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1
Tarrant, Greg. "The distinction between tax evasion, tax avoidance and tax planning." Thesis, Rhodes University, 2008. http://hdl.handle.net/10962/d1004549.
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Tax avoidance has been the subject of intense scrutiny lately by both the South African Revenue Service ("the SARS") and the media. This attention stems largely from the recent withdrawal of section 103(1) together with the introduction of section 80A to 80L of the South African Income Tax Act. However, this attention is not limited to South Africa. Revenue authorities worldwide have focused on the task of challenging tax avoidance. The approach of the SARS to tackling tax avoidance has been multi-faceted. In the Discussion Paper on Tax Avoidance and Section 103 (1) of the South African Income Tax Act they begin with a review of the distinction between tax evasion, tax avoidance and tax planning. Following a call for comment the SARS issued an Interim Response followed by the Revised Proposals which culminated in the withdrawal of the longstanding general anti-avoidance rules housed in section 103(1) and the introduction of new and more comprehensive anti-avoidance rules. In addition, the SARS has adopted an ongoing media campaign stressing the importance of paying tax in a country with a large development agenda like that of South Africa, the need for taxpayers to adopt a responsible attitude to the management of tax and the inclusion of responsible tax management as the greatest measure of a taxpayer's corporate and social investment. In tandem with this message the SARS have sought to vilify those taxpayers who engage in tax avoidance. The message is clear: tax avoidance carries reputational risks; those who engage in tax avoidance are unpatriotic or immoral and their actions simply result in an unfair shifting of the tax burden. The SARS is not alone in the above approach. Around the world tax authorities have been echoing the same message. The message appears to be working. Accounting firms speak of a "creeping conservatism" that has pervaded company boardrooms. What is not clear, however, is whether taxpayers, in becoming more conservative, are simply more fully aware of tax risks and are making informed decisions or whether they are simply responding to external events, such as the worldwide focus by revenue authorities and the media on tax avoidance. Whatever the reason, it is now critical, particularly in the case of corporate taxpayers, that their policies for tax and its attendant risks need to be as sophisticated, coherent and transparent as its policies in all other areas involving multiple stakeholders, such as suppliers, customers, staff and investors. How does a company begin to set its tax philosophy and strategic direction or to determine its appetite for risk? A starting point, it is submitted would be a review of the distinction between tax evasion, avoidance and planning with a heightened sensitivity to the unfamiliar ethical, moral and social risks. The goal of this thesis was to clearly define the distinction between tax evasion, tax avoidance and tax planning from a legal interpretive, ethical and historical perspective in order to develop a rudimentary framework for the responsible management of strategic tax decisions, in the light of the new South African general anti-avoidance legislation. The research methodology entails a qualitative research orientation consisting of a critical conceptual analysis of tax evasion and tax avoidance, with a view to establishing a basic framework to be used by taxpayers to make informed decisions on tax matters. The analysis of the distinction in this work culminated in a diagrammatic representation of the distinction between tax evasion, tax avoidance and tax planning emphasising the different types of tax avoidance from least aggressive to the most abusive and from the least objectionable to most objectionable. It is anticipated that a visual representation of the distinction, however flawed, would result in a far more pragmatic tool to taxpayers than a lengthy document. From a glance taxpayers can determine the following: That tax avoidance is legal; that different forms of tax avoidance exist, some forms being more aggressive than others; that aggressive forms of tax avoidance carry reputational risks; and that in certain circumstances aggressive tax avoidance schemes may border on tax evasion. This, it is envisaged, may prompt taxpayers to ask the right questions when faced with an external or in-house tax avoidance arrangement rather than simply blindly accepting or rejecting the arrangement.
2
Stopforth, David Paul. "A history of the anti-avoidance legislation applying to settlements for income tax purposes." Thesis, University of Glasgow, 1988. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.254093.
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Haffejee, Yaasir. "A critical analysis of South Africa's general anti avoidance provisions in income tax legislation." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1243.
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This treatise was undertaken to critically analyse the new general anti avoidance rules (new GAAR) as set out in sections 80A to 80L of the Income Tax Act1. A discussion on the difference between tax evasion and tax avoidance was performed in the first chapter. The goals of this treatise were then set out. An analysis of the requirements for the application of the new GAAR was performed in the second chapter. The courts have historically reviewed the circumstances surrounding an arrangement when determining whether tax avoidance has occurred. The new GAAR requires the individual steps of an arrangement to be reviewed in isolation. Secondly, the courts have historically held that the purpose test, when determining the taxpayer‘s purpose, was subjective. The wording of the new GAAR indicates that this test is now objective. Thirdly, the courts have historically viewed the abnormality of an arrangement based of the surrounding circumstances. The wording of the new GAAR requires an objective view of the arrangement. An analysis of the secondary provisions contained in sections 80I, 80B and 80J of the new GAAR was performed in the third chapter. With regards to section 80B, it was submitted that the Commissioner should issue an Interpretation Note detailing all the methods ―he deems appropriate.
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Prebble, Zoë, and John Prebble. "Comparing the General Anti-Avoidance Rule of Income Tax Law with the Civil Law Doctrine of Abuse of Law (Part I)." IUS ET VERITAS, 2016. http://repositorio.pucp.edu.pe/index/handle/123456789/123574.
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This paper compares the general anti-avoidance rule of incometax law with the Civil Law doctrine of abuse of law (Rechtsmissbrauch, abusde droit) in eight jurisdictions: Germany, Croatia, New Zealand, Australia, France, the e uropean u nion, the u nited s tates and the United Kingdom. The paper addresses the statutory and judge-made general anti-avoidance rules in these jurisdictions and deals with the core concept of avoidance an on how these eight jurisdictions either frustrate avoidance or allow it.Este artículo compara la norma anti-elusiva general de la ley del impuesto a la renta con la doctrina del abuso de derecho del Civil Law(Nt 1) (Rechtsmissbrauch, abus de droit) en ocho jurisdicciones: Alemania, Croacia, Nueva Zelanda, Australia, Francia, la Unión Europea, los Estados Unidos y el Reino Unido. El artículo se ocupa de las normas anti-elusivas generales legislativas y jurisprudenciales en estas jurisdicciones y aborda el concepto central de la elusión. El artículo se enfoca en transacciones que la mayoría reconocería como elusivas y en cómo estas ocho jurisdicciones frustran la elusión o la permiten.
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Kujinga, Benjamin Tanyaradwa. "A Comparative Analysis of the Efficacy of the General Anti-Avoidance Rule as a Measure Against Impermissible Income Tax Avoidance in South Africa." Thesis, University of Pretoria, 2013. http://hdl.handle.net/2263/33430.
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This thesis comparatively analyses the SA income tax general anti-avoidance rule (GAAR) in s 80A-L of the Income Tax Act 58/1962 and similar rules in Australia, Canada, the UK and the judicial doctrines in the US and the UK. It is argued that, while the SA GAAR may serve as a deterrent, it is going to have limited efficacy against impermissible tax avoidance due to the uncertainty it creates. It is argued that uncertainty will cause judicial activism to protect permissible tax avoidance, extensive and inconsistent judicial interpretation and confusion amongst taxpayers and SARS as to what constitutes permissible or impermissible tax avoidance. This thesis ends by recommending certain amendments, based on the comparative analysis, to the SA GAAR which can reduce uncertainty and thus improve it efficacy.Thesis (LLD)--University of Pretoria, 2013.
Mercantile Law
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Prebble, Zoë, and John Prebble. "Comparing the General Anti-avoidance Rule of Income Tax Law with the Civil Law Doctrine of Abuse of Law (Part II)." IUS ET VERITAS, 2016. http://repositorio.pucp.edu.pe/index/handle/123456789/123114.
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This article compares and analyzes how member States of the European Union, the United States of America and the United Kingdom combat tax avoidance through its legal systems. The article addresses issues such as the influence of the Court of Justice of the European Union and the case Cadbury Schweppes in establishing anti-avoidance rules in member States of the European Union and the application of Business Purpose Doctrine in the United States of America and the United Kingdom.El presente artículo compara y analiza la manera en que los Estados miembros de la Unión Europea, los Estados Unidos y el Reino Unido combaten la elusión tributaria a través de sus sistemas legales. El artículo aborda temas como la influencia del Tribunal de Justicia de la Unión Europea y el caso Cadbury Schweppes en el establecimiento de normas antielusivas en los Estados miembros de la Unión Europea, y la aplicación de la doctrina de la simulación en los Estados Unidos y en el Reino Unido.
