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1
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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Buckley, Ryan. "Defining a royalty from a South African perspective for the purposes of the South African Income Tax Act and the South African application of its Double Tax Treaty network." Master's thesis, University of Cape Town, 2012. http://hdl.handle.net/11427/10270.
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Inludes bibliographical references.The word "royalty" is used in South Africa's Income Tax Act No. 58 of 1962 ("TA") at various points. Although there is a general understanding on the meaning of a royalty, there is no official definition for this term which can be used throughout the ITA. Section 35 of the ITA provides the strongest guidance of what a royalty is. However, this section applies to royalties and similar payments.
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Stack, E. "The relationship between double taxation agreements and the provisions of the South African Income Tax Act." University of Johannesburg, 2014. http://hdl.handle.net/10962/6384.
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This article investigates the legal status of Double Taxation Agreements, and the relationship between Double Taxation Agreements, which are concluded in terms of section 108 of the Income Tax Act, and the provisions of the Income Tax Act (taking into account the provisions of the Constitution, and the national and international rules for the interpretation of statutes). An important conclusion reached was that as the Vienna Convention on the Law of Treaties represents customary international law and as such forms part of South African law, the principles contained in the treaty should be taken into account when interpreting South African legislation (including Double Taxation Agreements).The final conclusion of the research was that Double Taxation Agreements have a dual nature – forming part of domestic legislation and being classified as international agreements. The provisions of the Double Taxation Agreement should be taken as overriding any conflicting legislation in the Income Tax Act.
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Pillay, Neermala Neelavathy. "Assessed losses: the trade and income from trade requirements as set out in section 20 of the Income Tax Act of 1962." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/1670.
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Section 20 of the Income Tax Act, No 58 of 1962 allows a taxpayer that incurs an assessed loss to carry forward the balance of assessed loss incurred, to be set off against taxable income earned in or added to losses incurred in future years. The issues regarding the carry forward of assessed losses in terms of section 20 is complex and in terms of the said section, a company is only entitled to set off its assessed loss from the previous year against its taxable income in the current year, if the taxpayer has carried on a trade during the current year and has derived income from that trade. Under the provisions of section 20(2A), a taxpayer other than a company can utilise an assessed loss even if no trading has been conducted. Assessed losses of natural persons, may however be ring-fenced. The aim of this treatise was twofold. Firstly it was to gain clarity on the „trade‟ and „income from trade‟ issues and secondly to compare South African legislation with that of Australia, with a view to recommending a change in our rules regarding the treatment of assessed losses in the context of companies. The critical lessons to be learned from the cases presented, is that liquidators, creditors and others must ensure that the company continues trading in order to x keep the assessed losses valid. Realisation of assets (including stock), and the collection of outstanding debts during liquidation does not constitute the carrying on of a trade in terms of s 20(1). The continuity of trade is an important element in regard to the carry forward of assessed losses to be utilised in the current and future years. Therefore it is important that a company carries on some activity that falls within the definition of trade. In the landmark case of SA Bazaars, it was held that a company did not have to trade continuously throughout the year to qualify for the set-off of the assessed loss or carry forward of the assessed loss, that is, to trade for say part of the year. The court however left open the issue of whether it was necessary to derive income from that trade. In order to clarify the issues regarding assessed losses, SARS issued Interpretation Note 33 granting taxpayers a concession in certain cases where a company has traded, but not derived income from that trade. But in ITC 1830, the court ruled that a company must trade and must derive income from that trade in order to carry forward its assessed loss, which effectively means that SARS cannot apply Interpretation Note 33. SARS does not have the authority to make concession which is contrary to the wording of the Act. xi In Australia, operating losses can be carried forward indefinitely to be set-off against future income, provided a company meets the more than 50% continuity of ownership test. Where the continuity test fails, losses can be deducted if the same business is carried on in the income year (the same business test). From the research conducted and in order to solve the issues surrounding the carry forward of assessed losses it was suggested that one of the following be adopted :- The method used in Australia for the carry forward of assessed losses., or A decision of the Supreme Court of Appeal is needed for a departure from the literal meaning of the words pertaining to the requirements regarding the carry forward of assessed losses. Furthermore, to clarify the definition of „income‟, as used in the context of s20, is it gross income less exempt income or taxable income?. If section 20 relates to taxable income, then an assessed loss will never be increased, which it is submitted, is not what the legislature intended. Section 20 ought to be revisited to eliminate any uncertainty about the income requirement and in the context in which the word „income‟ is used in that section.
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Hartley, Ryan. "When is a debt bad or doubtful in terms of the Income Tax Act?" Master's thesis, University of Cape Town, 2018. http://hdl.handle.net/11427/29559.
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Bad debt deductions and doubtful debt allowances provide relief to taxpayers who would be subject to income tax on amounts accrued to them which may never be received. No definition of a bad or doubtful debt is provided in the Income Tax Act. This dissertation considered current legislation, historical court cases, academic writing and the views expressed by SARS through explanatory memoranda and directives in order to establish when a debt becomes bad or doubtful and the extent of the relief granted. This dissertation also considered the future of the doubtful debt allowance in light of the change of accounting standards from IAS 39 to IFRS 9. There are no specific requirements for a debt to become bad or doubtful. Whether a debt is bad is a factual question taking into account all relevant facts. Whether a debt is doubtful and the extent of the allowance granted is determined by the Commissioner, but that determination must be reasonable. The Commissioner relies on IAS 39 rules of impairment as the starting point for determination of a doubtful debt allowance. IFRS 9 determines impairment in a significantly different manner to IAS 39, abandoning the requirement that a “loss event” must have occurred. Adoption of IFRS 9 will result in a change to the determination of doubtful debt allowances, for example, by reducing the generally accepted rate of 25% of identified doubtful debts or by requiring the taxpayer to compile a list of debts which would have qualified as doubtful under IAS 39.
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Blom, Okkie Johannes Jacobus. "The legal status of tax treaties in South Africa." Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/62558.
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Du, Toit Leo. "Tax implications for business rescues in South African Law." Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/26627.
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The South African Revenue Service has in the past had difficulty in applying debt forgiveness in cases of corporate and business rescues. Taxation legislation was drafted to counter innovative section 311 schemes of arrangements where the sole purpose was to obtain maximum taxations benefits in relation to entities in financial difficulties. This approach was only concerned with the interests of the Revenue authorities. The central theme of this study focuses of the procedures now available to tax authorities and debtors alike when compromises were and are considered in South Africa in terms of income tax and company legislation. The South Africa Revenue Service’s approach the corporate rehabilitation is examined which is vital for investors, creditors and debtors alike. A comparative study with similar procedures in England is undertaken to establish how valid the procedures are in establishing a viable corporate rescue environment in South Africa in the future.Dissertation (LLM)--University of Pretoria, 2012.
Procedural Law
unrestricted
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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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Swanepoel, Pieter Andries. "An analysis of the purposive approach to the interpretation of South African fiscal legislation." Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/31636.
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Geldenhuys, Bernard, and Schalkwyk Linda Van. "An analysis of Section 80A(C)(ii) of the Income Tax Act no. 58 of 1962 as amended." Thesis, Stellenbosch : University of Stellenbosch, 2009. http://hdl.handle.net/10019.1/15520.
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Thesis (MAcc)--University of Stellenbosch, 2009.ENGLISH ABSTRACT: In November 2006 section 103(1) of the Act was abolished and replaced by a new Part IIA, containing sections 80A to 80L, which targets impermissible tax avoidance arrangements. Section 80A(c)(ii) introduced a new concept to the South African tax law: a misuse or abuse of the provisions of the Act, including Part IIA thereof. The objective of this study was to establish the origin, meaning, application and effect of section 80A(c)(ii) of the Act. The evolution of section 80A(c)(ii) was therefore examined where after the enacted version was analyzed. It was essential to determine the origin of section 80A(c)(ii) in order to establish some point of reference from which inferences could be drawn as to the possible application and effect thereof. Case law, practice statements and articles relating to its proposed root was then examined. A ‘misuse or abuse’ of a provision, it was found, implies, frustrating or exploiting the purpose of the provision. This contention was confirmed by existing Canadian precedent. Such an interpretation, however, has a strong resemblance to the words in which the draft version of section 80A(c)(ii) was couched. It is therefore in contrast to the presumption that different words (in the enacted version) imply a different meaning. The precise meaning of the words ‘misuse or abuse’ is thus still elusive. It was established that section 80A(c)(ii) has its roots in section 245 of the Canadian Act. Section 245(4) was regarded as an effective comparative to section 80A(c)(ii) as it also contained a so-called misuse or abuse rule. The application of this rule in the Canadian tax environment required the following process: - Interpret (contextually and purposively) the provisions relied on by the taxpayer, to determine their object, spirit and purpose. - Determine whether the transaction frustrates or defeats the object, spirit or purpose of the provisions. Section 245(4) had the effect of reviving the modern approach (a contextual and/or purposive theory) to the interpretation of statutes in Canada. Reference to the ‘spirit’ of a provision (above) was found not to extend the modern approach to statutory interpretation: it does not require of the court to look for some inner and spiritual meaning within the legislation. As section 245(4) was regarded as an effective comparative to section 80A(c)(ii) it was contented that it would have a similar effect, than that of its Canadian counterpart, on the approach to statutory interpretation in South Africa. However, it was established that a modern approach to statutory interpretation was already authoritative in South Africa. This finding led the author to the conclusion that section 80A(c)(ii) could at best only reinforce the case for applying such an approach. Such a purpose for section 80A(c)(ii) was however found to be void in the light of the Constitution of the Republic of South Africa, which was enacted in 1996, and provides a sovereign authority for the application of the modern approach. It was also found that the practical burden of showing that there was a ‘misuse or abuse of the provisions of this Act (including the provisions of this Part)’ will rest on the shoulders of the Commissioner, notwithstanding section 82 of the Act.
AFRIKAANSE OPSOMMING: Artikel 103(1) van die Inkomstebelastingwet is herroep in November 2006 en vervang deur Deel IIA, bestaande uit artikels 80A tot 80L, wat daarop gemik is om ontoelaatbare belastingvermydingsreëlings te teiken. Artikel 80A(c)(ii) het ‘n nuwe konsep in die Suid-Afrikaanse Inkomstebelastingreg ingebring: ‘n misbruik of ‘n wangebruik van die bepalings van die Wet, insluitende Deel IIA. Die doel van hierdie studie was om die oorsprong, betekenis, toepassing en uitwerking van artikel 80A(c)(ii) vas te stel. Die ontwikkeling van artikel 80A(c)(ii) is daarom ondersoek waarna die verordende weergawe daarvan geanaliseer is. ‘n Sleutelaspek van die analise was om die oorsprong van artikel 80A(c)(ii) vas te stel. Hierdie oefening het ‘n verwysbare bron daargestel waarvan afleidings rondom die moontlike toepassing en uitwerking van artikel 80A(c)(ii) gemaak kon word. Hofsake, praktyknotas en artikels rakende die voorgestelde oorsprong is vervolgens ondersoek. Daar is vasgestel dat ‘n ‘misbruik of wangebruik’ van ‘n bepaling neerkom op die frustering of uitbuiting van die doel van ‘n bepaling. Hierdie bewering is bevestig deur bestaande Kanadese presedent. So ‘n interpretasie is egter soortgelyk aan die woorde waarin die konsepweergawe van artikel 80A(c)(ii) uitgedruk is. Dit is daarom in teenstelling met die vermoede dat ‘n wysiging van die woorde (in die verordende weergawe) ‘n gewysigde betekenis impliseer. Die presiese betekenis van die woorde ‘misbruik of wangebruik’ is dus steeds ontwykend. Daar is bevind dat artikel 80A(c)(ii) waarskynlik sy ontstaan in artikel 245 van die Kanadese Inkomstebelastingwet gehad het. Artikel 245(4) van die Kanadese Inkomstebelastingwet is beskou as ‘n effektiewe vergelykende artikel vir artikel 80A(c)(ii), aangesien dit ook oor ‘n sogenaamde misbruik of wangebruik reël beskik. Die toepassing van hierdie reël in die Kanadese belastingmilieu vereis die volgende werkswyse: - Interpreteer (kontekstueel en doeldienend) die bepalings waarop die belastingpligtige steun, ten einde die oogmerk, gees en doel daarvan vas te stel. - Bepaal of die transaksie, deur die belastingpligtige aangegaan, die oogmerk, gees of doel van die bepalings frustreer. Artikel 245(4) het aanleiding gegee tot die herstel van die moderne benadering (‘n kontekstuele en/of doeldienende teorie) tot die interpretasie van wetgewing in Kanada. Daar is bevind dat die verwysing na die ‘gees’ van ‘n bepaling (hierbo) nie aanleiding gee tot die uitbreiding van die moderne benadering tot wetsuitleg nie: dit vereis nie dat die hof moet soek na die innerlike of geestelike betekenis van die wetgewing nie. Aangesien artikel 245(4) as ‘n effektiewe vergelykende artikel vir artikel 80A(c)(ii) beskou is, is daar aangeneem dat dit ‘n soortgelyke uitwerking, as sy Kanadese eweknie, op wetsuitleg in Suid Afrika sal hê. By nadere ondersoek is daar egter bevind dat ‘n moderne benadering tot wetsuitleg alreeds gesaghebbend in Suid Afrika is. Hierdie bevinding het die skrywer tot die gevolgtrekking gebring dat artikel 80A(c)(ii), in beginsel, slegs die saak vir die moderne benadering tot wetsuitleg in Suid Afrika sal versterk. Indien hierdie die doel is wat die wetgewer gehad het met die verordening van artikel 80A(c)(ii), sal dit egter niksseggend wees in die lig van die Grondwet van die Republiek van Suid Afrika, wat verorden is in 1996, en ‘n oppermagtige gesag bied vir die moderne benadering tot wetsuitleg. Daar is ook vasgestel dat die onus op die Kommissaris rus om te bewys dat daar ‘n ‘misbruik of wangebruik van die bepalings van hierdie Wet (waarby ingesluit die bepalings van hierdie Deel)’ was, ondanks artikel 82 van die Wet.
