Since the declaration of South Africa as the Gateway to Africa in 2010 by National Treasury, various changes have been made to South African legislation to make South Africa more attractive to foreign investors looking to expand their operations into Africa. The headquarter company regime was introduced with the purpose to provide a base from which these investments may be managed. From a tax perspective this regime eliminates or reduces specific taxes or rates of taxes for companies who elect to be classified as headquarter companies, provided that certain requirements are met. These requirements refer specifically to investments in qualifying foreign companies. The reference to foreign companies inevitably requires that the resident definition be considered. In South Africa residence of a person other than a natural person is the place where the company is incorporated, formed or established or the place of effective management which is a term subject to various interpretations. Regardless of the differences, all the interpretations refer to a senior level of management. Foreign incorporated companies with their place of effective management in South Africa are excluded from the definition should they qualify as controlled foreign companies with foreign business establishments subject to a high level of tax if the place of effective management is disregarded. The lack of skills in African countries as a product of shortfalls in the quality of education result in challenges to establish appropriately skilled management teams in these countries. When a centralised management team is set up at the headquarter company in South Africa the African subsidiaries risk being resident in South Africa and therefore the structure would not qualify for the benefits of the headquarter company regime. Further challenges arise when the exclusion to the resident definition is applied as shares held by a headquarter company are disregarded when the controlled foreign company status of the subsidiaries are determined. Therefore it is recommended that the headquarter company legislation be changed to correspond with successful regimes such as the Luxembourg and the Netherlands in that it does not only apply to foreign investment. It is further recommend that the resident definition be changed to exclude from the place of effective management test group structures that would comply with section 9I should the test be disregarded. / MCom (South African and International Tax), North-West University, Potchefstroom Campus, 2014

Since the declaration of South Africa as the Gateway to Africa in 2010 by National Treasury, various changes have been made to South African legislation to make South Africa more attractive to foreign investors looking to expand their operations into Africa. The headquarter company regime was introduced with the purpose to provide a base from which these investments may be managed. From a tax perspective this regime eliminates or reduces specific taxes or rates of taxes for companies who elect to be classified as headquarter companies, provided that certain requirements are met. These requirements refer specifically to investments in qualifying foreign companies. The reference to foreign companies inevitably requires that the resident definition be considered. In South Africa residence of a person other than a natural person is the place where the company is incorporated, formed or established or the place of effective management which is a term subject to various interpretations. Regardless of the differences, all the interpretations refer to a senior level of management. Foreign incorporated companies with their place of effective management in South Africa are excluded from the definition should they qualify as controlled foreign companies with foreign business establishments subject to a high level of tax if the place of effective management is disregarded. The lack of skills in African countries as a product of shortfalls in the quality of education result in challenges to establish appropriately skilled management teams in these countries. When a centralised management team is set up at the headquarter company in South Africa the African subsidiaries risk being resident in South Africa and therefore the structure would not qualify for the benefits of the headquarter company regime. Further challenges arise when the exclusion to the resident definition is applied as shares held by a headquarter company are disregarded when the controlled foreign company status of the subsidiaries are determined. Therefore it is recommended that the headquarter company legislation be changed to correspond with successful regimes such as the Luxembourg and the Netherlands in that it does not only apply to foreign investment. It is further recommend that the resident definition be changed to exclude from the place of effective management test group structures that would comply with section 9I should the test be disregarded. / MCom (South African and International Tax), North-West University, Potchefstroom Campus, 2014

Globalisation of trade and investment has led multinational enterprises to develop strategies to maximise profits by investing in countries with a favourable tax climate, resulting in loss of tax revenue to domestic economies. In South Africa, recent economic liberalisation and associated relaxation of exchange controls have created increasing exposure to global competition, risk of capital flight and potential threat to the tax base. Heeding OECD recommendations intended to counter negative tax implications for domestic economies and curb harmful tax practices, South Africa introduced controlled foreign company provisions initially in 1997, followed by comprehensive legislation in 2001. Appropriateness of South Africa’s CFC regulations as domestic anti-avoidance measures is assessed in this study for their relevance in the international fiscal arena, highlighting key divergences, shortcomings and anomalies in the South African regulations compared with OECD recommendations, and with regulatory measures in the United Kingdom (jurisdictional-entity approach) and the United States (transactional approach), these two examplars offering paradigms of the most important CFC regulatory approaches currently in force. The primary materials investigated in the study are the statutes which constitute the taxation laws, read in conjunction with auxiliary, quasi-statutory advisory and explanatory documentation issued by the respective regulatory authorities, along with test cases that established legal precedent on points of ambiguity in taxation law. A key finding in the literature review is the relative dearth of publications on current South African CFC regulations in an international comparative context. A paradigm shift is noted in United Kingdom tax policy, as it migrates towards a territorially inclined tax system in CFC regulations – more compatible with European Union (EU) requirements and propelled in large measure by EU-pressure – with a similar trend in United States tax policy, intended to rekindle expansion and growth of the United States economy through repatriation of foreign funds earned by CFCs. The study finds that it would be unrealistic to seek an absolute paradigm for reform or evolution of South African CFC regulations in either the United Kingdom or the United States, although the South African and United Kingdom CFC measures show significant affinities in their entity-based mechanisms to grant full exemption. More significant constituents of CFC regulation in one or another of the two countries do, however, prove to be generally congenial to the South African situation and offer useful pointers for ongoing reform of the South African measures. Other areas in the United Kingdom or United States CFC regulations are identified as less relevant to South African requirements, being linked to tax principles that would be excessively complicated in the South African circumstances, needlessly demanding for tax administrators and for South African shareholders, contradictory to South African tax principles, anachronistic, or not suited for the underlying global-entity approach in the South African regulations. The research provides an updated assessment of the current state of the South African CFC regulatory measures, when seen in a broader international context, and indicates areas that could be the subject of fruitful ongoing investigation. / PhD (Tax), North-West University, Potchefstroom Campus, 2014

