Tax implications arising from the conversion of par value shares to no par value shares

Reference documents and/or legislation

Income Tax Act no. 58 of 1962, as amended
Securities Transfer Tax Act no. 25 of 2007
Companies Act No. 71 of 2008, as amended

The reader is advised to also read our previous article of August 2021 titled “Company Memorandum of Incorporation Amendments – Shares and Share Capital” together with this article.

SARS issued a Binding Class Ruling some time ago dealing with the tax implications for conversion of par value shares to no par value shares.

This is a ruling on the interpretation and application of the provisions of:

section 1(1), definition of “gross income”;
paragraph 11 of the Eighth Schedule; and
section 1 of the STT Act, definition of “transfer”

In this situation SARS had to provide a ruling on the proposed transaction for the conversion of all the ordinary par value shares by the Applicant to ordinary no par value shares as directed under item 6 of Schedule 5, read with Regulation 31 and section 35(2) of the Companies Act No. 71 of 2008. The conversion is aimed at compliance with the Companies Act, as well as part of a wider restructuring program to be undertaken by the Applicant.

In particular, the Applicant had to file an amendment to its Memorandum of Incorporation to convert its ordinary par value shares to ordinary no par value shares in accordance with sub-regulations (6) to (11) of Regulation 31 to the Companies Act.

The steps required to implement the proposed conversion transaction are specified in Regulation 31 of the Companies Act, namely:

a. the preparation by the board of the Applicant of a report relating to the conversion;
b. the adoption of special resolutions by the shareholders of the Applicant to implement the conversion; and
c. the filing of the proposed special resolutions and report with the Companies and Intellectual Property Commission and the South African Revenue Service.

In effecting the conversion by the Applicant of its ordinary par value shares to ordinary no par value shares it should be noted that:

  1. the proposed transaction will be implemented on the basis that all ordinary par value shares in the Applicant will be converted to ordinary no par value shares. There will be no distinction between any Shareholders, thereby ensuring that there will be no identifiable benefits or different rights applicable to any particular Shareholder;
  2. the rights relating to the shares in the Applicant subsequent to the conversion will remain unchanged. Amongst others, there will be no change to any Shareholder rights relating to– 2.1 the voting rights in the Applicant;
    2.2 any participation in any profits of the Applicant;
    2.3 any participation in the capital of the Applicant;
    2.4 the rights upon the winding-up of the Applicant;
    2.5 the rights of the Shareholders in the Applicant will be preserved after implementation of the transaction;
    2.6 there will be no compensation payable to any of the Shareholders after the conversion; and
    2.7 all Shareholders will be treated equally in relation to the implementation of the proposed transaction and there will be no changes to any of the Shareholder’s rights relating to their shares in the Applicant.

The ruling made by SARS in connection with the proposed transaction is as follows:

a. there will be no “disposal” for the Shareholders as contemplated in paragraph 11(1)(a) of the Eighth Schedule if the relevant shares in the Applicant are held on capital account;
b. there will be no “receipt” or “accrual” for the Shareholders as contemplated in section 1(1), the definition of “gross income”, if the relevant shares in the Applicant are held on revenue account; and
c. there will be no “transfer” as contemplated in section 1 of the STT Act and therefore no liability to account for STT.

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