Cryptocurrencies: Everything You Need to Know

1.1 Background to Bitcoin

Bitcoin, Ether and Litecoin. These are some of the most prominent cryptocurrencies on the market today. Bitcoin is by far the best-known cryptocurrency due to the substantial increase in the price that was experienced in the past couple of years.

Bitcoin is a cryptocurrency – a digital asset designed to work as a medium of exchange that uses cryptography to control its creation and management, rather than relying on central authorities. Bitcoin was developed by an anonymous creator – Satoshi Nakamoto – to enable society to operate with a digital cash system, without the need for third-party intermediaries which are traditionally required for digital monetary transfers.

Should you wish to read the original paper used to introduce bitcoin to the word, please follow this link:  https://bitcoin.org/bitcoin.pdf.

1.2 Tax consequences of cryptocurrencies

For the most part, South Africans have only been able to enter the crypto market locally for a short while, which has drawn the attention of the South African Revenue Service (SARS) to cryptocurrencies.

SARS released a statement on the 6th of April 2018, declaring its stance regarding the taxation of cryptocurrencies. The following is an extract from the statement:

The South African Revenue Service (SARS) will continue to apply normal income tax rules to cryptocurrencies and will expect affected taxpayers to declare cryptocurrency gains or losses as part of their taxable income.”

The statement further indicates that for purposes of the Income Tax Act, SARS does not deem cryptocurrencies to be a currency (due to the fact that wide adoption has not been reached in South Africa and crypto can’t be used on a daily basis to transact), but rather defines cryptocurrencies as assets of an intangible nature.

The definition has the effect that cryptocurrencies will be treated as any other investment for tax purposes. The onus lies on the taxpayer to declare all cryptocurrency-related taxable income in the tax year which the taxpayer received or accrued.

Should a taxpayer thus trade in bitcoin, the trades will be deemed to be income in nature and the profit and loss on the trades should be included in the taxpayer’s taxable income. However, if the taxpayer holds the bitcoin as a long-term investment (the same way some investors hold a share portfolio for long-term investing), the income derived from the disposal of the bitcoin will be deemed to be capital in nature, resulting in capital gains tax needing to be declared on the disposal.

1.3 Conclusion

Whether you are for or against cryptocurrencies, it is evident that cryptocurrencies have formed a part of the modern era and will likely remain relevant. This new form of currency/investment has caused quite a stir at SARS and taxpayers are advised to familiarise themselves with the tax treatment of these currencies to prevent any unexpected tax consequences.

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The Importance of Saving for Retirement

Saving for retirement can prove to be a very complex task, however, this does not have to be the case. Many people are not making the necessary provisions for retirement. When you start a new job or enter the workforce for the first time, the last thing you think about is saving for retirement, however, you should start saving for retirement as soon as possible, to ensure that you live comfortably in your old age.

It does not matter how far away you are from retirement, you should start saving and not spend this money on other things. As a rule of thumb, it is recommended to save 15% of your gross income, over a period of 40 years, between the ages of 25 to 65. Remember, you will also need to develop a financial plan for major life events – expected and unexpected. This could include anything from medical needs to changing family dynamics.

When thinking about your financial future, it’s important that you make retirement planning a top priority. Today, it’s even more important to start planning for retirement early, as fewer employers are offering pensions and retirement savings. This means that retirement is now more challenging than ever, as traditional pension plans are becoming few and far between. Recently, the responsibility of saving for retirement has shifted from the employer to the employee.

Another reason why it is important to start saving for retirement as early as possible is that longer lifespans have led to people outliving their savings. For example, if you live up to 78 years old, you will be in retirement for a long time. Longer life expectancies also lead to more money spent on healthcare.

If you have not started saving for retirement yet, it’s not too late. Make sure to work with your financial advisor or a trusted financial professional to help you to set out new savings goals so that you can get back on track. With the proper preparation and planning, you can have a comfortable retirement.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

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Personal benefit or occupational requirement?

In a recent Supreme Court of Appeal decision, the court had to determine whether the payment by an employer to tax consultants for providing assistance to the employer’s expatriate employees constituted a taxable benefit, as contemplated in the definition of “gross income” in section 1 of the Income Tax Act[1] read with section 2(e) or (h) of the Seventh Schedule.[2]

The taxpayer (in South Africa) belongs to a group of companies that conducts worldwide operations and, as a result, requires their employees to work for short to medium term periods in locations other than in their home countries. The group furthermore operates on a ‘tax equalisation’ basis which is standard practice within the group. This means that the group ensures that the net income of their employees, in whichever countries they are placed, is not less than in their home countries. As part of this arrangement, the taxpayer agreed to take responsibility for the payment of the tax due by expatriate employees of South Africa.