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Calitz, Johanna Eliza. "The deductibility of future expenditure on contract in terms of section 24C." Thesis, Stellenbosch : Stellenbosch University, 2015. http://hdl.handle.net/10019.1/96660.
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Thesis (MAcc)--Stellenbosch University, 2015.ENGLISH ABSTRACT: Section 24C of the Income Tax Act No. 58 of 1962 (‘the Act’) provides for a deduction of future expenditure that will be incurred by the taxpayer in the performance of his obligations under a contract from which the taxpayer derived income. Due to uncertainties regarding the meaning of certain words and phrases used in section 24C, the first aim of this assignment was to determine the meaning of the word ‘expenditure’ and the phrase ‘will be incurred’ as used in section 24C. The second aim was to establish how a taxpayer will prove with certainty that he will incur future expenditure in the performance of his obligations under a contract. This was done by discussing the effect of contractual terms and other circumstances and by taking into account certain additional guidelines regarding the interpretation of section 24C provided for in Interpretation Note: No. 78 (‘IN 78’). It was established that the word ‘expenditure’ means the amount of money spent, including the disbursement of other assets with a monetary value. The word ‘expenditure’ also specifically includes the voluntary payments and disbursements of assets. The word ‘expenditure’ can also include a loss if the word ‘loss’ can be equated to the word ‘expenditure’. The phrase ‘will be incurred’ implies that the taxpayer will, in a subsequent year of assessment, have an unconditional obligation to pay for expenditure, which must arise from the taxpayer’s obligations to perform under the contract. Contractual terms and other circumstances can indicate whether there is certainty that future expenditure will be incurred as aforementioned. Conditions and warranties are contractual terms that indicate that there is uncertainty regarding the taxpayer’s obligations to perform under the contract. A time clause in a contract can indicate that there is certainty regarding the taxpayer’s obligations to perform under the contract. Similar contracts with similar conditional obligations to perform cannot be grouped together in order to determine the probability, and thus the certainty, that future expenditure will be incurred in the performance of the taxpayer’s obligations under a contract. The probability that a taxpayer will perform his unconditional obligation under the contract must, however, be proved in order to demonstrate that there is certainty regarding the incurral of the future expenditure. IN 78 does not specify whether a loss which can, in certain circumstances, be equated to the word ‘expenditure’, is deductible under section 24C. This should be clarified. The new undefined phrases (a high degree of probability, inevitability, certainty and potentially contractually obligatory), as used in IN 78, might cause confusion when interpreting section 24C. These phrases should be defined and it should be explained how the high degree will be measured. Lastly, is was shown that an anomaly occurs regarding trading stock at hand at the end of a year of assessment, which will be utilised in a subsequent year of assessment in the performance of the taxpayer’s obligations under a contract. Such trading stock does not represent ‘future expenditure’ and must be excluded from the section 24C allowance. However, due to the interplay between section 24C and section 22(1), the taxpayer does not receive any tax relief for the expenditure actually incurred to acquire the closing trading stock in the year in which such trading stock is acquired. It is, therefore, questioned whether the established interpretation of section 24C is in agreement with the Legislator’s original intention with section 24C namely, to match income received under a contract with the related deductible expenditure.
AFRIKAANSE OPSOMMING: Artikel 24C van die Inkomstebelastingwet No. 58 van 1962 (‘die Wet’) voorsien ʼn aftrekking vir toekomstige onkoste wat deur die belastingpligtige aangegaan sal word in die nakoming van sy verpligtinge ingevolge ʼn kontrak waaruit hy inkomste verkry het. As gevolg van onsekerhede ten opsigte van die betekenis van sekere woorde en frases wat in artikel 24C gebruik word, was die eerste doelstelling van hierdie navorsingswerkstuk om die betekenis van die woord ‘onkoste’ en die frase ‘aangegaan sal word’, soos wat dit in artikel 24C gebruik word, te bepaal. Die tweede doelstelling was om vas te stel hoe 'n belastingpligtige met sekerheid sal bewys dat hy toekomstige onkoste sal aangaan in die nakoming van sy verpligtinge ingevolge ʼn kontrak. Dit is gedoen deur die effek van kontraksbedinge en ander omstandighede te bespreek en deur sekere bykomende riglyne ten opsigte van die interpretasie van artikel 24C, soos vervat in Interpretasienota No. 78 (‘IN 78’), in ag te neem. Daar is vasgestel dat die woord ‘onkoste’ die bedrag van geld wat bestee word, insluitend die uitbetaling van ander bates met 'n geldwaarde, beteken. Die woord ‘onkoste’ sluit ook spesifiek vrywillige betalings en uitbetalings van bates in. Die woord ‘onkoste’ kan ook 'n verlies insluit, indien die woord ‘verlies’ gelyk gestel kan word aan die woord ‘onkoste’. Die frase ‘aangegaan sal word’ impliseer dat die belastingpligtige, in 'n daaropvolgende jaar van aanslag, 'n onvoorwaardelike verpligting sal hê om vir onkostes te betaal. Hierdie onkostes moet ontstaan weens die belastingpligtige se verpligtinge ingevolge die kontrak. Kontraksbedinge en ander omstandighede kan aandui of daar sekerheid is dat die toekomstige onkoste, soos hierbo genoem, aangegaan sal word. Voorwaardes en waarborge is kontraksbedinge wat daarop dui dat daar onsekerheid is rakende die belastingpligtige se verpligtinge om ingevolge die kontrak op te tree. ʼn Tydsklousule in 'n kontrak kan aandui dat daar sekerheid is rakende die belastingpligtige se nakoming van sy verpligtinge ingevolge die kontrak. Soortgelyke kontrakte, met soortgelyke voorwaardelike verpligtinge kan nie saam gegroepeer word ten einde te bepaal of dit waarskynlik, en gevolglik seker is dat toekomstige onkoste in die nakoming van ʼn belastingpligtige se verpligtinge ingevolge die kontrak aangaan sal word nie. Die waarskynlikheid dat 'n belastingpligtige sy onvoorwaardelike verpligting ingevolge die kontrak sal nakom moet egter bewys word ten einde aan te dui dat daar sekerheid is dat toekomstige onkoste aangegaan sal word. IN 78 spesifiseer nie of 'n verlies wat, in sekere omstandighede, gelyk gestel kan word aan die woord ‘onkoste’, ingevolge artikel 24C aftrekbaar is nie. Duidelikheid hieromtrent moet verskaf word. Die nuwe, ongedefinieerde frases ('n hoë graad van waarskynlikheid, onafwendbaarheid, sekerheid en potensieel kontraktueel verpligtend (vry vertaal)), soos in IN 78 gebruik, kan moontlik verwarring veroorsaak wanneer artikel 24C geïnterpreteer word. Hierdie frases moet gedefinieer word en daar moet verduidelik word hoe ʼn hoë graad gemeet gaan word. Laastens blyk dit dat 'n teenstrydigheid ontstaan ten opsigte van handelsvoorraad op hande aan die einde van 'n jaar van aanslag, wat in 'n daaropvolgende jaar van aanslag deur die belastingpligtige in die nakoming van sy verpligtinge ingevolge 'n kontrak gebruik sal word. Sodanige handelsvoorraad verteenwoordig nie ‘toekomstige onkoste’ nie en moet by die artikel 24C toelaag uitgesluit word. Die belastingpligte ontvang egter, weens die wisselwerking tussen artikel 24C en artikel 22(1), nie ʼn belastingverligting vir die onkoste werklik aangegaan in die jaar waarin sodanige handelsvoorraad verkry is nie. Dit word dus bevraagteken of die bewese interpretasie van artikel 24C in ooreenstemming is met die Wetgewer se oorspronklike bedoeling met artikel 24C, naamlik, om inkomste ontvang ingevolge ʼn kontrak met die verwante aftrekbare uitgawes te paar.
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Langenhoven, Allenda Glynn. "Does the South African GAAR criteria of the "misuse or abuse" of a provision included in Section 80A(c)(ii) of the Income Tax Act add any value?" Master's thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/22857.
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Tax planning, where taxpayers arrange their affairs so as to minimize the resulting tax liability, has evolved over the last couple of decades as a result of the change in the way business is conducted by virtue of globalisation and the development in technology. It appears to have become more and more aggressive as taxpayers have the opportunity to access tax benefits not only through utilising loopholes in domestic legislation, but also through international tax loopholes. Revenue Authorities have to respond to this by employing mitigating anti-avoidance mechanisms. One such mechanism employed in South Africa ("SA") is the use of General anti-avoidance Rules ("GAAR") found in s80A-L of the Income Tax Act No. 58 of 1962 ("ITA"). To combat certain shortcomings in this GAAR's predecessor and to stay abreast of international trends, for the first time ever, a Statutory Purpose Element has been included in GAAR. This Statutory Purpose Element, as included in s80A(c)(ii) of the ITA, evaluates the misuse or abuse of the provisions of the ITA as a means to identify impermissible tax avoidance arrangements. Essentially, this calls for the application of the modern approach to statutory interpretation, where the purpose and context of the provisions of the ITA are first identified, before the misuse or abuse of these provisions can be proven. This study evaluates whether the inclusion of this Statutory Purpose Element in GAAR, adds any value or provides any additional powers to SARS when applying GAAR, especially in light of s39(2) included in the Bill of Rights of the Constitution, of 1996, ("Constitution"). The Constitution, the supreme law in SA, already calls for the modern approach to be applied to any statutory interpretation and the findings of this study indicate that s80A(c)(ii) appears to be completely superfluous as it does not award any additional powers to SARS, which were not already granted by the Constitution. If anything, s80A(c)(ii) broadens the scope of GAAR to such an extent, that it most likely will only cause further confusion for taxpayers wanting to engage in tax planning.
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Garrod, Yashaswini. "Mitigating climate change through the income tax legislation : a brief analysis of section 12K of the Income Tax Act no. 58 of 1962 and its implications for South African CDM projects." Master's thesis, University of Cape Town, 2011. http://hdl.handle.net/11427/10562.
