Taxation Laws Amendment Bill [B29-15]; Tax Administration Laws Amendment Bill [B30-15]: public hearings & response

Meeting report

Association for Savings and Investment SA (ASISA) submission
Ms Rosemary Lightbody, Senior Policy Adviser, said that ASISA members had always supported annuitisation and welcomed the introduction of measures for the preservation of withdrawal benefits and mandatory contributions to retirement funds, as soon as possible. Simplicity and harmonisation across the different types of retirement funds was important to enhance understanding and buy-in of members and other stakeholders. ASISA strongly supported Option 1, which made it possible for the compulsory annuitisation of provident fund retirement benefits to commence.

Old Mutual submission
Mr Gary Eaves, Head: Tax at Old Mutual, said that the Standing Committee's proposed amendment to section 53(1)(f) as it appears in the A list of the Taxation Laws Amendment Bill (B29A—2015) was not discussed in the 2 November 2015 consultations. The proposed amendment related to the treatment of insurance contracts between South African insurance companies and foreign insurance companies. There were two types of such contracts –“insurance” and “reinsurance”. The two contract types looked very similar. The proposed amendment would result in a more onerous treatment of “reinsurance” contracts which would not be equitable. Tax treatment was not to be driven by the “label”.
 
Discussion
Mr D Van Rooyen (ANC) commented that the rate of tax avoidance was immoral. Opportunity was denied to build a solid revenue base for development. Why was there a sudden about-turn by Treasury and SARS because of the submission by Old Mutual. The question was: How was going back to the July amendment address the avoidance issues picked up by Treasury?

Mr Van Rooyen said that the ASISA presentation brought up that capitalisation of provident fund annuitisation was an administrative challenge, especially on the enforcement side. He wondered about the impact of separating harmonisation of tax from provident fund annuitisation. The question was if it could be separated, so that tax harmonisation could be introduced currently, with annuitisation focused on at a later stage. He asked about the impact on a system ready to kick in at an appropriate time.

The Chairperson said that a situation had to be avoided where parties [the Executive and Old Mutual] agreed outside of Parliament. That meeting was not chaired by the Standing Committee subcommittee. The Committee had to have a view on it. It was not in order for the Executive and a major private company to come to a deal. Parliament had to have its own view.

Mr A Lees (DA) commented that tax avoidance was dealt with in the initial amendment in July, to the satisfaction of a single player in the industry.

The Chairperson said that the Standing and Select Committees had to know what they agreed on. There was no need to vote on the matter today. An interim view had to be signalled.

Mr B Topham (DA) said that it was only section 53(1)(f) that went back to the July version. The issue was to avoid unintended consequences of classifying a reinsurance contract differently to an insurance contract.

Mr Eaves replied that it had to be asked if the anti-avoidance goal of the provision had been achieved. The 27 July version was broader than the Committee's proposed amendment. Going back would prevent more than amendment to the amendment.

The Chairperson asked if the earlier version was more effective.

Mr Eavers replied that it was arguably penally more effective. It treated everyone equally badly.

Mr Ismail Momoniat, DDG: Tax and Financial Sector Policy, National Treasury, noted that it was not a new provision. It had been dealt with years before. Company A had a set of policies that were drastic in terms of tax avoidance. There was a certain approach to deadlines. Company B was more conservative. It paid at a capital gains rate, not the full rate. It was applauded when tax avoidance was closed off. Tax avoidance was legal. The question was how much time the affected party had to adjust. It was already there in the 2015 version, only a small technical correction was made. There was an unforeseen impact on Company B. Company B forwarded a case for time to adjust. Further amendment had to be made to the amendment. Company A had had a longer time to adjust. Company B also had to be given time to adjust. SARS and the Financial Services Board (FSB) had to be called in because there were issues related to "SAM". At the time it was not known what the impact was. There was a counter proposal to separate the companies and to revert back to the original but with a later date.