Due to the complex nature of tax legislation relating to expatriates, the taxpayer engaged the services of consulting firms to assist the expatriate employees. This included assistance with registering and deregistering them as taxpayers, the completion of tax returns and dealing with queries and objections to assessments. The taxpayer paid for these services.

The South African Revenue Service (“SARS”) issued additional assessments for the 2004 to 2009 tax years on the basis that the payments to the consulting firms were a taxable benefit in the hands of these employees.

The taxpayer objected to these findings and contended that no advantage had been gained by the expatriate employees by virtue of the use of the consultancy services and the payment by the taxpayer of their fees. The services were procured by the taxpayer in pursuit of the taxpayer’s own tax equalisation policy to ensure that it paid the correct amount of tax.

SARS disallowed the objection and both the Tax Court and High Court agreed with SARS. Upon further appeal, the Supreme Court of Appeal considered the engagement letter entered into between the taxpayer and one of the consulting firms. Although it appeared from the introductory paragraph that the services were rendered to the taxpayer, the description of services clearly indicated the assistance to be provided to the expatriate employees. These were services that the expatriate employees would otherwise have had to pay for personally. The court, therefore, agreed with the court below that these payments constituted a taxable benefit in the hands of these employees.

There are several other relevant considerations that were not dealt with as part of the judgment. It is unclear whether these matters were not in dispute between the parties:

  • Whether output VAT was paid in respect of the fringe benefit (the assumption is that it was not since BMW did not regard the payment as a fringe benefit from the outset) or whether BMW was denied the input tax deduction on the expenses; and
  • Whether the costs incurred were allowed as a deduction in the production of BMW’s income.

The takeaway from the judgement is that when employers incur costs that relate in any way to employees, careful consideration should be made of whether the cost potentially results in a benefit or advantage for the employee that was used for their private or domestic purposes. If this is indeed the case, there are a multitude of potential tax consequences which should be considered.

[1] No 58 of 1962

[2] BMW South Africa (Pty) Ltd v The Commissioner for the South African Revenue Service (1156/18) [2019] ZASCA 107 (6 September 2019)

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

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Changing more than your hold

The distinction between amounts received of a capital nature as opposed to a revenue (or income) nature is essential for income tax purposes. Non-capital amounts received, such as from the disposal of trading stock, are subject to tax at a higher effective rate compared to capital profits.

The primary intention with which an asset is acquired is generally conclusive as to the nature of the receipt arising from the realisation of a capital asset unless other factors intervene which show that it was sold in pursuance of a profit-making scheme. It is not uncommon though, that a person’s intention in regard to how they hold an asset, changes from when the asset was acquired, for whichever reason. Such a change in intention could result in unintended tax consequences.

Firstly, for capital gains tax (CGT) purposes, a change in intention to hold assets as trading stock will result in a deemed disposal of the assets on the date immediately before such a change in intention occurs. Such disposal will be deemed to take place at the market value of the assets at that time. The effect of this is that, even though there has been no actual disposal, the difference between base cost and market value of the assets concerned will be subject to CGT. Should the deemed disposal result in a capital gain, it could result in cash flow constraints since there are no actual cash proceeds from which to fund the tax liability which arises.

The second consequence is that the person will be treated as having immediately reacquired the asset at the same market value at which the deemed disposal occurred. After that, for income tax purposes, the cost of the trading stock is deemed to be the market value so that only the profit realised above that value will be subject to normal income tax. Any profit arising on a sale of the assets will therefore only be subject to income tax to the extent that the value of that asset has increased over and above the market value thereof when it became trading stock.

When the opposite occurs (i.e. assets that were previously held as trading stock, but are now to be held as capital assets), a person is treated as having disposed of the asset for an amount which included in that person’s income under the provisions dealing with trading stock, and immediately reacquired that asset for a cost equal to that amount. This cost is treated as an amount of expenditure actually incurred and paid for future CGT purposes.

The amount to be taken into account under the trading stock provisions depends on what the change in use entails:

  • Private or domestic use or consumption: Cost, less any provision for obsolescence. If the cost price cannot be readily determined, use the market value; or
  • Assets which cease to be held as trading stock: Market value

Apart from the income tax consequences, there could also be value-added tax and transfer duty consequences when there is a change in intention to how assets are held. It is advisable that when such an event occurs, the necessary professional assistance is obtained to manage potential pitfalls.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

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What You Need to Know about Property Tax

Investing in a property or buying your dream home is an exciting and rewarding experience. But one of the not-so-exciting, but crucial parts of any property purchase is the calculation and payment of one or more different kinds of tax. It is recommended that buyers receive proper advice on which taxes are payable and how much before the purchase, otherwise buying your dream home or investing in a property can become a very unrewarding and financially crippling experience.

