Law / LL.M.

A research report to be submitted to the Faculty of Commerce, Law and Management in partial fulfilment of the requirements for the degree of Master of Commerce (Taxation) 31 March 2016 / The aim of the report is to determine whether the current Value-Added Tax (‘VAT’) treatment relating to the exemption applied on educational services should be retained and to ascertain whether the policy considerations which applied when VAT was introduced are still relevant, or whether changed circumstances would justify the introduction of a different treatment or concessions in relation to these services. The most critical and significant challenge being faced by VAT vendors and universities in particular is compliance with a vast array of amendments to the VAT Legislation, Binding Rulings, Guides and Interpretation Notes issued by the South African Revenue Service (‘SARS’). Noncompliance for whatever reason may result in irregular expenditure and significant penalties and interest imposed for non-compliance, especially in light of the additional penalties being imposed in terms of the Tax Administration Act which was promulgated in October 2012. VAT therefore has a direct impact on the financial affairs and cash flow of VAT registered entities. Furthermore, government funding in respect of tertiary institutions has been on the decline in recent years while the costs of running a tertiary institution have continued to be on the rise. This development has necessitated a change of approach in how tertiary institutions manage their operations. Consequently, there developed a strong need for tertiary institutions to find alternative ways of raising extra funds to make up for the shortfall caused by the decline in funding from government. The provision of short courses, in addition to the traditional full semester diploma and degree courses provided by the institutions, was identified as an opportunity to deliver a certain varied level of educational services to an existing suitable market. This opportunity presented attractive prospects as an alternative source of funding for the institutions in the wake of depleting government funding. In this regard, many of the institutions formed a number of vehicles in order to offer the short courses to the market. The rationale behind such approaches is in order to distinguish the traditional education services (diploma and degree courses) from the non-traditional educational services (short courses). / MT2017

The aim of this dissertation is to provide a detailed analysis of the impact electronic-commerce (e-commerce) is having upon the tax base and revenue collection of Value-Added Tax (VAT) in South Africa. This dissertation commences with a chapter that sets out the model for the treatment of VAT in an e-commerce environment. Three chapters follow this, recording how South Africa legislates for VAT, how traditional (offline) and e-commerce (online) transactions are conducted. This is followed by a chapter that makes a comparison between online and offline commerce, identifying the differences and difficulties between the two forms. Leading from this comparison is a chapter that makes suggested recommendations to overcome the identified VAT administrative difficulties. The final chapter records how the three parties, namely, governments, commerce and consumers can work together, if the freedom afforded by e-commerce is allowed to continue. The analysis shows that if certain recommendations are implemented, then the negative impact of e-commerce on the tax base and revenue collection of VAT in South Africa can be reduced. / Thesis (MBA)-University of Natal, Durban, 2003.

Law / LL.M.

M.Com. (Tax) / The study is an examination of the special VAT provisions relating to small businesses in terms of the Value Added Tax Act no 89 of 1991. The special provisions relating to retailers as applied in the United Kingdom and other countries are also examined. The study identifies problems that a small business encounters as a result of the VAT requirements set out in the Value Added Tax Act as well as problems arising from the specific circumstances in which a small business finds itself. The special VAT provisions in South Africa are compared with the provisions in the United Kingdom and other countries. Certain recommendations are made by the author regarding these special provisions. It is important that these special provisions are stated simply and clearly to provide a VAT system with few exceptions to the basic rules. However, the Act must cater for the small business and provide choices that will suit the circumstances of the small business. Certain countries provide special schemes for retailers. The different schemes are identified and the study determines whether these schemes are appropriate in the South African context. The study comes to the conclusion that it is not necessary to have special schemes restricted only to retailers. A common treatment for small businesses and retailers must be the aim of the legislators. The Act must be formulated in such a manner that the circumstances of small businesses and retailers and the accompanying problems encountered by them are taken into account in the legislation.

A research report submitted to the Faculty of Commerce, Law and Management, University of Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree of Master of Commerce (Specialising in Taxation) / The taxation of financial services is challenging from a Value-Added Tax (VAT) perspective. Conceptually, VAT should apply to any fee for services but where financial services are concerned, there is difficulty in quantifying the value-added by these institutions. According to the First Interim Report on Value-Added Tax for the Minister of Finance (the Davis Tax Committee report) most jurisdictions have therefore opted to exempt financial services from VAT. In South Africa, financial services are exempt from VAT, however, where an explicit fee is charged as consideration for a supply, it will be taxed. The South African VAT legislation provides for the denial of input tax on costs incurred to generate exempt supplies. The burden of an irrecoverable VAT cost exposes the financial industry to hindrances such as vertical integration and tax cascading. Certain VAT jurisdictions have however implemented policies to reduce the overall cost of financial institutions. This study will therefore analyse the alternate VAT methods to determine whether a more viable mechanism of taxing financial services in South Africa, exists. Key words: Apportionment, cascading, implicit fees, input tax, efficiency, exemption, explicit fees, equity, full taxation approach, neutrality, simplicity, standard rate, reduced input tax credit, value-added, VAT grouping, vertical integration, zero-rating / MT2017