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[This] dissertation is dedicated to this attempt of making South Africa a more environmentally sustainable economy through the development of new CDM projects. This dissertation examines the introduction of section 12K in the Income Tax Act 58 of 1962 and how this novel incentive interacts with our current income tax legislation. This dissertation highlights some issues surrounding the section 12K exemption which may detract from its true potential and proposes ways to resolve these issues in order to make this incentive more attractive to the CDM project developers.
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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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Bovijn, Silke. "Warranted and warrantless search and seizure in South African income tax law : the development, operation, constitutionality and remedies of a taxpayer." Thesis, Stellenbosch : Stellenbosch University, 2011. http://hdl.handle.net/10019.1/17961.
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Thesis (MComm)--Stellenbosch University, 2011.ENGLISH ABSTRACT: Section 74D of the Income Tax Act No 58 of 1962 (the Act) grants the power of search and seizure to the South African Revenue Service, the basic underlying principle being that the Commissioner has to obtain a warrant from a judge prior to a search and seizure operation. The previous section 74(3) of the Act provided that the Commissioner was allowed himself to authorise and conduct a search and seizure operation without the requirement of a warrant. Section 74D of the Act was recently reviewed and the Tax Administration Bill (the TAB) contains the new provisions on search and seizure that will replace section 74D of the Act. In this assignment, the concept of search and seizure was examined by considering the cases, academic writing and other material on the topic. The objectives were to analyse the development of search and seizure in South African income tax law, to provide a basic understanding of the warranted and warrantless search and seizure provisions of the Act and the TAB, to determine their constitutionality and to determine the remedies available to a taxpayer who has been subject to a search and seizure. It was found that search and seizure has developed from warrantless under the previous section 74(3) of the Act into the requirement of a warrant under section 74D of the Act into a combination of both under the TAB. The concept of an ex parte application was analysed, which was shown to be permissible in certain circumstances under section 74D of the Act, while it is now compulsory in terms of the TAB. It was shown that the TAB closed the lacuna in the Act relating to the validity period of a warrant before it has been executed. It was, however, concluded, regarding whether a warrant expires when exercised or whether the same warrant can be used again to conduct a second search and seizure, that the position is not quite certain in terms of the Act and the TAB. It was found that there is no defined meaning of the reasonable grounds criterion, which is often required to be met in terms of the Act and the TAB, but that anyone that has to comply with the criterion must be satisfied that the grounds in fact exist objectively. The new warrantless search and seizure provisions of the TAB were analysed. It was established that warrantless search and seizure provisions are not uncommon in other statutes, but that the content thereof often differs. The new warrantless provisions were compared to the warrantless search and seizure provisions of, inter alia, the Competition Act No 89 of 1998 (the Competition Act), and it was found that the warrantless TAB provisions are not in all respects as circumscribed as those of the Competition Act and recommendations for counterbalances were made. It was concluded that the warranted search and seizure provisions of the Act and the TAB should be constitutionally valid but that the constitutionality of the new warrantless provisions of the TAB is not beyond doubt. It was furthermore found that the remedies at the disposal of a taxpayer who has been subject to a search and seizure should indeed be sufficient, but that there are no remedies available to a taxpayer to prevent injustice or harm.
AFRIKAANSE OPSOMMING: Artikel 74D van die Inkomstebelastingwet No 58 van 1962, (die Wet) verleen aan die Suid-Afrikaanse Inkomstediens die mag van deursoeking en beslaglegging, die grondliggende beginsel synde dat die Kommissaris ’n lasbrief van ’n regter moet verkry voor die deursoeking en beslaglegging kan plaasvind. Die vorige artikel 74(3) van die Wet het bepaal dat die Kommissaris self ’n deursoeking en beslaglegging kon magtig en uitvoer sonder die vereiste van ’n lasbrief. Artikel 74D van die Wet is onlangs hersien en die nuwe Belastingadministrasie-wetsontwerp (BAW) bevat die nuwe bepalings oor deursoeking en beslaglegging wat artikel 74D van die Wet sal vervang. In hierdie werkstuk is die konsep van deursoeking en beslaglegging ondersoek deur oorweging van die hofsake, akademiese skrywe en ander materiaal oor die onderwerp. Die doelstellings was om die ontwikkeling van deursoeking en beslaglegging in die Suid-Afrikaanse inkomstebelastingreg te ontleed, om ’n basiese begrip van die bepalings in die Wet en die BAW oor deursoeking en beslaglegging met en sonder ’n lasbrief te verskaf, om die grondwetlikheid daarvan te bepaal en om die remedies te bepaal wat beskikbaar is vir ’n belastingpligtige wat onderworpe was aan deursoeking en beslaglegging. Daar is bevind dat deursoeking en beslaglegging ontwikkel het vanaf sonder ’n lasbrief ingevolge die vorige artikel 74(3) van die Wet tot die vereiste van ’n lasbrief ingevolge artikel 74D van die Wet tot die kombinasie van albei ingevolge die BAW. Die konsep van ’n ex parte-aansoek is ontleed, en dit blyk in sekere omstandighede ingevolge artikel 74D van die Wet toelaatbaar te wees, terwyl dit nou ingevolge die BAW verpligtend is. Daar is aangedui dat die BAW die lacuna in die Wet oor die geldigheidsperiode van ’n lasbrief voordat dit uitgevoer is, verwyder het. Daar is egter bevind, rakende die vraag of ’n lasbrief verval wanneer dit uitgevoer word en of dieselfde lasbrief weer gebruik kan word om ’n tweede deursoeking en beslaglegging uit te voer, dat daar nie sekerheid ingevolge die Wet of die BAW bestaan nie. Daar is bevind dat daar geen gedefinieerde betekenis vir die kriterium van redelike gronde is nie, waaraan dikwels ingevolge die Wet en die BAW voldoen moet word, maar dat enigiemand wat aan die kriterium moet voldoen tevrede moet wees dat die gronde inderwaarheid objektief bestaan. Die nuwe bepalings van die BAW oor deursoeking en beslaglegging sonder ’n lasbrief is ondersoek. Daar is vasgestel dat bepalings oor deursoeking en beslaglegging sonder ’n lasbrief nie ongewoon is in ander wette nie, maar dat die inhoud daarvan dikwels verskil. Die nuwe bepalings oor deursoeking en beslaglegging sonder ’n lasbrief is vergelyk met die bepalings oor deursoeking en beslaglegging sonder ’n lasbrief van, inter alia, die Mededingingswet No 89 van 1998 (die Mededingingswet), en daar is bevind dat die BAW-bepalings oor deursoeking en beslaglegging sonder ’n lasbrief nie in alle opsigte so afgebaken is soos dié van die Mededingingswet nie en voorstelle vir teenwigte is gemaak. Die gevolgtrekking is gemaak dat die bepalings oor deursoeking en beslaglegging met ’n lasbrief van die Wet en die BAW grondwetlik geldig behoort te wees, maar dat die grondwetlikheid van die nuwe bepalings van die BAW oor deursoeking en beslaglegging sonder ’n lasbrief nie onweerlegbaar is nie. Daar is verder bevind dat die remedies tot die beskikking van ’n belastingpligtige wat onderworpe was aan deursoeking en beslaglegging inderdaad genoegsaam behoort te wees, maar dat daar geen remedies aan ’n belastingpligtige beskikbaar is om ongeregtigheid of skade te voorkom nie.
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Rupping, Jacobus Adriaan. "Determining to what extent the “money-lender test” needs to be satisfied in the context of South African investment holding companies, focusing on the requirements of section 11(a) and 24J(2) of the Income Tax Act No. 58 of 1962." Thesis, Stellenbosch : Stellenbosch University, 2014. http://hdl.handle.net/10019.1/86326.
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Thesis (MAcc)--Stellenbosch University, 2014.ENGLISH ABSTRACT: The requirements of section 11(a) and section 24J(2) were considered in this research assignment, from both a money-lender’s and an investment holding company’s perspective, to determine whether interest, losses on irrecoverable loans and raising fees were tax deductible. It was determined, that if the trade requirement is satisfied by the money-lender, then the above-mentioned expenses are fully tax deductible. However, if the trade requirement is satisfied by the investment holding company then only the interest is fully tax deductible. It is further submitted however in this research assignment that it cannot be said that the money-lender alternative is better than the investment holding company alternative – both alternatives are of equal value in the current tax system. What is important though is that taxpayers who will fit the mould of an investment holding company will now be able to use the principles set out in this research assignment to prove that it is in fact carrying on a trade for tax purposes, something that taxpayers are generally reluctant to pursue. If this is pursued, taxpayers may have the added tax benefit of tax deductible interest expenditure (in full) in cases where this was not previously the norm (and an investment holding company will not have to satisfy any of the guidelines of the “money-lender test” when it seeks to deduct its interest expense in full). However, if an investment holding company seeks to deduct losses on irrecoverable loans and raising fees for tax purposes, it will not have to satisfy all the guidelines of the “money-lender test”, but it will have to satisfy one guideline, that being the “system or plan” and “frequent turnover of capital” guideline. It will be very difficult for an investment holding company to prove this on the facts of the case – it will arguably take a special set of facts to accomplish this mean feat.
AFRIKAANSE OPSOMMING: Die vereistes van artikel 11(a) en artikel 24J (2) is in hierdie navorsingsopdrag vanuit ʼn geldskieter en 'n beleggingshouermaatskappy se perspektief oorweeg, om die belastingaftrekbaarheid van rente, verliese op oninvorderbare lenings en diensfooie te bepaal. Daar is vasgestel dat indien die bedryfsvereiste deur ʼn geldskieter nagekom word, bogenoemde uitgawes ten volle vir belastingdoeleindes aftrekbaar is. Indien die bedryfsvereiste egter nagekom word deur ʼn beleggingshouermaatskappy sal slegs die rente ten volle aftrekbaar wees vir belastingdoeleindes. Verder word dit in die navorsingsopdrag aan die hand gedoen dat daar nie gesê kan word dat die geldskieter-alternatief beter is as die beleggingshouermaatskappy-alternatief nie – beide alternatiewe is van gelyke waarde in die huidige belastingbestel. Die onderskeid is egter belangrik, aangesien die belastingbetalers wat aan die vereistes van ʼn beleggingshouermaatskappy voldoen, nou in staat sal wees om die beginsels wat in hierdie navorsingsopdrag uiteengesit word, te gebruik om te bewys dat die beleggingshouermaatskappy in werklikheid ʼn bedryf vir belastingdoeleindes beoefen. Belastingbetalers is oor die algemeen huiwerig om dit te poog. Indien wel, kan belastingbetalers ʼn belastingaftrekking ten opsigte van rente uitgawes kry, wat voorheen nie die norm was nie (ʼn beleggingshouermaatskappy sal nie enige van die “geldskietertoets” riglyne hoef na te kom wanneer dit poog om ʼn belastingafrekking vir die rente uitgawe te kry nie). Indien ʼn beleggingshouermaatskappy verliese op oninvorderbare lenings en diensfooie vir belastingdoeleindes wil aftrek, sal die belastingbetaler nie al die “geldskietertoets” riglyne hoef na te kom nie, maar sal egter moet voldoen aan die “stelsel of plan” en “gereelde omset van kapitaal” riglyne. Dit sal baie moeilik wees vir 'n beleggingshouermaatskappy om dit te bewys op grond van die feite van die saak – dit sal waarskynlik ʼn spesiale stel feite verg om dit te bereik.
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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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Strauss, Carien. "An analysis of sections 11D(1)(A) and 11D(5)(B) of the income tax Act No. 58 of 1962 as amended." Thesis, Stellenbosch : Stellenbosch University, 2011. http://hdl.handle.net/10019.1/17808.
