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Independent contractors vs. employees – How does SARS distinguish between them?

A2In terms of the Fourth Schedule to the Income Tax Act, No. 58 of 1962 an employer is required to withhold employee tax when remunerating an employee.

The definition of “remuneration” in the Fourth Schedule is comprehensive. It includes most forms of payment for services rendered but specifically excludes payments made to persons who practise a trade distinct from that of the employer. Thus, an independent contractor is excluded from the definition.

A person will be deemed not to be an independent contractor if-

  • any amount is paid to that person for services that are mainly provided on the premises of the person making the payment or the person to whom the services are rendered (the client); and
  • the person is subject to the control or supervision of the person to whom the services are rendered with regard to the manner in which his duties are carried out or with regard to his working hours.

The foregoing definition is also known as the control or supervision test. Thus, if a person dictates the working hours and also prescribes where the worker should perform his or her work, the worker will in all probability be regarded as an employee and not as an independent contractor.

A person who provides services to another person will be deemed to satisfy the definition of an  independent contractor should he, throughout the tax year, employ three or more full-time workers. [1]

In most investigations the South African Revenue Service (SARS) focusses on payments made to independent contractors. If SARS finds that the contractor does not comply with the above provisions the company that made the payments may be held liable for the employees’ tax that was not paid over to SARS.

Should you wish to find out more on the subject of independent contractors or would like advice on any payments that you make to contractors, you are welcome to contact your responsible director or to contact Jaco van Straaten at , tel. 021 840 1600.                            

[1] The workers referred to may not be connected to the person employing them, thus they should not be family members. They should also be involved in the service provided by the employer.

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