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.

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.

The 2018 Value-Added Tax (VAT) rate increase caused a national debate on the regressive nature of VAT and its impact on the poor. This study assessed whether an appropriate response is to include further zero-rated items and to analyse which items should be selected. This study confirmed that VAT is regressive, and the instruments used to address this issue is to either introduce the zero-rating of ‘merit goods' or to use cash transfers in a social grant system. Given that a significant portion of the South African government expenditure is already spent on the social grant system and has not yet resulted in a significant decline of income inequality, the appropriate response to the 2018 VAT rate increase is to expand the list of zero-rated items. This study performed an analysis on the South African spending patterns per income group to identify the food items most consumed by the poor. The notable items included; poultry, beef, aerated soft drinks, white bread and white sugar, however these items would result in a significant loss of tax revenue, which is an inherent issue with a zero-rating amongst others. As the purpose of the 2018 VAT rate increase was to address the significant fiscal budget deficits over the last few years it would not be rational to introduce a zero-rating which would effectively eliminate the tax revenue needed to balance the fiscal budget. The government's response was to include sanitary pads, cake wheat flour and white bread wheat flour be zero-rated, which do not result in such a significant tax loss. Therefore, the selection of items in the current South African economic environment would involve a balancing act between providing relief to the poor but not at the expense of a significant share of tax revenue.

This paper seeks to assess the presence of convergence of domestic and foreign tax judgments and principles in South African courtrooms. Besides the practical fact of assessing the general view of South Africa courts to the application of foreign cases and principles, it also explores whether convergence is beneficial to South African in a variety of contexts. The case law review concludes that while South Africa courts are bound only to take foreign cases as persuasive and not as binding, they appear to assign such cases similar weight to domestic cases, refuting them primarily on the facts of the matter as they would any other domestic citation and not dismissing them purely due to their foreign nature. With the evidence clearly favouring the existence of convergence, the paper goes on to assess whether this convergence is a benefit to South Africa, first in the example of the specific case law reviewed and then in the larger context of South Africa as a country. The cases largely show benefits from the inclusion of foreign cases, with the only caution that the court must be sensitive to the context of a foreign case, particularly when dealing with principles of language or business which may be culturally-specific. In the larger context, the paper cites writers from American, European and South African sources. The conclusion from these varying arguments is that convergence is primarily a positive force to a country of South Africa’s relative size, position and economic power. The greatest risk the country faces would be to be forced in a form of convergence which is detrimental to its needs by other more powerful countries – however, historic evidence of how convergence in the European Union has led to clusters of countries with similar principles (and with free movement between these groups) suggests that it is far from likely that convergence will become such an autocratic influence.

Different tax rules apply to farming and manufacturing activities respectively, and it appears that the South African Revenue Service (SARS) applies an arbitrary practice in determining whether, and if so, at what point a farming operation needs to be distinguished from manufacturing activities. This dissertation explores how and when a taxpayer is required to distinguish between farming and manufacturing activities within the context of a single business i.e. when one form of 'trade’ comes to an end, and when another form of 'trade’ commences. The First Schedule to the Income Tax Act, 1962 (ITA), and paragraph 12, in particular, gives certain privileges to farmers that other taxpayers do not enjoy. Similar to this, taxpayers who are conducting manufacturing activities, or operations accepted and listed by SARS as a process of manufacture or similar process, enjoy advantageous allowances in respect of the write off of machinery and buildings. Thus, the point at which one activity ends and the next activity begins can have significant tax consequences. This dissertation argues that these consequences are too significant to be governed by arbitrary decisions. In conclusion it is shown that the ITA provides the wherewithal to enable the decisions to be made based on sound statutory principles. Where the wherewithal is not present, appropriate additions to the legislation are recommended. Examples from case law are also discussed from which general principles to be used in practice are developed.

