Tax avoidance may be an inevitable consequence of taxation; however, it remains a great drain on the fiscus. There are many ways in which the Commissioner may attack avoidance arrangements in order to lessen the drain on the fiscus. One manner in which the Commissioner may attack avoidance arrangements is through the doctrine of simulated transactions. Given that the simulated transactions doctrine is ordinarily a contract law doctrine and not strictly speaking a tax law mechanism one might wonder how this area of law might develop into an antiavoidance mechanism. This contribution sought to understand how the doctrine may develop as an anti-avoidance mechanism through an analysis of the development of the case law in regards to the development of the doctrine in order to ascertain how it has developed into a common-law anti-avoidance rule. In this regard selected cases were discussed which highlighted firstly the genesis of the simulated transactions doctrine in our law (Chapter 2) and selected cases were discussed that highlighted the simulated transactions doctrine's development and use as an anti-avoidance mechanism (Chapter 3) and finally the courts acceptance and treatment of this development and how this development was discussed in the literature was also discussed (Chapter 4) It was concluded that whilst the doctrine can be developed quite extensively as an anti-avoidance mechanism the courts are unlikely to develop same into a broad common-law General Anti-Avoidance Rule.

Includes bibliographical references / This paper examines the role of a taxpayer’s intention in the way certain transactions will be taxed. The paper will examine the weight accorded to a taxpayer’s stated intention in different situations (i.e. in what situations/ transactions will a taxpayer’s intention have comparatively little weight when compared to the objective facts of the case?) The paper first ascertains the meaning of intention/purpose/motive in terms of the Income Tax Act, 58 of 1962 as amended, (hereafter referred to as “the Act”). The question is whether these words are synonymous or have separate and discrete meanings. The paper then looks at the typical areas of difficulty associated with a taxpayer’s intention. Share disposals are one example discussed, as it is often difficult to determine whether these disposals are of a capital or revenue nature. The weight accorded to a taxpayer’s intention in schemes involving tax avoidance is also discussed. Case law surrounding section 20A and section 80A-S80L of the Act are reviewed to ascertain how a taxpayer’s intention is dealt with in these sections

Includes bibliographical references. / A contract requires two or more people to come to an agreement with regards to the requirements of such a contract with the intention of following the practice of whatever is set out in the contract, the main intention being to deliver a performance by both parties. When two parties sign a contract they are thus agreeing to stick to the terms of the contract that they are signing, as it becomes effective upon signature. The contract is then rendered to be in place and binding from that moment thereon. This implies that any condition that is not complied with in the contract that might take place after signing the contract will have penalty imputed on the guilty party as per stipulated in the contract. The contract must also provide the detailed measures that will be taken in the case of either party failing to honour the necessary conditions that were stated at the inception of the contract. Failure to adhere to the conditions in the contract is called breaching the terms of the contract and thus the company found guilty of breaching the contract will be liable to pay the penalties agreed to by the parties that have entered into that contract. If a company or individual signs a contract that will provide that particular company or individual with benefits for a certain period, but for whatever reasons the contract gets cancelled, it makes sense that the company or individual should receive compensation for the damages of the loss of the income that it would have received had the contract run its full course as intended without any party repudiating the specific contract in question. This brings me to the concept of damages and compensation.

Includes bibliographical references / Eisenberg de Saude inter alia assists and represents foreigners, corporates, non-resident companies and returning South Africans in their South African immigration affairs. Questions relating tax liability for the in respect of the aforementioned often arise during consultations/meetings/briefings. For this reason, I have decided to dedicate my research proposal to the aforementioned with the hope that it will equip me with sufficient knowledge to properly address and assist the foreign clients of Eisenberg de Saude in their tax uncertainties without getting a worrying feeling in the pit of my stomach. In addition to the above, I hope that my research proposal could and would be used as a guide by all relevant and interested persons in alleviating the uncertainties surrounding their tax liabilities and perhaps managing their affairs in a tax efficient manner and I hope that the material mentioned below effectively and clearly imparts what I have learned during preparing and drafting this proposal.

