As the international markets opened up it became imperative that the for South African taxation system be brought into line with those of its major trading partners whose tax systems are residence based. For South Africans the change to a residence base and the introduction of Capital Gains Tax in 2001 drastically altered the previous source-based tax playing fields. The purpose of this research is to investigate all aspects of residence and its effect on natural persons as well as other legal personae and to discuss how the various forms of income are affected by the new tax dispensation. The position in other fiscal dispositions is also scrutinised to give the reader a more comprehensive understanding of residence-based taxation as applied by some of South Africa's major trading partners. For foreign nationals residing in South Africa, the new system has also had its negative impact. Previously, their foreign earnings were free from local tax because of the old source base system, but this has also changed. The South African legal system is also thoroughly canvassed regarding two important concepts, namely, "resident" and "ordinary resident" and what are meant by them in terms of tax law. These concepts have also enjoyed the scrutiny of the other fiscal dispensations legal systems reviewed. Residence tests to determine the tax status of a person in South Africa and in other fiscal dispensations are investigated in this study to give anyone wishing to emigrate to other climes, a better understanding of what they can expect from a taxation point of view from the fiscal authorities there. The impact of residence on most forms of income is discussed including that of foreign workers and on other legal entities such as companies, while Capital Gains Tax, and the importance of residence on this tax is also canvassed by this study. The study concludes with a review of the standard Double Tax Agreement concluded by South Africa with most other countries and lists those countries with which it has such agreements. / Thesis (M.Com.)-University of KwaZulu-Natal, Durban, 2004.

No abstract provided. / Thesis (M.Com.)-University of Durban-Westville, 2002.

No abstract available. / Thesis (M.Com.)-University of Natal, Durban, 2000.

The global economy is still recovering from the effects of the sub-prime crisis. The economic downturn has created international tax policies that seem to encourage debt funding. Some commentators are of the view that debt and equity should have a uniform tax treatment. South Africa has not escaped the aftermath of the economic meltdown and had three credit downgrades since the second half of 2009. The first objective of this treatise was to determine whether loan funding still has a role to play in a SME environment. This was considered in the context of interest-free or low-interest rate loans advanced by companies to shareholders or other connected persons and interest-bearing loans due by companies that in substance clearly have equity features. The primary enquiry pertaining to debit loans is whether the debt arose by virtue of any share held in the company. It is submitted that a causal connection is required between any share in that company and the advance made. Where a company parts with funds for no quid pro quo a deemed dividend in specie is triggered. Conversely, where a loan was made on commercial grounds the company will not be in breach, even if the loan is interest-free. A loan that lacks a reasonable redemption period is more akin to equity and to this extent a deemed dividend will be triggered where a loan owing by a company to a shareholder or other connected person is not redeemable within 30 years. There is ambiguity with regards to the inception of the 30-year period for pre-existing loan agreements. Taking the contra fiscum rule into account, it is submitted that the 30-year period should only commence from the effective date due to the impracticalities involved and because the concept of an ‘instrument’ did not previously exist. It is submitted that shareholder and other connected person loans are not by default equity, to the extent that the transaction is on commercial grounds and in substance a loan. It is further submitted that loan funding still has a role to play in a SME environment and that South Africa has no need for uniform tax rules pertaining to debt and equity, due to the anti-avoidance provisions highlighted above. The poor state of the local economy prompted Treasury to introduce new debt relief rules to assist distressed debtors. The second objective of this treatise was to analyse whether the new rules will provide tangible relief to distressed debtors as this was one of the short comings of the previous system. It is submitted that the new ordering rules delay the incurrence of an immediate tax as trading stock held and not disposed of, the base cost of an asset or the balance of an assessed capital loss is first reduced compared to the old rules where it instantly triggered a recoupment or a deemed disposal for CGT purposes. Tangible relief is provided to distressed debtors as a tax debt reduced has no normal tax consequences. This provides an opportunity for companies under business rescue because SARS rank on par with concurrent creditors. As a result, the tax debt reduced is likely to be higher under business rescue than liquidation.

Currently, there are two ways to structure the sale of a business. The first is the sale of the ownership of the business, and second, the sale of its assets. The structure of the sale, by way of its ownership or by way of its assets, can have varying and complex tax consequences, and should be an important consideration during negotiations between the seller and purchaser of the business. The purchaser and the seller, in order to minimise tax consequences, should carefully consider the tax payable, flowing from the sale of the business, but often fail to do so because of the complex nature of current tax legislation. My own experience, as a practising accountant and tax practitioner, has been that when faced with complex tax legislation, the seller and the purchaser of a business often choose to ignore this aspect of the sale during negotiations. Those who have attempted to establish the tax consequences of the sale of a business during negotiations have been discouraged by the lack of a practical means to assist them in doing so. Consequently, I have undertaken a conceptual analysis and interpretation of South African tax legislation, interpretations of such legislation by the Court and other related matters with a view to examining, determining and summarising the tax consequences of the sale of a business in a practical manner, and thereby provide the seller and the purchaser with a practical means to assist them in determining the optimal structure for the sale of the business.