Mr Franz Tomasek, Group Executive for Legislation and Policy Research for SARS, commented that the object had been to close down tax avoidance, because play on the label was being argued. It was argued that because there was a different label on what was being done, the original amendment was not catching them. SARS was saying that it did. Old Mutual was saying that it was unfair to catch them for the life span of contracts already entered into. It would enter into capital gains tax if it had to unwind. Their competitors were able to unwind tax free. Care had to be taken not to lock in a permanent capital gains treatment. Discussion between SARS, Treasury and the parties were useful for them to see the balance. Tax avoidance could not be allowed forever. To lock it in for contracts already concluded seemed a bridge too far. A capital gain was triggered that allowed them to lock in the benefits they had had thus far. It was necessary to move forward on a consistent and reasonable basis for everyone.

Ms T Tobias asked for clarity about triggered capital gains. Section 9(3) dealt with it. She thought it related to calculation of contracts between laypersons, individuals or companies.

Ms Yanga Mputa, Chief Director: Legal Tax Design: Tax Policy Unit, replied that 9(3) dealt with the return of capital after a share had been held for three years. In the present case it dealt with the amount of capital gains tax when a contract with a foreign company was entered into. It was two different streams.

The Chairperson said that the agreement between the two parties was accepted.

South African Reward Association (SARA) submission
Ms Mentje Larney, Remuneration and Benefit specialist, said that most SARA members agreed with the NEDLAC view that retirement reform in its entirety was not to be implemented. The close second (42%) preference of members was that full implementation should be done, as per Option 1 in the National Treasury communication of 27 October 2015. SARA was of the view that the cap of R350 000 had to be adjusted for inflation. SARA encouraged that the full policy framework be made available for comment and that informed contributions could be invited and considered.

COSATU submission
Mr Matthew Parks, Parliamentary Officer, said that COSATU’s long standing demand was for the establishment of comprehensive social security for all. COSATU was adamant that government had to address the plight of vulnerable workers as identified by the Department of Labour. COSATU believed that proposals of the Tax Laws Amendment Bill released by Treasury needed to be unpacked and engaged with to ensure that workers understood the full implications and that their concerns were fully addressed. For that to happen, COSATU believed that engagements with NEDLAC needed to be concluded. Treasury had to return to NEDLAC and table the proposals in full, including the comprehensive social security discussion paper.

Discussion
Mr Momoniat said that ASISA was mostly involved on the administrative or investment side. ASISA did not like the delay options. 2c was seen to be the worst. There was a plea from that side to proceed with Option 1. He had not yet heard of SARA. He referred SARA to the Treasury website for the retirement reform papers. Policies were based on papers produced in 2012. Nothing was received from SARA at that time. He asked who SARA actually represented. There were organisations that interacted with old versions of the legislation. The issue did go to NEDLAC but it did not have a view. There were unresolved issues. SARA represented the top earners, therefore the R350 000 was not high enough. The poor did not get the benefit of tax deduction. The annuitisation issue came in. If tax deduction was used, the expectation was that there had to be annuitisation. He did not currently want to deal with the preservation issue. A paper would be put out. The loophole of resigning in order to draw the fund had to be dealt with. Currently there were people who resigned at 59 years and 11 months. There had to be consultation about that. 100% preservation was not possible. If someone lost a job that person had to be allowed to withdraw funds. Fund members would be encouraged to go for gradual withdrawal through the Unemployment Insurance Fund (UIF). There could be full withdrawal if the person could not find another job. Treasury had started with a hard line on preservation, but the approach became more nuanced. The unions had commended the criminalising of employers who did not hand over member’s contributions. To insist that there could be no change until the social security paper came out was not helpful. If there was no change regarding tax avoidance, the wrong people would benefit. The public interest was considered.

Mr Momoniat said SARA were saying that unlimited tax deduction had to be allowed to higher income tax payers. That reform was made - tax avoidance was legal. People were exercising their rights in terms of the law. If the law was not changed, people would persist with doing that kind of tax structure.