This dissertation seeks to establish whether the presence or activities of a partner or partners in South Africa creates (or is at risk of creating) a permanent establishment for that partner, the partnership or the co-partners in South Africa. At the outset, the major legal and fiscal consequences of a partnership under South African law are investigated. The unique legal and fiscal treatment of a partnership as a mere aggregate of persons that is treated as fiscally transparent under South African law is relevant to determine the potential application of double taxation agreements to partnerships or their partners. Once the terms of a double taxation agreement are found to apply in the circumstances, the creation of a permanent establishment in terms thereof becomes relevant. The different types of partnerships and partners under South African partnership law are set out and their differentiating characteristics analysed in an effort to identify whether the activities or presence of certain partners are more at risk of giving rise to a permanent establishment than others. In a commercial context, the important distinction is drawn between ordinary and extraordinary partners as very different commercial consequences attach to these partners. In particular, whereas ordinary partners automatically derive an implied authority or mutual mandate to manage the business of the partnership as agents of their co-partners by virtue of the partnership agreement, extraordinary partners are excluded from the mutual mandate. The implied authority amongst partners becomes particularly relevant when considering one of the alternative tests for creating a permanent establishment that appear in the prevalent model tax conventions commonly used in the South African context, in terms of which the existence of authority is one of the required elements for the creation of a permanent establishment. The special rules surrounding the source of partnership income is investigated as a means of establishing jurisdiction to tax under South African domestic source rules. The impact of legislation on the South African source rules pertaining to partnerships as developed under the common law is critically analysed and the relevance of source rules in the permanent establishment context is evaluated. It is submitted that it is premature to consider the rules surrounding the creation of a permanent establishment under the terms of a double taxation agreement before it is established that the relevant contracting state has the requisite jurisdiction to tax and furthermore that the terms of that double taxation agreement apply to the matter at hand. Finally, the relevant articles of the model tax conventions commonly used in the South African context are discussed with specific focus on the unique attributes of a partnership that may impact on the creation of a permanent establishment for the partner or partners by virtue of the presence or activities of a partner or the partners in South Africa. The risk of creating a permanent establishment by virtue of the presence or activities of an ordinary partner in South Africa is contrasted with that of an extraordinary partner. It is concluded that the activities or presence of ordinary partners (as opposed to extraordinary partners) are particularly at risk of creating a permanent establishment in South Africa, although it is acknowledged that certain requirements will have to be met on the facts of each case before a permanent establishment will be found to exist.

The purpose of this dissertation was to critically analyse the recently introduced section 7C of the Income Tax Act, 58 of 1962 (ITA) with the aim of determining whether section 7C achieved its stated objective. Although aimed at tax abuse through the use of trusts, the section is a further limitation on trusts, a vehicle that has been affected by numerous legislative amendments over the past couple of decades. The introduction of section 7C of the ITA is directly in line with the existing section 7 as well as international trends including the Base Erosion and Profit Shifting (BEPS) final reports. As globalisation accelerates and data becomes more readily available to both developed and developing economies the transparency of structures will become more evident and the previously utilised loopholes will close. Additionally, the current economic downturn in South Africa (SA), and globally, is likely to result in more aggressive revenue authorities. Taxpayers will have to ensure that they receive appropriate advice and that tax is considered at the outset of structure development opposed to being an afterthought following the commercial agendas. Further, there is currently room for the application of sections 7C, 7(5) and 7(8) simultaneously in specific circumstances which may result in the application of both donations and income tax. The question remains as to whether the application of these section is fair and/or correct. I think it is probably difficult to argue that it is not at this stage. Finally, it is submitted that the question raised by this dissertation – does section 7C of the ITA achieve its stated objective (the prevention of tax evasion through interest free loans) has been answered in the affirmative.