So, what is included in property-related taxes? These taxes include municipal rates and charges for refuse and sewerage. We will discuss these taxes in more detail below:

Municipal rates

Most South African property owners must pay municipal rates, which are based on the market value of the property concerned. The calculation of municipal rates was changed in March 2004, when the Government Municipal Property Rates Bill came into play.

Previously, rural areas were charged a higher percentage than the wealthier areas, seeing as lower-income households effectively subsidised wealthier ones. Now, rates are levied at a common percentage (about 1%) irrespective of the value of the property. However, municipalities may levy different rates for different types of properties such as residential, commercial etc. When it comes to sectional title schemes, rates are applied to the entire scheme and are divided among the individual owners.

So how does it work? Your municipality will send you a valuation notice, which states the official value of your property. Using this valuation notice, subtract the specified “rate-free” amount (around R50 000), then multiply this net figure with the percentage of the municipal rate to calculate the annual amount payable. Divide this by 12 to calculate your monthly payment.

Refuse

Just like municipal rates, refuse charges vary from place to place. For example, in Cape Town, there are two parts to the refuse charge:

The first is calculated by subtracting R50 000 from the valuation of the property (same as with municipal rates) and multiplying the result by 0.038%.

The second part is a charge of R38.60 per month for a 240-litre bin with wheels. If your property is valued at less than R100 000, you pay half of the amount mentioned above, and if your property is valued at less than R50 000, you will receive a bin free of charge.

Sewerage

Just as is the case with refuse charges, sewerage is also commonly charged in two parts:

Firstly, a fixed charge of up to R38.00, depending on the value of your property.
Secondly, a variable charge according to your water consumption. See the table below:

Annual Consumption
Charge Per ‘000 Litres

0 – 4,200 litres

4,201 – 14,000 litres
R2.04

14,001 – 35,000 litres
R3.25

So, to break it down a little, if you consumed 200 000 litres in a year, you would pay R650.00 plus the fixed rate.

Before purchasing a property, make sure to consult an expert in order to determine how much you will have to pay in property taxes, and make sure to bring this into your budget before purchasing.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

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Calculating your foreign currency capital gain

With the fast approaching 2019 tax season, taxpayers who have realised a capital gain in a foreign currency should take note of the special rules that apply to the translation of those gains to Rand.

Generally, there are two ways of translating a capital gain or loss into Rand –  a “simple method” and a more “comprehensive method”. Under the simple method, the capital gain or loss is determined in the foreign currency and then translated to Rand at the time of disposal. Under the comprehensive method, the expenditure (when acquiring the assets) is converted to Rand at the time it is incurred while the proceeds are translated to Rand at the time the asset is disposed of. The comprehensive method picks up the effect of currency appreciation or depreciation on the cost of the asset.

Paragraph 43(1) of the Eighth Schedule to the Income Tax Act applies when an individual disposes of an asset for proceeds in foreign currency after having incurred expenditure in respect of the asset in the same foreign currency. In these circumstances, the individual must translate the capital gain or loss into the local currency by applying the average exchange rate for the year of assessment in which the asset was disposed of or by using the spot rate on the date of disposal of the asset.

An individual that buys an asset in one foreign currency and disposes of it in another foreign currency must use paragraph 43(1A) to translate the proceeds and expenditure to the local currency as follows:

  • the proceeds into the local currency at the average exchange rate for the year of assessment in which that asset was disposed of or at the spot rate on the date of disposal of that asset; and
  • the expenditure incurred in respect of that asset into the local currency at the average exchange rate for the year of assessment during which that expenditure was incurred or at the spot rate on the date on which that expenditure was incurred.

The term “average exchange rate” (in relation to a year of assessment) is defined in the Income Tax Act as the average exchange rate determined by using the closing spot rates at the end of daily or monthly intervals during a year of assessment. This rate must be applied consistently within that year of assessment.

For ease of reference (although the use of these exchange rates are not compulsory) SARS provides average exchange rates for years of assessment ending on each month since December 2003 for the following currencies: Australian Dollar, Canadian Dollar; Euro, Hong Kong Dollar, Indian Rupee, Japanse Yen, Swiss Franc, UK Pound and US Dollar. (you can get these at the following link: https://www.sars.gov.za/Legal/Legal-Publications/Pages/Average-Exchange-Rates.aspx).