He said that it was accepted that workers felt strongly about the provident fund. Shop stewards had been met with. Treasury was saying that it was not government that was touching their money, it was the trustees. There were conflicts of interest and power relations. Some reforms took a long time and had to be done in stages. The point about annuitisation was that there was no tax deduction. There were other products available. Employer contributions were non-taxable. It was a fringe benefit. Every month workers got tax deductions, which meant that they could take slightly more home. It would take lower income workers four or five years to reach the R247 500 threshold. Even up to year two all savings up to March 1 in the previous year could be taken as a lump sum. For those under 55, new contributions after 1 March 2016 would go through as new contributions to the fund. He appealed to COSATU that things go ahead. If there were problems, a common message could be put out to educate people. Legislation could be reviewed. People had to be told that if they wanted to get out they would not get the tax deduction. People had to get used to moving in the right direction. The system had the wrong defaults. When people left their work, the HR section paid the amount. People had to know that default rates in preservation went to the member. If it was not used up, the tax benefits could still be enjoyed. It was only when one withdrew that one got hit with tax.

Mr Olano Makhubela, Treasury Chief Director: Financial Investments and Savings, said that there was a commitment to release the social security paper. Treasury and the Departments of Social Development and Labour collaborated on it. It would take a while to finalise the paper. The issues were complex. Actuaries had to be employed to model benefit and cost implications to the State. If it was decided to go for a single national fund, it had to be known what the implications of a defined benefit (DB) or defined contribution (DC) fund would be. It happened in Greece that there were generous pension benefits, while the economy was not growing well. There were negative implications for those who were protected. The design of a national fund was critical. Work had been done before 2008. Treasury then stepped back and learned lessons. The approach that emerged was to resolve the difficult issues or to pull out. Critical reforms could be attended to. COSATU and other stakeholders had not seen the social security paper. He had seen the paper and could assure the Committees and COSATU that it would be consistent with comprehensive social security. The system had to be simplified to be understood. People could get higher tax benefits. Concerns from COSATU and SARA were appreciated, but the assurance could be given that the social security paper was consistent with social security objectives.

Mr Chris Axelson, National Treasury Director: Personal Income Tax, commented that delay had implications for tax practitioners. HR managers would benefit from the delay. A longer delay would cause a higher tax avoidance for contributions above R350 000. SARA had submitted that it was in favour of delay, whilst 42% was in favour of Option 1. Many payroll administrators they had spoken to were in favour of proceeding in March 2016.

Mr Momoniat said that there were costs related to not proceeding. There were annuitisation issues. Workers were worried about what their families would get if they died after two years. Not all problems were solved. If the dice of life turned against someone, it had to be worked out how the family could still benefit. The Minister made an announcement in the Budget about universalisation of the old age grant. There was concern about vulnerable construction and domestic workers. The question was if social reform was to be waited for, or whether something could be done in the meantime. Getting rid of the means test for the old age grant could ensure that there were not perverse outcomes. It had to be possible to contribute to a pension fund without being disqualified from the old age grant.

Ms P Kekana (ANC) referred to the previous week’s input from COSATU. Treasury was at the centre of tax and social security reform. In the previous week she had called for realignment of Treasury programmes. Treasury had to get its ducks in a row. It would not do to come back to the next round and tell the same stakeholders that work was still in progress. She shared Mr Momoniat’s sentiments about COSATU. There were rejections and demands, but COSATU did not refer to its own challenges regarding Option 1. The majority of COSATU unions used the preservation fund. She asked about the implications of that for the provident fund. It had to be known where there was synergy, and where not. She had been a teacher, and could not understand the system. COSATU was saying there would be resignations. The difficulties in understanding pension fund reform had to be known. COSATU had to assist the process. It had to know where interventions were needed. The proposed changes could not be rejected out of hand.

The Chairperson told stakeholders that what they came for they would get. They had to vote for the majority party. They needed a strong majority party to inspire investor confidence.