South Africa has seen a growth in cross-border services in the last decade. This comes as no surprise since, as early as 2010, the global service sector accounted for approximately 70% of the world’s Gross Domestic Product. Given the magnitude of the service sector, it is imperative that South Africa implements laws that seek to tax service fees in an efficient, effective and equitable manner. South Africa’s Minister of Finance and the Davis Tax Committee are amongst the key government stakeholders who have expressed concern regarding the threat that South Africa faces to the erosion of its tax base as a result of outward cross-border service fees. The tax base erosion typically occurs when a non-resident derives a service fee from South Africa which is not taxed in South Africa, whilst the resident payor is allowed to claim a deduction. As a means of addressing the above threat, South Africa introduced the withholding tax on service fees regime. This withholding tax was intended to apply on service fees derived by a non-resident from a source in South Africa. However, as the application of this withholding tax was subject to the application of the relevant double tax treaties, South Africa’s right to impose this withholding tax was in most cases limited. The withholding tax on service fees regime was therefore repealed. With the withdrawal of the withholding tax on service fees, South Africa can only tax service fees to the extent that they are derived by a non-resident from a source in South Africa and attributable to the non-resident’s permanent establishment situated in South Africa. In terms of the Organisation for Economic Co-operation and Development Model Tax Convention ('OECD MTC’), a permanent establishment is defined as essentially comprising of a fixed place of business whilst, under the United Nations Model Tax Convention9 ('UN MTC’), this definition is extended to include the provision of services by a non-resident who is at least present in South Africa for more than 183 days in any 12-month period rendering services in connection with the same or connected project. Globalisation and electronic commerce has made the remote provision of services possible. It has therefore become relatively easy for a non-resident business to render services in South Africa without the presence of a fixed place of business or without being present in South Africa for substantial periods and thereby avoid being subjected to income tax in South Africa on the service income derived. In light of the above, this dissertation argues that the permanent establishment threshold is no longer appropriate for the taxation of services. Specifically, it is contended that the permanent establishment threshold is excessively high and as a result contributes towards the erosion of the source state’s tax base. Various options for addressing this concern are then explored and a recommendation is made that South Africa should negotiate for the inclusion of the technical fee article in its double tax treaties and re-instate the withholding tax on service fees regime.

The purpose of this paper is to analyse the common-law principles pertaining to simulated transactions in an effort to protect our tax base and to expose unlawful tax evasion. This paper highlights what is currently regarded as a 'simulation' and how South Africa compares to international practices. I have divided my discussion into five parts, viz: 1. Analysis of the requirements for an effective tax system; 2. Discussion of common-law principles; 3. Simulated transactions from a common law perspective, 4. International case law on simulated transactions; and 5. Relevance of common-law principles to the current GAAR.

A non-resident who disposes of a direct interest in immovable property or an indirect interest in immovable property through the disposal of shares may be subject to capital gains tax in the country in which the immovable property is situated. Certain African countries were selected and the capital gains tax consequences on disposal of such property were determined by analysing the domestic tax legislation of the country in which the property is situated. In addition, the effect of any applicable double tax agreement ('DTA') to such disposals was considered. In certain countries - such as Angola and Nigeria - in terms of their domestic tax legislation, a non-resident will not be subject to capital gains tax in the respective country where the property is situated regardless of the value of the shares that is attributable to immovable property. In certain countries - such as Mozambique, Namibia, Tanzania and Zimbabwe - in terms of their domestic tax legislation, a non-resident may be subject to capital gains tax upon the disposal of an interest in immovable property in the respective country in which the immovable property is held regardless of the value of the shares that is attributable to immovable property, unless a DTA provides otherwise. In certain other countries - such as Botswana, Ghana, Lesotho and South Africa - in terms of their domestic tax legislation, a non-resident may be subject to capital gains tax upon the disposal of an interest in immovable property in the respective country in which the immovable property is held, however this will depend in general on the percentage of the value of shares that is attributable to immovable property, unless a DTA provides otherwise. Certain countries domestic tax legislation have specific provisions regulating how this percentage is determined. A DTA may provide relief to taxpayers who are subject to capital gains tax in both their resident country and the source country, on the disposal of an interest in immovable property held in the source country. In terms of domestic tax legislation, where the non-resident is liable to pay capital gains tax in the source country, the non-resident will in general have to comply with the withholding tax and filing obligations of that country where applicable.