Again to the drafting board on pension pot entry for emigrants

The contentious proposal referring to the power of individuals emigrating from South Africa to entry quantities of their retirement funds is again on the drafting board.

When it comes to the proposal within the Draft Taxation Legal guidelines Modification Invoice, the fee of lump sum advantages will solely be accessible if the member of the fund ceases to be a South African tax resident and has remained non-tax resident for no less than three consecutive years or longer (the ‘three-year rule’).

Death knell for ‘financial emigration’
Emigration to be based on tax residency test from next year

Hugo van Zyl, vice chair of the non-public and employment taxes work group of the South African Institute of Tax Professionals (Sait), says Nationwide Treasury has requested additional feedback from giant business gamers equivalent to fund managers, the financial savings and investments affiliation and recognised controlling our bodies equivalent to Sait and the South African Institute of Chartered Accountants (Saica).


He says the present proposed change is insufficient and unfair. “It’s a coverage change which requires transitional guidelines as formal emigration for trade management functions is not going to be switched off in a single day.”

Authorities has made a coverage choice to part out formal emigration for trade management functions.

Nationwide Treasury and the South African Income Service (Sars) have proposed amending the definitions of the phrases ‘pension preservation fund’, ‘provident preservation fund’ and ‘retirement annuity fund’.

Joon Chong, associate at legislation agency Webber Wentzel, and colleague Wesley Grimm say in a joint article the impact of the three-year rule is that members of retirement funds who to migrate should watch for a interval of no less than three years earlier than they might entry their pre-retirement lump sum advantages.

“This can trigger monetary hardship for folks, who might have these funds to start out a brand new life within the vacation spot nation.”

Throughout a parliamentary listening to Treasury expressed the view that the aim of retirement funds is to not fund a person’s emigration. The tax benefits of investing in retirement funds include situations.

Learn: Travel bans may affect tax residency status

With the present formal emigration, a person has to shut most of their South African financial institution accounts, cancel their bank cards, quit their entry to on-line banking, can’t prolong loans again to SA, and all transactions have to undergo an authorised supplier.

Treasury notes that after a person has emigrated, it’s tough for the person to return to SA.

By phasing out emigration, Treasury hopes to make it a lot simpler for people to return to SA, not tougher.

Van Zyl says it will not be incorrect to imagine that Sars and Treasury had been so sad concerning the abuse of the formal emigration course of and the “misselling of a financial institution answer to deal with tax residency” that they determined to shut down rogue business gamers abusing a financial institution course of.

When it comes to the financial institution course of one may formally to migrate primarily based on an intention and one may file 60 days earlier than departure, supplied you had everlasting residency or a second passport. This take a look at will fall away if the proposed change is accepted.

Van Zyl says for expats dwelling in non-treaty international locations (international locations with which SA doesn’t have double tax agreements) or in treaty international locations the place worldwide earnings is the treaty take a look at, the unlocking of locked-in retirement funds grew to become almost unattainable.

Unintended consequence?

“I don’t assume this was intentional, it’s a consequence of Treasury making an attempt to do it on their very own with out chatting with the representatives of the business,” notes Van Zyl.

Chong says individuals who have began the formal emigration course of however haven’t accomplished it by March 1, 2021 (when the proposed change turns into efficient) might be prejudiced.

The three-year rule additionally makes retirement annuity funds much less engaging as retirement financial savings automobiles. The explanation for that is that members of retirement annuity funds should wait three years to entry their retirement advantages, whereas members of pension preservation and provident preservation funds might entry sure pre-retirement advantages as soon as previous to retirement and members of pension and provident funds might make a pre-retirement lump-sum withdrawal on termination of their employment relationships.

“Though the three-year rule was proposed to modernise the overseas trade management course of, it’s unrefined and raises sensible points which have to be urgently addressed,” says Chong.

Treasury is of the view that the three-year rule is doable, however has invited additional feedback on the matter.