Includes bibliographical references (leaves 89-90). / A group taxation regime can be defined as: "a set of rules that enables corporate taxpayers to compute the tax liability of related corporations on a consolidated or combined basis(.) (and) ... encompasses not only full consolidation. but also tranifer of particular tax allributes between the members (?f a corporate group .. I. This definition is very broad and group taxation could be better understood when considering the more common forms of group taxation such as the group relief regime and the consolidation regime. The consolidation regime generally involves each company within a group of companies computing its own income after which the income is consolidated at the holding company-level for tax purposes. The holding company would thereafter become liable for the group's tax2 , whereas a group relief regime involves the ability of losses incurred by one company in a group of companies to be transferred to another member group company3. Does group taxation exist in South Africa? Based on the above, it would appear not. The more pertinent question that has to be answered is whether or not elements of group taxation currently exist in South African tax legislation. The debate in terms of the introduction of group taxation in South Africa was raised for the first time by the Margo Commission of Inquiry, which ultimately decided against recommending the introduction of group taxation. The Katz Commission of Inquiry however recommended the introduction of group taxation. National Treasury has however failed to act on the Katz Commission's recommendations.

Includes summary. / Includes bibliographical references (leaves 55-57). / The selling of a business as a going concern can have various tax consequences for both the seller and the purchaser. This is so whether the purchase price is determined with reference to the net asset value, i.e. gross assets less liabilities, or not. Accounting liabilities are always part of a business and therefore part of a business sales contract. The basic transaction is normally that some or all of the assets of the business are transferred to the purchaser who also assumes all or some of the liabilities of the business. The liabilities transferred may include various accounting provisions.

Includes bibliographical references / National treasury is currently considering the abolishment of estate duty in South Africa. Tax experts have long been calling for the repeal of estate duty as a result of various issues which include the following: - The perceived double taxation at death of an individual if capital gains tax is considered, - With estate duty being classified as a "wealth tax", the wealthy are more inclined to avoid these taxes by setting up trusts and paying for elaborate estate planning advice than any average tax payer. - There are inconsistencies and very little compatibility between wealth taxes in South Africa - Lastly the issue of efficiency, specifically the efficient collection of taxes versus the amount of administration required to accomplish this goal. Since the budget speeches of 2010 and 2011 where former Finance Minister Pravin Gordhan announced the review of taxes upon death, National Treasury as well as the Davis Commission have been appointed to investigate the issues sur rounding death taxes, and in particular estate duty in South Africa. The main purpose of the study is to establish whether the abolishment of estate duty is a realistic consideration in light of lessons learned from other countries such as Canada, Ireland, The United Kingdom and Australia. If not, what possible alternatives are available to policy makers with regard to international trends? Should South Africa move to a recipient based system such as the system used in Ireland, or rather adapt the current estate duty act to such a degree that it is similar to a system used in the UK? Certain similarities were drawn between estate duty in South Africa and similar taxes in other countries. It may be concluded that Treasury's rationale behind the review and possible abolishment of estate duty is not a unique concept in global comparisons, as wealth taxes remain unpopular worldwide. An interesting observation was also that in many cases the driving force behind the abolishment in countries such as Australia was political reasoning. With the rate at which unemployment and the population is growing in South Africa, it is clear that the current contribution estate duty makes to the fiscus, should have a heavy bearing on the factors to be considered before repealing such a tax permanently. It would be impossible to implement a replacement tax which would have to be paid by all South Africans, especially with South Africa's delicate Union situation being close to boiling point. Another wealth tax will have to be considered, a tax which will be applicable only to the rich, thereby not affecting the middle and lower class earners. As global trends are at the moment, the rich are getting richer and poor are getting poorer. There is no better example of this than in South Africa. Therefore Treasury will find it very difficult to justify why a "wealth tax" was repealed in favour of a tax which is levied on all classes of taxpayers. It seems as though revenue collected from a specific tax would not economically justify the repeal of any tax currently. With politicians striving to increase personal wealth rather than focus on growing the economy, one can only hope that economic welfare will prevail over political agendas.

In South Africa, oil and gas companies are subject to the ordinary tax rules within the Income Tax Act 58 of 1962 ("the Act"), but enjoy certain tax concessions within the Tenth Schedule to the Act. The main reason for introducing the Tenth Schedule was to create certainty and transparency for oil and gas exploration and production with the aim to secure foreign investment (National Treasury, 2006:15). Considering the growth potential of South Africa's oil and gas industry and the fact that the Tenth Schedule was introduced to create certainty and transparency in the hopes of securing foreign investment, this dissertation evaluates whether the Tenth Schedule achieves its aim of providing certainty and transparency in order to attract and retain foreign investment in the oil and gas industry. Furthermore, this dissertation identifies issues and uncertainties found within the Tenth Schedule which could hinder such foreign investment. Finally, as countries are in competition with one another to attract foreign investment, this dissertation evaluates how the incentives provided by the Tenth Schedule compare to the incentives provided by Ghana's oil and gas tax regime.