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Loof, Grethe. "A critical analysis of the requirements of the South African General Anti Avoidance Rule Section 80A of the Income Tax Act 58 of 1962." Thesis, University of Cape Town, 2013. http://hdl.handle.net/11427/4655.
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Includes bibliographical references.I welcome you in reading this research dissertation looking at the South African General Anti Avoidance Rule. I hope that this paper will shed some light on the complex requirements of the GAAR as contained in section 80A, read together with relevant sections.
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Tooma, Rachel Anne Law Faculty of Law UNSW. "A case for a uniform statutory general anti-avoidance rule in Australian taxation legislation." Awarded by:University of New South Wales. School of Law, 2007. http://handle.unsw.edu.au/1959.4/29348.
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Taxpayer certainty is the most frequently cited argument against statutory General Anti-Avoidance Rules (GAARs). However the vast literature criticising statutory GAARs fails to consider the extent of taxpayer uncertainty, and the potential for taxpayer uncertainty, in jurisdictions without a statutory GAAR. This thesis examines that gap in the literature. The thesis uses inductive reasoning to suggest that there is greater taxpayer certainty where a statutory GAAR exists and is appropriately administered. Specifically, it uses a case study to demonstrate that there is greater uncertainty for taxpayers where the administration, the judiciary and the legislature may use their vast powers to address perceived avoidance. The thesis then considers the form of a statutory GAAR that may best be expected to promote taxpayer certainty. Such analysis involves a comparison of Australia???s oldest statutory GAAR, Part IVA of the Income Tax Assessment Act 1936 (Cth) (and its predecessor section 260), with the more recent GAARs in Australia???s indirect tax legislation (GST and state stamp duty), and the GAARs of other jurisdictions, including New Zealand, Canada and South Africa. In order to promote taxpayer certainty, a uniform statutory GAAR is ultimately proposed for all Australian taxation legislation, with safeguards to ensure the appropriate administration of the uniform GAAR.
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Ogula, Diana Khabale. "An analysis of the judicial approach to the interpretation of tax avoidance legislation in South Africa." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1012093.
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Tax evasion and avoidance costs South Africa billions of rand each year. This treatise examines the judiciary’s view and/or attitude to the dividing line between legitimate and illegitimate tax avoidance. It seeks to find out how South African courts have ultimately dealt with the old GAAR section 103(1). The treatise seeks to establish the role that the judiciary plays in tax avoidance and whether it has been pro-fiscus or pro-taxpayer in its deliberations of tax avoidance cases. The treatise focuses specifically on the judicial responses to the General Anti-avoidance Rule Section 103 of the Income Tax Act No. 58 of 1962. In order to show the judicial approaches and/or responses to tax avoidance in South Africa, a selection of income tax cases have been used to illustrate how the judges have interpreted the GAAR and whether they have been sympathetic to the tax payer or to the fiscus. The cases used in this study stem from the old GAAR section 103. There have not been important cases dealing with the new GAAR section 80A to 80L of the Income Tax Act. In the final analysis of this research it would seem that the effectiveness and scope of the GAAR depends ultimately on its interpretation by the courts. Many of the cases that have been decided under section 103 (1) have provided disappointing outcomes for SARS. However it is noteworthy that the courts which were previously taking a restrictive approach and were pro-taxpayer in their deliberations are beginning to take a different approach and are gallant in their interpretation of the GAAR. Judges are slowly abandoning the long standing judicial approach which was that taxpayers are entitled to arrange their affairs in any legal way in order to minimize their tax and are going further and examining the real substance and purpose of the transactions entered into by taxpayers as opposed to the form of the transactions. The Supreme Court of Appeal has now set a precedent which goes deeper and examines the true intention of parties in entering into transactions and does not tie itself to labels that parties have attached to their transactions. This recent judicial attitude and zeal exhibited by the courts will without a doubt hinder tax avoidance activity and strengthen the effectiveness and scope of the new GAAR sections 80A to 80L.
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Weston, Tracey Lee. "A comparison of the effectiveness of the judicial doctrine of "substance over form" with legislated measures in combatting tax avoidance." Thesis, Rhodes University, 2004. http://hdl.handle.net/10962/100.
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Taxation statutes often provide opportunities for tax avoidance by taxpayers who exploit the provisions of the taxing statute to reduce the tax that they are legally required to pay. It is, however, important to distinguish between the concepts of tax avoidance and tax evasion. The central issue, especially where the contract has no business purpose, is whether it is possible for the substance and legal form of the transaction to differ to such an extent that a court of law will favour the substance rather than the legal format. The debate is whether the courts should be encouraged to continue with their "judge-made" law or whether the tax jurisdictions should be supporting a legislative route as opposed to a judicial one, in their efforts not only to combat tax avoidance but also to preserve taxpayer certainty. The question is whether the Doctrine of "Substance over Form" as applied by the judiciary is effective in combating tax avoidance, or whether a legislated general anti-avoidance provision is required. An intensive literature survey examines the changes which have occurred in the application of judicial tests from the 1930's to date and investigates the different approaches tax jurisdictions follow in order to combat tax avoidance. The effect of the introduction of anti-avoidance provisions in combating tax avoidance is evaluated by making a comparison between the United Kingdom and South Africa. [n the United Kingdom, the courts are relied on to create anti-tax avoidance rules, one of which is the Doctrine of "Substance over Form". The doctrine is very broad and identifies various applications of the doctrine, which have been developed by the courts. In South Africa, the Doctrine of "Substance over Form" has been applied in certain tax cases; however the South African Income Tax Act does include anti-tax avoidance sections aimed at specific tax avoidance schemes, as well as a general anti-tax avoidance measure enacted as section 103. The judicial tests have progressed and changed over time and the introduction of anti-avoidance legislation in the Income Tax Act has had an effect on tax planning opportunities. A distinction needs to be made between fraudulent and bona fide transactions while recognising the taxpayer's right to arrange his or her affairs in a manner which is beneficial to him or her from a tax perspective. Judicial activism and judicial legislation in the United Kingdom has created much uncertainty amongst taxpayers and as a result strongly supports the retention of a general anti-avoidance section within an Income Tax Act. A general anti-avoidance provision, following a legislative route, appears to be more consistent and effective in combating tax avoidance.
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Massaga, Salome. "The general anti-avoidance section: a comparative analysis of Section 80a of the South African Tncome Tax Act no. 58 of 1962 and Section 35 of the Tanzanian Income Tax Act no. 11 of 2004." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15177.
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The study will be based on a comparative analysis of the general antiavoidance section of the South African Income Tax Act no. 58 of 1962 and the Tanzanian Income Tax Act no. 11 of 2004. The focus is on how the two provisions are interpreted by showing the similarities and differences. The approach will be analytical and comparative, starting by showing the concept of tax avoidance and historical backgrounds of the two provisions.
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Sykes, Justin. "The Trouble With Transfer Pricing, and How to Fix It." Scholarship @ Claremont, 2014. http://scholarship.claremont.edu/cmc_theses/963.
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Many multinational firms, notably Apple Inc., have engaged in increasingly aggressive tax planning strategies which shift billions of dollars overseas. This paper examines the problem through a case study of Apple, concluding that while many loopholes are utilized, aggressive transfer pricing of intangible assets is the root of the problem. Several solutions are examined before concluding that the best solution is a partial elimination of deferral in the form of a minimum payout share.
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Olson, William H. (William Halver). "An Empirical Investigation of the Factors Considered by the Tax Court in Determining Principal Purpose Under Internal Revenue Code Section 269." Thesis, North Texas State University, 1987. https://digital.library.unt.edu/ark:/67531/metadc332329/.
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The purpose of this study was an empirical investigation of the factors considered by the United States Tax Court in determining whether the principal purpose for an acquisition was tax avoidance (or alternatively, given the totality of the surrounding circumstances, whether there was an overriding business purpose for the acquisition).
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Villagra, Cayamana Renée Antonieta, and del Pino Fernando Enrique Zuzunaga. "Trends in corporative income taxation in Latin America." Pontificia Universidad Católica del Perú, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/116131.
