Taxation Laws Amendment & Tax Administration Laws Amendment Bill; Rates and Monetary Amounts and Amendment of Revenue Laws Bills: voting; “Twin Peaks” Bill deliberations

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Finance Standing Committee

22 November 2016
Chairperson: Mr Y Carrim (ANC)
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Meeting Summary

The Committee met to discuss outstanding matters on the Tax Laws Amendment Bill (TLAB) and Rates and Monetary Amounts Amendment Bill. The Financial Sector Regulation Bill was also discussed and the DA believed that the Committee could not vote on the Bill yet. The Chairperson felt that the DA was trying to make the Committee processes fit into its media strategy. During a heated discussion, one DA member walked out of the meeting. The Chairperson felt it was unreasonable for the DA to delay voting on the Bill while the DA believed that the version of the Bill was not yet final. The Chairperson conceded to a compromise with the DA and said he would postpone voting on the Financial Sector Regulation Bill but not because of the DA but rather as a decision that was best for the whole Committee.

In deliberations on the Employment Tax Incentive (ETI), National Treasury had been convinced during the public hearings that it would be in the best interest of unemployed youth to remove the R20 million per annum proposed cap for a company. The Parliamentary Budget Office (PBO) did not agree with this position as the financial implications of not having a cap would mean a R600 million cost to the fiscus. The Committee believed that even though the cost to the fiscal position would be great, the creation of employment was more important in the long term view of the country’s economy.

The Committee, Treasury and SARS went through the Special Voluntary Disclosure Programme (SVDP) and PBO commented on its position on the 40% inclusion rate and recommended that Treasury keep it unchanged.

The Committee proposed amendments to the TLAB and agreed to amendments on the Rates and Monetary Amounts and Amendment of Revenue Laws (Administration) Bill. National Treasury went through the Tax Laws Amendment Bill (TLAB) clause by clause. During this process it was found that the paper copy of the Bill contained pages which were inserted wrongly which did not belong to the Bill itself. Pages 25 to 28 were wrongly inserted and therefore the clause by clause reading omitted clauses 38 to 45. The Chairperson therefore made the decision to postpone voting until these clauses could be gone through. At the adjournment of the meeting, the Committee did not manage to vote on any of the Bills on the agenda.

Meeting report

Discussion on when to vote on Twin Peaks Bill
The Chairperson said he heard the Committee would be voting on the Twin Peaks Bill, yet it was not even on the agenda. If the Committee finished the meeting early it could start with that Bill. Over 200 hours had been spent in the Committee and subcommittee on the Twin Peaks Bill and it made no sense to continue it into the New Year. If ANC members were ready to vote and DA members not, the DA’s reasons had to be put on paper. However, the reasons for not voting on the Bill should not be because the DA did not want to vote on the Bill but rather because the ANC agreed to not vote on the Bill. One person could not be the deciding factor as to whether or not the voting process went ahead.

Mr D Maynier (DA) said the DA completely supported voting on the Tax Bills to go ahead. However, the DA had a different view on the Twin Peaks Bill and had proposed amendments on the Twin Peaks Bill and it was for that reason that the DA believed the Twin Peaks Bill should not be completed and voted on this week.

Dr M Khoza (ANC) wanted to know what it was that the DA expected would be different if the Committee attended to the Twin Peaks Bill later. She wanted to understand the rationale for the DA’s reasoning.

Ms T Tobias (ANC) said that the Committee had been working on this legislation for the whole year. She wanted Mr Maynier to provide a document to indicate what the new issues were on the Bill.

The Chairperson agreed with Dr Khoza and Ms Tobias. He noted that Mr Maynier informed him that he was sitting on both the Appropriations and Finance Committees and therefore did not have a lot of time to focus on this Bill. He felt it was better for the DA to negotiate with him and Mr Mabe instead of trying to go above him.

Mr Maynier said the DA was waiting on a final version of the Bill. He referred to the blue clauses inserted into the 21 October version of the Bill and once the three outstanding submissions were considered then the final version of the Bill could be made available. The DA then wanted an opportunity to scrutinise the 305 clauses of the Bill and once that was done, present amendments. However, the DA was not able to do that in this week. He did not understand the urgency around voting on the Bill as per the parliamentary programme the Bill was scheduled to be finalised in the first quarter of 2017.