Ms Tobias noted that the former finance minister of Greece was currently selling his speeches. Trustees were not interested in Treasury’s communication strategies. Mr Momoniat and Mr Makhubela had to be given gumboots and sent to the townships. She would sell recycled cans to pay for that. The mathematician lady from SARA had referred to adjustment of the R350 000 to make it inflation related. She advised that Treasury provide the figures to show how it was inflation related. If there was consultation upon consultation and the right decisions were not taken, the children would suffer. As an aside she said she was hungry since there was no food on account of the parliamentary worker’s strike.

The Chairperson told Ms Tobias that she had marched in the townships for the right to strike. She had to bear with the fact that food was not available on account of the strike.

Mr Van Rooyen said that he was worried about the fact that proposals about social security had been discussed since 2008, and then deferred. COSATU was confident that issues could be concluded in January 2016. All stakeholders had failed to resolve issues since 2013. He asked how COSATU intended to resolve issues that quickly. The beneficiaries of the required reforms were low income earners who were exposed to sharks. A study had revealed that regular fees on retirement funds had eroded by 40%. Fees had to be looked at. The proposed reforms would help. People had to be introduced to tax deduction. More disposable income had to be allowed to contribute to the economy. Mr Momoniat was right in saying that delay would create opportunities for the wrong people. If taxation was not harmonised, the rich would structure the provident fund to avoid tax. There would be deprivation of revenue. Opportunities would be missed. NEDLAC was delaying at the expense of developmental priorities. NEDLAC was saying that Treasury was engaging in bad faith because changes had already been made. Provident fund reforms had an unfortunate history. The people affected did not understand what they were giving money for every month. Financially illiterate people had to be spoken to. The message had not yet filtered down to the lower levels where the majority was affected. He was not convinced that there had been thorough consultation. It had mostly been at a high level. The question was how to intensify communication through moving with Option 1.

Mr Lees noted that the Minister had dealt with questions of the kind SARA had raised in the previous week. There was already reference to inflationary adjustment in the Act. It was not an amendment. Such an amendment could still be included. The South African Institute of Chartered Accountants (SAICA) had submitted the proposal that sole proprietors be deemed to be employers. He asked for Treasury's reaction to that.

Mr Topham referred to the R350 000 cap. There were no policies to change the state of recession. There was a need to encourage savings to make money available in the retirement space for the economy. If the cap was not to be lifted, it would at least help to have inflationary increases.

Ms Lightbody (ASISA) replied to Mr Van Rooyen’s question about proceeding with harmonisation of contributions through tax deductability, whilst delaying with benefits outside of the vested portion. The industry had to take steps to build systems that provided for an annuitisation option and ring-fencing of vested benefits. Delays would force the industry to unbuild preparations that had been made to institute retirement reforms. Unbuilding took as much effort and money as building. When it came to big interventions, companies acted together. They closed down interventions in their systems for a period, usually over December/January, to test the systems. To close down interventions in the system would be like dismantling an engine and assembling it again. Integrated large systems were not simple. Payroll administrators would have to change their systems. Ring-fencing of vested rights would have to be unbuilt. Communications would be undone, which would create confusion and lack of trust in the system. Once undone it would be a matter of having to start all over again when annuitisation came in. Harmonising of contributions had to happen on a quid pro quo basis. To delay would mean that nothing would be granted in return. Once tax deduction was done, people were only stopped from getting a lump sum. The industry had brought out intensive consultation papers. ASISA consulted with Treasury. There had been a big drive to bring charges down. Industry contested the 40% figure. There was structural complexity and complex systems that required complex interventions. Provident fund members wanted simplicity. Consolidation had to be allowed for. A mechanism to bring charges down was only a start. Delaying would be a step backwards, in a process that was only getting started.

Ms Tobias commented that there had to be a trade-off between implementation of the system and agitation in the sector. The sector did not want to suffer financial costs. She asked Treasury about incentives to accommodate administrators who suffered financial costs. There were timeline challenges and suffering of financial costs. There had to be give and take. She asked what the trade-off would be for those who considered 2016 too early. Repercussions for non-implementation did not affect administrators. Some form of relief had to be provided. Practical implications had to be considered. The clause could be made more accommodative. Financial implications of delay could not be known as figures per sector could not be obtained.