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The main objective of this study is to expose the corporative income taxation granted by the legislations of different Latin American countries, trying to identify and analyze trends that emerge from such treatment. This paper does not intend to make a critical or comprehensive analysis of the corporative income taxation. This paper identifies the most important issues of the resident’s income taxation, deductible expenses, non-resident taxation and withholdings, and the anti-avoidance measures introduced by the domestic legislation of Latin American countries in order to avoid the base erosion.El principal objetivo del presente trabajo es exponer el tratamiento del impuesto a la renta corporativo que otorgan las diferentes legislaciones de los países de Latinoamérica, procurando identificar y analizar las tendencias que de dicho tratamiento surgen; sin pretender hacer un análisis crítico ni exhaustivo de las mismas. Se identifican los aspectos más importantes del impuesto a la renta de los residentes, los gastos deducibles, los aspectos vinculados a la tributación de los no residentes, así como las medidas defensivas introducidas por las legislaciones domésticas que los Estados se han visto en la necesidad de implementar unilateralmente a fin de evitar laerosión de la base.
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Okuma, Alessandra de Souza. "Normas anti-elusivas domésticas e internacionais no direito tributário internacional." Pontifícia Universidade Católica de São Paulo, 2009. https://tede2.pucsp.br/handle/handle/8826.
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Previous issue date: 2009-10-09The purpose of this paper is the analysis of anti-avoidance rules in the Brazilian law, as well as these provided by international treaties executed by Brasil, regarding the corporate income tax. Our opinion on the extension of the general anti-avoidance provision contained in domestic law is based on the following premises: (i) the theory of autopoietic systems by Niklas Luhmann; (ii) tax principles; (iii) concepts of civil Law on fraud, simulation and abuse. It reveals that the general anti-avoidance rule provided by Brazilian law should be applied exclusively in order to disregard transactions without a legal cause or structures presenting incompatibilities between form and substance, underling a tax avoidance purpose and lacking of a business rationale. We will define the extension of specific anti-avoidance rules contained in Brazilian law, namely: special tax regime for transactions involving residents in tax haven jurisdictions; transfer pricing and CFC legislation. We will point out situations which these provisions might possibly conflict with the benefits granted by a tax treaty executed by Brazil. Each case, we should suggest criteria and legal basis for interpretation of these rules, towards resolving conflicts, considering the pacta sunt servanda principle and domestic Brazilian rules. Notwithstanding, we will analyse anti-avoidance provisions contained in the tax treaties, in view of OECD s statements regarding the improper use of the treaties amended in 2003, suggesting an interpretation in accordance with the Vienna Convention for reconciling these provisions with the domestic rules provided by the Brazilian law system
O objeto deste trabalho é a análise das normas anti-elusivas veiculadas por leis brasileiras e pelas Convenções Internacionais para evitar a dupla tributação ( CIT ), no que concerne ao imposto sobre a renda da pessoa jurídica. Partiremos da teoria dos sistemas de Luhmann, dos princípios constitucionais tributários e das normas de direito privado para construir a norma geral anti-elusiva doméstica, tal como delineada pelo art. 116, parágrafo único do CTN. Demonstraremos que a aplicação dessa norma deve considerar critérios discriminantes precisos e adequados para distinguir elisão, elusão e evasão fiscal, quais sejam: a presença da causa jurídica e a compatibilidade da estrutura negocial. Utilizaremos estas premissas para construir o conteúdo de cada norma anti-elusiva específica com efeito internacional veiculada pelas leis brasileiras, notadamente: o regime fiscal especial para uso de países de tributação favorecida; o controle de preços de transferência e o regime de transparência fiscal internacional. Apontaremos situações que hipoteticamente podem representar conflitos entre as normas anti-elusivas específicas e o regime tributário veiculado pelas CITs celebradas pelo Brasil. Para cada caso, indicaremos uma proposta hermenêutica adequada para, quando possível, conjugar esta normas domésticas, com as normas internacionais, observando o princípio pacta sunt servanda e o art. 98 do Código Tributário Nacional. Interpretaremos também as normas anti-elusivas eivadas de fonte internacional, de acordo com o método de interpretação próprio das normas internacionais previsto na Convenção de Viena e construiremos seu conteúdo de forma compatível com o sistema jurídico brasileiro
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Tori, Vargas Fernando, and Alzza Efraín Rodríguez. "Alcances de la Norma Anti- Elusiva Específica Aplicable a la Reorganización de Sociedades." Derecho & Sociedad, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/117020.
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This paper analyses national and international background of the anti-avoidance rule described in article 105-A of such law, its scope and its relationship with corporate reorganizations’ Peruvian income tax regime. In addition, the article will cover the discussion on the relationship between general anti-avoidance rule and specific anti-avoidance rules.El presente trabajo analiza los antecedentes nacionales e internacionales de la norma anti-elusiva vigente, prevista en el artículo 105-A de la referida Ley, su alcance y su relación con el régimen tributario aplicable a las reorganizaciones. Asimismo, se aborda la discusión sobre la dinámica en la aplicación de la citada norma con relación a la norma anti-elusiva general.
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Masters, Colin David. "The avoidance of tax on income, profits and gains." Thesis, University of Southampton, 1990. https://eprints.soton.ac.uk/349251/.
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This thesis deals with the various ways taxpayers have employed to avoid paying tax on income, profits and gains and the responses of the judges and legislators. Each type of avoidance is followed from its first appearance to the present day, where appropriate. The respective manoeuvres of the taxpayers, on the one hand, and the Legislature, on the other, are chartered, as is the attitude of the courts. There are four sections. In the first, the various categories of tax avoidance arrangements that have been implemented over the years in the United Kingdom are examined. The second is concerned with international tax avoidance as seen from a United Kingdom perspective. Thirdly, the approach in the United Kingdom is compared with that of other countries, with particular reference to the United States of America, Canada and Australia. The last section analyses the role of the judges and examines the extent to which they have been prepared to look through the form of a transaction to consider the underlying substance. The role of the judges as makers of tax law is also considered. The way in which the subject was researched was to examine each category of tax avoidance in a chronological order, beginning with the first moves by the taxpayer, and charting the ensuing battle of wits between the taxpayer and the Legislature from the standpoint of those who have had to adjudicate on the process: the Judges.
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Lee, Soojin. "News Media Coverage of Corporate Tax Avoidance and Corporate Tax Reporting." WU Vienna University of Economics and Business, Universität Wien, 2015. http://epub.wu.ac.at/4541/1/SSRN%2Did2603344.pdf.
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Drawing upon media agenda-setting theory and previous studies in organizational impression management, this paper empirically investigates the influence of tax avoidance news on corporate tax reporting. This study is based on the pronounced discontinuity in the amount of news articles related to tax avoidance in the United Kingdom over two periods (2010-2011 and 2012-2013). A difference-in-differences design is employed in order to enable a comparison of the media effects on those firms that have been reported in tax avoidance news versus those without media attention. Using a sample of annual reports of UK FTSE 100 companies across the period 2010 to 2013, I test the impact of tax avoidance news on quality and quantity of tax disclosure. The results suggest that the recent increase in media attention on tax avoidance does not stimulate firms to improve the quality and the quantity of tax disclosure in their corporate reporting. Rather, firms can be discouraged from discussing the most relevant tax items in their reporting, as shown in the case of financial firms which were the subject of the largest amount of tax avoidance news. (author's abstract)Series: WU International Taxation Research Paper Series
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Marais, Albertus Johannes. "Simulation discussed : tax avoidance in the common law." Master's thesis, University of Cape Town, 2012. http://hdl.handle.net/11427/10897.
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Includes bibliographical references.The simulation doctrine has, in the law of taxation, always played the role of being SARS' remedy in the common law, vis-a-vis its legislated cohorts, viz. both the specific and general anti-avoidance provisions contained in the various tax statutes. Building on the principles established in Zandberg v Van Zyl, Dadoo Ltd and others v Krugersdorp Municipal Council and Commissioner of Customs and Excise v Randles Brothers & Hudson Ltd, the test which emerged and has been applied since, is broadly recognised as being that as formulated by Watermeyer JA in Randles, being that where the parties to a contract truly intended to act in accordance with the tenor of the agreement, irrespective of what their purpose for entering into that transaction was, that contract cannot be a simulated one. However, the Supreme Court of Appeal judgment in CSARS v NWK Ltd has necessitated that the principles applied previously be revisited academically to determine whether the doctrine for determining whether a simulation is present has changed - and if so, to what extent. Some argue that the comments in NWK, which is perceived to have changed the simulation test, were merely part of the obiter of the judgment, though they hasten to add that this does not mean that such comments are void of import where lower courts may consider the doctrine in future. Opposed hereto are those who are of the view that the judgment has indeed changed the simulation doctrine's landscape.