“Spot rate”, in turn, is defined as the appropriate quoted exchange rate at a specific time by any authorised dealer in foreign exchange for the delivery of currency. For spot rates, as well, SARS has a handy tool for rate conversions: https://tools.sars.gov.za/rex/rates/MultipleDefault.aspx.

The conversion of foreign currency gains and losses (primarily when incurred in different currencies), can present a practical difficulty, especially given the volatility of the Rand. Taxpayers are advised to consult with their tax practitioners on the conversion of gains and losses in foreign currency, particularly where these gains and losses are material. Making errors in this regard could lead to substantial penalties.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

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Income vs Revenue in the Sale of Shares

The distinction between amounts of a capital nature as opposed to a revenue (or income) nature is essential, and over the years, few other topics have enjoyed so much attention in our tax courts. Although most taxpayers appreciate this distinction, it is essential to revisit the core principles from time to time, to ensure that taxpayers are not caught off-guard when accounting for the tax on the sale of shares.

Non-capital amounts are subject to tax at a higher effective rate compared to capital profits. The difference arises from the annual exclusion that applies to capital gains for natural persons, and the inclusion rate applied to it. In the case of natural persons, the maximum effective rate for capital gains is 18% (compared to 45% on revenue gains); companies are taxed at 22.4% (compared to 28%) and trusts at 36% (compared to 45%).

The departure point for the analysis is how long a person has held the shares. In terms of 9C of the Income Tax Act, 58 of 1962 (the Act), where shares have been held for a period of at least three years, the amount received in respect of the share sale will automatically be deemed to be of a capital nature. Consequently, any gain would constitute a capital gain. Section 9C does not require an election, and its application is automatic and compulsory. Importantly, profits on the disposal of shares held for less than three years is not automatically of a revenue nature. The nature of such profits must be determined using the general capital versus revenue principles. Apart from the three-year holding rule in section 9C, the Act does not provide objective factors to distinguish between capital and revenue gains on share disposals. General principles for making this distinction have been formulated in courts over many years.

A person’s intention (both at the stage of purchase and disposal) is the essential factor in determining the nature of profits. If shares were acquired with mixed intentions (bought partly to sell at a profit and partly to hold as an investment), the person’s intention would be determined by the dominant or main purpose. South African courts have held that a taxpayer’s evidence as to intention must be tested against the surrounding circumstances of the case, which include, amongst other things, the frequency of transactions, method of funding and reasons for selling.

Where shares have been purchased and sold as part of a profit-making scheme, gains will be regarded as revenue in nature. In this regard, although not conclusive, the frequency and scale of share transactions is an important consideration. Where shares are bought regularly for the main purpose of resale at a profit, it will be regarded as trading stock and profits will be revenue in nature. An occasional sale of shares yielding a profit suggests that a person is not a share trader engaged in a scheme of profit-making. Where profits have been made through the mere realisation of investment, there is no scheme of profit-making. Although it is possible that a once-off venture involving the acquisition of shares can comprise a venture resulting in the shares becoming trading stock, the “slightest contemplation of a profitable resale” is not necessarily determinative for a gain to be revenue in nature.

Profits on the disposal of shares acquired for long-term capital growth and dividend income will more likely be capital in nature. Shares sold for a profit very soon after the acquisition is, in most cases, an indication of the potential revenue nature of those profits. However, that measure loses a great deal of its importance when there has been some intervening act, for example, a forced sale of shares.

Taxpayers are encouraged to take careful note of the distinction between income and capital gains since a different interpretation by SARS could result in a lengthy (and costly) dispute.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

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Farming operations in South Africa and the tax implications thereof

Farming in South Africa is like second nature to most South Africans, but the tax implications on farming operations seem to raise some questions when determining a taxpayer’s taxable income. The taxation of farming operations is subject to a unique set of taxation rules. SARS requires that all income and expenses relating to farming operations be separately disclosed so that they can easily assess whether the specific tax rules have been adhered to.

The expression “farming operations”, is not defined in the Income Tax Act and should be interpreted according to its ordinary meaning, which according to Merriam-Webster dictionary is the science, art, or practice of cultivating the soil, producing crops, raising livestock and in varying degrees the preparation and marketing of the resulting products.

Section 26(1) of the Income Tax Act stipulates that the taxable income of any person carrying on pastoral, agricultural or other farming operations shall, in so far as the income is derived from such operations, be determined in accordance with the Act but subject to the First Schedule.

The First Schedule deals with the computation of taxable income derived from pastoral, agricultural or other farming operations. This schedule applies regardless of whether the taxpayer derives an assessed loss or a taxable income from the farming operations.

Furthermore, The First Schedule applies to any person who derives a taxable income from above-mentioned farming operations. The person could be an individual, a deceased estate, an insolvent estate, a company, a close corporation or a trust.

