Q: A client employs a person in terms of a 4 year
learnership. This learnership is for the period 1 March 2011 to 28 February
2015. The learnership has specific requirements which are linked to that of the
SETA requirements. Once the employee has met these requirements the employee
can choose to leave the client's employment. In this case the person left at
the end of January 2015 as his core training requirements were met. The SETA
will issue the completion letter on 28 February 2015. Therefore technically the
learnership is still effective until 28 February 2015. However there is no
employment relationship for the month of February.
Would a company be able to claim the learnership
allowance in full where the employee leaves a month earlier (i.e. 11 months) and
the SETA only signs off the learnership at the end of the final month (12
A: In our view the requirement in section 12H (4)
of the Income Tax Act, is that the 12 month period must be calculated from the
date of commencement, which would coincide with employment. Section 17(2) of
the Skills Development Act requires that the learnership agreement must oblige
the employer to employ the employee and the employee to work for the employer.
In our view both the employment and learnership agreement would terminate in
January on resignation of the employee and the 12 months should be calculated
as stated to this date and not to February which was the maximum conclusion
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advice based on the facts and circumstances of each transaction/case. Even
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not accept any responsibility for consequences of decisions taken based on this
query and answer. It remains your own responsibility to consult the relevant
primary resources when taking a decision.
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