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Perry, Nina. "Expenditure in South African Income Tax law." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4536.
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Theron, Lee. "The use of corporate structures and tax avoidance." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/16729.
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Includes bibliographical referencesSouth Africa has seen many developments in both the areas of corporate law and tax legislation. The legislation in question has developed from an apartheid or pre-democratic era to that of the current democratic South Africa, in which individuals have the freedom to become entrepreneurs, and have the opportunity to start up small to medium and larger enterprises, in order to firstly make a profit but also to ensure that they enjoy the benefits which the separate legal personality of Corporate Structures are entitled to. The focus of the research was to carefully study Corporate Structures created by directors and other entities and to show how these personalities make use of various arrangements to reduce tax liability, both by lawful and unlawful methods. In addition to this, the research involved a close analysis a of how a Corporate Structure is formed, from the date of incorporation of the entity, to the rights, and duties of the entity, the rights and duties of the role-players such as directors and shareholders, who control the entity and make the necessary decisions relating to the entity. The thesis focuses on the tests used by the courts to examine the true commercial substance of Corporate Structures and the arrangements put in place by these entities or individuals mentioned above. The above approach was applied by analysing the principle of Piercing the Corporate Veil both at common law and statutory level, the principles of Substance over Form, General Anti-Avoidance provisions and the Tax Administration Act 28 of 2011 provisions, in light of the Anti-Avoidance provisions. It is trite law that taxpayers are allowed to arrange their affairs or commercial activities in a manner in which they may gain a tax advantage provided they do so, within the ambit of the law. The effect of the taxpayer having such freedoms is that many of the contracting parties or taxpayers abuse the legislative provisions and enter into transactions and commercial activities which circumvent the legal provisions. The framework of the analysis was to look at the Companies Act 71 of 2008, Income Tax 58 of 1962 and the Tax Administration Act 28 of 2011 Acts respectively. The result of the research has shown that the tests put forward by the courts assist in ensuring that the principle of separate legal personality is upheld, taxpayers such as entities are free to arrange their affairs in a manner that allows a certain tax advantage provided it is within the ambit of the law. The study has shown that the doctrine of separate legal personality is upheld within our current legal system. There are many tax and legal benefits to natural persons establishing an entity; however these benefits should not lead to abuse by entities. Lastly, the courts will carefully scrutinise the commercial substance of a transaction and test whether the parties to the transaction have acted in accordance with the true principles of the transactions, the conclusion herein is therefore that the law should not interpret the modern commercial world with a closed minded approach and legislate strictly, without considering all the circumstances of a matter in light of the necessary law and policy considerations and in so doing, rather adopt a modern commercial minded approach. As a growing South African economy, entities should be permitted to arrange their commercial transactions and affairs in the best possible way to obtain a legal tax benefit and make profits which will ultimately ensure that we have a sustainable economy and strong Corporate Structures in place, in order to be placed in a stronger position in terms of an African perspective and compete more competitively at an International level.
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Wilson, Peter Antony. "'BRICS' and international tax law." Thesis, Queen Mary, University of London, 2017. http://qmro.qmul.ac.uk/xmlui/handle/123456789/24872.
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This Thesis studies a new and evolving area of international tax law, namely, the international tax law of Brazil, Russia, India, China and South Africa, the 'BRICS', and concludes that the thrust of their divergences from the developed world's international tax law evolves from the necessity to counter the significant illicit outflow of funds while not disturbing inbound FDI or, in recent times, their outbound FDI while ensuring profits are taxed where created. The design of the divergences reflects more on the initial limited manpower capacity of their emerging tax authorities to deal with the complex international tax law issues and politically encouraged policy cooperation amongst the BRICS than it does of actual tax authority cooperation although not wishing to underestimate the importance of that cooperation. Relevant to my conclusions are the published positions of international governance organisations and financing institutions, BRICS tax administrations, scholars and precedent, and I have used that information, both for and against, to arrive at the most rational conclusions. While economic theories may be relevant, they are not relevant to this study. My research questions include what is the basis of the BRICS approach to core international tax law, in what way has their approach to defining evasion and avoidance been driven by the magnitude of profits shifted offshore and particularly to tax havens and whether their divergences from the developed world's approach to countering thin capitalisation, transfer pricing and controlled foreign companies have been fashioned by the necessity for countering the elevated level of abuse. My conclusions also reflect my research on whether the divergences have been designed to counter treaty abuse affiliated with the transactions implemented by MNEs intending to shift the profits offshore or the accumulation of passive income in tax havens and, on whether were the BRICS to localise the BEPS recommendations, would their capacity to counter this abuse be improved. My research also considers whether resolving the disputation arising from the increasing level of tax authority cross border audits and investigations can be facilitated through the adoption of alternative dispute resolution procedures. I also study whether the BRICS' response to the world's growing information exchanging architecture reflects their elevated necessity for gathering information to be used to stem illicit flows, countering international evasion and avoidance and ensuring profits are taxed where created. I conclude the study with recommendations for the BRICS Heads of Revenue to include in a Communique for updating their tax law and procedures which counter the abuse and assist in dispute resolution.
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Krušinová, Marie. "Mzdové účetnictví." Master's thesis, Vysoká škola ekonomická v Praze, 2011. http://www.nusl.cz/ntk/nusl-151513.
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Diploma thesis deals with the issue of payroll accounting. The teoretical part consists of descriptions of separate systems conected with the main theme as law system, system of personal income tax, system of health insurance, social insurance and accounting. The teoretica part is completed also from the international point of view. In the end of the thesis all system and principles are connected by examples in the practial part.
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Lord, Tristan Sacha. "Transfer Pricing in South African income tax law." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4656.
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'Transfer pricing continues to be, and will remain, the most important international tax issue facing MNEs.' The term 'transfer pricing' is used to describe arrangements involving the transfer of goods or services, at an artificial price, in order to transfer income or expenses from one enterprise to an associated enterprise in a different tax jurisdiction. This results in the income derived at for each enterprise being disproportionate to their relative economic contributions, and thus impacting the relevant tax jurisdictions' fair share of tax. Tax authorities are therefore focusing their attention on transfer pricing rules and practices to ensure the correct attribution of income and expenses of related-party transactions. Another key issue, closely related to transfer pricing, is that of double taxation. Multinational enterprises, engaging in cross-border transactions, are at risk of having a single source of income taxed in two jurisdictions as a result of an incorrect application of transfer pricing rules. The purpose of this research is to evaluate South Africa's approach to transfer pricing, as well as compare it to the approaches as adopted by selected countries, namely Australia, the United Kingdom and Canada, with the aim of identifying the areas that South Africa could learn from practices in foreign jurisdictions. Specific issues dealt with include acceptable transfer pricing methods for determining an arm's length price, documentation requirements and non-compliance penalties, the use of Advance Pricing Agreements ("APA"), and the effects of e-commerce in applying the arm's length principle. The first issue relates to the criteria for the selection of the most suitable method in ensuring an arm's length outcome. Because the South African market is considered to be lacking in comparables, compliance with the arm's length principle will be determined by evaluation of the facts and circumstances of each case. The second issue looks at the transfer pricing policy documentation required to be prepared, the benefits of preparing such documentation, and the imposition of penalties on taxpayers failing to do so. The lack of statutory documentation requirements and specific penalty provisions in the South African legislation is also addressed. The third issue evaluates the use of APAs in resolving transfer pricing disputes. This technique is adopted by Australia, the United Kingdom and Canada, and therefore an assessment is made, taking into account both advantages and disadvantages of the technique, to determine whether it would be beneficial to South Africa to be able to agree in advance to transfer pricing methods to be applied to transactions with connected parties, thus reducing the potential for expensive and time consuming disputes with the South African Revenue Service ("SARS"). The fourth and final issue explores the challenges facing tax jurisdictions as a result of an increase in electronic trade. The relevance of the arm's length principle is assessed and recommendations for South Africa are made.
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Vella, John. "Avoidance, characterisation and interpretation in tax, corporate and financial law." Thesis, University of Cambridge, 2007. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.707899.
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Benn, Dean John. "Tax avoidance in South Africa: an analysis of general anti-avoidance rules in terms of the Income Tax Act 58 of 1962, as amended." Bachelor's thesis, University of Cape Town, 2013. http://hdl.handle.net/11427/4565.