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Thesis (MAcc)--Stellenbosch University, 2011.ENGLISH ABSTRACT: In February 2007 section 11D was inserted into the Income Tax Act 58 of 1962 as amended. The aim of the section was to encourage private-sector investment in scientific or technological research and development (R&D). This was an indirect approach by National Treasury to increase national scientific and technological R&D expenditure in order to complement government expenditure on the subject matter. Although section 11D provides generous income tax incentives, the interpretation thereof was found to be a hindrance in attaining the goal sought by National Treasury. This is due to the fact that this section demands a firm grasp of intellectual property (IP) law, principles of tax, and technology in general. This is clearly shown by the lapse in time (i.e. three years) between the passing of section 11D into law and the release of the South African Revenue Services’ (SARS) final interpretation of section 11D, i.e. Interpretation Note 50. The release of Interpretation Note 50 in August 2009 sparked wide-spread controversy among many a patent attorneys and tax consultants. The interpretation of the section by SARS was found by many to be so draconian that it destroyed the incentive entirely. The objective of this study is to provide greater clarity on the areas of section 11D which have been found to be onerous to taxpayers. Hence the meaning of “new” and “non-obvious” in the context of a discovery of information as eligible R&D activity1 was examined. Hereafter the ambit of the exclusion of expenditure on “management or internal business process”2 from eligibility for the incentive in the context of computer program development was examined. It was established that the meaning of “novel” and “non-obvious” as construed by IP jurisprudence could mutatis mutandis be adopted for purposes of interpreting section 11D(1) of the Income Tax Act. Therefore, information would be regarded as “new” if it did not form part of the state of the art immediately prior to the date of its discovery. The state of the art was found to comprise all matter which had been made available to the public (both in the Republic and elsewhere) by written or oral description, by use or in any other way. Information would also be regarded as non-obvious if an ordinary person, skilled in the art, faced with the same problem, would not have easily solved the problem presented to him by having sole reliance on his intelligence and what was regarded as common knowledge in the art at the time of the discovery. It was submitted that in construing the meaning of the “management or internal business process” exclusion, the intention of the lawgiver should be sought and given effect to. The Explanatory Memorandum issued on the introduction of section 11D states that the lawgiver’s intention with the section was to ensure that South Africa is not at a global disadvantage concerning R&D. The R&D tax legislation of Australia, the United Kingdom and Canada was therefore examined to establish the international bar set in this regard. SARS is of the view that the “management or internal business process” exclusion applies to the development of any computer program (with the said application) irrespective of whether the program is developed for the purpose of in-house use, sale or licensing. However, it was found that such a restrictive interpretation would place homebound computer development at a severe disadvantage when compared with the legislation of the above mentioned countries. In order to give effect to the intention of legislature, it was submitted that the exclusion provision should be construed to only include the development of computer programs for in-house management or internal business process use. Computer programs developed for the said application, but for the purpose of being sold or licensed to an unrelated third party, should still be eligible for the R&D tax incentive.
AFRIKAANSE OPSOMMING: Artikel 11D is gevoeg tot die Inkomstebelastingwet 58 van 1962 gedurende Februarie 2007. Die wetgewing het ten doel om privaatsektor investering in tegniese en wetenskaplike navorsing en ontwikkeling (N&O) aan te moedig. Nasionale Tesourie dra dus op ‘n indirekte wyse by tot die hulpbronne wat die regering op nasionale vlak aan tegniese en wetenskaplike N&O bestee in ‘n gesamentlike poging om N&O in Suid-Afrika te stimuleer. Artikel 11D hou op die oog af baie gunstige inkomstebelasting aansporings in. Dit wil egter voorkom asof die interpretasie daarvan as ernstige struikelblok dien in die bereiking van die doel wat Nasionale Tesourie voor oë gehad het. Dit kan toegeskryf word aan die feit dat die artikel ‘n wesenlike begrip van intellektuele eiendom (IE) wetgewing, belasting beginsels en tegnologie in die algemeen vereis. Die feit dat dit die Suid-Afrikaanse Inkomstebelastingdiens (SAID) ongeveer drie jaar geneem het om hul interpretasie (i.e. Interpretasienota 50) van die artikel te finaliseer dien as bewys hiervan. Die SAID het gedurende Augustus 2009, Interpretasienota 50 vrygestel. Die nota het wye kritiek ontlok by menigte IE prokureurs en belastingkonsultante. Daar is algemene konsensus dat die SAID se interpretasie so drakonies van aard is, dat dit enige aansporing wat die artikel bied, geheel en al uitwis. Die doel van hierdie studie is om die problematiese bepalings van die aansporingsartikel te verlig en groter sekerheid daaroor te verskaf. Gevolglik is die betekenis van “nuut” en “nie-ooglopend” soos van toepassing op ‘n ontdekking van inligting as kwalifiserende N&O aktiwiteit, bestudeer. Verder is die omvang van die bepaling wat besteding op “bestuur of interne besigheidsprosesse” uitsluit van kwalifikasie vir die aansporingsinsentief, bestudeer in die konteks van rekenaar programmatuur ontwikkeling. By nadere ondersoek is daar bevind dat die betekenis van “nuut” en “nie-ooglopend” soos uitgelê vir doeleindes van IE wetgewing mutatis mutandis aangeneem kan word vir die uitleg van artikel 11D(1)(a) van die Inkomstebelastingwet. Vervolgens word inligting as “nuut” beskou indien dit nie deel uitmaak van die stand van die tegniek onmiddellik voor die datum waarop dit ontdek is nie. Die stand van die tegniek vir die bepaling van nuutheid behels alle stof wat reeds aan die publiek beskikbaar gestel is (hetsy binne die Republiek of elders) by wyse van skriftelike of mondelinge beskrywing, deur gebruik of op enige ander wyse. Inligting word as nie-ooglopend beskou indien ‘n gewone werker wat bedrewe is in die tegniek en gekonfronteer is met dieselfde probleem, nie geredelik die antwoord tot die probleem sou vind deur bloot staat te maak op sy intelligensie en die algemene kennis in die bedryf op die tydstip van die ontdekking nie. Daar is aan die hand gedoen dat die doel van die wetgewer nagestreef moet word met die uitleg van die “bestuur of interne besigheidsprosesse” uitsluiting. Die Verklarende Memorandum wat uitgereik is met die bekendstelling van artikel 11D het gemeld dat die wetgewer ten doel gehad het om Suid Afrika op ‘n gelyke speelveld met die res van die wêreld te plaas wat betref N&O. Die N&O belastingbepalings van Australië, die Verenigde Koninkryk (VK) en Kanada is dus bestudeer om die internasionale standaard in die opsig vas te stel. Die SAID is van mening dat die strekwydte van die uitsluiting so omvangryk is dat dit alle rekenaar programmatuur wat ontwikkel is vir ‘n bestuur- of interne besigheidsproses toepassing tref, ten spyte daarvan dat die bedoeling van die belastingpligtige was om die programmatuur te verkoop of te lisensieër aan ‘n onverbonde derde party. Dit was egter bevind dat so ‘n beperkende uitleg die aansporing van rekenaar programmatuur ontwikkeling in Suid Afrika geweldig benadeel in vergelyking met die regime wat geld in lande soos Australië, die VK en Kanada. Ten einde gevolg te gee aan die bedoeling van die wetgewer, is daar aan die hand gedoen dat die uitsluiting slegs so ver moet strek as om rekenaar programme vir eie gebruik te diskwalifiseer. Rekenaar programme wat dus ontwikkel word met die doel om dit te verkoop of te lisensieër aan onverbonde derde partye moet steeds vir die aansporingsinsentief kwalifiseer.
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Snyman, S. L. "A critical analysis of the taxation of financial assets and financial liabilities in terms of section 24JB of the South African Income Tax Act." Thesis, Rhodes University, 2016. http://hdl.handle.net/10962/4178.
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Section 24JB of the Income Tax Act No. 58 of 1962 was introduced with effect from 1 January 2014 in order to govern the taxation of financial instruments of a covered person as defined. Section 24JB represents a significant departure from the standard tax principles for financial instruments and will therefore directly affect the timing of the imposition of tax on gains and losses on these financial instruments, resulting in a significant adverse cash flow effect for the taxpayer. The main purpose of the research is to investigate the meaning of the wording in section 24JB through a critical analysis of the domestic tax legislation in the context of practical examples of specific financial assets and liabilities. The research includes an analysis of the scope of section 24JB by examining the definition of a “covered person” as well as the specific financial instruments to which the section applies, with reference to the International Financial Reporting Standards classifications and terms. The interaction of section 24JB with the rest of the Act is examined and whether this section overrides all the other provisions, specifically with reference to the taxation of dividends and the general and specific anti-avoidance provisions contained elsewhere in the Act. The study aims to highlight anomalies and possible unintended tax consequences arising from the current drafting of section 24JB using practical examples, highlighting the major areas of concern and issues of interpretation of section 24JB. Recommendations are made for amendments to the Act or the provision of guidance in the form of an Explanatory Memorandum or Interpretation Note to be issued by SARS.
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Fourie, Catherine. "Fairness and efficacy of the penalty provisions in the Tax Administration Act 28 of 2011." Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/12426.
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The purpose of this treatise was to examine the fairness and efficacy of the penalty provisions in the Tax Administration Act (the Act). An integrative literature review research method was used. The study commenced with a review of the local and international literature on tax compliance and the fairness and efficacy of penalties. This was followed by a study of the stated objectives of the Fiscus in respect of the strategy and approach to maintaining and improving taxpayer compliance and an analysis of the penalty regime of the Act. A comparative analysis was then performed of the relevant taxing legislation of five countries, which were chosen using a purposeful sample selected from the major trading partners of the Republic and countries with a similar tax framework. Following this, a review was performed of a cross section of the most recent tax related court cases in South Africa in order to assess the extent, consistency and fairness of the application of the penalty provisions. The study then concluded with an integrated assessment of the fairness and efficacy of the penalty provisions in light of the research conducted, and highlighted areas where the legislation appears to meet this objective, followed by recommendations for amendments in respect of policy and implementation. Finally recommendations were made for areas of further research which might improve the validity of the conclusions with respect to the stated objectives of the present research and to inform policy formulation.
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Faifi, Farai. "The presumption of gult created by Section 235(2) of the Tax Administration Act: a constitutional and comparative perspective." Thesis, Rhodes University, 2014. http://hdl.handle.net/10962/d1012979.
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This research examined the legal nature of the presumption of guilt created by section 235(2) of the South African Tax Admiration Act and considered whether or not its practical application violates the taxpayer’s fundamental right contained in section 35(3) of the Constitution, which gives every accused taxpayer the right to a fair trial, including the right to be presumed innocent. The research also provided clarity on the constitutionality of this presumption because it has been widely criticised for unjustifiably violating the taxpayer's constitutional right to a fair trial. The conclusion reached is that the presumption created by section 235(2) of the Tax Administration Act constitutes an evidentiary burden rather than a reverse onus. It does not create the possibility of conviction, unlike a reverse onus where conviction is possible, despite the existence of a reasonable doubt. Therefore, it does not violate the accused taxpayer’s the right to a fair trial and the right to be presumed innocent and hence it is constitutional. Accordingly, the chances that the accused taxpayer will succeed in challenging the constitutionality of section 235(2) of the Act are slim.
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Mhango, Muyeyeka Bazuka. "The impact of competition law remedies on the taxation process in South Africa." Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/26630.
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Combating the effects of the global recession that hampered the economies of various nations has been endeavoured by many governments since 2008. The South African government’s stand to do this shows that it is possible to return the economy back to its glory days, however, the duration of this process of overturning the same is unknown. The government has raised policies and programs, one of which being the New Growth Path (NGP) to combat these effect. This programme, inter alia, calls for increased government expenditure to facilitate job creation through infrastructure development. It is trite economic principles that government expenditure has to be balanced with its revenue collection, otherwise it might lead to budget deficit. Prolonged budget deficit, naturally, is not ideal for a nation’s economy as the same increases government borrowing, results in higher taxes, and affects inflation. While government revenue is mostly financed through taxes, studies show that increasing taxes is also to the detriment for the economy. Therefore, there is a need for disenable policy stand to be taken in respect of the government’s programme, as well as the generation of revenue to support the same. In this regard, one of the ways being advanced by this research in respect of a better combating the recession is to utilise economic legislations enacted in the country. Amongst other economic legislations in South Africa this paper discusses Income Tax Act (SA ITA) (which regulate the persons to pay income taxes) and Competition Act (which regulate fair competition). The focus of this dissertation revolves around the impact competition law remedies have on the income taxation process. The aim of the research is to analyse the possible loopholes in the current legislation that might hamper a government revenue generation to support its new growth path. This was met through an extensive study of relevant literature in competition and income tax laws in South Africa and also comparative analysis with relevant laws of the United States of America (USA). The main conclusion drawn from this research is that there is an impact of the current competition law remedies on the income taxation process. This research promotes and argues for a change in approach, through government enactment of clear and certain laws both in the field of competition law and tax law. This change would assist government in raising revenue more effectively and achieve it economic growth path and, in turn, combat the global economic crisis that affected the economy.Dissertation (LLM)--University of Pretoria, 2012.