Mr Momoniat commented that it was a systems issue that there were too many funds. In Australia there were only five or six. In South Africa there could be a maximum of 200, 300 or 400 funds. The more choice there was, the more the system needed to differentiate. Different kinds of funds had to be separated in the back office. The fact that implementation had already been delayed for one year had caused issues to arise. Treasury did not agree that implementation would be in bad faith. The effect of changes would not be felt for two to three years. The only thing members would feel was that they were getting more money per month. Treasury operated with a default theory. People had to be put in the right default. If problems were big, people had to be offered another option. People had to know that if they opted out their salary would be lower. If it was easy to draw from the provident fund, there would be implications for others. People had to be placed in the right default. It could then be asked if annuitisation products were appropriate. People wanted to know what would happen if they died during the first five years of contribution. For the next two to three years not much would happen. Leaders had to refrain from creating scare stories. Mr Van Rooyen was right in saying that issues had not been taken down to the ground. That was where the rumours would come from. Engagement would continue.

Ms Larney said that the main reason why SARA members requested a delay was because it was not understood how changes were aligned with the social security paper. SARA realised that the R350 000 cap was not up for debate. But SARA did not understand the reasons for it. SARA was a professional body that consisted mainly of HR remuneration professionals.

Mr Parks said that COSATU confidence in the possibility of a solution in January was contingent on the release of the social security paper. COSATU did not want to delay because it was obstinate. Government departments were not well coordinated. Treasury concessions were appreciated. But he agreed with Mr Van Rooyen that there was not enough consultation at the shop floor level. There was a history of bad blood between labour and Treasury. There was delay with social security in NEDLAC. COSATU had waited for years. A special task team was set up. Government did not send its officials there. With regard to delay, he noted that the Department of Labour had rushed the UIF Bill through, and then took two years to table it in Parliament. Ms Tobias was right about consultation versus decision making. But Treasury and Social Development had to sit with COSATU in one room. COSATU was getting two different messages. The Department of Social Development supported the COSATU position. But COSATU could not act as a shop steward for them.

Ms Tobias interjected that Mr Parks was saying gee my lepel en vat jou lepel: “give me my spoon and take yours”.

The Chairperson asked what that meant. He got an E for Afrikaans but could understand some of it.

Ms Tobias declined to translate.

Mr Parks continued that COSATU shared concerns about workers resigning. It could lead to a loss in confidence on the part of SADTU, if teachers resigned. He called for more time to engage. Vulnerable workers had to be looked at, as well as the means test for old age grants. It was difficult to sell proposals to workers without the social security paper. Workers were sensitive to their pensions being touched.

The Chairperson remarked that there had to be fairness towards both COSATU and Treasury. The issue had been dragging on for several years. The majority party was in alliance with COSATU and there was a shared ideological outlook. But COSATU arguments had to be judged by the same standards as everyone else’s. The quality of the COSATU argument had to be convincing. There was no guarantee that the social security paper would emerge within the coming three months. The COSATU argument about 2016 was not credible. Politics was not about who was technically right or wrong, but about perceptions. People could turn against the best policies on the basis of their perceptions of it. Leadership was about taking decisions. Decisions had to be taken for a constituency who did not understand. The COSATU constituency could be up in arms, but if the ANC/COSATU alliance was sound, people could be educated together. Treasury did not foresee much happening in the following two years so there was room for engagement, but the parameters had been narrowed. It was not acceptable for COSATU to speak and write the way it did. It was 20 years into democracy. COSATU had said that more time was needed. If he did not have enough evidence he went by instinct. Incredible things had been said about the degree of cooperation of COSATU. COSATU views were understood, as well as objective and subjective challenges. The question it had to answer was what would be different if more time was granted. The bills had been through Cabinet. The majority of Ministers were in agreement. He asked if Ministers were allowed to take different positions.

Mr Momoniat said that the process for tax laws was different. Tax proposals were adopted when Cabinet adopted the budget. Initial papers were submitted to Cabinet some years before. The Minister had raised the matter in Cabinet in the previous week. The briefing was published.