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Kanyenze, Rumbidzai. "An analysis of the income tax consequences resulting from implementing the Income Tax Bill (2012) in Zimbabwe." Thesis, Rhodes University, 2015. http://hdl.handle.net/10962/d1017536.
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The Income Tax Bill (2012) proposes certain changes to the existing Income Tax Act that will impact on the method used to determine the taxable income of a taxpayer in Zimbabwe. Therefore, it is important to understand the tax consequences the Income Tax Bill creates for the taxpayer. The research aimed to elaborate on and explain the tax consequences that will arise as a result of applying the Income Tax Bill in Zimbabwe. The research was based on a qualitative method which involved the analysis and the interpretation of extracts from legislation and articles written on the proposed changes. The current “gross income” of a taxpayer consists of amounts earned from a source within or deemed to be from within Zimbabwe The proposed changes to the Act will change the tax system to a residence-based system, where resident taxpayers are taxed on amounts earned from all sources. Therefore, the driving factor which determines the taxability of an amount will become the taxpayer’s residency. Clause 2 of the proposed Act provides that income earned by a taxpayer should be separated into employment income, business income, property income and other specified income. This will make it unnecessary to determine the nature of an amount because capital amounts will be subject to income tax. The current Act provides for the deduction of expenditure incurred for the purpose of trade or in the production of income. Section 31(1)(a) of the proposed Act will restrict permissible deductions to expenditure incurred in the production of income. Consequently, expenditure not incurred for the purpose of earning income will no longer be deductible when the Income Tax Bill is implemented. The proposed Income Tax Act will increase the taxable income of a taxpayer as it makes amounts that are not currently subject to tax taxable, whilst restricting the deductions claimable.
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Griffin, Nicholas. "The development of the simulated transactions doctrine as means of combating impermissible tax avoidance." Master's thesis, Faculty of Law, 2021. http://hdl.handle.net/11427/32694.
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Tax avoidance may be an inevitable consequence of taxation; however, it remains a great drain on the fiscus. There are many ways in which the Commissioner may attack avoidance arrangements in order to lessen the drain on the fiscus. One manner in which the Commissioner may attack avoidance arrangements is through the doctrine of simulated transactions. Given that the simulated transactions doctrine is ordinarily a contract law doctrine and not strictly speaking a tax law mechanism one might wonder how this area of law might develop into an antiavoidance mechanism. This contribution sought to understand how the doctrine may develop as an anti-avoidance mechanism through an analysis of the development of the case law in regards to the development of the doctrine in order to ascertain how it has developed into a common-law anti-avoidance rule. In this regard selected cases were discussed which highlighted firstly the genesis of the simulated transactions doctrine in our law (Chapter 2) and selected cases were discussed that highlighted the simulated transactions doctrine's development and use as an anti-avoidance mechanism (Chapter 3) and finally the courts acceptance and treatment of this development and how this development was discussed in the literature was also discussed (Chapter 4) It was concluded that whilst the doctrine can be developed quite extensively as an anti-avoidance mechanism the courts are unlikely to develop same into a broad common-law General Anti-Avoidance Rule.
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Grewal, Rajbir Singh. "Towards integrity in tax law : the problem of form and substance in Canadian tax jurisprudence." Thesis, University of British Columbia, 2008. http://hdl.handle.net/2429/4076.
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This study examines the problem of form and substance in Canadian tax jurisprudence, which
has been characterized by a troubling equivocation between formalistic and substantive
approaches in cases involving tax avoidance transactions with the current period of jurisprudence
dominated by formalism. The vacillation of Canadian jurisprudence contrasts with the
consistently substantive tax jurisprudence of the United States. The latter situation discloses an
unresolved doctrinal tension in Canadian tax jurisprudence between two viable doctrinal
alternatives. This study seeks to resolve the problem of form and substance by finding the right
answer to the problem by examining the tax policy, political, and legal philosophical
implications of formalistic jurisprudence along with the manner in which the legal system as a
whole (i.e. jurisprudence outside of tax law) rationally employs both form and substance for
distinct purposes to solve distinct kinds of legal problems. Using the principles that are implied
in the practices of the legal system as a whole, a right answer to the form and substance problem
— one that is horizontally consistent or integral with the whole — suggest itself, namely that
substantive, judge-made standards are the right solution to the problem of form and substance in
Canadian tax jurisprudence and that formalism in tax jurisprudence is a legal aberration in the
Canadian legal system.
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Grebe, Alta-Mari. "The income tax implications resulting from the introduction of section 12N of the Income Tax Act." Thesis, Nelson Mandela Metropolitan University, 2014. http://hdl.handle.net/10948/d1020787.
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Section 12N, introduction into the Income Tax Act by way of Taxation Laws Amendment Act and which became effective on 2 November 2010, provides for allowances on the leasehold improvements on government-owned land and land leased from certain tax exempt entities as stipulated in section 10 (1) (cA) and (t). As section 12N deems the lessee to be the owner of the leasehold improvement, the lessee now qualifies for capital allowances which were previously disallowed.
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Lekman, Daniela Adela. "Principal purpose tests of tax treaty law in comparison with the General Anti-Avoidance rule of the EU Anti-Tax Avoidance Directive." Thesis, Uppsala universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-422870.
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Ellis, Jason Brian. "The implications for tax planning of the general anti-avoidance provisions : part IVA of the Income Tax Assessment Act /." Title page, table of contents and introduction only, 1993. http://web4.library.adelaide.edu.au/theses/09C/09ce471.pdf.
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Grobler, Daniel Jacques. "The "realisation company" concept in South African income tax law." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/2118.
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The Supreme Court of Appeal has revisited the issue that has attracted the most litigation in South African tax law: whether gains from the disposal of an asset are of a capital or of a revenue nature. In CSARS V Founders Hill (509/10) [2011] ZASCA 66, 73 SATC 183 the court held that „intention‟ is not conclusive in the enquiry and cannot be the litmus test in determining the nature of proceeds from the sale of an asset. This judgement relegates intention to only one of the factors to be considered as it was held that it should be considered objectively whether the taxpayer is actually trading or not. The court also indicated that a „realisation company‟ would only act on capital account if it is formed for the purpose of facilitating the realisation of property which could not otherwise be dealt with satisfactorily. This treatise was primarily aimed at an analysis of the court cases which dealt with the „realisation company‟ concept in South African income tax law. In analysing the „realisation company‟ concept through case law culminating in Founders Hill, it was found that in every instance where „realisation company‟ x had won the argument, there had been compelling reasons why the owners of the assets had found it necessary to realise the asset through an interposed company established for that purpose. These reasons include: to facilitate the sale of property previously held by different people and to consolidate and conveniently administer the interests of beneficiaries under different wills. Furthermore, this treatise criticised „intention‟ as the primary test in determining the nature of proceeds from the sale of a capital asset and examined the objective approach to the inquiry as advocated in CSARS v Founders Hill. A discussion on the advantages of this approach indicated that it will certainly obviate a number of difficulties that arise from invoking „intention‟ as the litmus test.
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Polizelli, Victor Borges. "O princípio da realização da renda e sua aplicação no imposto de renda de pessoas jurídicas." Universidade de São Paulo, 2009. http://www.teses.usp.br/teses/disponiveis/2/2133/tde-18112011-145517/.
