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Tax Talk

Tax Talk

Author: Natalie Wocke
Date: 2014-09-26
Specific Anti-Avoidance Provision applicable to Spouses - S 7(2):

Married persons are each taxed on their own income, unless the anti-avoidance provisions in section 7(2) of the Income Tax Act 58 of 1962 apply. Section 7(2) is a specific anti-avoidance provision applicable to spouses.

Generally, each spouse is a separate taxpayer, liable to tax on their own income. This general rule is however, subject to the anti-avoidance provisions of Section 7(2), which provide that income accrued to/received by one spouse (the recipient), will be deemed to income of the other spouse (the donor), and taxed in that other spouses hands if:-

(a) the donor spouse did not earn the income, because they made a donation, settlement or other similar disposition, to the recipient, for the purpose of avoiding tax, or

(b) the donor entered into the scheme or transaction, with the sole or main purpose of reducing, postponing or avoiding tax on the part of the donor, or

(c) the recipient spouse received more their fair share of the income, due to carrying on a trade in partnership or in association with the donor or connected to the trade of the donor, or

(d) the recipient receives more than their fair share from a partnership of which the donor spouse is a partner, or from a company of which the donor is the sole/main/principal shareholder.


In point (c) and (d) one must determine what would have been fair remuneration had the recipient not been the spouse of the donor, and the excessive remuneration must be taxed in the hands of the donor spouse.


To ensure one does not fall foul of such provisions, one should consult with an expert with relevant experience and expertise in the specific area in which you are seeking advice. Contact Roberts and Chaplin on 032 586 0387 (Ballito) or 032 947 1010 (Umhlali), to see if we are able to assist you with your specific query.