Mercantile Law
unrestricted
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Van, Schaik Rozelle. "A critical analysis of the concepts permanent establishment and foreign business establishment." Thesis, Stellenbosch : Stellenbosch University, 2010. http://hdl.handle.net/10019.1/21139.
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Thesis (MAcc)--Stellenbosch University, 2010.ENGLISH ABSTRACT: The Income Tax Act, Act 58 of 1962 (‘the Act’) currently defines a permanent establishment in section 1. The definition of a permanent establishment in the Act refers to article 5 of the Model Tax Convention on Income and on Capital of the Organisation for Economic Co- Operation and Development. The existence of a permanent establishment in a tax jurisdiction determines the right of the jurisdiction to tax the profits of the permanent establishment. The concept foreign business establishment was inserted into section 9D of the Act by clause 10(1)(a) of the Revenue Laws Amendment Act, Act 59 of 2000. Section 9D is an antiavoidance provision, which determines that certain foreign-sourced income generated by South African controlled foreign companies are subject to tax in South Africa. The concept foreign business establishment is one of the exclusions from the anti-avoidance provisions in section 9D. The Revenue Laws Amendment Act, Act 59 of 2000, replaced all references to the concept permanent establishment with a reference to the newly introduced concept foreign business establishment in section 9D(9)(b) of the Act. The Explanatory Memorandum on the Revenue Laws Amendment Bill, 2000 (SARS 2000:1-12) does not provide a reason for the replacement of the concept permanent establishment. The objective of this study was to analyse and compare the concepts permanent establishment and foreign business establishment in order to make recommendations regarding the required additions and amendments to replace the concept foreign business establishment with the internationally recognised and accepted concept permanent establishment. The proposed replacement of the concept foreign business establishment with an internationally recognised and accepted tax concept will enhance the international compatibility of the Act. The use of an internationally recognised and accepted tax concept will provide clarity and certainty regarding the tax implications of section 9D(9)(b) for those affected by it. It was found that the concepts permanent establishment and foreign business establishment are used in different contexts within the Act. The concepts also apply to different types of taxpayers in different situations. The two concepts have, however, the same objective, being the identification of criteria for the existence of legitimate and substantive business activities in the foreign tax jurisdiction. A comparison between the definitions of the two concepts reveals that there are various components in the definitions with the same wording and meaning. After a detailed comparison between the two definitions it was found that, subject to some suggested additions and amendments, the internationally recognised and accepted concept permanent establishment can replace the concept foreign business establishment in section 9D(9)(b) of the Act without having a material impact on the objective of section 9D(9)(b). This replacement is possible due to the mutual objective of and similar components contained in the definitions of the concepts permanent establishment and foreign business establishments.
AFRIKAANSE OPSOMMING: Die Inkomstebelastingwet, Wet 58 van 1962 (‘die Wet’) definieer ’n permanente saak in artikel 1. Die definisie van ’n permanente saak verwys na artikel 5 van die ‘Model Tax Convention on Income and on Capital of the Organisation for Economic Co-Operation and Development’. Die bestaan van ’n permanente saak in ’n belastingjurisdiksie bepaal die reg van die belastingjurisdiksie om die winste van die permanente saak te belas. Die begrip buitelandse besigheidsaak is deur artikel 10(1)(a) van die Wysigingswet op Inkomstewette, Wet 59 van 2000 in die Wet ingesluit. Artikel 9D is ’n teenvermydingsbepaling wat bepaal dat sekere inkomste vanaf ’n buitelandse bron gegenereer deur ’n Suid-Afrikaans beheerde buitelandse maatskappy in Suid-Afrika belas word. Die begrip buitelandse besigheidsaak is een van die uitsluitings van die teenvermydingsbepaling in artikel 9D. Alle verwysings in artikel 9D(9)(b) na die begrip permanente saak is deur die Wysigingswet op Inkomstewette, Wet 59 van 2000, vervang met ’n verwysing na die nuwe begrip buitelandse besigheidsaak. Die ‘Explanatory Memorandum on the Revenue Laws Amendment Bill, 2000’ (SARS 2000:1-12) verskaf nie ’n rede vir die vervanging van die begrip permanente saak nie. Die doel van die studie was om die begrippe permanente saak en buitelandse besigheidsaak te vergelyk sodat voorstelle gemaak kan word rakende die nodige byvoegings en wysings om die begrip buitelandse besigheidsaak met die internasionaal aanvaarde en erkende begrip, permanente saak, te vervang. Die voorgestelde vervanging van die begrip buitelandse besigheidsaak met ’n internasionaal aanvaarde en erkende begrip sal die internasionale verenigbaarheid van die Suid Afrikaanse wetgewing bevorder. Die gebruik van ’n begrip wat internasionaal aanvaar en erken word, sal sekerheid en duidelikheid bewerkstellig vir diegene wat deur die artikel geaffekteer word. Daar is bevind dat die begrippe permanente saak en buitelandse besigheidsaak in die Wet in verskillende verbande gebruik word. Die begrippe is ook van toepassing op verskillende belastingbetalers in verskillende situasies. Die twee begrippe het egter dieselfde doelwit naamlik die identifisering van kriteria vir die bestaan van wesenlike en volwaardige besigheidsaktiwiteite in die buitelandse belastingjurisdiksie. ’n Vergelyking tussen die definisies van die twee begrippe toon dat verskeie komponente van die definisies dieselfde woorde en betekenis bevat. Na ’n detail vergelyking van die twee begrippe is daar bevind dat, onderhewig aan sommige voorgestelde byvoegings en wysigings, die internasionaal erkende en aanvaarde begrip permanente saak die begrip buitelandse besigheidsaak in artikel 9D(9)(b) van die Wet kan vervang. Die vervanging is moontlik weens die gemeenskaplike doelwit en soortgelyke komponente in die definisies van die begrippe permanente saak en buitelandse besigheidsaak.
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Van, der Westhuysen Gerdi, and Schalkwyk L. Van. "Critical analysis of the components of the transfer pricing provisions contained in Section 31(2) of the Income Tax Act, no 58 of 1962." Thesis, Stellenbosch : University of Stellenbosch, 2004. http://hdl.handle.net/10019.1/15521.
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Thesis (MComm)--University of Stellenbosch, 2004.ENGLISH ABSTRACT: Despite the fact that transfer pricing legislation (i.e. section 31 of the Income Tax Act, 58 of 1962 (“the Act”) has been in force in South Africa since 1995, it has only been in the last three years that the South African Revenue Service (“SARS”) has embarked on a number of assessments of taxpayers’ cross border transactions with foreign group companies. In particular, the SARS targets taxpayers that have rendered cross border services (including financial assistance) to a foreign group company for no consideration and has assessed these taxpayers on the adjusted interest/ fee amounts. Since the burden of proof lies with the taxpayer to demonstrate that its cross border transactions with foreign group companies do not infringe the provisions of section 31(2) of the Act, this study provides taxpayers with guidance as to when its transactions would fall within the scope of application of section 31(2) of the Act and when the SARS would be excluded from applying the provision of section 31(2) of the Act. Following upon a critical analysis of the essential components of section 31(2) of the Act the following conclusions are drawn by the author: • If the taxpayer proves that it did not transact with a connected party (as defined in section 1 of the Act), or it did not supply goods or services in terms of an international agreement (as defined in section 31(1) of the Act), or its transfer price would be regarded as arm’s length, the Commissioner would be excluded from applying the provision of section 31(2) of the Act since all of the components to apply section 31(2) of the Act are not present. • The current view held by the South African Revenue Service and tax practitioners that transactions between a South African company and an offshore company, which are both directly or indirectly held more than fifty percent by an offshore parent company, are transactions between connected persons (as defined in 5 section 1 of the Act) is incorrect in law. Section 31 of the Act is not applicable to such transactions. • The Commissioner will be excluded from making a transfer pricing adjustment to a service provider’s taxable income where the following circumstances are present: o Where the cross border transaction with a connected party does not give rise to gross income, which is the starting point in the determination of taxable income, since the service provider agreed to render services for no consideration and was therefore not entitled to receive income (i.e. no receipt or accrual) and o Where the service provider can provide evidence that demonstrates that there was no practice of price manipulation as regards the transaction under review.
AFRIKAANSE OPSOMMING: Alhoewel oordragprysbeleid wetgewing (artikel 31 van die Inkomstebelastingwet 58 van 1962 (“die Wet”)) al sedert 1995 in Suid Afrika van krag is, het die Suid Afrikaanse Inkomstediens (“SAID”) eers werklik gedurende die laaste drie jaar begin om aanslae ten opsigte van belastingpligtiges se internasionale transaksies met buitelandse groepmaatskappye uit te reik. In die besonder teiken die SAID belastingpligtes wat dienste (insluitend lenings) aan buitelandse groepmaatskappye vir geen vergoeding lewer. Aangesien die bewyslas op die belastingpligtige rus om te bewys dat sy internasionale transaksies met buitelandse groepmaatskappye nie die bepalings van artikel 31(2) van die Wet oortree nie, word belastingpligtiges in hierdie studie van riglyne, wat aandui wanneer transaksies met buitelandse groepmaatskappye binne die omvang van artikel 31(2) van die Wet val asook onder welke omstandighede die SAID verhoed sal word om artikel 31(2) van die Wet toe te pas, voorsien. Na aanleiding van ‘n kritiese analise van die deurslaggewende komponente van artikel 31(2) van die Wet kom die skrywer tot die volgende gevolgtrekkings: • As die belastingpligte kan bewys dat hy nie met ‘n verbonde persoon (soos omskryf in artikel 1 van die Wet) handelgedryf het nie, of dat hy nie goedere of dienste in terme van ‘n internasionale ooreenkoms (soos omskryf in artikel 31(1) van die Wet) gelewer het nie, of dat sy oordragprys as arm lengte beskou kan word, sal die Kommissaris verhoed word om die bepaling van artikel 31(2) van die Wet toe te pas, aangesien al die komponente van artikel 31(2) van die Wet nie teenwoordig is nie. • Die huidige sienswyse van die SAID en belastingpraktisyns dat transaksies wat tussen ‘n Suid Afrikaanse maatskappy en ‘n buitelandse maatskappy plaasvind, waar ‘n buitelandse moedermaatskappy meer as vyftig persent van albei maatskappye se aandeelhouding (direk of indirek) hou, beskou kan word as 7 transaksies tussen verbonde persone (soos omskryf in artikel 1 van die Wet) is regstegnies nie korrek nie. Artikel 31(2) van die Wet is nie van toepassing op sulke transaksies nie. • Die Kommisaris sal onder die volgende omstandighede verhoed word om enige oordragprysaanpassing aan ‘n diensleweraar se belasbare inkomste te maak: o Waar die internasionale transaksie met ‘n verbonde persoon nie bruto inkomste (die beginpunt van ‘n belasbare inkomste berekening) voortbring nie, aangesien die diensleweraar ingestem het om dienste teen geen vergoeding te lewer, wat tot die gevolg het dat die diensleweraar nie geregtig is om inkomste te ontvang nie (dus geen ontvangste of toevalling) en o Waar die diensleweraar kan bewys dat die transaksie nie onderhewig aan prys manipulasie was nie.