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No contexto do sistema tributário nacional brasileiro, uma apuração correta da renda tributável demanda o respeito a princípios abrigados pela Constituição Federal expressa ou implicitamente e, dentre estes, vale citar o princípio da realização da renda que, numa descrição simplificada, auxilia na detecção da capacidade econômica apta a sofrer tributação, uma vez que delineia diretrizes mais concretas para a identificação do momento adequado para que tal tributação se implemente. Este estudo enfoca o momento temporal em que se consideram ocorridos os fatos econômicos individuais que se ajuntam para compor a apuração da renda tributável. Não se trata, portanto, de uma abordagem direta acerca do aspecto temporal próprio da regra-matriz de incidência do imposto de renda, aquele que se identifica normalmente com o término do período de um ano. O tema é abordado com enfoque na tributação da renda, apresentando parâmetros para a conceituação do referido princípio e buscando delinear suas funções, bem como descrever seu âmbito de aplicação no Direito Tributário brasileiro, especialmente no que concerne à apuração do imposto de renda (sobretudo o de pessoas jurídicas). O princípio da realização é examinado sob três diferentes perspectivas. Primeiro, faz-se uma análise dos conceitos de renda (e noções correlatas de realização) fornecidos pelas ciências financeiras e econômicas. Segundo, há uma análise sob a perspectiva histórica que apresenta a evolução deste princípio na Alemanha, nos E.U.A., no Reino Unido e também no Brasil. E, por fim, sob a perspectiva estritamente jurídica, enfocando-se o sistema normativo atualmente vigente no Brasil, discutem-se a posição sistêmica do princípio da realização e as limitações impostas pela Constituição Federal de 1988 e pelo Código Tributário Nacional. Ainda nesta última perspectiva, avaliam-se as funções desempenhadas pelo princípio da realização como integrante dos princípios de contabilidade geralmente aceitos e as relações entre Direito Contábil e Direito Tributário. O princípio da realização é examinado em seus diferentes elementos (cumprimento da obrigação, mudança da posição patrimonial, troca no mercado, mensurabilidade, liquidez e certeza). Por fim, propõe-se uma estrutura para classificação dos diferentes critérios que informam o princípio da realização à luz da legislação brasileira.In the context of the Brazilian tax system, a correct calculation of taxable income demands respect for the principles sheltered, expressly or implicitly, by the Federal Constitution and, among these, it is worth mentioning the realization principle. In a simplified description, said principle helps in the detection of the economic capacity that is able to suffer taxation, since it outlines more specific guidelines for identifying the right time where taxation may be implemented. This study focuses on the timing of the economic facts that are gathered up to comprise the basis for calculation of the taxable income. It is not, therefore, a direct approach on the temporal aspect of the basic rule of incidence of income tax (aspect which is usually identified with the end of the taxable period of one year). The issue is discussed with focus on taxation of income, showing parameters for the conceptualization of realization principle and seeking to outline its functions, as well as to describe its scope within the Brazilian Tax Law, especially on what concerns the calculation of the income tax (especially the corporate income tax). The realization principle is examined from three different perspectives. First, the study presents an analysis of the concepts of income (and related notions of realization) provided by the financial and economic sciences. Second, there is an analysis on the historical perspective that presents the evolution of this principle in Germany, the USA, the UK and also in Brazil. Finally, under a strictly legal perspective, focusing on the regulatory system currently in force in Brazil, it discusses the systemic position of the realization principle and the limitations imposed by the Federal Constitution of 1988 and the National Tax Code. With respect to the latter perspective, the study examines the functions performed by the realization principle as part of the generally accepted accounting principles and the relations between Accounting and Tax Law. The realization principle is examined in its different elements (achievement of the obligation, change in the property position, market exchange, measurability, liquidity and certainty). Finally, it proposes a structure for the classification of the different criteria that inform the realization principle in accordance with the Brazilian legislation in force.
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Stroope, John C. (John Clarence). "Income Tax Evasion and the Effectiveness of Tax Compliance Legislation, 1979-1982." Thesis, University of North Texas, 1988. https://digital.library.unt.edu/ark:/67531/metadc330580/.
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The federal income tax system in the United States depends upon a high degree of voluntary compliance. The IRS estimates that the voluntary compliance level is declining and that this tax compliance gap cost the government an estimated $90.5 billion in 1981. Between 1979 and 1982, Congress made several changes in the tax laws designed to improve tax compliance. Extensive data was collected by the IRS for 1979 and 1982 through the random sample audits of approximately 50,000 taxpayers on the Taxpayer Compliance Measurement Program (TCMP), which is conducted every three years. During the period 1979 through 1982, Congress lowered the marginal tax rates, added some fairly severe penalties, for both taxpayers and paid return preparers, and increased information reporting requirements for certain types of income.
In this research, it was hypothesized that voluntary compliance should increase in response to lower marginal rates, a higher risk of detection due to additional reporting requirements, and increased penalties. Multiple regression analysis was employed to test these hypotheses, using 1979 and 1982 TCMP data. Because of the requirements for taxpayer confidentiality, it was necessary for the IRS to run the data and provide the aggregate data results for the research.
The results provided insight into the effectiveness of tax compliance legislation. While the overall voluntary compliance level (VCL) increased from 1979 to 1982 by 1.53 per cent, the VCL increase for taxpayers in high marginal rates was much smaller (.42 percent) than the overall increase. This is very inconsistent with the notion that high marginal rates are driving noncompliance, and suggests that marginal rates may not be strong determinants of compliance. Probably other factors, such as opportunity for evasion, may be more important. There was little change from 1979 to 1982 of the compliance of returns done by paid return preparers. Because of the timing of many TEFRA provisions (effective in 1983), further research for years after 1982 is needed.
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Tarsitano, Alberto. "Illegitimate Tax Avoidance and Rule XVI of Preliminary Title of Tax Code." IUS ET VERITAS, 2014. http://repositorio.pucp.edu.pe/index/handle/123456789/123330.
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The author analyzes a very important issue such as illegitimate tax avoidance. He begins by explaining the content of the concept of illegitimate tax avoidance, and also he points out the differences with other concepts like tax evasion and tax planning. Then, he comments the debate on the use of legal figures which doesn’t belong to Tax Law, in order to solve issue of illegitimate tax avoidance. Finally, he explains the scope and the application of the Peruvian general anti-avoidance rule stipulated in the Peruvian Tax Code.El autor analiza un tema de suma importancia como es el de la elusión fiscal. Se comienza esclareciendo el contenido del concepto de elusión, diferenciándolo de otros conceptos como la evasión fiscal y la economía de opción. Luego, pasa a recoger y comentar el debate en torno al uso de figuras ajenas al Derecho Tributario para dar solución al problema de la elusión fiscal. Finalmente, pasa a explicar el alcance y aplicación de la cláusula general antielusiva peruana estipulada en la norma XVI del Título Preliminar del Código tributario.
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Cruceru, Luiza Brindusa. "Treaty shopping and the abuse of income tax conventions." Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=83949.
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This study proposes to analyze the phenomenon of tax treaty abuse and the use of tax treaties as tools to avoid or minimize the taxation by residents doing business in a foreign jurisdiction. This study analyses a particular strategy using tax treaties known as "treaty shopping." This paper will argue that treaty shopping constitutes an abuse of the tax treaty regime. However, this study rejects the traditional arguments against treaty shopping and proposes a different basis to challenge the legitimacy of this practice and to explain why this strategy constitutes an improper use of tax treaties.
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Beckett, Neal Peter. "Combating abusive EU corporate income tax practices." Thesis, Brunel University, 2016. http://bura.brunel.ac.uk/handle/2438/13492.
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This thesis examines the concept of EU corporate tax abuse in light of the tensions between the protection of EU Fundamental rights and the susceptibility of those rights to abuse. Consideration is given to the major tax abuse practices and arrangements, accompanied by analyses of the responses of a selection of EU member states, and the role and impacts of judicial, state and commercial stakeholder interests. Consequent upon an examination of why past proposals have failed to attain either policy adoption or policy success, it is suggested that the legal concepts of abuse of rights, substance over form and proportionality may be of value in assessing and validating a corporate tax abuse proposal. It will be argued that Member State tax rules and policy initiatives to date have been unsuccessful in eradicating the effects of corporate tax abuse deriving from the exploitation of Fundamental Freedoms and that this failure is attributable to reasons of poor transactional data lineage and disclosure, unresolved political and judicial conflicts between balancing Member State rights with the Internal Market ideal and from a corporate culture that is incentivised to circumvent tax rules with limited recourse. Following an assessment of whether reform should focus on transactional based tax rules or on a broader legal framework to induce taxpayer behavioural changes, it is contended that EU corporate tax abuse can be addressed by rejecting the traditional ideals of tax harmonisation, formulary apportionment, and principles or rule-based tax law approaches as a complete solution. An effective scheme of reform should instead be based on Enhanced Disclosures and Attestation incorporating country-by-country reporting, additional reporting metrics and legal attestations, underpinned by civil and criminal penalties.
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Fowler, Joshua Emmanuel. "The Trouble with Tax Avoidance: Two General Anti-Avoidance Rules, a Judicial Doctrine, and their Respective Implications for the value of Certainty in Tax Law." Thesis, University of Canterbury. School of Law, 2013. http://hdl.handle.net/10092/8358.
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Tax avoidance is an exceedingly complex area of law. It is also a matter generally found not far from the headlines, or from the concerns of state and policy forums such as the G8 and the OECD. In an increasingly capital mobile world, the concern on the part of Governments for the protection of their sources of revenue has increased.