Globalisation of trade and investment has led multinational enterprises to develop strategies to maximise profits by investing in countries with a favourable tax climate, resulting in loss of tax revenue to domestic economies. In South Africa, recent economic liberalisation and associated relaxation of exchange controls have created increasing exposure to global competition, risk of capital flight and potential threat to the tax base. Heeding OECD recommendations intended to counter negative tax implications for domestic economies and curb harmful tax practices, South Africa introduced controlled foreign company provisions initially in 1997, followed by comprehensive legislation in 2001. Appropriateness of South Africa’s CFC regulations as domestic anti-avoidance measures is assessed in this study for their relevance in the international fiscal arena, highlighting key divergences, shortcomings and anomalies in the South African regulations compared with OECD recommendations, and with regulatory measures in the United Kingdom (jurisdictional-entity approach) and the United States (transactional approach), these two examplars offering paradigms of the most important CFC regulatory approaches currently in force. The primary materials investigated in the study are the statutes which constitute the taxation laws, read in conjunction with auxiliary, quasi-statutory advisory and explanatory documentation issued by the respective regulatory authorities, along with test cases that established legal precedent on points of ambiguity in taxation law. A key finding in the literature review is the relative dearth of publications on current South African CFC regulations in an international comparative context. A paradigm shift is noted in United Kingdom tax policy, as it migrates towards a territorially inclined tax system in CFC regulations – more compatible with European Union (EU) requirements and propelled in large measure by EU-pressure – with a similar trend in United States tax policy, intended to rekindle expansion and growth of the United States economy through repatriation of foreign funds earned by CFCs. The study finds that it would be unrealistic to seek an absolute paradigm for reform or evolution of South African CFC regulations in either the United Kingdom or the United States, although the South African and United Kingdom CFC measures show significant affinities in their entity-based mechanisms to grant full exemption. More significant constituents of CFC regulation in one or another of the two countries do, however, prove to be generally congenial to the South African situation and offer useful pointers for ongoing reform of the South African measures. Other areas in the United Kingdom or United States CFC regulations are identified as less relevant to South African requirements, being linked to tax principles that would be excessively complicated in the South African circumstances, needlessly demanding for tax administrators and for South African shareholders, contradictory to South African tax principles, anachronistic, or not suited for the underlying global-entity approach in the South African regulations. The research provides an updated assessment of the current state of the South African CFC regulatory measures, when seen in a broader international context, and indicates areas that could be the subject of fruitful ongoing investigation. / PhD (Tax), North-West University, Potchefstroom Campus, 2014

Controlled foreign company ('CFC') legislation was introduced in phases to co-incide with South Africa?s move from a source based system to a residence based system. Initially with the introduction of the legislation it was directed at those foreign entities earning passive income. However, over the years the legislation has been amended to include active income of entities and additional aspects to the section have been inserted to provide clarity for taxpayers. An increase in cross border transactions and offshore investment has necessitated the need to introduce CFC legislation into the revenue codes of many countries, South Africa being one of them. In most revenue codes where CFC or similar legislation has been introduced it is one of the most complex areas in a country's revenue code (Sandler, 1998:23). This mini-dissertation aims to interpret section 9D and also aims to provide guidance on its application in practice with the help of practical examples and reference to relevant international case law. The end result of this research is a proposed interpretation note on section 9D which is attached as Appendix 1. / Thesis (M.Com. (Tax))--North-West University, Potchefstroom Campus, 2011.

Controlled foreign company ('CFC') legislation was introduced in phases to co-incide with South Africa?s move from a source based system to a residence based system. Initially with the introduction of the legislation it was directed at those foreign entities earning passive income. However, over the years the legislation has been amended to include active income of entities and additional aspects to the section have been inserted to provide clarity for taxpayers. An increase in cross border transactions and offshore investment has necessitated the need to introduce CFC legislation into the revenue codes of many countries, South Africa being one of them. In most revenue codes where CFC or similar legislation has been introduced it is one of the most complex areas in a country's revenue code (Sandler, 1998:23). This mini-dissertation aims to interpret section 9D and also aims to provide guidance on its application in practice with the help of practical examples and reference to relevant international case law. The end result of this research is a proposed interpretation note on section 9D which is attached as Appendix 1. / Thesis (M.Com. (Tax))--North-West University, Potchefstroom Campus, 2011.