Pienaar Brothers (Pty) Ltd was an amalgamated company who sought to introduce a BEE element of ownership into its company in a tax efficient manner. Upon consulting their legal experts they were advised that the best manner in which they could achieve this objective was to enter into an amalgamation agreement in terms of section 44 of the ITA. At this particular time, the law was structured in a way in which it was possible to achieve this objective in a tax efficient matter, particularly because any distribution made by parties to the amalgamation transaction would be tax free. The problem however was that the tax collecting agency never intended the section 44 of the ITA amalgamation process to be STC free, and instead intended a temporary deferral thereof. To address this, the taxing authorities accordingly started putting mechanisms in place to limit the loss of such STC. On the 10 January 2007, SARS issued a public announcement stating that they planned to investigate certain corporate entities which had elaborate corporate structures that led to an impermissible loss of tax. On the 21 February 2007, the Minister of Finance stated that section 44 of the ITA, as it stood, allowed for a loss of STC as opposed to a deferral thereof, and that the taxing authorities intended on withdrawing such STC exemption in order to align it with their initial intention, and to further make such amendment retrospective to the date of such announcement. This was then once again cemented in the form of a press release on the part of SARS on that same day. Thereafter, this proposed amendment was submitted to Parliament in the Draft Taxation Laws Amendment Bill on 27 February 2007, and in May 2007, the Taxpayer completed its amalgamation transaction and achieved its BEE objective into its ownership. On the 7th June 2007 the Taxation Laws Amendment Bill was published together with an Explanatory memorandum which however no longer proposed the withdrawal of the STC exemption contained in section 44 of the ITA, but instead introduced a new addition into section 44 of the ITA. This provision now targeted a resultant company’s equity share capital and share premium, instead of the distribution of company income at the amalgamated company’s level. This new insertion was then promulgated into law on 8 August 2007 as section 44(9A) of the ITA. In complete difference to the initial proposal contained in the forewarning, the practical consequence of section 44(9A) of the ITA was that the income which rolled over from the amalgamated company to the Taxpayer (the resultant company) had in the process changed its nature from revenue to capital which was caught up in the share premium account of the Taxpayer. Section 44(9A) of the ITA accordingly targeted any distribution made by the resultant company of this share premium. The Taxpayer’s problem in the present matter arose in 2011 when SARS sought to tax the Taxpayer on its May 2007 completed transaction, particularly its distribution of its share premium at the time. In addition to this assessment, SARS furthermore also levied interest on such outstanding STC payment from 8 August 2007, the date on which the final enactment was promulgated into law. This was that which accordingly prompted the Taxpayer to bring its matter before the High Court. Here, the prime relief sought by the Taxpayer was an order of constitutional invalidity, while the second order, couched as an alternative to the first was an interpretational argument which had the effect that section 44(9A) of the ITA did not apply to Taxpayer’s distribution when it was made because it was a completed transaction. The gist of the Taxpayer’s constitutional issue requested of the court to declare that the provision did not pass constitutional muster to the extent of its retrospectivity. The court however dismissed the Taxpayer’s claims and held in favour of SARS. The paper seeks to analyse this case alongside the values of legal certainty, as espoused in the Rule of Law, and to consider the probability of success on the part of the Taxpayer if they opted to take the matter on appeal.

Includes bibliographical references. / This research paper will explore the taxation of the income and expenditure in today’s day and age. We will have an in - depth look into the mechanics of trusts, to ascertain whether they still have a role to fulfil in estate planning. Therefore the paper will first explore the background in trusts in Section A, Section B will deal with how trusts are tax and Section C will try and answer why trusts are still popular amidst the unfavourable changes in recent legislation.

Includes bibliographical references. / The aims of this paper, are twofold: first, to provide an overview of the South African tax law principles governing the deductibility of interest expenditure incurred by taxpayers in respect of LBO transactions, as altered by the recent changes to the Act, and secondly, to critically consider and comment on the nature and perceived effect of such amendments.

Includes bibliographical references. / In the 2010 Budget review The South African National Treasury announced it intended to create a business environment that would promote South Africa as a gateway to investment into Africa.1 As such a headquarter company regime would be considered. With globalisation and free movement of capital internationally countries are pursuing holding company regimes to attract investment to, and through, their shores. At the forefront are countries such as Belgium, Denmark, Luxemburg, Mauritius, the Netherlands, Singapore and the United Kingdom.2 Following the 2010 Budget review South Africa has now joined this group.

Includes bibliographical references. / This dissertation explores National Treasury's mark-to-market proposal which aims to tax the unrealised capital gains of long-term insurance policyholders on an annual basis. Although the proposal was ultimately rejected it remains under consideration. The mark-to-market proposal is evaluated against its intended purpose. The intended purpose is understood to be the collection by the South African Revenue Service (SARS) of capital gains tax (CGT) which has been 'effectively withheld' from policyholders by the insurer. Having gained an understanding of the mark-to-market proposal and its intended purpose, the proposal will be measured against the following criteria: Does it succeed in recovering capital gains taxes which have been 'effectively withheld' from policyholders? What are the side-effects of the proposal, if any?

Includes bibliographical references. / I welcome you in reading this research dissertation looking at the South African General Anti Avoidance Rule. I hope that this paper will shed some light on the complex requirements of the GAAR as contained in section 80A, read together with relevant sections.