The third sphere of government (Local Government) has been persistently clouded by unfavourable Annual Financial Statement (AFS) audit reports. This results in local government losing credibility and its stakeholders losing confidence in the institutions or municipalities. In-depth analysis of the root cause of this dilemma is an opportunity for the municipality to reorganise its house and redeem its dignity and credibility to its stakeholders through addressing the identified challenges. The importance of the study can be attributed to the need to investigate the root causes of unfavourable audit opinion and recommend possible remedies that can assist municipalities to improve their audit report outcomes which in turn will improve the confidence of its stakeholders. The primary objective of the study was to investigate variables that impact on the audit report outcomes on annual financial statements of the municipalities that are within Alfred Nzo District (AND) Jurisdiction, including Alfred Nzo District Municipality (ANDM). This was achieved through investigating the root causes of the audit report outcomes with specific focus on the relationship that exists between the management role and audit outcomes of the Alfred Nzo District Municipalities. This was measured by the municipality’s leadership, governance, internal controls and human capital management. Convenient sampling was used wherein 150 questionnaires (30 per municipality) were sent out to the selected employees in all the municipalities in the Alfred Nzo District. Out of the questionnaires that were sent out, 103 responses were received. These were analysed to draw findings, conclusion and recommendations. The empirical results of the study revealed that there is strong evidence that leadership, governance and human capital management have a positive influence on the municipality’s AFS audit report outcomes. It also revealed that there is overwhelming evidence that internal controls have a positive influence on the municipality’s AFS audit report outcomes. The study recommends how leadership, governance, internal controls and human capital management must be improved. It also provides future research recommendations to improve this study.

Paragraph 7(1) of the VAT Act provides for the charging of VAT at 14 percent on the supply of goods or services by a vendor in the course or furtherance of an ‘enterprise’, the importation into South Africa of goods by any person or the supply of ‘imported services’. The term ‘enterprise’ has been interpreted to require an on-going activity and therefore once off sales should be excluded. The sale must relate to enterprise activities, thereby excluding private sales. Furthermore the enterprise activities are required to be carried out in the Republic or partly in the Republic. Establishing whether the enterprise activities are carried out in the Republic remains a contentious issue as the VAT Act does not specify the minimum required business activities to meet this criterion. ‘Imported services’ excludes services imported for the purposes of making taxable supplies and the liability of accounting for VAT on ‘imported services’ lies with the recipient of the imported service. Supplies (imported services) which are chargeable in terms of s 7(1)(a) and supplies, which if made in the Republic, are exempt from VAT or zero rated. ‘Imported services’ definition requires services to be consumed in South Africa. Services offered outside South Africa therefore generally do not qualify as imported services even the South African entity benefits from such services, for example a training course attended in a foreign country. Technological developments in the field of e-commerce globally have required countries to examine VAT laws relating to e-commerce. Extensive research has been done by the OECD on this topic, with reports issued on recommendations of how e-commerce should be taxed. Most guidance issued by the OECD on taxing e-commerce relates to indirect electronic commerce, which refers to goods or services where ordering, payment and delivery occur on line. Distinction is drawn between taxation of business-to-business transactions and business-to-consumer transactions. The OECD suggests that the ‘reverse-charge’ or self-assessment method should be applied to the taxing of B2B transactions resulting in minimal compliance and administrative costs. It is further recommended that for B2C transactions place of consumption should be defined as the recipient’s usual jurisdiction of residence and that non-resident suppliers should be required to register and pay VAT in the jurisdiction of the consumer, as this would result in the most effective tax collection method. ‘Enterprise’ includes electronic services from a foreign supplier where the recipient is a resident of South Africa or where the payment originated from a South African bank account. The Minister’s regulation, which came into effect on 1 June 2014, includes the following items in the definition of electronic services: educational services, games, online auction services, miscellaneous services and subscription services. The South African VAT legislation draws no distinction between B2B and B2C supplies of electronic services. The reasoning behind this was to avoid situations in which private customers could pose as business customers in order to avoid the levying of tax. A review of the services currently included in the Minister’s regulation on electronic services indicate that services that would relate to B2B supplies have mostly been excluded from the regulation. Effectively the South African VAT legislation manages to indirectly exclude B2B supplies from the definition of electronic services and therefore achieves the objective of minimising the administrative burden on B2B supplies.

