which it is incurred and it is only expensed to the income statement in subsequent financial years to the extent that it is consumed in or applies to such years.

One example in which section 23H does not apply is if all the goods or services will be supplied to the taxpayer within six months from the end of the year of assessment during which the expenditure is incurred, or if the taxpayer will obtain the full enjoyment of the benefit to which the expenditure relates within such six-month period.

One prominent court case ruling applicable to section 23H is that of Telkom vs SARS.

During its 2012 tax year, Telkom paid R178 788 421 to Velocity as a cash incentive bonus for the total number of customer contracts concluded on its behalf during such year. In its tax calculation for the year, Telkom claimed the full amount as a deduction in terms of the general deduction formula listed in Section 11 (a) of the Act.

SARS disallowed R136 531 542 as a deduction in terms of section 23H, on the basis that the period to which the expenditure related extended beyond Telkom’s 2012 tax year. Telkom appealed and the matter proceeded to the Tax Court which ruled in favour of Telkom by stating that Section 23H did not apply in this case. This is a rather odd ruling by the Tax Court given that there is a time-frame limit of 6 months from the end of the year of assessment as stated above.

SARS appealed the ruling and the matter proceeded to the Supreme Court of Appeal and a ruling in favour of SARS was made. One can deduce that court rulings do not always seem to agree on certain interpretations of the law.

The Supreme Court of Appeal held that Telkom enjoyed no immediate benefit upon the conclusion of customer contracts in respect of which the cash incentive bonuses were paid. The benefit to Telkom was rather to have customers who pay monthly subscription fees over the 24-month term of their contracts. It was, accordingly, held that Telkom enjoyed the benefit of the cash incentive bonus payments over the 24-month period of the relevant contracts and that SARS was correct in limiting Telkom’s expenditure in terms of section 23H. The Supreme Court of Appeal held that the commission payments made by Telkom over the term of the contracts did not alter the fact that the benefit of the incentive bonus payments (i.e. the monthly income) is enjoyed by it over the term of the contracts (and by implication beyond the year of assessment and applicable time-frame limits).

Corporate taxpayers are specifically required to disclose in their annual ITR14 income tax returns their prepayments for the year, which are then further divided into prepaid expenditure not limited by section 23H and prepaid expenditure limited by section 23H.

Businesses are advised to use knowledgeable and qualified Tax Practitioners to assist in this regard to prevent queries by SARS.

Author Craig Tonkin

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