The aim of this treatise is to identify the income tax implications of the persons becoming South African tax residents. It will provide a clear understanding of the income tax implications for natural and non-natural persons wishing to take up residence in South Africa. The definition of “resident” in section 1 of the Income Tax Act, 1962, has a direct impact on the tax implications bearing down on any foreigner planning to reside within the Republic of South Africa, especially in relation to the prevention of the double taxation. The following issues or areas have been identified, these issues are summarised below. The persons receiving foreign pensions may be exempt from normal tax under section 10 (1)(gC) and in terms of the tax treaty, they may also escape taxation in their former country of residence. The treatise will look at various treaties that exist between the South Africa and other countries and to discuss the taxing rights. There is a case of double non-taxation and good reason for immigrants to come and avoid tax in South Africa. It is suggested that the legislation and the double tax agreements should be amended. A person who becomes a resident will receive a step-up in base cost for assets other than South African immovable property and assets of a permanent establishment in South Africa under paragraph 12(2)(a) of the Eighth Schedule. The main purpose of the legislation is to ensure that these assets are correctly valued, determining the base cost, when the person becomes a tax resident. The valuation of these assets carries with it the problem of securing sufficient evidence long after the valuation. Most of the tax planning for such for immigrants revolves around estate duty and donations tax. The person would donate his assets to an offshore discretionary trust before taking up residence in South Africa. The advantage is that donations tax will be avoided because there are exemptions in terms of section 56, for assets acquired before becoming a resident. The income and capital gains vested in nonbeneficiary can be taxed in the hands of the donor in terms of section 7 and paragraph 72 of the Eighth Schedule. The donor should be aware of the antiavoidance measures; section 7(2) to 7(8) and paragraph 72 of the Eighth Schedule will deem a different person other than the person who is entitled to the income to be taxable on that person. The income and gains received by the beneficiary of a trust can be taxable in the hands of the donor. The assets owned by the trust will be sheltered from South African estate duty. The foreign discretionary trust, as a non-resident, will not be liable for tax in South Africa. The beneficiaries of such a trust will be liable for income tax from the trust distributions, once they have acquired a vested right to the income. The liability of income tax is deferred to the year when the trustees decide to make distributions. The distribution by the trustees in a subsequent year creates a delay or postponement for taxes which should be paid by the beneficiaries. The trustees are most likely to make distributions in a tax year when the tax rates are low. There are tax opportunities for the immigrants who intend to take up residence. The tax resident might be subject to withholding taxes on foreign income from the previous country of residence, but might be subject to Double Tax Agreement between South Africa and other countries.

M.Com. (SA and International Tax) / The term “beneficial owner” is found in 64 of the 71 double tax agreements signed by South Africa. However, there is no definition of the term in the Income Tax Act or within the orbit of international taxation. There are international court cases in relation to the interpretation of the term. The fact that there are inconsistencies in the treaties signed by South Africa may result in treaty shopping opportunities. The study aims to define the term “beneficial owner”; to view other necessary acts and other forms of supporting legislature when interpreting a treaty; and subsequently, to explore the term as used in South African double tax agreements.

In this thesis the tax treatment of equity option contracts is examined. The writer gives an overview of the derivatives market in general and discusses the nature and effect of equity options in detail. Limited amendments have been made to the South African Income Tax Act No 58 of 1962 ('the Act') since the emergence of derivative instruments and at present only three types of derivative instruments are recognised: forward exchange and option contracts relating to forward exchange, interest rate swaps based on notional capital amounts and option contracts. Other than section 241 of the Act which deems all receipts and accruals from foreign exchange contracts to be income, the other sections dealing with derivatives do not concern themselves with capital or revenue classification. Accordingly, the classification of receipts and accruals arising from an equity option transaction is generally governed by the ordinary principles of South African tax law with the added problem of there being limited South African case law applying these general prinCiples to such transactions. The research undertaken in this thesis results in the establishment of a framework designed to determine the classification as revenue or capital the receipts and accruals arising from equity option contracts. Speculating, trading and investing in equity options is examined with regard to the general principles of South African tax and available case law. Hedging transactions are analysed with specific reference to their exact nature as well as general tax principles and available case law. The analogy of Krugerrands is used to draw parallels with the tax treatment of receipts and accruals arising from equity options used for hedging purposes. Once the theoretical framework has been established for revenue or capital classification, the actual tax treatment of both revenue and capital receipts is examined with reference to the Act and issues such as the gross income definition, the general deduction formula, trading stock and timing provisions are analysed and applied to receipts and accruals arising from equity option transactions. The thesis concludes with a summary of the findings and recommendations are made based on the research conducted.

