Withholding Tax on Royalties

Source: sars.gov.za

Documents referred to in this article:

WTR01 – return form
Withholding Tax on Royalties Declaration (WTRD)
Withholding-Tax-on-Royalties-Summary-of-DTA-Rates-Africa
Withholding-Tax-on-Royalties-Summary-of-DTA-Rates-Rest-of-the-World

This article summarizes the detail of the Withholding Tax on Royalties.

The WTR is due on any amount of royalty paid to or for the benefit of a foreign person from a source within South Africa.

The foreign person is liable for the tax, but the tax must be withheld from the royalty payment by the person paying it to the foreign person (i.e. the withholding agent).

A royalty is any amount that is received or accrues in respect of:

The use, right of use, or permission to use any intellectual property,
Imparting or undertaking to impart any scientific, technical, industrial, or commercial knowledge or information, or
Rendering of or the undertaking to render any assistance or service in connection with the application or utilization of that knowledge or information.

Royalties paid are taxed at a final withholding tax rate of 15%.

Where withholding tax on royalties was withheld by a withholding agent, a Return for Withholding Tax on Royalties (WTR01) form must be submitted to lbqueries@sars.gov.za with proof of payment for taxpayers that deal with large businesses.

For clients that are not large businesses, the WTR01 return form with the proof of payment and any supporting documents can be sent to: contactus@sars.gov.za (for taxpayers) or PCC@sars.gov.za (for Tax practitioners)

When completing the WTR01, an exemption or a reduced rate may apply.

Intellectual property rights

The following rights :

  1. Copyright and related rights;
  2. trademarks: any sign, including words, names, letters, numerals, figurative elements, and combinations of colours, or combinations of these used by a manufacturer or merchant to identify its goods and distinguish them from those manufactured or sold by others;
  3. geographical indications, which identify a good as originating in the territory of a State, or a region or locality in that territory, where a given quality, reputation, or other characteristics of the good is essentially attributable to its geographical origin;
  4. industrial designs;
  5. patents which shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step, and are capable of industrial application;
  6. layout-design (topographies) of integrated circuits: either a protected layout design or an integrated circuit in which a protected layout design is incorporated;
  7. protection of undisclosed information such as trade secrets and other business confidential information.

Notes:

  1. This term is defined by the World Intellectual Property Organization.
  2. This is an overall definition, and Customs administrations should refer to the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS), including trade in counterfeit goods, in their application of legislation relating to intellectual property rights.

Exemptions or reduced rates for WTR

A Withholding Tax on Royalties Declaration (WTRD) must be completed by the foreign person and be submitted to the withholding agent before an exemption or a reduced rate may be applied in the calculation of the withholding tax on the royalty amount to be paid. The WTRD must be kept for five years, by the withholding agent as you may be asked to send it to SARS. It is the responsibility of the payer to make sure that the declaration made by the foreign person is in the form as prescribed.

Exemptions

Parts A,B, and C of the WTRD must be completed. The example form is provided in this article.

The following exemptions may apply, to the foreign person, before paying the royalty to the foreign person:

A foreign person is a natural person who was physically present in the Republic for a period of more than 183 days in total during the twelve-month period before the date on which the royalty is paid.
The property in respect of which the royalty is paid is effectively connected to a permanent establishment of that foreign person in the Republic, and that foreign person is registered as a taxpayer in terms of the Act.

Important:
The exemptions won’t apply unless the WTRD has been submitted to the payer of the royalty before payment of the royalty is made. Please note a WTRD doesn’t need to be completed in order to qualify for the exemption when the royalty is paid by a headquarters company in respect of the granting of the use, the right of use, or permission to use intellectual property under certain circumstances.

Reduced Rate

Parts A,B, and D of the WTRD must be completed.
The foreign person could qualify for a reduced rate of tax in terms of an Agreement for the Avoidance of Double Taxation and Prevention of Fiscal Evasion (DTA) between South Africa and the country of residence of the foreign person.
It’s also possible for the foreign person to be exempt in terms of the DTA, for example where South Africa doesn’t have the right to tax royalties.

The withholding tax must be paid before the end of the month following the month in which the royalty was paid. The payer must (together with the payment) submit a Return for Withholding Tax on Royalties (WTR01), which is a summary of the total of all royalty payments made and tax withheld during a month, to SARS.

If the last day of the month is a public holiday or weekend, the payment must be made on the last business day before the public holiday or weekend.

WTR can only be paid to SARS via:

SARS eFiling
EFT at the Bank
Over the counter at the bank

The amount of the royalty must be converted to South African rand (R) at the spot rate on the day the tax is withheld.
If the foreign person doesn’t send the Withholding Tax on Royalties Declaration (WTRD), for either an exemption or a reduced rate, before payment of the royalty is made, they have three years in which to correct this and re-submit to SARS. A refund may be claimed for the additional amount of tax paid if needed.

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