On the other hand, not all activities in farming constitute farming operations. Thus, in order to fall within the First Schedule, a farming operation needs to be the trade of the taxpayer and there must be an overall profit-making intention. If the activities carried out are only for the benefit of the individual, without the prospect of making a profit, the individual will not be carrying on farming operations.

The taxable income that is derived from farming operations is combined with the taxable income from any other sources to arrive at the relevant taxpayer’s taxable income for the applicable year of assessment.  If a loss is created, during the year of assessment, in the production of farming income, this specific loss should be carried over to the next financial year. The loss can only be utilised by income-generating activities that are in the production of farming income.

In conclusion, it is essential to determine the nature of farming activities and whether these activities are farming operations. If so, the First Schedule deals with the calculation of the taxable income.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

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Distinction between expenses of a capital and revenue nature

On 15 November 2019, the Cape Town Tax Court handed down judgement in ITC24614. It is yet another judgement concerned with the distinction between expenses of a capital nature or revenue nature – arguably the issue over which there has been the most litigation in South African tax history. The importance of the distinction lies in the deductibility of the amount for income tax purposes – while expenses which are revenue in nature are generally deductible, those of a capital nature, are not.

The expense (or loss, in this instance) which gave rise to the dispute, is a fellow subsidiary receivable amount (treated in the taxpayer’s books as a “loan”), which was written off by the taxpayer since it was clear that the fellow subsidiary was unable to repay the amount. SARS argued that the loss was of a capital (as opposed to revenue) nature, and along with denying the deduction, imposed a 50% understatement penalty on the taxpayer.

The origin of the loan was not from funds advanced by the taxpayer to the fellow subsidiary, but rather from trading activities between the parties (i.e. amounts which were included in the taxpayer’s income and the amount deducted therefrom).

The tax court argued as follows:

  • A loss suffered by a taxpayer as a result of writing off indebtedness of another party can be categorised as either capital or revenue in nature and there is no single definitive yardstick for distinguishing between capital and revenue expenditure;
  • Whether an amount lost or written off was advanced or treated as a loan is not in itself determinative of the capital or revenue nature of the loss or expenditure, since the accounting treatment applied by a party is not to be regarded as determinative of either the legal position or the correct tax position. The question is always one of substance rather than form, and is to be decided on all the facts of the case;
  • It is not the treatment of an amount as a “loan” which is determinative, but whether the loss was incurred in the conduct of the taxpayers’ own revenue-earning trade or not; and
  • This was not an investment concerned with supporting an extraneous business of the fellow subsidiary and the loss incurred did not amount to the deployment of the taxpayer’s fixed capital to equip its “income-earning machine”. It was rather an indebtedness that arose from its trading activities with the fellow subsidiary and as such is a clear example of the deployment of floating capital, insofar as it was not intended to remain outstanding but intended to be converted back into cash in the ordinary conduct of the taxpayer’s trade.

In the result, the tax court found in favour of the taxpayer and ordered that the additional assessment be set aside.

Respectfully, the tax court’s findings in this regard are sound, and it is unclear why the matter proceeded to litigation. Where the line between revenue and capital in nature is often blurred, this appeared on face value to be rather straightforward. The take-away from the judgement is that taxpayers should, especially where material amounts are involved, not merely accept additional assessments from SARS and should consult with experts where there are uncertainties.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted. (E&OE) 

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Taxation of foreign employment income

South Africa has a residence-based tax system, which means residents are taxed on their worldwide income, regardless of where that income was earned.

South African tax residents living overseas and earning remuneration in respect of services rendered outside of South Africa are exempt from tax in South Africa, provided that the individual is outside of South Africa for a period or periods exceeding 183 full days (60 of which have to be continuous days of absence), during any 12 month period.

There is currently no limitation on the foreign employment income exemption.

From 1 March 2020, the first R1 million earned from foreign service income will be exempt from tax in South Africa, provided more than 183 days are spent outside SA in any 12-month period and, during the 183-day period, 60 days are continuously spent outside SA.

This means that any foreign service income above the first R1 million will be taxed in South Africa at the relevant tax resident’s marginal tax rate.

To prove to SARS that you comply with the section 10(1)(o)(ii) exemption, you need to keep a record of your employment contracts and proof of payment of taxes abroad.

When considering your approach to tax planning you should appoint a Tax Practitioner to ensure that you don’t step onto any landmines.

In order to ensure that the tax system promotes the principles of fairness, it was legislated that foreign employment income earned by a resident should no longer be fully exempt.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted. (E&OE) 

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