Transfer duty memorandum

The memorandum, written by Antoinné van Deventer reads as follows:

TRANSFER DUTY & CGT: EXEMPTIONS AS ENVISAGED IN SECTION 9(20) OF THE TRANSFER DUTY ACT, 1949 (TRANSFERRING A RESIDENCE FROM A COMPANY OR TRUST TO A NATURAL PERSON)

To comply with the requirements of the above-mentioned exemptions which came into operation on 11 February 2009 and which will be effective until 31 December 2011, the following documentation must be submitted:

Exemption in terms of section 9(20) of the Transfer Duty Act (the Act) In respect of all transactions concluded between the date of this notice and 31 December 2011: A. Acquisition from a Company or Close Corporation

• TD 1, TD 2 and TD 3 (provided the source document is anything other than a sale agreement); or
• TD 1 and TD 2 (provided the source document is a sale agreement); and
• Source document (provided it was executed between 11 February 2009 and 31 December 2011); and
• An affidavit by the natural person who requires the property confirming the information as set out in paragraph 51 of the Eighth Schedule to the Act, namely:
  • That he/she/they personally and ordinarily resided in the property since 11 February 2009 and have used it mainly for domestic purposes and will continue to do so till date of registration of transfer;
  • That the Company/Close Corporation has resolved to transfer the property to him/her/them, its shareholders/members, pursuant to the provisions of paragraph 51 of the Eighth Schedule to the Income Tax Act, 1962;
  • That the individual alone or together with his/her spouse directly held all the share capital of the company or members interest in the close corporation as from 11 February 2009 to the date of registration of the property in the deeds registry of that residence in the name of that natural person or his or her spouse or in their names jointly.
  • That the property is less than 2 (two) hectares in extent;
  • That application is made in terms of Section 9(20) of the Transfer Duty Act, 1949 for exemption from the payment of transfer duty on the acquisition of the property;
  • The affidavit is to set out the marital status of the party/parties and, if married, whether such is in or out of community of property.
• An undertaking by the transferring attorney that he will submit the relevant documentation well in time to enable the Deeds Office to register the transaction by not later than 31 December 2011; and
• A copy of the share register of the company or the CK 1 [CK 2] of the close corporation together with an affidavit by the public officer that the information supplied on the relevant form reflects the position as at 11 February 2009; and
• A copy of the municipal account as proof that the appropriate natural person or that person's spouse resides in the residence; and
• A Deed search as proof of the date of registration of the property in the name of the company or the close corporation: and
• Certified copy of the Transfer Duty receipt in cases where the shares/members interest were acquired:
  • On/after 13 December 2002 and
  • After the property was registered in the Deeds Registry.

• TD 1, TD 2 and TD 3 (provided the source document is anything other than a sale agreement): or
• TD 1 and TD 2 (provided the source document is a sale agreement); and
• Source document (provided it was executed between 11 February 2009 and 31 December 2011); and
• An affidavit by the natural person who requires the property confirming the information as set out in paragraph 51 of the Eight Schedule to the Act, namely
  • That he/she/they personally and ordinarily resided in the property since 11 February 2009 and have used it mainly for domestic purposes and will continue to do so till date of registration of transfer;
  • That the Trust has resolved to transfer the property to him/her/them, pursuant to the provisions of paragraph 51 of the Eighth Schedule to the Income Tax Act, 1962;
  • That the property is less than 2 (two) hectares in extent
  • That the application is made in terms of Section 9 (20) of the Transfer Duty Act, 1949 for the exemption from the payment of transfer duty on the acquisition of the property;
  • The name of the person/persons who financed all the expenditure actually incurred by the Trust to acquire and improve the property
  • The affidavit is to set out the marital status of the party/parties and, if married, whether such is in or out of community of property
• Proof from the bank in whatever format that might take - either a letter from the bank or any other proof proving who has and/or is financing ALL the expenditure; and
• The trust deed; and
• An undertaking by the transferring attorney that he/she will submit the relevant documentation well in time to enable the Deeds Registry to register the transaction by no later than 31 December 2011; and
• A copy of the Municipal account as proof that the appropriate natural person or that persons spouse resides in the residence; and
• A Deeds search as proof of the date of registration of the property in the name of the Trust; and
• Certified copy of the Transfer Duty receipt in cases where the rights were acquired by the person/persons seeking the exemption:
  • On/after 13 December 2002; and
  • After the property was registered in the Deeds Registry; and
• Affidavit must also state that the that natural person has financed all the expenditure actually incurred by the trust to acquire and improve the property; and
• If the property was disposed of to that trust by way of donation, settlement or other disposition: - * A certified copy of the Deed of Donation, deed of settlement or other deed of alienation must be submitted and care must be taken that the exemption only applies in favour of (that is to say the property is now acquired by) the same person who donated or otherwise alienated it to the trust; and
• If one of the other situations as envisaged in paragraph 51(2)(b)(ii) of the Eighth Schedule to the Act is applicable, full details must be submitted by way of affidavit together with documentation to prove the situation.