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.

Please read the abstract in the 00front of this document. Copyright 1997, 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: Smuts, WJ 1997, Characteristics of South African peats and their potential exploitation, PhD thesis, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-02222012-124058 / > D12/4/131/gm / Thesis (PhD)--University of Pretoria, 1997. / Geology / unrestricted

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.

Includes bibliography and filmography. / The South African film industry, like the rest of the country, has gone through a very difficult and trying time over the last century and has been faced with enormous challenges since 1994. South Africa is still in a process of transition and the turbulent era of Apartheid is still vivid in our memories and our collective national identity. What is especially exciting about studying the history of the South African film industry, is that it was through film, television and the media at large, that we witnessed the evolution of this history. On a microscopic scale, the history of the film industry, is that of the country, and many of the effects of Apartheid that are being experienced in South Africa today, are likewise being experienced by the film industry. Thus by seeking to understand the historical relationship between film and politics in South Africa, we are enabled to comprehend and contextualise the circumstances that have determined film's socio-political, economic and cultural place in society today. It was with this intention that I began to investigate the documentary film industry in South Africa. My particular interest was in the development of an independent, progressive documentary film movement that tentatively originated in the late nineteen fifties and established itself in the late seventies and eighties as a major force in the resistance movement. Concentrating on organisations such as the International Defense and Aid Fund to Southern Africa (IDAF), Video News Services/ Afravision, and the Community Video Education Trust (CVET), as well as many individual anti-Apartheid filmmakers, the focus of this paper and documentary film, Redefining the Griot, is thus limited to an analysis of the history of socio-political documentary filmmaking in South Africa, in particular, the anti-Apartheid film and video movement that emerged both in reaction to the ideologically-specific and restrictive State control of media, film and eventually television, and as a cultural weapon in the liberation struggle. Understanding this history enables valuable insight into the nature of the documentary film and video-making industry today - one that is still considered emergent in terms of having a homogeneous national identity.

Section 164 of the Tax Administration Act 28 of 2011 (the TAA), previously contained in section 88 of the Income Tax Act 58 of 1962 (the Income Tax Act) and section 36 of the Value-Added Tax (VAT) Act 89 of 1991 (the VAT Act), provides that the payment of tax will not be automatically suspended until the resolution of a dispute regarding the liability for the said tax debt. This is known as the 'pay now argue later' principle. The objectives of this research were to analyse the development of the 'pay now argue later' principle in South African tax law, to provide an overview of the content and operation of section 164 of the TAA, to compare the principle and its purpose with civil debt enforcement procedures and, lastly, to test the principle against the Constitution of the Republic of South Africa, 1996 (the Constitution), specifically the right of access to courts. The underlying theme of this research is the recognition of taxpayers' rights in South Africa, specifically the interplay between the powers of the fiscus and the rights of taxpayers. In order to achieve the abovementioned objectives, this research examined the development of the 'pay now argue later' principle from its first appearance in section 88 of the Income Tax Act and section 36 of the VAT Act to its subsequent incorporation into the Tax Administration Bill 11 of 2011 and, ultimately, into section 164 of the TAA. It was concluded that the development of the 'pay now argue later' principle, from its first appearance in the Income Tax Act in 1962 and the VAT Act in 1993 until their repeal in 2011, was relatively minor save for in 2009, during which year there was a marked change in the structure of this principle with the inclusion of the so-called 'suspension rule'. This research provided a practical overview and understanding of the operation of the 'pay now argue later' principle in terms of section 164 of the TAA, specifically focusing on the suspension rule. This research further compared the 'pay now argue later' principle with civil debt enforcement procedures, specifically provisional sentence and summary judgment. It was concluded that the 'pay now argue later' principle is an exception to the ordinary rules governing civil debt enforcement proceedings. Lastly, this research placed the 'pay now argue later' principle under constitutional scrutiny, specifically whether its application infringes on the right of access to courts of taxpayers. It was found that the 'pay now argue later' principle infringes a taxpayer's right of access to courts, but this limitation is justified in terms of section 36 of the Constitution.

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.

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.