Includes bibliographical references. / The simulation doctrine has, in the law of taxation, always played the role of being SARS' remedy in the common law, vis-a-vis its legislated cohorts, viz. both the specific and general anti-avoidance provisions contained in the various tax statutes. Building on the principles established in Zandberg v Van Zyl, Dadoo Ltd and others v Krugersdorp Municipal Council and Commissioner of Customs and Excise v Randles Brothers & Hudson Ltd, the test which emerged and has been applied since, is broadly recognised as being that as formulated by Watermeyer JA in Randles, being that where the parties to a contract truly intended to act in accordance with the tenor of the agreement, irrespective of what their purpose for entering into that transaction was, that contract cannot be a simulated one. However, the Supreme Court of Appeal judgment in CSARS v NWK Ltd has necessitated that the principles applied previously be revisited academically to determine whether the doctrine for determining whether a simulation is present has changed - and if so, to what extent. Some argue that the comments in NWK, which is perceived to have changed the simulation test, were merely part of the obiter of the judgment, though they hasten to add that this does not mean that such comments are void of import where lower courts may consider the doctrine in future. Opposed hereto are those who are of the view that the judgment has indeed changed the simulation doctrine's landscape.

South Africa applies a residence-based tax system and accordingly a legal person or company is regarded as tax resident in South Africa if it is incorporated, established or formed in South Africa or if it has its place of effective management (POEM) in South Africa. Further, the POEM test is also used as the 'tie-breaker' rule in double taxation agreements (DTA's), which are based on the Organisation for Economic Co-operation and Development Model Tax Convention on Income and Capital and the Commentary thereto (OECD, OECD MTC, and OECD Commentary). The concept 'POEM' has never been defined for tax purposes, not in a South African context, neither internationally. Thus, when ascribing a meaning thereto, one is left to consider the South African Revenue Service's (SARS) interpretation and the OECD's interpretation thereof. Currently SARS considers the POEM to be located where policy and strategic decisions are executed and implemented by a company's senior management. On the other hand, the OECD considers the POEM to be where key management and commercial decisions of an entity's business as a whole are in substance made (it appears SARS is also leaning towards this interpretation, based on the most recent draft interpretation note released).

The growth in the worldwide services economy combined with an expansion by South African multinational enterprises into the African market has often resulted in increased instances of double taxation for South African corporate taxpayers, as a result of the fact that the majority of the jurisdictions in Africa apply a withholding tax on technical service income paid to nonresidents. The ability to claim relief for the juridical double taxation suffered as a result of the withholding tax applied is governed in South African tax legislation by section 6quat of the Act. This paper analyses section 6quat of the Act with particular reference to the relief available and unavailable to taxpayers for foreign taxes paid in relation to withholding taxes on technical service fee income, in treaty and non-treaty scenarios. The issue of continued double taxation, despite the relief mechanisms of section 6quat, resulting from source issues and the provision of services remotely from South Africa or differing interpretation on the application of Double Taxation Agreements by South Africa and the foreign jurisdictions for example, are also reviewed. South Africa's relief mechanisms are then compared to the relief mechanisms of 5 other jurisdictions (peer nations who export services) to determine if any of these jurisdictions have more advanced ideas for the reduction of juridical double taxation in the context of technical service fees. It is determined in the final analysis that South African taxpayers are not alone with regard to the problem of unrelieved double taxation despite the best efforts of local legislation to provide some form of relief. None of the jurisdictions reviewed have mechanisms in place that provide full relief whilst also protecting the tax base. A number of recommendations are given for ways that South Africa could possibly improve the situation and reduce instances of juridical double taxation. The most obvious being a wide treaty network, with up-to-date treaties, with as many jurisdictions as possible, with a technical services article.

Includes abstract. / Includes bibliographical references. / In this study, after providing background on the co-operative movement both internationally and in the South African context and an indication of what the success of the co-operative sector could mean for South Africa from a socio-economic perspective, an analysis of the tax legislation as it relates to co-operatives is conducted. The analysis tracks the development of the legislation since the introduction of the Income Tax Act No 58 of 1962.