The Chairperson said that a decision could not yet be taken. More time was needed. The study group and the Committee had to apply their minds, and return within 48 hours with a position. The joint study group would meet later that day.  Mr Dumisani Jantjies of the Parliamentary Budget Office had to summarise the non-verbal submissions. Every submission had to carry the same weight. Treasury had to reply to written submissions by 10h00 on the day following. The study group and the Committee had to apply their minds in a joint study group later that day, and come back in 48 hours with a position.

Mr Axelson said that SAICA wanted to discuss whether sole proprietors would not benefit. Treasury was saying that they could claim deductions under the proposed regime. In the case of a partnership all got put together but it had to be sorted out to be applicable to the specific partner to get remuneration. Treasury thought the matter covered. The R350 000 cap was the result of an increase from R200 000 in 2011, and R250 000 in 2012. Whatever was above the limit could be rolled over.

Mr Momoniat added that inflation on the cap had been accepted.

The Chairperson noted the hearings on the Financial Intelligence Centre (FICA) Amendment Bill the next day. Thereafter the Committee would return to the Taxation Laws Amendment Bill. The subcommittee had to go through it clause by clause. Uncontested issues would be dealt with first. The vote on the Bill would be on Friday.

The Chairperson asked Mr Van Rooyen from the subcommittee to speak on the Committee Reports for the two Bills.

Mr Van Rooyen noted that the first report had already been submitted. The only part enhanced dealt with research and development incentives. There was engagement with one of the people who made submissions. The Chairperson was engaged, and there was the undertaking that he would engage with the task team established by the Minister of Science and Technology. The same member was included in the Ministerial task team and his inputs were properly accommodated in the process. Areas covered were section 6(q). It was a research and development issue related to the provisions of the Tax Administration Act. Subsequently the issue of new amendments submitted by the Minister was looked at. There were not only technical corrections, which were usually covered by section 14. Section 11, which dealt with the passing of revenue bills, was relevant. Section 8(5) provided for the process of amending the fiscal framework. The Committee had to ensure that all subsections were complied with, those that applied to revenue and expenditure as well as borrowing. Section 11(3) provided further rules. The Committee had to adhere to the provision that the total revenue raised had to be consistent with the fiscal framework and the Division of Revenue Bill. There had to be satisfaction about equity and efficiency and ease of collection. The subcommittee advised that the Committee submit a motivation for amendments to the House, to comply with section 8(5) or 11(3). Section 11 provided for consultation with the Executive and to conduct public hearings. The subcommittee went through the amendments clause by clause and gave evidence of compliance with sections 8(5) and 11(3). The subcommittee met on 4 and 5 November. There was technical assistance from Treasury. The subcommittee was satisfied that there had been compliance with the Money Bills Act provisions. Adv Jenkins, Senior Parliamentary Legal Adviser, gave advice. Amendment of tax laws was done in terms of the Money Bills Amendment Act. Proposals were invited from SARA and others. The Chairperson had to engage with the programme committee. It was recommended that the Bills be tabled in the House on 17 November. The Committee would report to the House to motivate the amendment in terms of sections 8(5) and 8(3), with comments by the Minister included.

The Chairperson stressed that the subcommittee could not define a Committee position. The Committee would draw on the subcommittee. He urged parties to come up with positions by the following day. Submissions on the FICA Bill had to be heard. If there was space the Committee could move on to the Twin Peaks Bill.

Mr Lees asked if the Committee would be looking at a document that still had all the retirement annuity stuff in it. He asked if the Committee would have to amend, or whether it would get an amended bill.

The Chairperson replied that the final version of the Bill would be dealt with. There was an original version of the Bill with all the amendments.

Mr Momoniat added that amendments to the tabled Bill would be gone through on the following day.

The Chairperson asked Mr Momoniat if a copy of the amended Bill was available.

Mr Momoniat replied that it was.

The Chairperson adjourned the meeting.