| (a) |
that entity is a trust, an association of persons or a non-profit company as defined in section 1 of the Companies Act that has been incorporated, formed or established in the Republic; |
[Section 30C(1)(a) substituted by section 55(1) of the Taxation Laws Amendment Act, 2015 (Act No. 25 of 2015) - deemed to have come into operation on 1 March 2015]
| (i) |
the sole or principal object of that entity is the provision of funding for small, medium and micro-sized enterprises; and |
| (ii) |
the funding contemplated in subparagraph (i) is— |
| (aa) |
provided by that small business funding entity for the benefit of, or is widely accessible to small, medium and micro-sized enterprises; |
| (bb) |
provided on a non-profit basis and with an altruistic or philanthropic intent; and |
| (cc) |
not intended to directly or indirectly promote the economic self-interest of any fiduciary or employee of that entity, otherwise than by way of reasonable remuneration payable to that fiduciary or employee; |
| (c) |
that small business funding entity has submitted to the Commissioner a copy of the constitution or written instrument under which that small business funding entity has been established; |
| (d) |
the constitution or written instrument contemplated in paragraph (c) provides that— |
(i)
| (aa) |
the small business funding entity must have a committee, a board of management or similar governing body consisting of at least three natural persons who are not connected persons in relation to each other to accept the fiduciary responsibility of that small business funding entity; |
| (bb) |
not more than fifty per cent of the members of the committee or a board of management contemplated in item (aa) may be employees or directors of any entity providing funding to that small business funding entity or persons who are connected persons in relation to any such employee or director; |
| (ii) |
any single person may not directly or indirectly control the decision-making powers relating to that small business funding entity; |
| (iii) |
the small business funding entity may not directly or indirectly distribute any of its funds or assets to any person other than in the course of furthering its sole or principal object; |
| (iv) |
the small business funding entity may not directly or indirectly distribute any of its funds or assets to any employee in relation to that entity or a person that is a connected person in relation to any such employee or to a person contemplated in subparagraph (i); |
| (v) |
the small business funding entity is required to utilise substantially the whole of its funds for its sole or principal object for which it has been established; |
| (vi) |
the small business funding entity must within 12 months after the end of the relevant year of assessment distribute or incur the obligation to distribute at least 25 per cent of all amounts received or accrued in respect of assets held, other than any amount received or accrued in respect of the disposal of any of those assets, during that year of assessment; |
[Section 30C(1)(d)(vi) substituted by section 52(1) of the Taxation Laws Amendment Act, 2018 (Act No. 23 of 2018), GG 42172, dated 17 January 2019 - effective 1 January 2019 (section 52(2)]
| (vii) |
a member of a committee, a board of management or similar governing body of the small business funding entity may not directly or indirectly have any personal or private interest in that small business funding entity; |
| (viii) |
substantially the whole of the activities of the small business funding entity must be directed to the furtherance of the sole or principal object of that small business funding entity; |
| (ix) |
the small business funding entity may not pay to any employee, office bearer, member or other person any remuneration, as defined in the Fourth Schedule, which is excessive, having regard to what is generally considered reasonable in the sector and in relation to the service rendered; |
| (x) |
the small business funding entity must as part of its dissolution transfer its assets to— |
| (aa) |
another small business funding entity approved by the Commissioner in terms of this section; |
| (bb) |
a public benefit organisation contemplated in paragraph (a)(i) of the definition of public benefit organisation in section 30(1) that is approved by the Commissioner as a public benefit organisation in terms of that section; |
| (cc) |
an institution, board or body which is exempt from tax under section 10(1)(cA)(i); or |
| (dd) |
the government of the Republic in the national, provincial or local sphere; |
| (xi) |
the persons contemplated in paragraph (d)(i) will submit any amendment of the constitution or written instrument of the small business funding entity to the Commissioner within 30 days of its amendment; |
