M.Com. (SA & International Taxation ) / Players’ contracts in sports are assets for the professional clubs. Like any other assets, these contracts could be sold to other clubs, locally or internationally, at a fee. The South African Revenue Service has issued a “Draft guide on the taxation of professional sports clubs and players” (hereafter the Guide). This Guide was issued as a draft in 2010 and had not been finalised at the time of the completion of this dissertation. Using a doctrinal research methodology, which includes a systematic exposition of the Guide by using the Income Tax Act 58 of 1962 (hereafter the Act), case law and the other appropriate literature, this study is aimed at interpretatively reviewing the contents of this Guide, specifically the section of the Guide that deals with the income tax implications arising from the transfer of players. The review of the Guide revealed that the Guide is technically incorrect in certain aspects. For instance, the definition of “asset” per the Eighth Schedule of the Act was incorrectly cited to specifically exclude trading stock. In addition, the Guide has excluded from its scope transactions between residents and non-resident clubs and players. Furthermore, the Guide did not deal with all aspects relating to player transfers, such as player swops and third party ownership of player rights. In some instances, the Guide was found to be ambiguous, especially in dealing with free transfers. The study has found that the transfer fees could either be included in gross income or be subject to capital gains tax for the transferor club, depending on whether their nature was revenue or capital. The deciding factor was determined to be the intention of the transferor club at the time of transfer of the player rights. Where the intention of a transferor club is to enter into a profit-making scheme, the transfer fees would be revenue in nature and included in gross income in terms of s 1 of the Act (Elandsheuwel Farming (Edms) Bpk v SBI, 39 SATC 163). Where the intention of a transferor club is to use the player as income-producing asset, then the transfer fees would be capital in nature, and be subject to capital gains tax. For the transferee club, it was determined that the player is usually acquired to bring to the club an advantage of the enduring benefit (British Insulated and Helsby Cables v Atherton 1926 A.C. 205). This therefore implies that the transferee club would not be able to claim the deduction under s 11(a) of the Act. The study will be useful to the sports clubs as it provides a comprehensive guide on the income tax treatment of player transfers.

As the number of non-resident sports persons competing in South Africa increases so does the need to tax them more effectively. It was for this reason that the South African legislature decided to insert Part IlIA into the Income Tax Act which regulates the taxation of non-resident sports persons in South Africa. The new tax on foreign sports persons, which came into effect during August 2006, is a withholding tax placing the onus upon the organizer of the event to withhold the tax portion of the payment to the non-resident sportsperson and pay it over to the revenue services. The rate of taxation has been set at 15 percent on all amounts received by or accruing to a foreign sportsperson. The question which the research addressed is whether this new tax will prove to be an effective tax, both from the point of view of its equity and the administration of the tax. In order to determine the impact of the new tax, it was compared to similar taxes implemented in the United Kingdom and Australia and also to other withholding taxes levied in South Africa. The new tax was also measured against a theoretical model for effectiveness, compared to the pre-August 2006 situation and to the taxation of resident sportsmen and women, using hypothetical examples. The major shortcomings of the new withholding tax are the uncertainty with regard to the intention of the legislature on matters such as the taxation of capital income versus revenue income, the question whether payments to support staff are included in the ambit of the new tax, the taxation of the award of assets in lieu of cash payments and the definition of a resident. A further area of concern is that the rate of taxation of 15 percent appears to be too low and creates horizontal inequity between the taxation of resident and non-resident sports persons. The new tax on non-resident sports persons may have its shortcomings but, depending upon the administrative and support structures put in place to deal with it, will be an effective tax. The rate at which the tax is levied could result in a less tax being collected than before but, with the reduced administrative cost of tax collection, the effective/statutory ratio of the tax could well be much higher than it was. This is a new tax in South Africa and certain initial problems are inevitable and will undoubtedly be solved as the administrators gain experience and as the case law governing this tax develops. / KMBT_363