Adam Smith’s four canons of taxation are well known. In his work, The Wealth of Nations, Smith regarded the values of certainty, equity, efficiency and convenience as integral to the functioning of a tax system. Among these, however, Smith would seem to have regarded certainty as of particular significance. The prominence afforded to the value of certainty, in conjunction with the smaller role afforded the state likely contributed to the formalistic approach taken by the courts of the British Commonwealth to the interpretation of taxing statutes. In recent times, however, the importance of certainty among policy makers and jurists has declined. Although this is not to contend that the value of certainty has ceased to be a consideration, it would seem to have come to be regarded as a lesser value among many rather than an end in itself.
Although the optimal level of certainty within a jurisdiction is undoubtedly a matter for debate, the presence of uncertainty may carry with it a number of risks and unintended consequences which may hinder the achievement of the ends sought after by policy makers. These may include an increase in the rate of capital flight and in the use of asset sheltering devices, a decrease in the incidence of economic activity, and decreased rates of compliance among taxpayers. The value of certainty, in other words, may be of greater significance to the efficient functioning of a tax system than it has in recent times been thought to be.
In contending with tax avoidance, the countries of the British Commonwealth tend to employ either one of two instruments; a statutory General Anti-Avoidance Rule (GAAR) or a judicial doctrine; an innovation of the common law. In this thesis, the writer sets out to examine the judicial doctrine applied in the jurisdiction of the United Kingdom (UK), and the statutory GAARs deployed in Canada and New Zealand, and the respective implications of each instrument for the value of certainty.
While the difference in the implications presented by the application of a broad judicial doctrine and a narrow GAAR may be slight, it is the writer’s contention that, all things held equal, the use of a judicial doctrine is likely to have a less deleterious effect on the value of certainty than a GAAR. Accordingly, it is the writer’s contention that the use of a judicial doctrine is for this reason be preferred.
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Wang, Frederick. "Tax haven planning within the scope of the North American anti-avoidance legislation." Thesis, McGill University, 1986. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=63890.
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Govender, Preshnee. "Does a mineral right constitute 'immovable property' for purposes of the Income Tax Act and double tax treaties?" Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/9170.
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Includes bibliographical references.This research paper analyses the income tax impact for international (non-resident) companies that dispose of their shares in mining or oil and gas companies situated in South Africa. Typically, a disposal of shares by a non-resident in a property-rich company in South Africa would attract CGT. In the case of the minerals sector, it is automatically assumed that a mining or oil and gas company is a so-called “land-rich” or “property-rich” company due to the nature of its operations. This paper seeks to test that assumption, ie do shares in a mining or oil gas company whose only asset is a mining or prospecting right or exploration or production right respectively qualify as an ‘interest in immovable property’ as that term is defined in the ITA for CGT purposes? To make this determination, the term ‘immovable property’ as it is used for common –law purposes and the potential misalignment of this definition when compared to the term as it is used in the ITA must be analysed.
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Baker, Philip. "A comparative study of the tax treatment of international commercial transactions." Thesis, SOAS, University of London, 1985. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.337617.
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Correia, Miguel G. "Taxation of corporate groups under a corporation income tax : an interdisciplinary and comparative tax law analysis." Thesis, London School of Economics and Political Science (University of London), 2010. http://etheses.lse.ac.uk/2786/.
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Corporate groups are notoriously difficult to tax. At the moment it is not clear whether corporate groups should be approached as single taxable entities, or whether a separate tax existence should be attributed to corporate group members. The current ambiguity generates a substantial deadweight loss. This study determines what may be the best approach to tax corporate groups, once the perspectives of government and corporate groups are taken into account. The study adopts an interdisciplinary approach, whereby elements, such as market imperfections, the economic, legal and functional nature of corporate groups and the rules of related regulatory fields, are brought into the investigation. The study is based on the US federal corporate income tax system, although, for certain issues, the UK tax system is analyzed. The study adopts a closed economy perspective. The study shows that the design and operation of the corporate income tax system is subject to several constraints and distortions, and argues that to simply look at how far a certain policy is from optimality may be insufficient to determine whether an incremental improvement occurs. The study proposes a new approach to corporate income tax policy whereby the pursuit of incremental improvements requires the minimization of transaction costs and other sources of deadweight loss and the taking into account of the collateral effects of the corporate income tax system, including its interaction with market imperfections, the behavioural and operational nature of business entities, the frictions imposed by other regulatory fields and corporate governance. Following this policy approach, the study concludes that treating corporate groups as single taxable entities is the best approach to tax corporate groups and recommends a revision of certain technical aspects of the current US and UK legislation for taxation of corporate groups.
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Loutzenhiser, Glen. "Income splitting, settlements and avoidance : taxing the family on business profits." Thesis, University of Oxford, 2009. http://ora.ox.ac.uk/objects/uuid:059b8ed4-a3fb-42bf-970e-77718ff105c9.
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In a progressive income tax system with an individual tax unit, high-rate taxpayers have an incentive to split income with lower-rate family members to minimise the family’s total tax burden. This raises equity and neutrality concerns. Adopting a spousal tax unit limits the gains from income splitting, but the individual is the better choice on privacy, autonomy, equality, definitional, marriage neutrality and work incentive grounds. Once the individual is chosen as the income tax unit, the control model provides a strong policy basis for attributing both earned and unearned income to individuals. Income splitting, however, undermines this model as well as the individual tax unit. This thesis focuses on the UK’s approach to income-splitting in family businesses. The relevant UK income tax rules, particularly the settlements provisions, are inadequate for the task. Various possible reforms are examined. Incorporating a transfer pricing or ‘reasonableness’ test into the settlements provisions would strengthen these rules, but would make taxpayer compliance with an uncertain regime even more difficult. Another option is to expand the scope of employment tax by moving the borderline between employees and the self-employed or companies. Deeper structural reforms could be made to enhance the neutrality of taxation on different legal forms of economic activity. This would reduce the incentives to incorporate for tax savings, including from income splitting. Integration of income tax and NICs is one such option; a dual income tax is another. A TAAR or GAAR also could be pursued. Ultimately, some combination of these various reform options could provide a partial solution to this challenging issue.
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Loomer, Geoffrey T. "Reformulating corporate residence : a coherent response to international tax avoidance." Thesis, University of Oxford, 2011. http://ora.ox.ac.uk/objects/uuid:1f515456-3d87-4942-9600-b9cfe73c6662.
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This thesis analyzes the concept of corporate residence, with particular reference to the law in the UK and Canada. It explores why corporate residence is relevant in tax policy, how corporate residence is understood in law, and how revenue authorities respond to the use and alleged 'abuse' of residence rules. Part I argues that the residence of taxpayers generally (individual or corporate) remains a relevant factor in international tax design, that taxation of corporations on the basis of residence has some justification, but that there is a disjunction between meaningful residence-based taxation and current definitions of corporate residence in domestic law and tax treaties. The formulations of residence based on incorporation, central management and control, and place of effective management, particularly as applied to multinational enterprises, are considered and are found to be deficient. Part II critically analyzes the major policy responses of the UK and Canadian governments to the exploitation of corporate residence. It argues that key legislative and administrative responses to international tax avoidance activities, for both outbound and inbound investment, are purportedly based on the acceptance of formal corporate residence yet undermine that concept in an effort to impose tax or refuse treaty relief based on where economic interests actually exist. The responses considered are the application of controlled foreign companies legislation to offshore subsidiaries, the invocation of treaty anti-abuse rules with respect to offshore intermediaries, and the use of overarching general anti-avoidance measures to challenge varied structures that rely on offshore entities. These haphazard anti-avoidance rules are overlaid with revenue authorities' indignation at the motivations that underlie many corporate relocations. It is argued that a more coherent approach would be to focus on the objective reality or unreality of corporate establishment, by reformulating corporate residence in domestic law and tax treaties.
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Cassiem, Rehana. "The taxation of income and expenditure of Trusts in South Africa - are they still viable estate planning tools?" Thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/12821.
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Includes bibliographical references.This research paper will explore the taxation of the income and expenditure in today’s day and age. We will have an in - depth look into the mechanics of trusts, to ascertain whether they still have a role to fulfil in estate planning. Therefore the paper will first explore the background in trusts in Section A, Section B will deal with how trusts are tax and Section C will try and answer why trusts are still popular amidst the unfavourable changes in recent legislation.
