M.Com. / Please refer to full text to view abstract

M.Com. / Please refer to full text to view abstract

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.

The South African Income Tax Act No 58 of 1962 contains a number of specific as well as general anti-avoidance provisions. This dissertation places its main emphasis of focus on-the general anti-avoidance provisors contained in section 103 of the Act

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.

Bibliography: pages [115]-120. / This thesis establishes a group income tax system for South Africa so that equity may be achieved between the burden of company income tax borne by shareholders who invest in companies that are structured through subsidiaries and shareholders that invest in companies that are structured through divisions. For example, intercompany profits and losses of a revenue nature are subject to income tax whereas interdivisional profits or losses of a revenue nature are not subject to income tax. Also, tax losses incurred by a company are not deductible from taxable income of other companies within the same group whereas in the case of a company that is structured through divisions losses incurred by a division are deductible from income of other divisions of the same company. The study is classified as 'microcomparison' whereby legal problems that exist in one country are studied on a comparative legal basis. Accordingly, the objective of the thesis is achieved by undertaking a comparative study of group income tax law in the United Kingdom and United States of America for equitable group income tax treatment of problems that exist within the current South African company income tax system. First, the definition of 'a group' is established, after which a group income tax treatment of group transactions and tax losses is established to eliminate the inequities that are inherent in the South African income tax system. Throughout the study it is demonstrated that these inequities exist in spite of the current income tax avoidance provisions (for example s103 and the connected persons rules). The conclusions made in the study indicate that the inequity that exists in the South African company income tax system should be eliminated.

The aim of this technical report is to provide a detailed and informative understanding of transfer pricing and thin capitalisation. The South African Act that is the subject of this technical report is the Income Tax Act, No.58 of 1962. The principal South African taxes dealt with in this technical report are as follows: • Normal Tax • Secondary tax on companies. / Thesis (M.Acc.)-University of Natal, Durban, 2000.

The aim of this technical report is to provide a detailed and critical commentary on and analysis of the general anti-avoidance section in the Income Tax Act 58 of 1962 paying particular attention to the introduction of the so-called business purpose test. The South African Acts that are the subject of this technical report are as follows: • The Income Tax Act 58 of 1962. • The Income Tax Act 21 of 1995. • The Income Tax Act 36 of 1996. • The Revenue Laws Amendment Act 46 of 1996. • The General Law Amendment Act 49 of 1996. • The Income Tax Act 28 of 1997. • The South African Revenue Service Act 34 of 1997. • The Estate Duty Act 45 of 1955. • The Value-Added Tax Act 89 of 1991. • The Transfer Duty Act 40 of 1949. The principal South African taxes dealt with in this technical report are as follows: • Normal Tax. • Donations Tax. • Estate Duty. Also covered is the legislation contained in the abovementioned Acts affecting estate planning schemes, generation skipping devices, income splitting schemes and tax avoidance schemes. / Thesis (M.Com.)-University of Natal, Durban, 1999.

M.Com. (Taxation) / Please refer to full text to view abstract

M.Com. / The income tax provisions relating to foreign currency transactions was the subject of this study. Uncertainty prevailed regarding the tax treatment of such transactions in years of assessment ending before 1 January 1994. In order to address these shortcomings, a new section, governing the tax treatment of foreign currency transactions in years of assessment on or after 1 January 1994, was introduced into the Act. In the first part of the study, the historical legislation was analysed. The legislation, as it was then applied, was explained and problem areas and areas of uncertainty, discussed. It has been shown that the historical legislation was inadequate and that there was a need for the new comprehensive legislation was justified. The second part of the study covers the new legislation. The new provisions are analysed in detail and their practical application was illustrated by means of examples. It is shown that the new legislation has made a vast improvement to the historical situation and that the areas of uncertainty have been eliminated. The current legislation is also critically analysed and it was found that, except for a few minor points of criticism, the legislation had succeeded in it's aim to bring certainty to this area in our tax law.