| (xii) |
the small business funding entity will comply with such reporting requirements as may be determined by the Commissioner from time to time; and |
| (xiii) |
the small business funding entity is not knowingly and will not knowingly become a party to, and does not knowingly and will not knowingly permit itself to be used as part of, an impermissible avoidance arrangement contemplated in Part IIA of Chapter III, or a transaction, operation or scheme contemplated in section 103(5); and |
| (e) |
the Commissioner is satisfied that the entity does not have a person acting in a fiduciary capacity, who is disqualified in terms of section 6 of the Trust Property Control Act, 1988 (Act No. 57 of 1988), section 25Aof the Nonprofit Organisations Act, 1997 (Act No. 71 of 1997), or section 69 of the Companies Act. |
[Section 30C(1)(e) inserted by section 9(b) of the Tax Administration Laws Amendment Act, 2023, GG49947, dated 22 December 2023]
| (2) |
Where the Commissioner is— |
| (a) |
satisfied that any small business funding entity approved in terms of subsection (1) has during any year of assessment in any material respect; or |
| (b) |
during any year of assessment satisfied that any small business funding entity approved in terms of subsection (1) has on a continuous or repetitive basis, |
failed to comply with this section, or the constitution or written instrument under which that small business funding entity was established to the extent that it relates to this section, the Commissioner must notify the small business funding entity that the Commissioner intends to withdraw approval of the small business funding entity if corrective steps are not taken by the small business funding entity within the period stated in the notice.
| (3) |
If no corrective steps are taken by the small business funding entity as contemplated in subsection (2), the Commissioner must withdraw approval of that small business funding entity with effect from the commencement of the year of assessment contemplated in subsection (2). |
| (4) |
If the Commissioner has withdrawn the approval of a small business funding entity as contemplated in subsection (3) the small business funding entity must within six months after the date of the withdrawal of approval (or such longer period as the Commissioner may allow) transfer, or take reasonable steps to transfer, its remaining assets to any small business funding entity, public benefit organisation, institution, board or body or the government of the Republic, as contemplated in subsection (1)(d)(x). |
| (5) |
If a small business funding entity is wound up or liquidated, the small business funding entity must, as part of the winding-up or liquidation, transfer its assets remaining after the satisfaction of its liabilities to any small business funding entity, public benefit organisation, institution, board or body or the government of the Republic, as contemplated in subsection (1)(d)(x). |
| (6) |
If a small business funding entity fails to transfer, or to take reasonable steps to transfer, its assets as contemplated in subsection (4) or (5), an amount equal to the market value of those assets which have not been transferred less an amount equal to the bona fide liabilities of that small business funding entity must for the purposes of this Act be deemed to be an amount of taxable income which accrued to that small business funding entity during the year of assessment in which the withdrawal of approval in terms of subsection (4) or the winding-up or liquidation contemplated in subsection (5) took place. |
| (7) |
Any person who is in a fiduciary capacity responsible for the management of any small business funding entity and who intentionally fails to comply with any provision of this section or of the constitution, or other written instrument under which that small business funding entity is established to the extent that it relates to the provisions of this section, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 24 months. |
| (8) |
A person may not act in a fiduciary capacity if that person is disqualified in terms of section 6 of the Trust Property Control Act, 1988 (Act No. 57 of 1988), section 25A of the Nonprofit Organisations Act, 1997 (Act No. 71 of 1997), or section 69 of the Companies Act. |
[Section 30C(8) inserted by section 9(c) of the Tax Administration Laws Amendment Act, 2023, GG49947, dated 22 December 2023]
| (9) |
A person who fails to comply with the provisions of subsection (8) shall be guilty of an offence and liable, upon conviction, to a fine or to imprisonment for a period not exceeding 24 months.’’. |
[Section 30C(9) inserted by section 9(c) of the Tax Administration Laws Amendment Act, 2023, GG49947, dated 22 December 2023]
Statistics Act, 1999