The Chairperson said the version available was the final version of the Bill the only thing was that some of it was in blue. He suggested Mr Maynier remove the tracking and submit the Bill to the DA caucus and go through it. The Bill was given to everyone two weeks ago so Mr Maynier had two weeks to go through it. So for the DA to come after the Committee finished all the discussions and amendments were done was strange. He felt it was unfair for the DA to try and fit the Committees processes into its media strategy. He felt the DA should not abuse the Committee.

Mr A Lees (DA) felt the Chairperson was abusing the DA. He then walked out of the meeting and returned a few minutes later.

Ms Tobias asked if a final copy of the Bill was available without the tracking in it because the gist of the matter was a document that had blue and green tracking in it was not the contents under contestation. It was about the status of the document not being a final version.

Dr Khoza agreed with Ms Tobias. She assumed Mr Maynier was going to identify areas that were critical to the DA that the Committee needed to engage with. But if it was related merely to what Ms Tobias was saying then she saw no reason why the Committee should stand the Bill down. This Bill was essentially about institutional arrangements so it could not be equated with other pieces of legislation and the sooner the Committee went ahead with this Bill, the better. It created a sense of uncertainty amongst staff members of affected institutions and she felt it was unfair for the DA to delay the Bill. She thought that the DA was concerned about issues in the Bill that had not been attended to during previous discussions.

Mr Lees said that this was not the final draft of the Bill; the DA had received some technical amendments. It was an important Bill for the country. This was vital for the financial sector and not just for the Committee so he believed that everyone should be working together to make the Bill the success that it had to be. He felt that the Committee should be dealing with it in a more professional and mature way.

Dr Khoza asked if Mr Lees was suggesting that the Committee members were not professional and mature.

Mr Lees replied that he felt the Chairperson was not dealing with the matter in a professional and mature manner.

Mr Maynier said the Bill currently could not possibly be the final version of the Bill for three reasons. There was an outstanding policy issue which related to the National Credit Regulator (NCR), there were technical amendments proposed by the Parliamentary Law Advisor and there were three outstanding public submissions which still had to be deliberated on. So it was simply not true to say that the 21 October 2016 version of the Bill was the final version. Secondly, the methodology which the DA was working on was that once a copy of the final version of the Bill was available, the DA would compare it to the principles set out in the red book to carefully scrutinise the Bill and put forward amendments. That was the DA’s intention and that it why they felt that it would be wrong for the Committee to proceed with voting on the Bill.

Ms Tobias said she was trying to understand whether the Committee had a final version or not.

The Chairperson said that this was the final version of the Bill that the Committee was going to vote on. Three weeks ago he asked the DA to go through it and submit their comments by Saturday past at 5pm. He even called Mr Maynier on the telephone and asked him to submit comments. All the things Mr Maynier was saying had to be done in the past six months, had been done already. If he was able to say he wanted to negotiate with the Committee then it would have been a different matter. There may be other reasons why the Committee could not proceed with the voting on the Bill this week. Therefore he recommended that a decision be made later that day.

The Chairperson spoke about a previous incident which he wanted on record. He noted that he did not hear Mr Floyd Shivambu say “Mrs Dudu Myeni Zuma” in reference to the SAA Board member. He heard Mr Shivambu say she was head of the Jacob Zuma fund. He felt that it was inappropriate to refer to her in that way. It was demeaning because she could have had family members watching.

Ms Tobias said Mr Shivambu first said “Mrs Zuma” and then he said “Mrs Myeni Zuma”. That is where the issue came in.

The Chairperson said he would draft a letter to say the Committee did not agree with his behaviour irrespective of how much he disagreed with her.

