This dissertation purports to ascertain whether the Constitution of South Africa provides protection for taxpayers against specific practices and procedures utilised by SARS in order to collect taxes. The collection of taxes is imperative in ensuring that economical and socioeconomical objectives of the government are met. SARS is therefore awarded specific powers to achieve this. On the other side are taxpayers who are awarded constitutionally enshrined rights. Said rights may only be limited if the limitation is reasonable and just. Tension between SARS’ task and the taxpayers’ rights exist. This dissertation endeavours to find a balance where SARS can effectively collect tax whilst the taxpayers’ rights are not unreasonably and unjustly limited. The Constitution affords taxpayers the right to just administrative action. The right entails, amongst others, that when a dispute arises both parties sides must be heard. The right to just administrative action also includes legitimate expectations. A practice has transpired where SARS denies being bound by its own rulings and notes. A legitimate expectation is, nevertheless, created that SARS will act in accordance with its rulings and notes. The doctrine of legitimate expectations will provide assistance to the taxpayer in this situation. SARS further has the power to appoint a taxpayer’s agent. This procedure does not provide for the taxpayer to state his case before such an appointment is made. This prima facie violates a person’s right to just administrative action. When compared to the civil procedure of garnishee orders valuable differences transpired which will assist in elevating the tension between the taxpayer’s rights and SARS’ duty. A further right afforded, is the right of access to the court. The statement procedure and the “pay now, argue later” rule appear to be in conflict with said right. The statement procedure, which empowers SARS to file a statement at court to be made a judgment, exceeds the normal recourse available for ordinary litigants, namely the default judgment procedure. This procedure has, however, survived constitutional scrutiny. The “pay now, argue later” rule entails that a taxpayer must first pay the assessed amount before questioning the amount. This procedure is a departure from the general rule utilised in civil proceedings. It was held that this procedure is constitutional. This is, however, questioned due to the fact that at the time this rule is invoked the court’s jurisdiction is excluded. Furthermore, a taxpayer can rely on his right to property. If SARS unreasonably delays a refund due to the taxpayer this will violate said right. The situation relating to money owed in civil matters and the judgment of Sage Life Ltd indicates that a taxpayer will be entitled to interest and accordingly the violation will not be unreasonable or unjust. Moreover a taxpayer is afforded the right to privacy. Tension may arise when SARS obtains a warrant to search and seize the taxpayer’s property. This procedure is similar to the procedure of obtaining a warrant in terms of the Criminal Procedure Act. Declaring this procedure unconstitutional is implausible. Other countries faced with the tension between their revenue service collecting tax and their taxpayers’ rights, are utilising certain measures to reduce this tension. Amongst other a service charter, to provide legal certainty, instituting complaints forums, to deal with poor service, and providing brochures, to educate the taxpayers is identified. The predominant measure is, however, the office of the ombudsman. The Constitution, together with other measures, does provide adequate protection for a taxpayer against SARS. Accordingly, the tension between SARS’ duty and the taxpayers’ rights is balanced with the assistance of the Constitution. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

The subject matter of the thesis is a comparative analysis of the possibilities of tax competition in the USA and in the European Union. It aims to compare the extent and form of the tax competition within these systems. The thesis consists of five parts. At the beginning, the term tax competition is examined and the possibility of a distinction between fair and unfair tax practices is explored. In the next part the analysis of the US tax system with a focus on competition in the area of direct and indirect taxation is carried out. The third part provides similarly structured analysis of the tax competition in the EU. The fourth part presents the evaluation and the comparison of the tax competition in both systems. The final part concludes with certain normative recommendations for the future of the EU tax system which are made with respect to their applicability for current deliberation of the reform of the taxation in the European Union. The performed analysis yielded interesting results. Contrary to the expectations, it was determined that the tax competition in the US was more intense than in the EU and the tax practices used by some US states included at least the same level of unfairness as those used by some member states in the EU.

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

Made available in DSpace on 2016-04-26T20:20:27Z (GMT). No. of bitstreams: 1 Flavia Lorena Peixoto Holanda Brumatti.pdf: 745135 bytes, checksum: 49f734af1d6cdb46b982cca7f1f79611 (MD5) Previous issue date: 2011-10-05 / This paper is intended to analyze the doctrine of the prospective overruling os the Courts decisions, focused on the principle of the legal certainty. We understand that the Brazilian legal system only has protection mechanisms in cases that there is change of understanding at the administrative or legislative level. However, there is not a way to avoid the changes of understanding in the judiciary level, what may lead to a legal instability in the behavior of citizens. That is because citizens base their behavior according to the positions of the pacified jurisprudence. But, if such positions change abruptly, there is no instrument to facilitate the people have their rights preserved, since the new decision, as a rule, has retroactive effect. In this scenario, we believe that the modulation of the effects of decisions might be used for such cases, so that there is the prospect of the effects of the judgment for all acts performed by citizens, especially in the taxation, preserving, the legal certainty which shall be given by the Government / Este trabalho tem o objetivo de analisar o instituto da modulação dos efeitos das decisões dos Tribunais, voltando a atenção para a segurança jurídica dos cidadãos. Entendemos que o sistema jurídico brasileiro possui somente mecanismos de proteção nas hipóteses em que existe alteração de entendimento na esfera administrativa ou na esfera legislativa. No entanto, não há, atualmente, uma forma de se precaver das alterações de entendimentos do Poder Judiciário, o que pode acarretar uma situação de piora do estado dos jurisdicionados. Isto porque, os cidadãos pautam suas condutas de acordo com os posicionamentos pacificados na jurisprudência. Contudo, se tais posicionamentos são alterados de forma abrupta, a princípio não existe qualquer instrumento que possibilite que os jurisdicionados tenham seus direitos preservados, já que a nova decisão, em regra, possui efeitos retroativos. Neste cenário, entendemos que a modulação dos efeitos das decisões deve ser utilizada justamente nestas hipóteses, fazendo com que haja a prospecção dos efeitos do julgamento, para que todos os atos praticados pelos cidadãos, principalmente na esfera tributária, sejam preservados, garantindo-se, assim, a segurança jurídica que deve ser conferida pelo Poder Público

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