Transfer pricing has become a very popular term in South Africa over the last few years, even more so since July 2013 when the Base Erosion and Profit Shifting (BEPS) Action plan was issued by the Organisation for Economic Co-operation and Development (OECD) and G20 (an international forum for the governments and central bank governors from 20 major economies). The OECD and G20 has issued the plan to address the perceived flaws in international tax rules, giving rise to profit shifting. Subsequently, the OECD has issued numerous reports and as a result has updated its 2010 Transfer Pricing Guidelines. Many countries have adopted these guidelines. However as South Africa is not an OECD member, there is no certainty that it will be adopted. The question is therefore: has the South African Tax legislation met the OECD guidelines and addressed the BEPS issue? Therefore, the objective of the research is to understand whether the current South African tax legislation is in line with the OECD Transfer Pricing Guidelines and BEPS Action Plan. The South African tax legislation provides South African taxpayers with no guidance as to how the OECD Transfer Pricing Guidelines needs to be implemented and interpreted. However, even though not legislation, the SARS practice note 7 and draft interpretation note on thin capitalisation provides taxpayers with a good basis of understanding the OECD Transfer Pricing Guidelines, as these documents provided by SARS is similar to that of the guidance in the OECD Transfer Pricing Guidelines, specifically relating to transfer pricing documentation. The issue that may result where the South African tax legislation is not in line with the OECD guidelines and the BEPS Action Plan is that Multinational Enterprises (MNEs) may use South Africa as the country to shift its profits to or from, thus effectively resulting in a loss to the Fiscus.

The South African Revenue Service has since 2009 introduced “reference pricing” as a tool to detect undervaluation of customs values of imported clothing and textiles. The term “reference pricing” is not defined in the Customs and Excise Act No.91 of 1964 which is the legislation that governs the importation of goods into the Republic of South Africa. The mandate of the South African Revenue Service, amongst others, is to facilitate legitimate trade. By applying the reference pricing guidelines the South African Revenue Service will target all importers who declare customs values which are less than the reference price for a targeted tariff heading associated with an item of clothing or textile. The Customs and Excise Act No.91 of 1964 is clear in that the transaction value which is the price paid or payable for the imported goods shall be the value used for customs duty purposes. The Customs and Excise Act No.91 of 1964 also requires that the interpretation of the sections 65, 66 and 67 of the said Act shall be subject to the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (Valuation Agreement). Part I of the Valuation Agreement deals with the rules for customs valuation. Article 17 of part 1 allows for customs administrations to satisfy themselves as to the truth or accuracy of any statement, document or declaration presented for customs valuation purposes. The Technical Committee on Customs Valuation of the World Trade Organisation decided the following in so far as Article 17 of the aforesaid agreement is concerned: “1. When a declaration has been presented and where the customs administration has reason to doubt the truth or accuracy of the particulars or of documents produced in support of this declaration, the customs administration may ask the importer to provide further explanation, including documents or other evidence, that the declared value represents the total amount actually paid or payable for the imported goods, ....” It would appear that the South African Revenue Service is using reference prices as a tool to support its reason for doubting the truth or accuracy of the declared customs values. The indiscriminate use of reference pricing, it is submitted, affects legitimate trade adversely. This treatise provides an understanding of how the customs value should be determined in terms of the Customs and Excise Act No.91 of 1964 and the Valuation Agreement. It then provides a background to reference pricing and how reference pricing will be used to detect undervalued imports of clothing and textiles, the advantages and disadvantages of using reference pricing and a comparative analysis of the approach adopted by the Mexican Tax Administration Service in so far as the use of reference pricing is concerned. It was established that the reference price cannot replace the customs value of an imported clothing item as the customs value is based on the price actually paid or payable for it and not on some arbitrary or fictitious value. The reference price can only be used as a tool to identify importers that are possibly undervaluing the customs values. The disadvantages far outweigh the advantages of using reference pricing. The treatise further provides a background to the use of a valuation database as a risk assessment tool and compares this to the use of reference pricing. The use of reference pricing and its impact on trade facilitation is then discussed as well as whether the use of reference pricing is consistent with the risk management principles as discussed in the World Customs Organisation Risk Management Guide. It was established that the South African Revenue Service has not disclosed the basis of arriving at the reference price per tariff heading that it targets and the use of reference pricing is not sanctioned by any international guideline or agreement. It was also established that the use of reference pricing targets compliant importers unnecessarily and this practice goes against the principles of trade facilitation. The use of reference pricing can be used as a tool to detect undervalued imports of clothing but should not be used as a basis to stop every consignment of clothing simply because the customs value declared is less than the reference price. It should not be used as a stand-alone tool but rather enhanced further with the recommendations provided. In the final analysis, recommendations are provided which seek to enhance the reference pricing mechanism and to further identify and exclude compliant importers and limit the use of reference pricing to target non-compliant importers who undervalue the customs value of imported clothing and textile items.