Special Voluntary Disclosure Programme (SVDP) : deliberations
Mr Franz Tomasek, Group Executive: Legislative R&D, South African Revenue Service (SARS) said that the current proposals started off with the voluntary disclosure. The first problem with that had already been explained in a previous meeting. The second problem was that some of the terminology might not even be possible to use such as asking for the average amount of settlement granted to successful applicants. He said there was a move away from the disclosure of income that was never declared in the past, to the disclosure of assets because some people argued it was impossible to go back as this was something their parents or grandparents did or the records were lost. So there was a switch to a new approach which dealt with the difference between what people were paying and what they should have paid. He explained that SARS could ask for that information but that would mean going back to the old approach, effectively forcing people to reconstruct records for a report. He was not sure if that requirement was possible. Another proposal was the reporting of 30 days after the closure period. Currently, the closing for a voluntary disclosure programme was two months. Treasury had suggested having it linked to the report that the Minister received on an annual basis from SARS on the voluntary disclosure programme. Another proposal was the extension of the period by three months. There was no objection to extending it but the catch was if one went back to all the early exchange of information adopters including South Africa, exchange of information would be made by the end of September 2017, which meant that they will be receiving the international information by September and denying applications on the basis that it was no longer voluntary. He believed that if there was an extension, it would be best to have the cut off at 31 August 2017 so there was a clean cut off before the exchange of information begun.

Ms Gloria Mnguni, Finance Analyst: Parliamentary Budget Office (PBO) said that the general norm was a 100% inclusion but the 40% was still reasonable. There was a general benefit of lenience on penalties and interest but the tax rate remained the same. PBO believed 40% was still lenient but the SVDP should remain the same.

Ms Lees wanted clarity on the table distributed by PBO and the examples from other countries. Did the 100% inclusion rate apply to all countries and would 40% be enough to get people to declare?

Mr S Buthelezi (ANC) noted that PBO was saying this was on the low side comparatively, but why decide to be this lenient.

Ms Mnguni replied the 43% tax rates were for different countries. This was tax on 100% on assets disclosed. In South Africa, 40% should be fine.

Mr Ismail Momoniat, Deputy-Director General: Tax and Financial Sector Policy, Treasury said National Treasury did not want it to be an amnesty. It started off at 50%, and through deliberations the rate was brought down another 10% which made it 40%. There was a view not to be generous. National Treasury spoke to Judge Davis of the Davis Tax Committee, and he was happy with the approach.

The Chairperson said the Committee agreed with the cut off of 31 August 2017 and asked the content advisors from Parliament to draft a report that explained what Mr Tomasek highlighted so that the public could be made aware.

Ms Tobias said it made sense because then people would have had enough time to disclose and to have the information for the next reporting cycle in 2018.

Mr Maynier suggested that the Committee vote on the Bill the following day. The DA would like the DA proposed amendments that have either been rejected or accepted, to be included in the Committee Report.

The Chairperson asked if this was possible.

Adv Frank Jenkins, Senior Legal Advisor, Parliamentary Law Office, replied the minority’s views can be noted in the Committee Report but it was the Committee's view that stood.

Ms Kekana said that if the DA had opposing views, they had to put it through a declaration in the National Assembly.

Ms Tobias noted that the declaration was the opinion of a particular political party that was included in  Hansard declaring what their particular view was so she felt that the amendments should not have to be in the Committee Report.

Mr Maynier referred to Rule 288(3)(d) which stated with regards to Committee Reports that “must specify each amendment that was agreed on by it and each amendment which was considered by it but for reasons other than it being out of order was rejected by it”. He asked to have the rule scrutinised before proceeding.

Ms Tobias noted that Rule 288(3)(d) referred to the submission of an amendment by an individual in his or her own capacity.

Adv Jenkins said these amendments proposed could be included along with the A list to be attached to the Committee Report.

The Chairperson asked Mr Momoniat to explain to the DA where its proposals would fit in on the reporting.

Mr Momoniat replied the change National Treasury had been looking at was firstly on the Rates Bill but there was no change, and that Bill had already been gone through clause by clause.

Mr Tomasek added there were no objections to the DA request for reporting. Unfortunately the specific wording that had been proposed had some problems. This Bill only dealt with the tax part of the SVDP; it did not deal with exchange control. So there was no relationship between the actual wording and the reporting the DA was looking for.

Mr Lees suggested that Mr Tomasek propose something rather than discuss it at length.

Mr Momoniat said Mr Tomasek had pointed out if there were any changes on the exchange control side it should be done through the Reserve Bank by it issuing its own notices. That was guided by the Minister because it fell under the Minister, but what National Treasury would do on the reporting arrangements was to align the two but it did not need a change in the legislation.