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Flynn, Byron. "Evaluation of the "source " rules as contained in section 9 of the South African Income Tax Act as relating to software in the context of the digital economy." Master's thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/21746.
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In recent decades, the rise of the digital economy has drastically changed the way the world does business. Business can now be conducted without regard to geographical boundaries and limitations and organisations have the ability to conduct business making use of mobile and sophisticated software in South Africa without having a significant physical presence in the country. In addition, the characterisation of income from new software-related arrangements may be difficult to determine in this new economy. In response to the above, there is a general move globally to align taxation with economic substance and value creation and there is an increased focus on source-based taxation. Consequently, this dissertation conducts an analysis of the relevance and appropriateness of South Africa's source rules pertaining to software arrangements as contained in section 9 of the Income Tax Act (ITA) and as espoused in the common law. It is submitted that there are four main income characterisations applicable to software arrangements (sales, service arrangements, leases and royalties arrangements) and that it is possible to apportion a software-related payment into these various components for tax purposes. It is only once this characterisation has been completed that the source rules applicable to the various components should be applied. In relation to this, it is submitted that with the exception of show-how as espoused in section 49A of the ITA, the concepts of a royalty and know-how are consistent in the OECD Model Tax Convention and the ITA. Specifically, in determining if a software payment constitutes a royalty, a distinction should be made between the copyrighted article and the copyright itself, unless the component of the payment attributable to one of the items is clearly insignificant. Only the component of the payment attributable to the use of a copyright would constitute a royalty for South African tax purposes.
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Van, Zuydam Henk Johan. "The alluvial diamond industry a critical analysis of the capital cost allowances /." Diss., Pretoria : [s.n.], 2009. http://upetd.up.ac.za/thesis/available/etd-06152009-150607/.
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Tseisi, Hulisani. "A critical analysis of the implementation of the 'pay now, argue later' principle by SARS as provided by section 164 of the Tax Administration Act 28 of 2011; and, Limitation of interest deduction in South Africa: a suggested approach to the application of sections 31 and 23M of the Income Tax Act 58 of 1962 to debt and equity business financing methods." Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/27350.
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A critical analysis of the implementation of the 'pay now, argue later' principle by SARS as provided by section 164 of the Tax Administration Act 28 of 2011: Abstract: The 'Pay Now, Argue Later' principle applies in income tax or value-added tax collection procedure after the South African Revenue Services has concluded an assessment in terms of the Tax Administration Act 28 of 2011 and found that an amount of tax is due and payable by the taxpayer. In terms of the 'pay now, argue later' principle, the taxpayer has to pay the assessed amount before being accorded an opportunity to raise any objections. The purpose of this paper is, to do an in-depth evaluation of the implications of the implementation of the 'pay now, argue later' principle by SARS. The implementation of the principle will be evaluated to determine if it is unjust, inequitable or unreasonable. In addition to the latter evaluation, the principle's shortfalls will be highlighted with the inclusion of a brief legal position in other countries. The paper acknowledges the existence of the principle, although the implementation thereof by SARS remains questionable and a source of controversy. The paper ultimately concludes that the 'pay now, argue later' principle, though constitutionally validated to a certain extent need to be revised. A balance has to be struck between the taxpayer's rights, public interest and SARS' powers in implementing the principle. A recommendation is therefore made to place the implementation thereof in the Tax Ombud in view of UK's Taxes Management Act where Commissioners resolve such disputes between taxpayers and the Inland Revenue Authority.
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Limitation of interest deduction in South Africa: a suggested approach to the application of sections 31 and 23M of the Income Tax Act 58 of 1962 to debt and equity business financing methods. Abstract:
The South African income tax system acknowledges the financing of resident companies by a related non-resident company through the use of debt and equity. However, the use of debt financing method is a cause for concern to the South African Revenue Services as it results in the base erosion and profit shifting of taxable profits through mispricing and excessive interest deductions. Section 31 and 23M were inserted into the South African Income Tax Act 58 of 1962 to address excessive debt levels and interest deductions. The objective of this paper is to analyse the rationale behind the use of debt and equity financing methods. This paper will also discuss the application of both s 31 and s 23M. Due to the close connection of s 31 and s 23M to debt transactions, an approach on how the two sections can be applied is suggested. This paper finds that the provisions of both s 31 and s 23M are applicable to the same set of facts. The paper also finds that s 31 provisions are applied to determine if a company has excessive debts taking into account the arm's length principle while s 23M provisions are applied to limit interest deductions. The paper suggests that the legislature should provide guidance on the interplay of the two provisions and in the absence of any guidance, the provisions of s 31 should be applied first followed by the provisions of s 23M.
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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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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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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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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.
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Heeger, Peter John. "A critical analysis of the taxation applicable to South African sports organisations." Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/25322.
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The study examined tax legislation that affects Public Benefit Organisations (PBOs) with specific emphasis on sports organisations. The relevance of the legislation was examined and secondly, where applicable, a review on how specific sports organisations (PBOs and recreational clubs) implemented the tax legislation was performed. A detailed analysis of the national and international sports environment was presented in order to inform the study. This was followed by a comprehensive examination of each section of the Income Tax Act in relation to PBOs and sport. A brief comparative study was also undertaken to benchmark South Africa against countries playing the same or similar sports. As the tax on Public Benefit Organisations is a relatively recent tax, little or no analysis has yet been conducted on its relevance and the implementation thereof. This study served to critically analyse the implementation of this tax by sports organisations using the limited data available in the public domain. The results revealed that the legislation is excessive, particularly for recreational clubs, taking into consideration South Africa's sporting development needs. In support of the findings, it is recommended that the Treasury consider separating the legislation affecting sports organisations from legislation affecting other Public Benefit Organisations.
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Sathiga, Stephene. "A comparative analysis of the taxation of fringe benefits in the South African Income Tax with the Australian Income Tax." Diss., University of Pretoria, 2011. http://hdl.handle.net/2263/30656.
Full textAbstract:
Fringe benefits are the largest source of tax collection in South Africa, and a major change to the Income Tax Act has affected Fringe Benefit Tax. Virtually every year in the budget speech, the Minister of Finance introduces changes to the legislation, with the concomitant effect on individuals. In the last speech, the use of travel allowances and medical schemes, to name only two, were mentioned as being under constant review. In the budget speech of 2011, delivered by Pravin Gordhan on 23 February 2011, he announced that the employer’s contribution to retirement funds on behalf of employees will constitute a Taxable Fringe Benefit with effect from 1 March 2012. This study intends to establish, by means of a comparison between the South African and Australian Income Tax Acts, whether the taxation of fringe benefits, as set out in the Act in South Africa, is still appropriate. This will be done by evaluating the Australian system of taxing fringe benefits and comparing this with the taxation of the fringe benefits listed in the Act in SA. The study also discusses the various categories of fringe benefits listed in the Act. It will analyse and compare these with the fringe benefits in the Australian tax system. No similar research has been carried out from the South African perspective AFRIKAANS : Byvoordeel bestaan die grootste gedeelte van die bron van belasting invordering. Daar is 'n groot verandering in die Inkomstebelastingwet wat die byvoordeel belasting geaffekteer het in Suid Afrika. Byna elke jaar in sy begrotingsrede het die Minister van Finansies veranderinge aangekondig in die wetgewing wat individue raak.In die begrotingsrede van 2011, vrygestel op 23 Februarie 2011 deur die Minister van Finansies, Pravin Gordhan, sal die werkgewer se bydrae tot aftreefondse namens werknemers ,met ingang 1 Maart 2012 as 'n belasbare byvoordeel graag word. Die doel van hierdie studie is om vas te stel, deur middel van 'n vergelykende studie met Australiese Inkomstebelastingwet, of die wet op belasting op byvoordele in Suid-Afrika nog toepaslik is. Die doelwitte van die studie is om die Australiese stelsel te evalueer in vergelyking met die belasting op byvoordele in SA. Hierdie studie bespreek die verskillende kategorieë van byvoordele soos tans van toepassing op Suid-Afrika; an word ontleed en vergelyk met die byvoordele in die Australiese belasting stelsel. Daar is geen vorige navorsing uitgevoer in hierdie gebied vanuit ‘n Suid-Afrikaanse perspektief nie Copyright 2011, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. Please cite as follows: Sathiga, S 2011, A comparative analysis of the taxation of fringe benefits in the South African Income Tax with the Australian Income Tax, MCom dissertation, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-03052012-161405 / > F12/4/143/gmDissertation (MCom)--University of Pretoria, 2011.
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Fourie, Christine. "A comparative analysis of the meaning of 'mining operations' for income tax purposes." Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/27247.
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The South African ("SA") mining industry played (and continues to play) a pivotal role in the development of the SA economy. It is therefore no surprise that the industry has long been the beneficiary of favourable tax concessions. One of these favourable tax concessions is the 100% capital expenditure allowance. Access to this allowance is dependent on the interpretation of the definition of "mining operations" in section 1(1) of the Income Tax Act, No. 58 of 1962 ("the ITA"). Currently, there is legal uncertainty in SA regarding the meaning of "mining operations". This is so because central to the term "mining operations" is the term "mineral", which is not defined in the ITA, nor does it have an ordinary fixed meaning. SA courts have further not authoritatively dealt with the meaning of "mining operations" despite being presented with the opportunity to do so in recent case law. This legal uncertainty is further fuelled by a recent draft interpretation note issued by the South African Revenue Service ("SARS"), expressing the view that quarrying operations for inter alia clay for brickmaking and limestone for the manufacture of cement, do not constitute "mining operations". Practically, this legal uncertainty may act as a deterrent to mining companies incurring capital expenditure, essentially curbing the development of the SA mining industry. This study seeks to analyse the different meanings attributed by SARS, SA academic writers and SA courts to the definition of "mining operations" (and the related meaning of "mineral") for income tax purposes. The purpose of this analysis is to determine whether the extraction of clay for brickmaking and limestone for the manufacture of cement constitutes "mining operations". Against this background, Australian legislation and case law on the interpretation of the term "mining operations" and "mineral" will be studied in order to draw a comparison between SA and Australia's treatment of "mining operations". This study further interprets the meaning of "mining operations" through the application of the Savignian interpetation model in terms of which it is concluded that useful guidance can be sought by SA from Australian jurisprudence when interpreting the meaning of the term "mining operations" for income tax purposes and that the purposive test applied in Australia should be adopted by SA courts. Based on the application of this guidance, the key finding of this dissertation is that the extraction of clay for brickmaking and limestone for the manufacture of cement should in principle qualify as "mining operations" and that the capital expenditure incurred in this regard should be eligible for the 100% capital expenditure allowance.
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Britton, Phillipa. "Information exchange across borders and confidentiality rights of taxpayers from a South African perspective." Master's thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/20305.
Full textAbstract:
In light of the provisions of the Tax Administration Act, No 28 of 2011 (TAA), as well as the introduction of Tax Information Exchange Agreements (TIEAs) between South Africa and other nations around the world, the issues around information exchange and the confidentiality thereof has become pertinent. Article 26 of the Organisation of Economic Co-operation and Development (OECD) Model Tax Convention on Income and on Capital provides a standard for information exchange and also highlights the use of automatic exchange of information as being considered a standard form of information exchange. The recent case of Commissioner of South Africa v Werner Van Kets dealt with the definition of a taxpayer as well as information exchange. In addition, this case ruled on the hierarchy of domestic laws and international agreements. This case has led to the question of whether or not a third party is considered a taxpayer in terms of international tax agreements and raises question regarding the taxpayer's rights to confidentiality relating to information exchanged. In light of new international best practice, domestic legislation and case law, various domestic laws of South Africa were reviewed to determine whether the domestic law allows for the international exchange of information and whether or not the confidentiality clauses therein are contradictory to one another. When reviewing the manner in which South Africa allows for the exchange of information, in light of the standard Article 26, it was found that the TIEAs are aligned with both the TAA and Article 26 in terms of the exchange of information that is relevant to domestic laws. It would however appear that South Africa has not yet adopted the use of automatic exchange of information - apart from the Foreign Account Tax Compliance Act (FATCA) Inter-Governmental Agreement (IGA) that was signed with the USA. South Africa has only entered into bilateral agreements which allow for the exchange of information on request and The TAA is silent on automatic exchange, despite the financial benefit of increased annual taxation revenue that South Africa could gain through having automatic exchange agreements in place.