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Naidoo, Linton. "An analysis of the effect of the amendments to the taxation of foreign non-South African employment income." Master's thesis, Faculty of Law, 2019. http://hdl.handle.net/11427/30915.
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When South Africa moved from a source based to a residence based system of taxation on 1 March 2001, all South African residents were now being subject to tax on their world-wide income. Residents working outside the Republic were then at risk of being taxed twice on the employment income derived because of South Africa’s residence basis system of taxation. The section 10(1)(o)(ii) of the Income tax Act No. 58 of 1962 (“IT Act”) exemption was the relief mechanism for residents to prevent the possibility of double taxation on the employment income derived from working outside the Republic. As from the 1st of March 2020, Parliament has amended section 10(1)(o)(ii) of the IT Act. The section is amended so that foreign employment income should not be fully exempt in the hands of a resident. Section 10(1)(o)(ii) of the IT Act currently exempts in full, the foreign employment income derived by a resident subject to certain requirements as per the section. The amendment seeks to exempt the first one million rand (R1m) of a residents’ employment income earned outside of the Republic. Foreign employment income in excess of R1m will be taxed in the Republic, applying the normal tax tables for that particular year of assessment. All other requirements of section 10(1)(o)(ii) will not be affected by the amendment, therefore residents will still be required to fulfil the other requirements of the section such as to spend more than 183 and at least 60 continuous full days outside of the Republic rendering employment services during any 12-month period in order to qualify for the exemption. The primary reason for the amendment of section 10(1)(o)(ii) is to prevent situations where employment income is neither taxed in the foreign country nor in South Africa, i.e. double non-taxation, or where foreign taxes are imposed at a significantly reduced rate on employment income derived from working outside the Republic. The amendment of section 10(1)(o)(ii) exemption will negatively affect a resident earning in excess of R1m and working in a tax free or low tax jurisdiction. There are a few alternatives available to affected residents working outside the Republic such as: 1. Seek relief via section 6quat of the IT Act, which is a tax credit on foreign taxes paid. 2. Apply the relevant Articles of a Double Taxation Agreement (“DTA”) between South Africa and a source country in order to seek relief for juridical double taxation. 3. Immigrate and become a non-resident, which will trigger a deemed disposal for capital gains tax purposes in terms of section 9H(2) of the IT Act.
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Ketchemin, Eric P. "A comparative analysis of the concept of fiscal jurisdiction in income tax law." Master's thesis, University of Cape Town, 2002. http://hdl.handle.net/11427/11303.
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Bibliography: leaves 324-333.The purpose of this dissertation is to analyse the definitional rules of fiscal jurisdiction as well as the tax consequences resulting from the application of these rules, as implemented in the national tax law of the chosen jurisdictions. In essence, there are two main rules, which give content to the chosen theory of fiscal jurisdiction, mainly source and residence. It is trite that globalisation of the world's economies poses certain problems for international tax policy. Companies and individuals are becoming more mobile and therefore are able to exploit tax differences between states. In consideration of the natural concern of governments that they should get an acceptable share of the profits generated by international businesses, this research study analyses the bases through which a country could claim the right to tax. The plasticity of these two key concepts (source and residence) may well subvert a country's ultimate tax objective because of the potential for exploitation of ambiguity in the search for effective avoidance. The residence tax system and its implications have been analysed mainly from the South African perspective, and where necessary, the analysis has sought reference in other jurisdictions such as the United Kingdom and the United States. The source principle of taxation and its effects have also been studied from the South African context, with a comparative approach from Hong Kong. It has been found that the countries considered in this research have, in various ways, adopted different combinations of subjective factors for tax liability in their domestic tax laws. At the same time, the relentless search of additional tax revenue, has led countries to implement in their tax laws, stringent anti-avoidance measures designed to prevent the deferral of tax, for instance on foreign source income. Factors such as the increasing complexity of modem business and the greater sophistication of tax planning techniques have contributed to this state of affairs. Thus, this dissertation highlights that competition between governments, in the face of international economic integrity, may lead countries to adopt tax rules, which though they follow the usual international standards, are nevertheless very complex in application and administration. This can maintain the problem of international double taxation and lead to excessive or unpredictable compliance burdens. It is shown how countries in the exercise of their fiscal jurisdiction can move towards harmonisation of rules and common interpretation of the tax base in the application of their national tax legislation.
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Calvert, Teresa Michelle. "An analysis of the 2006 amendments to the General Anti-Avoidance Rules : a case law approach / T. Calvert." Thesis, North-West University, 2011. http://hdl.handle.net/10394/6280.
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Tax avoidance has been a concern to revenue authorities throughout the ages, and revenue authorities worldwide are engaged in a constant struggle to ensure taxpayer compliance while combating tax avoidance. South Africa is no exception to this struggle and the increasingly innovative ways in which taxpayers seek to minimise their tax burdens necessitate amendments in order to remain at the forefront of taxpayer compliance. In view of the above, the general anti-avoidance rules (GAAR) have been amended numerous times to address weaknesses. The most recent of these amendments are those of 1996 and 2006.
The research on GAAR in South Africa has focused on critical analyses once the legislation fails to stand up to the rigours of court, and has thus used the principle of hindsight to criticise GAAR and recommend improvements. However, in their current form (post-2006 amendments) the GAAR have not been presented before the courts, and thus the use of hindsight is not an appropriate tool to determine if the current GAAR regime has improved upon the weaknesses identified in the past. This study applied a qualitative case study approach to determine if the 2006 amendments to GAAR have in fact addressed these weaknesses. The current GAAR regime was applied to previous cases to determine if the unfavourable judgments for the Commissioner would now be considered favourable.
In executing this process, an instrument was developed in phase 1 of the literature study to apply the new GAAR to the cases. In the second phase of the study this framework was applied to case law in which the previous GAAR regimes failed to stand up to the rigours of court, thus determining whether the 2006 amendments to GAAR addressed the weaknesses of the previous GAAR regime. The final phase of the study consisted of a literature control to determine if similar such conclusions have been made by other commentators to support the findings of the study.
The findings of the case studies revealed that, on a balance of probabilities, none of the cases selected for analysis would have been held in favour of the Commissioner if they were brought to the courts today on the same grounds that they were attacked at the time and the courts used the instrument developed in phase 1 to apply the GAAR to these transactions. The study therefore indicates that the use of similar (often identical) wording of the purpose test as in the previous GAAR, as well as the use of the purpose test in conjunction with the amended abnormality test still result in a GAAR regime that may be an ineffective deterrent to tax avoidance.Thesis (M.Com. (South African and International Taxation))--North-West University, Potchefstroom Campus, 2011.
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Nkerebuka, Eliya John. "Trading stock : a critical analysis of the application of Section 1 of the Income Tax Act no 58 of 1962." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/19790.
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The right to tax is traditionally based on connection to jurisdiction. Taxation is divided into international and domestic systems. An international tax system subjects its residents to tax on their income from all around the world while a domestic tax system subjects its residents to tax only on income arising out of a source within the borders of such a State. Under the international tax system, a State's right to tax firstly depends on whether the taxpayer deriving the said taxable income is a resident of that country or not. With respect to an entity or enterprise, its place of effective management or its headquarters within a State is used to establish residence of such an entity in the State hence making the entity taxable. Where the enterprise does not have a place of effective management or headquarters in a State, hence rendering such enterprise a non-resident, treaty rules have established that the permanent establishment concept be used to tax business profits. The permanent establishment becomes the minimum criteria for establishing that such an enterprise has an economic presence within the borders of the source State. In the presence of an enterprise having cross-border transactions, it is possible for the enterprise to be subject to taxable under both the domestic tax system of the State within which it is a resident as well as under the international tax system of the source State within which it has a permanent establishment, thus arising the question of double taxation. To help solve such a situation, legal instruments, arising in the form of tax treaties were created to combat double taxation of income arising out of cross-border transactions. Integral in solving this situation is the concept of permanent establishment. The permanent establishment is a source rule; thus a basic requirement to be met before business profits of a non-resident that are attributable to its permanent establishment in the source State are taxed in that State. However, technology developments and the rise of electronic commerce are rising problems on the application of the permanent establishment concept in relation to taxing income from international sources of such businesses.3 The broad meaning of the permanent establishment concept, particularly its requirements, make it difficult and ambiguous during its application to enterprises that conduct their businesses electronically or via the internet.