Employment Tax Incentive (ETI) cap: deliberations
Mr Momoniat said National Treasury kept the cap reasonably high and received public submissions for the removal of the cap. The issue was then to increase the cap or remove it all together. Given the need for youth to be employed, National Treasury thought to remove the cap completely and what also persuaded National Treasury was the discussions taking place between business, government and labour on the Youth Employment Service (YES) initiative which would imply the withdrawal of the R20 million cap to show governments commitment to the initiative. He highlighted that the indication was there would be 330 000 to 500 000 additional jobs created by these businesses over the next three years.

Mr Chris Axelson, Director: Personal Income Tax and Savings, Treasury said Treasury provided a letter to the Committee as well as a motivation as to why it proposed these amendments in order to comply with the Money Bills Amendment Procedure and Related Matters Act. There would be an impact on the fiscal framework and by removing the cap there would be an additional incentive so it would lead to a decrease in revenue by around R600 million for that year and around R650 million for the following year. Increasing the cap to R50 million would only impact a handful of firms and the revenue loss would be a lot lower, around R200 million. Therefore Treasury proposed to the Committee to remove the cap instead.

Ms Mnguni said that PBO believed even though there was a higher than expected take up on the incentive, it was concerning to note a huge concentrate in certain sectors using the incentive. There was also a risk of dependence on the incentive where companies would only employ within the age group of the incentive, disadvantaging other age groups. She explained that if a cap was introduced, only nine companies would be affected and that would result in a saving of R600 million to the fiscus. There was an average claim of R66 million per firm for the nine firms whereas Treasury had suggested a cap of R20 million. PBO agreed that there was job creation but there was no evidence to support the extent thereof and the reasons for targeting and the impact on other age categories. So the suggestion from PBO was to introduce a cap and expand the job creation base by promoting the use of ETI to other industries and smaller firms.

Mr Zakhele Hlophe, Content Advisor, Parliament, said he agreed with PBO mostly with regards to the financial implications of the removal of the cap. Another concern was the potential for abuse of this scheme, if there were any risks for abuse. Also the number of companies affected would only be nine.

Ms Tobias said she had an issue with the classification of youth which had been limited to between 18 years to 30 years, whereas the definition extended to 35 years. She believed people up to the age of 35 years should benefit from this incentive. There were some industries which did not benefit, such as small business in particular. She believed that the cap should not be introduced as it was about job creation which was most important. She felt that people at higher skills levels should also be employed.

Mr Momoniat replied that he felt the age should be kept as low as possible on the incentive because for a person to have his/her first job at the age of 29 years would probably be too late, excluding those who were students at university. The sooner young people could get a job after school the better their prospects for the future. It would also become more costly if the incentive went up to a higher age limit.

Mr Axelson added that Treasury had an indication of the age distribution on the use of the incentive and the age dropped significantly after 25 years of age.

Dr Khoza wanted to know if Treasury had any risk mitigation strategies it could propose to the Committee.

Mr Buthelezi wanted to know how the R600 million cost to the fiscus was calculated. He felt that it was a narrow cost to the fiscus given that the biggest challenge in South Africa was unemployment.

Mr Momoniat replied that there were not currently many successful programmes that promoted youth employment and a comprehensive approach was needed. There was no point isolating this incentive and looking at the cost because there are also benefits. The fact that someone was employed and able to get work their first year after school set them up for life as they became more employable and there was a greater chance of them continuing to get jobs. The future revenue that could be gained through the tax system had to be factored in as well. This was not the most expense incentive, there were others. There was a concept of “dead weight losses” with any incentive which meant that a company may have employed young people anyway, without the incentive. So it was hard to figure out if a company that used the incentive for new employment or whether the company would have employed those people even if the incentive was not there. 

Ms P Kekana (ANC) said that during public hearings the Committee only received feedback from firms but not feedback from beneficiaries so the impact could not be measured very objectively.

Ms Tobias asked if any data was available on the demographics of beneficiaries.

Mr Momoniat replied that it was the employees not the employers that reported to SARS so most of the time the beneficiaries did not even know they were benefiting from the incentive.