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Le, Roux Ayesha. "An analysis of the South African income tax legislation in respect of transfer pricing." Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/13105.
Full textAbstract:
Transfer pricing has become a very popular term in South Africa over the last few years, even more so since July 2013 when the Base Erosion and Profit Shifting (BEPS) Action plan was issued by the Organisation for Economic Co-operation and Development (OECD) and G20 (an international forum for the governments and central bank governors from 20 major economies). The OECD and G20 has issued the plan to address the perceived flaws in international tax rules, giving rise to profit shifting. Subsequently, the OECD has issued numerous reports and as a result has updated its 2010 Transfer Pricing Guidelines. Many countries have adopted these guidelines. However as South Africa is not an OECD member, there is no certainty that it will be adopted. The question is therefore: has the South African Tax legislation met the OECD guidelines and addressed the BEPS issue? Therefore, the objective of the research is to understand whether the current South African tax legislation is in line with the OECD Transfer Pricing Guidelines and BEPS Action Plan. The South African tax legislation provides South African taxpayers with no guidance as to how the OECD Transfer Pricing Guidelines needs to be implemented and interpreted. However, even though not legislation, the SARS practice note 7 and draft interpretation note on thin capitalisation provides taxpayers with a good basis of understanding the OECD Transfer Pricing Guidelines, as these documents provided by SARS is similar to that of the guidance in the OECD Transfer Pricing Guidelines, specifically relating to transfer pricing documentation. The issue that may result where the South African tax legislation is not in line with the OECD guidelines and the BEPS Action Plan is that Multinational Enterprises (MNEs) may use South Africa as the country to shift its profits to or from, thus effectively resulting in a loss to the Fiscus.
37
Nkala, Prosper. "An evaluation of selected changes proposed in respect of the South African mining tax regime." Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/62551.
Full textAbstract:
The South African mining tax regime is a fairly mature legislative framework. The legislator has made numerous changes to the legislation in order to respond to the trends of the industry. This framework has arguably been behind the substantial contribution of the mining industry to the South African economy. Recent trends have seen numerous jurisdictions especially in the African continent changing and in some instances completely replacing their entire framework with new legislation. South Africa has recently come under pressure to make substantial changes to its mining tax framework in a manner that mere legislative amendment might not suffice. This follows the recommendations of inter alia the ruling party, African National Congress which proposes changes to the mining tax regime. Due to the fact that the proposed changes could have a significant impact on the mining industry as well as South Africa as a mining nation, the state has established the Davis Tax Committee to investigate the viability of the proposed changes as well as the advantages and disadvantages thereof. The Davis Tax Committee has made interim recommendations which at most are in favour of retaining the status quo and making minor changes to the current mining tax framework. Prior to making an evaluation of the recommendations made by the Davis Tax Committee it is necessary to lay the basis of the recommendations which includes giving an overview of the current mining tax regime as it is and thereafter discussing the calls for change in the said regime. The purpose of conducting this study and evaluation is to make recommendations in response to the calls for regime change as well as the Davis tax Committee's recommendations in respect of the proposed change.Mini Dissertation (LLM)--University of Pretoria, 2017.
Public Law
LLM
Unrestricted
38
Kula, Xoliswa Beverley. "An analysis of interest deductions and other financial payments in terms of South African income tax legislation." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/8188.
Full textAbstract:
Tax avoidance through interest deductions has been highlighted internationally as a concern with the effect of eroding tax revenues of countries, including South Africa (SA). The evident cause of this concern is what is termed base erosion and profit shifting (BEPS) mainly orchestrated by multinational companies using aggressive tax planning schemes. Although the concern continues to exist, comprehensive measures are in place in SA such as the anti-avoidance rules and exchange control regulations to mitigate the concern. The study was undertaken to analyse the legislation on interest deductions in terms of the Income Tax Act No 58 of 1962 (‘the Act’) with particular focus on anti-avoidance. A number of issues pertaining to the operation of the provisions in the Act; administrative challenges as well the possible exploitation of loopholes within the provisions were identified. Furthermore, a comparative analysis conducted against Australia and the United Kingdom indicated that the measures adopted in SA are relatively similar, if not ahead. The effect the anti-avoidance measures have on the economic growth was considered. The results were positive in that the measures do not counteract the pursuit of economic growth. Lastly, the study assessed the position of SA against the internationally recommended best practice on the subject matter and it became evident that opportunities exist to improve the current measures applied in SA to mitigate the BEPS risks through interest deductions.
39
Wiese, Peter. "An analysis of the income tax treatment of realised gains and losses from the use of short positions in South African hedge fund portfolio fundamental paired trades." Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/25658.
Full textAbstract:
This dissertation analyses the nature (capital or revenue) of the proceeds arising from the use of short positions in South African hedge fund fundamental paired trades. Hedge funds, which typically avail themselves of an array of alternative investment strategies such as short selling in addition to the traditional asset classes, were recently brought into the South African investment regulatory net. This was achieved by classifying regulated hedge funds as a separate category of collective investment scheme in terms of the CISCA. This categorisation brought regulated hedge funds into the ambit of section 25BA of the Income Tax Act which carries an important distinction between amounts of a capital nature and amounts of a revenue nature. Given that hedge funds may use short positions for both profit-seeking and risk-mitigation purposes, the resulting proceeds from short sales could be capital or revenue in nature from a tax perspective based on the surrounding facts of the trade. The onus of discharging the proof that the proceeds resulting from a short sale are capital in nature is significant. The South African case law emphasises the importance of applying the various principles to the specific facts of the case. The importance of the dominant intention of the trade is highlighted, given the potentially competing purposes of profit-seeking and risk-mitigation present. Factors that should be analysed in such a scenario include the overall portfolio positioning, the size of the long and short positions relative to each other, the degree of specificity of the risk that the short position purports to hedge against, the manner of re-investment of the short sale proceeds, the level of trading activity in the hedge fund, the level of short positions in the hedge fund, the absolute sizes of the long and short positions in the context of the overall portfolio, the exposure of the hedge fund to the long position after the close out of the short position, the manner of close out of the short position and the holding period of the short position. While the analysis reveals factors that may be indicative of capital treatment, the classification of short sale proceeds as capital or revenue in nature remains a challenging task to undertake due to the potentially wide variety of facts and circumstances and the potential for undesirable consequences should an incorrect classification be made. Consequently, improved clarity through the provision of de jure guidance as to the nature of short sale proceeds would be welcome.
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Cloete, Loriaan. "A critical analysis of the distintion between mining and manufacturing for South African income tax purposes." Thesis, Nelson Mandela Metropolitan University, 2010. http://hdl.handle.net/10948/1344.
Full textAbstract:
"Mining operations" and "mining" are defined in s 1 of the Income Tax Act (ITA). A concept that is of great significance to this definition is the matter of when a mineral is won and the related question of when does the mining process end and the process of manufacture commences. Case law has not established a definitive point that can be used by the mining taxpayer to determine where the mining process ends for income tax purposes. The Supreme Court of Appeal was presented with the perfect opportunity in the Foskor1 case to clearly define the boundaries between these processes. Unfortunately, the court did not seize this opportunity to provide legal certainty. The significance of the distinction lies in the fact that a mining taxpayer is allowed to claim accelerated capital allowances. The objective of these allowances is to provide tax relief to the mining taxpayer taking the immense risk of investing billions of rands in capital expenditure. The capital expenditure incurred will also result in direct foreign investment. This in turn will result in economic growth and job creation. Currently, there is no legal certainty as to which processes will qualify as mining operations for income tax purposes. This may result in mining taxpayers being hesitant to incur capital expenditure as the risk relating to a project would have increased. The accelerated capital allowances may therefore not serve their intended purpose. The gross domestic product (GDP) contribution from gold mining has been decreasing in the last number of years, but this decrease has to a large extent been offset by an increase in the downstream or beneficiated minerals industry. This industry has also been identified by Government as a growth sector. The downstream or beneficiated mineral industry may not be catered for in the current definition of "mining operations" and "mining" and may therefore not qualify for beneficial tax allowances. It is therefore proposed that the term "won" as used in the definition of "mining operations" and "mining" should be defined in s 1 of the ITA as follows: A mineral is "won" when all the requisite and necessary processes, including, amongst other things, refinement, beneficiation, smelting, separation, have been undertaken to the mineral to render it saleable in an open and general market. This extension will provide legal certainty to a mining taxpayer and will ensure that South Africa obtains direct foreign investment and maximum value for its minerals. This will contribute to economic growth for South Africa's developing economy and result in job creation.
41
Granova, Olga. "A critical analysis of the VAT Act amendments relevant to South African municipalities." Diss., Pretoria : [s.n.], 2009. http://upetd.up.ac.za/thesis/available/etd-03022009-111032/.
Full text
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Salmon, Catherine Anne. "An analysis of the income tax treatment of South African collective investment schemes in securities." Master's thesis, University of Cape Town, 2013. http://hdl.handle.net/11427/5902.
Full textAbstract:
Includes abstract.Includes bibliographical references.
This dissertation analyses the legal nature of the relationship between a South African collective investment scheme in securities and the investors in such a scheme and on the basis of these findings identifies how the income tax treatment of such schemes differs, in law and in practice, from the tax treatment which would apply in the absence of any specific provisions in the Income Tax Act relating to these parties.
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Poetschke, Martin Erik. "Investors' deductions and allowances in film funds : German and South African income tax laws compared." Master's thesis, University of Cape Town, 2003. http://hdl.handle.net/11427/15436.
Full textAbstract:
Includes bibliographical references (leaves 138-139).By comparing the income tax allowances and deductions for private investors in film production funds in Germany and in South Africa, the author aims to show how the governments of these two countries are taxing private individuals who invest in film funds, i.e. what incentives are offered to such venturesome investors. The tax incentives examined here provide the taxpayer with a deferment of his tax payments. By making the comparison the author intends examine what role a domestic film fund can play as an instrument for financing domestic and export films and how the government can promote film production in this way.
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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.
Full textAbstract:
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.
45
Peerbhai, Aneesa. "Base erosion and profit shifting by multinational corporations and weaknesses revealed in South African income tax legislation." Thesis, Rhodes University, 2015. http://hdl.handle.net/10962/d1017540.
Full textAbstract:
This research examined the concept of base erosion and profit shifting in the context of tax schemes employed by multinational corporations. The objective of this thesis was to identify weaknesses within South Africa’s income tax legislation, based on these schemes, and further to propose recommendations to counter the occurrence of base erosion and profit shifting by multinational companies. The research also comprised of a limited review of current global and South African initiatives to address the problem of base erosion and profit shifting. It was concluded that there are a number of weaknesses in the definitions and provisions of the South African income tax legislation that need to be addressed in order to reduce base erosion and profit shifting. Brief recommendations were proposed in relation to each of the weaknesses, in order to address them.
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De, Souza Drummond Elizabeth Lucy. "The effectiveness of the South African double taxation relief provisions for South African companies investing in other African estates." Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/26831.