Private equity (PE) firms often use different investment vehicles to attract high-net-worth individuals and institutional investors to invest with them, as after-tax returns are generally higher than the formal investment sector. A question that arose during a discussion with the head of tax of a large insurance company was: Is an en-commandite partnership a taxefficient vehicle in the current private equity regime? The purpose of this dissertation is to determine whether the benefits of en-commandite partnership outweighed other forms of investment vehicles with regard to flow-through of income. It also dealt with the elimination of entity-level tax, while protecting investors from personal liability for the debts and obligations of the fund. This paper firstly investigated the characteristics of the most common investment vehicles, and the legislative requirements that they are subjected to. Secondly, the tax regime that applies to these investment vehicles was investigated. It included the financial instruments used by PE firms and how different applications of these instruments are treated by the tax authorities. This was done to determine if, when, and how these instruments were taxed as income or capital, and in whose hands they were taxed. This also covered the potential pitfalls PE firms had to be aware of when structuring investment transactions. This was followed by a conclusion to the question: Is an encommandite partnership a tax-efficient vehicle in the current private equity regime with the focus on investments in South Africa? The study includes a comparative analysis of the legislative and tax consequences of the investment vehicles as well as the benefits that could be derived from each. High-net-worth individuals and institutional investors often seek investment opportunities where they are prepared to take a higher investment risk with the objective to achieve a higher return on their investments. They can either invest in ventures and manage the investments themselves, or they can use PE firms to take up shares in private or unlisted companies to manage investments on their behalf. Confidentiality of financial affairs of individuals in particular, favour PE firms that use trusts and partnerships as investment ii vehicles, as legislative disclosure requirements are very limited. In an en commandite partnership, the identity of limited partners is not disclosed. The most important considerations for investors are to maximise the after-tax return on their investments and to limit their potential liability and exposure to debts. With the current structure of PE firms and their professional oversight in the management of the underlying investments under their control, it is submitted that an en commandite partnership is the most tax-efficient vehicle in the current private equity regime. This is primarily due to the conduit principle, where taxation at fund level is averted, and the tax liability passesthrough to investors with differing tax structures. The Capital Gains Tax (CGT) inclusion rate is also the lowest for individuals when utilising an en commandite partnership. PE firms focus on maximising investment returns within the constraints of tax legislation and investors take care of their own tax affairs.

‘Uncertain law also penalizes those anxious to obey it and eventually creates contempt for the law. Uncertain law will thus erode the confidence of taxpayers in the system and their willingness to support and comply with the system.' Retroactive fiscal legislation leaves taxpayers with little to no tax certainty, with only about two months of transactional certainty each tax year not subject to any potential retroactive draft fiscal legislation - from when the amendment act from the prior legislative amendment cycle is promulgated until the Budget Speech which sets in motion the new legislative amendment cycle. Arguably, economic activity and tax morality could increase should more certainty exist as to what types of retroactive fiscal legislation are permissible, in which circumstances it is permitted and the remedies available to taxpayers in cases where such legislation adversely affects their vested rights. This research aims to consider the legality of retroactive fiscal legislation to provide much-needed tax certainty. This will be done by analysing the rules under the common law, statute law (being the Interpretation Act) and the Constitution. The conclusion reached under the common law is that regarding fully completed transactions, the presumption against retroactivity will provide an effective remedy to taxpayers should the retroactive legislation not explicitly provide that it will apply to completed transactions. Under statute law, the treatment of statues which are subject to commencement provision are dealt with similarly under the Interpretation Act and the proposed Interpretation of Legislation Bill, in that neither contains an outright prohibition on retroactive legislation. Under the Constitution, a challenge based on either the rule of law or the doctrine of separation of powers will most likely not be successful. A challenge in terms of section 25 of the Constitution would be the constitutional remedy most likely to succeed. A challenge under section 25 of the Constitution requires a two-stage test: Firstly, it needs to be determined if the deprivation of property was arbitrary for purposes of section 25 of the Constitution. Secondly, it needs to be determined if section 25 of the Constitution's limitation is justifiable under section 36 of the Constitution. The deprivation of property will be arbitrary if sufficient reasons are not provided. If found to be arbitrary, then the judiciary must declare such legislation unconstitutional without the need to consider section 36 of the Constitution. Should an assessment under section 36 of the Constitution be required, the competing values need to be measured against each other and an assessment made based on proportionality. Section 36(1)(e) of the Constitution suggests that prospective legislation is preferred to retroactive legislation, and that means less restrictive than retroactive fiscal legislation should be relied on if they exist. Based on the analysis in this paper, it is respectfully submitted that the taxpayers in Pienaar Brothers should have had an effective remedy in terms of section 25 of the Constitution, read with section 36(1)(e) of the Constitution, as less restrictive means were available to the Commissioner in the form of the general anti-avoidance rules. The retroactive amendments were also not of general application and the taxpayers did not receive adequate warning. Irrespective of a successful constitutional challenge, the taxpayers in Pienaar Brothers also had a remedy available to them under the common law presumption against retroactivity (as applied to the completed transaction). The retroactive amendments negatively impacted their vested rights without specifically stating that it would apply to completed transactions. It is unfortunate that the matter was not taken on appeal, as judicial precedent is much needed on the topic of retroactive fiscal legislation and completed transactions.