Mr Axelson said the point was to see how much employment was created. For smaller firms there was definitely an increase in employment, but for bigger firms there was just not enough data. There were only a handful of huge retailers and they all took the incentive so it could not be compared to another retailer who was that big who did not take up the incentive and see the difference between employment trends. That made it very difficult to say whether or not companies were abusing the incentive. He said it was easier to pick up whether employers swapped out older people to employ younger people who would qualify for the incentive. There were penalties in the legislation to combat abuse which were actual fines to the company for anybody fired to make use of the incentive through a younger person but there had been no cases of this happening. There was another concern from labour unions that wages would remain low but there had actually been an increase in wages because if the employer was paying the employee R1800 it could not claim the incentive, but if the salary increased to R2000, the employer could claim R1000 on the incentive. So there was a push for the employers to increase wages at the lower end. If Treasury got another two or three years of data it would be able to fully evaluate the incentive.

Ms Tobias said that she asked Servest in particular to give the Committee data on how many people were employed consistently over the period and their gender, age, race and occupation levels because when the Department of Trade and Industry (DTI) provided incentives in the automotive sector, a huge criticism came out that the incentive did not benefit government in terms of job creation. When jobs were cut in the automotive sector it was those at the shop floor level who lost their jobs. The DTI had to come up with another strategy to fund the automotive sector by giving people further training. Government actually had to pay double to keep people in their jobs. In South Africa the unskilled and most vulnerable were the black majority and government money had to be focused on those who were vulnerable and unemployable. Therefore Servest had to provide the statistics of those persons employed under the incentive. It was important to be able to look at the impact of incentives in general.

Dr Khoza felt that abuse would come and for future consideration one had to go stipulate specific sectors the incentives would cover instead of having it so broad; those industries which were labour intensive had to be targeted. She asked if Treasury had a standardised method of reporting available for beneficiaries of the ETI.

Mr Momoniat replied that the problem was that the beneficiaries did not know that they are receiving the incentive. With any incentive there was a risk of abuse and other risks but with this incentive the data as and when it becomes available would indicate how to refine the incentive and which sectors to focus on.

Mr Axelson added that in 2017 when Treasury did another descriptive report, it would focus on reporting what happened to those beneficiaries. Were they still in jobs, how much were they earning now, have they moved jobs, etc. It had not been standardised yet but the information can be provided to the Committee.

Mr Lees wanted to know if it was possible for SARS to add another field in its reporting.

Mr Axelson replied he had spoken to SARS to set up a meeting to discuss this but have not had the time to meet yet.

Ms Mnguni noted the data cleaning processes Treasury had to use on the current data it had available. There were forms which were not compulsory to submit by employers and some forms had an element of being anonymous by not indicating gender or period of employment therefore Treasury had to manipulate the data. On the extension of the incentive it was not coming across strongly what was going to be different for the next two years.

Mr Axelson replied that it was not because the forms were not compulsory but the data was not clean initially. Employers were not filling in the correct values on the forms because it did not matter to them. Now since this process had started it should be more important to them to fill out the values correctly. This was a new incentive so as time went by the data should improve. The difference in the new data would be the tracking to see the difference in firms who took up the incentive versus firms who did not.

Amending the Taxation Laws Amendment Bill
The Chairperson wanted to know what the process was if the Committee made a decision to amendment this Tax Bill and either remove or raise the cap. How could the Committee effect an amendment if one was agreed upon and would it be able to happen before the Bill needed to be voted on that week?

Adv Jenkins said if the Committee decided to drop the cap, it would have to consult with the Minster but that had apparently already happened. The only thing remaining was to comply with the four or five points in section 14 of the Money Bills Act. One of the points would be whether it affected the fiscal position and Treasury had provided a document related to that. Therefore there were no time constraints as the Minister had already been consulted.

The Chairperson said according to his knowledge, if the Committee came to a decision to change it, they had to write to the Minister to ask for his permission. As he understood it, the Minister had already proposed amendments to the Committee it was just for the Committee to accept or reject them. So there was no need for the Committee to write to the Minister as he had already taken a decision.

Mr Jenkins noted that it remained a Committee decision but the consultation had already been done through the Minister's letter.

Mr Lees noted that the Minister had already responded to a proposed amendment and the Committee Report would include the comments from the Minister which the Committee already had.

Ms Tobias said technically the Committee was on the right track because there would no changes to the specific text.