Full textAbstract:
South Africa has expressed its desire to be the gateway for investment into Africa. With its residence-based tax system which taxes the worldwide income of its tax residents, South African companies will be open to double taxation where the investee country claims jurisdiction to tax income generated from within its borders. In addition, other provisions in the South African tax legislation increase the possibility of double taxation by including the income of foreign subsidiaries. Two such examples are the definition of a tax resident, which includes foreign subsidiaries that are effectively managed by their holding companies in South Africa, and the anti-avoidance measures, such as the controlled foreign company provisions, which impute the income of a foreign subsidiary to the South African investment company. Many South African companies have chosen to route their investments in African countries through foreign subsidiaries. Besides having a more investor-friendly tax regime, these countries offer more favourable relief from double taxation, both unilaterally and by means of their network of tax treaties. South Africa has identified some of its shortcomings. It has introduced concessionary tax provisions for locally based headquarter companies that invest abroad. It recognises the high cost of doing business in Africa due to the fact that many African countries impose withholding taxes on several types of income even though they may not be from a local source. Therefore, South Africa is granting tax rebates for foreign withholding taxes paid on service fees charged to foreign entities despite the income being derived from a South African source. Both these measures reduce double taxation but, are they sufficient to encourage direct investment from South Africa into other African countries? This study seeks to evaluate the effectiveness of the South African double taxation relief provisions by using a case study of a South African company that has investments in several African countries. It compares the application of the double taxation relief provisions of South Africa, another African country and a non-African country to the case study. It analyses the outcomes and assesses the effectiveness of South Africa’s current legislation for unilateral tax relief and its tax treaties in minimising double taxation. Finally, it makes some recommendations on possible improvements to the legislation in order to achieve the stated goal of being the financial hub for investment into Africa AFRIKAANS : Suid Afrika het aangedui dat dit die poort vir belegging na Afrika wil wees. Die heffing van belasting op die wêreldwye inkomste van belastingpligtige inwoners stel Suid-Afrikaanse maatskappye egter bloot aan dubbelbelasting indien die land waarin beleggings gemaak word ook aanspraak maak op die reg om inkomste wat in daardie land verdien is, te belas. Sekere bepalings in die Suid-Afrikaanse belastingwetgewing stel belastingbetalers verder bloot aan dubbelbelasting indien die inkomste van buitelandse filiale ook by die inkomste van inwoners ingesluit moet word. Twee sulke voorbeelde sluit die definisie van belastingpligtige inwoner ingevolge waarvan buitelandse filiale wat effektiewelik deur hulle houermaatskappy in Suid-Afrika bestuur word en sekere teenvermydingsmaatstawwe, soos byvoorbeeld die beheerde buitelandse maatskappy bepalings ingevolge waarvan die inkomste van ʼn buitelandse filiaal aan ʼn Suid-Afrikaanse beleggingsmaatskappy toegeskryf word, in. Daar is heelwat Suid-Afrikaanse maatskappye wat verkies om hulle beleggings in Afrika deur middel van filiale wat in ander lande geregistreer is, te hou. Hierdie gekose lande het nie net gunstige belasting instellings bewinde nie maar bied ook meer voordelige verligting van dubbelbelasting, beide eensydig en deur middel van hulle netwerk van belastingooreenkomste, aan. Suid-Afrika het sy tekortkominge geidentifiseer. Voordelige belastingbepalings is geskep vir plaaslike hoofkantoor maatskappye wat beleggings in die buiteland hou. Erkenning is gegee aan die hoë koste om besigheid in Afrika te doen as gevolg van die feit dat menige Afrika-lande belasting op verskeie tipe inkomste weerhou selfs as die oorsprong van die inkomste nie vanuit daardie lande kom nie. Suid-Afrika is gewillig om belastingkortings vir die buitelandse belasting so weerhou toe te staan ten spyte daarvan dat die oorsprong van die inkomste in Suid-Afrika is. Beide die maatstawwe is gemik op tot die vermindering van dubbelbelasting, maar is dit voldoende om direkte beleggings vanaf Suid-Afrika in ander Afrika-lande aan te moedig? Die doelwit van hierdie studie is om te bepaal hoe effektief die Suid-Afrikaanse bepalings wat gemik is om dubbelbelasting te verhoed deur middel van ‘n gevallestudie van ʼn Suid-Afrikaanse maatskappy wat meervoudige beleggings in verskeie Afrika-lande het. Die studie vergelyk die toepassing van die vermindering van dubbelbelastingbepalings van Suid-Afrika, ʼn ander Afrika-land en ʼn nie-Afrika-land. Die resultate word geanaliseer en die effektiwiteit van die huidige wetgewing vir eensydige verligting van dubbelbelasting en die huidige belastingooreenkomste om dubbelbelasting te verminder, word beraam. Ten slotte, die studie beoog ook om aanbevelings wat dalk die wetgewing kan verbeter ten einde die gewensde doelwit om Suid Afrika die finansiële poort vir beleggings in Afrika te bereik, te maak.Dissertation (MCom)--University of Pretoria, 2012.
Taxation
unrestricted
47
Fourie, Leonie. "A comparison between the South African "source rules" in relation to income tax and the "permanent establishment rules" as contained in double taxation agreements." Thesis, Rhodes University, 2008. http://hdl.handle.net/10962/d1008203.
Full textAbstract:
South Africa's right to tax the income of a non-resident is determined in terms of the South African "source rules" established by court decisions in relation to the imposition of tax in terms of the Income Tax Act. Unless a non-resident's income is captured by the South African "source rules" (on the basis that hi slits income is derived from a South African source), South Africa would have no right to tax such income, even if such non-resident creates a permanent establishment in South Africa by performing business activities within South Africa which could be considered essential (but not dominant) in nature. In such scenario the activities performed by the non-resident in South Africa may utilise the natural resources and the infrastructure of South Africa, but the South African fiscus would be deprived of the right to any tax revenues attributable to the income produced partly by such activities within South Africa. The South African "source rules" refer only to the main or dominant activities giving rise to the income for the purpose of determining the source of such income (and accordingly the right to tax such income). On the other hand, the "permanent establishment rules" as set out under the Organisation for Economic Cooperation and Development Model Tax Convention on Income and on Capital refer to all the taxpayer's essential business activities for the purpose of determining whether or not such activities create a pennanent establishment. The result of the narrow nature of the South African "source rules" is that, under certain circumstances, the South African fiscus would not necessarily be granted the right to tax all income produced partly within South Africa. The research demonstrated that incorporating the principles underlying the "pennanent establishment rules" into South African legislation would be a reasonable and logical solution to the problem of detennining the source of income. In so doing, the South African "source rules" would determine the source of income, and consequently South Africa's taxing rights, with reference to the essential business activities giving rise to such income. In such case South Africa would be afforded the right to tax the income of a non-resident in the event that it performs any of its essential business activities within South Africa, albeit not the dominant or main activities giving rise to the income.
48
Deetlefs, David. "The deductibility of interest expenditure in leveraged buyout transactions under South African Income Tax Law : a critical examination of recent developments." Thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/12820.
Full textAbstract:
Includes bibliographical references.The aims of this paper, are twofold: first, to provide an overview of the South African tax law principles governing the deductibility of interest expenditure incurred by taxpayers in respect of LBO transactions, as altered by the recent changes to the Act, and secondly, to critically consider and comment on the nature and perceived effect of such amendments.
49
Haupt, Karl Alexander. "Reconciling the taxation of partnerships in South Africa relative to its legal recognition. Does South African income tax legislation adequately deal with the taxation of ordinary commercial partnerships?" Master's thesis, Faculty of Commerce, 2019. http://hdl.handle.net/11427/31015.
Full textAbstract:
i.i Research question
The purpose of this dissertation is to examine whether South Africa’s approach to the taxation of ordinary partnerships flows clearly from its legal recognition thereof, or whether further clarity is needed from South Africa’s fiscal legislation
i.ii Background and research method
Peculiarities inherent in South Africa’s taxation of ordinary partnerships versus the legal nature of a partnership, is discussed in detail with reference to a comparison of the local treatment of foreign legal and tax systems. The legal systems of the United Kingdom, Ireland and the United States of America, have evolved out of the same common law as is recognised in South Africa, and so have already dealt with the issues illustrated in this dissertation, namely:
Legally, partners own the assets of the partnership in joint and undivided shares. For tax purposes, however, each partner is treated as having a fractional interest in the assets of the partnership. The two approaches are different and give rise to an analysis as to how our tax legislation achieves conformity.
Legally, when a partner 'joins’ or leaves a partnership, there is a legal dissolution of the partnership, and thereby a disposal by each partner of his or her share in the underlying assets. In tax, a disposal is likely to give rise to income and/or capital gain considerations. In the event that a legal dissolution of a partnership arises, and should the taxation consequences follow, the extent of any concomitant disposal must be determined, and whether any relief (roll-over or recognition of a divided interest) should be provided to such disposals and the subsequent consequences (such as valuation).
The evolution of the ordinary commercial partnership is discussed, with particular reference to its use as a regulatory avoidance structure, for example by the circumvention of the usury doctrine. Those characteristics which have survived in the modern-day legal recognition of partnership, in light of their history, contextualise the ensuing discussion as to the necessity, or otherwise, of legislative intervention. One of the tents of a robust legal system which exudes the qualities of the rule of law, is clarity. It is therefore incumbent on Government to address any lack of clarity in the application of the law if adherence to the rule of law is to be upheld.
Once it is established that a valid ordinary commercial partnership is constituted, the relevant mechanics flowing from the model, which require legislative clarification are more easily identified. The approaches taken by the foreign jurisdictions considered in this dissertation provide some guidance as to possible methods of addressing and overcoming those legal-versus-tax dichotomies discussed herein. Whether it is necessary for South Africa to reject the aggregate approach in law with harmonious intervention coming from tax legislation, such as the practice in the United States; or whether the aggregate approach be retained subject to clear legal treatment as demonstrated by the UK, remains a question for further research. It is submitted that the UK, Ireland and the US have taken extensive legislative measures to overcome the dichotomy between the legal-versus-tax recognition and treatment of partnerships, and that South Africa might not require such extensive codification. Rather, the specific areas in which the greatest discord exists are discussed in this dissertation, and it is submitted that bespoke intervention, as suggested in the concluding paragraphs of this dissertation, would go far towards achieving legal certainty in this regard.
i.iii Findings
Section 24H and paragraph 36 of the Eighth Schedule to the Income Tax Act 58 of 1962 (“the Act”) deal adequately with the income and capital gains arising during the continuation of a partnership, as well as in the event of a change in the profit and loss sharing ratios of the partners. It is submitted, however, that on the commencement of a partnership, including the introduction of a person to an existing partnership or an asset by a partner into a partnership, and on termination of a partnership or a partner’s interest therein, the legal considerations are not clearly dealt with by existing tax legislation. It is also possible that unbusiness-like results at these tax trigger-points could be avoided with pragmatic legislative intervention.
50
Wessels, Jacques. "The tax implications of non-resident sportspersons performing and earning an income in South Africa." Thesis, Rhodes University, 2008. http://hdl.handle.net/10962/d1003719.
Full textAbstract:
As the number of non-resident sports persons competing in South Africa increases so does the need to tax them more effectively. It was for this reason that the South African legislature decided to insert Part IlIA into the Income Tax Act which regulates the taxation of non-resident sports persons in South Africa. The new tax on foreign sports persons, which came into effect during August 2006, is a withholding tax placing the onus upon the organizer of the event to withhold the tax portion of the payment to the non-resident sportsperson and pay it over to the revenue services. The rate of taxation has been set at 15 percent on all amounts received by or accruing to a foreign sportsperson. The question which the research addressed is whether this new tax will prove to be an effective tax, both from the point of view of its equity and the administration of the tax. In order to determine the impact of the new tax, it was compared to similar taxes implemented in the United Kingdom and Australia and also to other withholding taxes levied in South Africa. The new tax was also measured against a theoretical model for effectiveness, compared to the pre-August 2006 situation and to the taxation of resident sportsmen and women, using hypothetical examples. The major shortcomings of the new withholding tax are the uncertainty with regard to the intention of the legislature on matters such as the taxation of capital income versus revenue income, the question whether payments to support staff are included in the ambit of the new tax, the taxation of the award of assets in lieu of cash payments and the definition of a resident. A further area of concern is that the rate of taxation of 15 percent appears to be too low and creates horizontal inequity between the taxation of resident and non-resident sports persons. The new tax on non-resident sports persons may have its shortcomings but, depending upon the administrative and support structures put in place to deal with it, will be an effective tax. The rate at which the tax is levied could result in a less tax being collected than before but, with the reduced administrative cost of tax collection, the effective/statutory ratio of the tax could well be much higher than it was. This is a new tax in South Africa and certain initial problems are inevitable and will undoubtedly be solved as the administrators gain experience and as the case law governing this tax develops.KMBT_363