A research report submitted to the Faculty of Commerce, Law and Management, University of the Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree of Master of Commerce (Taxation). Johannesburg, 2015 / Tax treaties have a developed language of their own within the field of international law. They may include terms that are unknown in particular jurisdictions of domestic law or therein defined differently. Because the language of tax treaties and domestic law differ from each other, the definitions of certain terms and income type under a tax treaty and under different states’ domestic law are not necessary identical. Despite these differences, tax treaty definitions must be used for tax treaty classification purposes, and domestic law definitions must be used for domestic law classification purposes. The tax definition determines the type of the income for tax treaty purposes even though the income would qualify under another income category under the treaty states’ domestic law. Similarly, the domestic tax law definition determines the type of income for domestic law purposes (Helminen 2010). In most instances the treaty definitions of the various types of income refer back to domestic tax law, and where the domestic tax law definition deviates between the two treaty countries, this may lead to the application by these countries of different articles of the treaty. If this is caused by the application of the domestic law, this is referred to as a conflict of qualification in the Commentaries to the OECD Model Tax Convention. In general a conflict of qualification refers to a situation where identical facts are treated differently for tax purposes in different countries. Such a conflict may either concern the subject or the object of taxation. Key words: Tax treaties, OECD MTC, Double Tax Agreements, double taxation, conflicts of qualification, hybrid entities, partnerships, fiscally transparent, domestic law, Mutual Agreement Procedures, permanent establishment.

Hybrid Mismatches After the ATAD Theoretical Aspects of International Cooperation in Tax Matters Abstract This dissertation argues that the current approach toward hybrid mismatches, i.e. linking rules, is ineffective and that EU Member States should consider and adopt other solutions to hybrid mismatches, in particular coordination rules, to achieve single taxation of cross-border income if it is their tax policy goal. I make this argument to help tax policymakers deal properly with hybrid mismatches while also achieving greater legal certainty for taxpayers and tax administrators. While pursuing my claim, I touch on the essential elements of current international taxation, describe certain sets of hybrid mismatches, discuss policy implications of hybrid mismatches' outcomes, and show what linking rules are and that they have many shortcomings. Consequently, I discuss various alternative solutions to hybrid mismatches and point out that coordination rules can be a better method to pursue. Using the preparatory discussion, I examine the Czech anti-hybrid mismatches rules and argue that EU Member States can, to some extent, still use coordination rules as a solution to hybrid mismatches under the ATAD. My analysis leads to practical and theoretical conclusions. I show that the academic literature does not...

This work entails a study of some of the schemes that are employed by country residents when companies and trusts are used as vehicles for investing in offshore tax-haven and low tax jurisdictions so as to avoid taxes. The study also entails a critical analysis of the effectiveness of the some of the laws in South Africa that curb such offshore tax avoidance schemes. Similar laws in the United Kingdom and in the United States are analysed in order to come up with some recommendations that could be considered for possible reform of the relevant South African laws where they are found wanting. Since offshore tax avoidance is an international issue, the effectiveness of the recommendations of some international organisations in preventing the depletion of countries' tax bases are also analysed. / JURISPRUDENCE / LLD

This work entails a study of some of the schemes that are employed by country residents when companies and trusts are used as vehicles for investing in offshore tax-haven and low tax jurisdictions so as to avoid taxes. The study also entails a critical analysis of the effectiveness of the some of the laws in South Africa that curb such offshore tax avoidance schemes. Similar laws in the United Kingdom and in the United States are analysed in order to come up with some recommendations that could be considered for possible reform of the relevant South African laws where they are found wanting. Since offshore tax avoidance is an international issue, the effectiveness of the recommendations of some international organisations in preventing the depletion of countries' tax bases are also analysed. / JURISPRUDENCE / LLD