Mr Maynier said if the Committee took a decision to “scrap the cap” the Minister would then have to be informed about this decision and he would then have to respond formally to the Committee so that it could be captured in the report. Section 11 was very clear that the Minister had to respond and the Minister’s response had to be captured in the Committee Report and not Treasury’s.

Ms Tobias felt that the Committee did not have to consult with the Minister as it was already done.

The Chairperson asked if there were any outstanding matters that had to be dealt with on the ETI. Did Treasury meet with Witzenberg PALS?

Ms Yanga Mputa, Chief Director: Legal Tax Design, Treasury, replied that Treasury requested a meeting with them but they responded that they could not come due to financial constraints. So a telephone conference call was held the day before. Treasury understood their issue that the current learnership programme did not extend to mentorships. The reason why they fell under SETA was Quality Assurance and they had to speak to AGRISETA to see what kind of quality assurance could be included in their mentoring.

Rates & Monetary Amounts and Amendment of Revenue Laws (Administration) Bill amendments
Mr Tomasek went through the amendments agreed to by the Committee on the Bill. These were to amend clause 1, on page 2, line 17 to replace “30 June” with “31 August” and clause 4, on page 2, line 28 to insert the following clause:

4.(1) The Minister must report to the National Assembly on-

(a) the additional relief described in Part II of the Rates and Monetary Amounts and Amendment of Revenue Laws Act, 2016; and

(b) the exchange control special voluntary disclosure programme contemplated in Exchange Control Circular No. 8/2016 and any other subsequent circulars in this regard.

(2) The report must include a summary by main classes of taxpayers or sections of the public of the applications made, approved and not approved and of the amounts payable in respect of-

(a) voluntary disclosure agreements concluded under section 230 of the Tax Administration Act in respect of applications contemplated in subsection (1)(a); and

(b) applications approved under the exchange control special voluntary disclosure programme contemplated in subsection (1)(b).

(3) The report must be tabled in the National Assembly within a reasonable period, which period must not be more than 60 days after receipt by the Minister of the summary contemplated in section 233 of the Tax Administration Act.”

Another amendment was on page 2, line 29, to replace “4.” with “5.”

Taxation Laws Amendment Bill [B 17-2016] deliberations
The following amendments had been proposed:

Clause 93
1. On page 50, line 7, to replace “1 October 2016” with “1 March 2017”.

Clause 94
1. On page 50, line 19, to replace “1 October 2016” with “1 March 2017”.

Clause 95
1. On page 51, to delete line 9 up to, and including line 14.

Ms Mputa went through the Bill clause by clause. Pages 25 to 28 of the Bill were wrongly inserted pages and therefore clauses 38 to 45 could not be read out to the Committee.

Dr Khoza wanted clarity on clause 18 which dealt with section 9 of the Income Tax Act, 1962. She asked whether people with retirement annuities in South Africa would be affected.

Ms Axelson explained that it was for people who rendered services overseas and not in South Africa.

Dr Khoza asked whether BRICS Bank was included under clause 23(1)(b).

Ms Mputa replied that the BRICS Bank was included as the “New Development Bank”.

Mr Buthelezi wanted clarity on clause 36(1) which dealt with the additional deduction for roads and fences in respect of renewable energy and asked whether this was in sync with the country's energy policy.

Ms Mputa replied yes it was to encourage investment in renewable energy.

Mr Buthelezi referred to clause 52 and asked if social and labour plans only applied to the mining sector.

Ms Mputa replied that social and labour plans from other sectors had not been brought under Treasury’s attention yet. This specific social and labour plan was part of the Mineral and Petroleum Resources Development Act.

Dr Khoza asked whether clause 61 would apply to situations where land was transferred but the community did not take full ownership of the land so it was run by the previous owning entity.

Ms Mputa replied that currently the Income Tax Act allowed for the transfer of land of full ownership if it was in terms of the land restitution programme. But if land was transferred partially the current legislation did not assist because there was an entity into which the land was transferred into. 

Ms Tobias asked if clause 90 dealing with collateral arrangement only applied to government bonds.

Ms Mputa replied yes.

The Chairperson said the Committee still had to formally vote on the Rates and Monetary Bills. Also, the Committee had to go through the missing clauses of the TLAB and formally vote on it.

The meeting was adjourned.

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