This dissertation deals with the effect of value-added tax on small to medium-sized developers of residential properties in South Africa. Firstly, the way value-added tax is applied to residential properties in South Africa was established. It was ascertained that no special concessions exist with regard to housing. Secondly, the application of value-added tax to residential properties in the United Kingdom was discussed. It was ascertained that supplies relating to new residential premises are zero-rated. Thirdly, the application of goods and services tax to residential properties in Canada was discussed. Canadian goods and services tax and harmonious sales tax legislation contains a broad range of special concessions relating to residential property developments. The harmonious sales tax which applies in some provinces, is a combination of goods and services tax and a provincial sales tax. Fourthly, the way goods and services tax is applied to residential property developments in Australia was determined. Australian legislation provides for a margin scheme to be applied to the development of residential properties. In terms of the margin scheme, goods and services tax is payable on the basis of profit rather than turnover. Transfer duty as applied in South Africa was examined as an alternative to the value-added tax being applied on residential properties developed by developers registered for value-added tax purposes. The legislation with regard to developers of residential properties registered for value-added tax, goods and services tax and harmonious sales tax purposes was measured against the principles of taxation. On the basis of these results, an alternative to the current application of value-added tax relating to developers registered for value-added tax purposes in South Africa was proposed that would be in line with that of the selected countries. / Economics / M. Com. (Accounting)

Thesis (MAcc (Accountancy))--University of Stellenbosch, 2006. / The advent of the internet made it possible to conduct business in a different manner - electronically. Electronic commerce enables residents and vendors to transact with residents and vendors of any other country (jurisdiction) at any time, making the world indeed a smaller place. Electronic commerce has, however, raised many questions internationally. Determining the effect of such transactions on the tax take of a country is of great importance to a government. The South African Revenue Service adjusted the Income Tax Act in order to take globalisation into account in accordance with international direction. In contrast, no changes have been suggested for the indirect taxation, namely value added tax. Electronic commerce were not contemplated when the Value-Added Tax Act was introduced in 1991. The charging section (section 7 of the mentioned act) provides that a transaction will be taxed in South Africa on the supply of goods or services, on the import of goods and on the supply of an imported service. In traditional business the place of supply was easy to define because a pure consumption test could be applied: namely that the place of supply is where the goods or services have been consumed. Today this rule will put an enormous compliance burden on vendors since the physical place of consumption in electronic commerce is not that obvious (Masters, 2001). Not only must the precise place of supply be determined but the vendor also has to value the supply in multiple jurisdictions. This study highlights the applicable sections of the Value-Added Tax Act and applies it to electronic commerce in order to determine if the existing legislation should be modernised or if parts of it needs to be re-written. The following concepts will be considered: • Place of supply in order to determine the jurisdiction where tax must be charged. • Value of supply to determine the value on which tax must be charged. • Vendor to determine which entities, South African or otherwise, have to register for VAT in South Africa. • Goods. • Services to consider goods and services of digital content. The international initiatives regarding the application of consumption tax, under the leadership of the Fiscal Committee of the Organisation for Economic Co-operation and Development, were taken into account in the study of any required amendments to sections of the Value-Added Tax Act. A group, “The Consumption Tax Technical Advisory Group”, was established in January 1999 by the OECD to consult with business and non-members on the implementation of consumption tax on electronic commerce transactions. The composition of the group is representative of the main trading nations in the world, but also includes smaller countries, non-members and private sector participants. It includes Australia, Japan, the United Kingdom, the United States of America and the European Commission. Considering the global composition of the group this study will focus on the initiatives of the OECD and it is not deemed necessary to investigate the initiatives of individual countries. The study will however consider the research and initiatives of South Africa’s biggest commercial partner, the European Union (OECD, 2004a: 285). The South African initiatives regarding electronic commerce include the Green Paper on Electronic Commerce released by the Department of Communication in November 2000 and the Electronic Communications and Transactions Act promulgated on 26 June 2002. The legislation does not address the tax implication of electronic commerce but in chapter 4 of the mentioned green paper it was discussed by the legislators. There is growing international pressure to lower corporate income tax rates. As the tax base erodes in this area other sources, possibly consumer taxation, must be found to meet the shortfalls (Masters, 2001). It is the aim of this study to show that the present Value-Added Tax Act is in need of modernisation in order to take into account the wide range of electronic commerce transactions.