The Income Tax Act 58 of 1962 makes provision for the taxation of taxpayers under the new General Anti Avoidance Rule (GAAR) which is encompassed in section 80A- 80G. This research basically deals with the analysis of the new general anti avoidance rule. Each provision is critically analysed. An anti avoidance rule has been part of the South African legislation since 1941, in section 90 of the Income Tax Act. Section 103 was later introduced to deal with the provisions of the anti avoidance rule because section 90 had proved to be insufficient to combat tax abuses. However, section 103 was repealed and replaced by the current section 80A (under discussion) because it proved to be an inconsistent and ineffective deterrent to the increasing form of tax arrangements. Furthermore, it was stated that it was not in line with international standards and developments, hence resulting in the introduction of section 80A-80G in 1996. The aim of this research is to determine whether the new rule is an effective deterrent for abusive tax abuses by the taxpayers. Furthermore, it aims at investigating whether the new general anti avoidance rule has been phrased in clear, unambiguous terms so as to ensure that the taxpayer, the Commissioner and the courts are clear as to what each provision entails. In general each of the provisions of section 80A of the New General Anti Avoidance is analysed. The research deals with the meaning of the terms ‘arrangement’, thereafter ‘tax benefit’, ‘sole and main purpose’, ‘commercial substance’, and lastly, ‘misuse and abuse’ of the provisions of the Act. The analysis of each of the provisions is aimed at determining whether the new general anti avoidance rule is clear and easy to understand. It aims at determining what constitutes an impermissible tax avoidance rule, which in the event that an arrangement or agreement is impermissible tax avoidance, would lead to the provisions of the GAAR being applicable. Furthermore, this research aims to determine whether the Act makes provision for, or rather explains in clear terms, what amounts to permissible tax avoidance. Lastly, after all the provisions are discussed, the research identifies the major weaknesses of the new GAAR and provides recommendations. It has to be noted that regardless of the fact that the new GAAR might have deficiencies, it is imperative that the legislature makes the provisions the GAAR clear by inserting sections in the Act, or replacing certain provisions in the Act where necessary and applicable, so as to ensure that the there is clarity and certainty when dealing with such provisions. Therefore this research is necessary to ensure that taxpayers are aware of the provisions which qualify as impermissible tax avoidance and when the arrangements they enter into are regarded as permissible. In addition, clarity is required to ensure that the taxpayer, the Commissioner and the courts understand exactly what the new GAAR entails, thus preventing the opening of the floodgates of litigation. Lastly, after all the provisions are discussed, the research identifies the major weaknesses of the new GAAR and provides recommendations. It has to be noted that regardless of the fact that the new GAAR might have deficiencies, it is imperative that the legislature makes the provisions the GAAR clear by inserting sections in the Act, or replacing certain provisions in the Act where necessary and applicable, so as to ensure that the there is clarity and certainty when dealing with such provisions. Therefore this research is necessary to ensure that taxpayers are aware of the provisions which qualify as impermissible tax avoidance and when the arrangements they enter into are regarded as permissible. In addition, clarity is required to ensure that the taxpayer, the Commissioner and the courts understand exactly what the new GAAR entails, thus preventing the opening of the floodgates of litigation. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

The structure of the tax system is important in developing a workable environment capable of diminishing both the extent and the opportunities for tax avoidance and evasion. Generally, taxpayers dislike paying taxes, which results in them colluding against the government and this impacts negatively on the economy. Efforts by the legislature to curb tax avoidance with the introduction of various forms of antiavoidance techniques have, however, contributed to the complexity of tax legislation. The complexity of tax legislation, as well as higher marginal tax rates, leads to higher incidences of tax avoidance, and at times, tax evasion. Uncertainty, complexity and confusion also provide the breeding ground for tax avoidance and evasion. The South African GAAR is a concoction of GAARs from different parts of the world. This is in a bid to ensure that anti-avoidance techniques in South Africa are in line with international trends on anti-avoidance legislation. But has this purpose really been achieved? A comparative study of the South African anti-avoidance legislation with that of other countries is therefore necessary to determine how it stands on a global scale as a deterrent to tax avoidance. For the purposes of this paper, only the Canadian, Australian and United Kingdom GAARs will be discussed. Unfortunately, it seems no jurisdiction has found a perfect solution, and the use of GAARs in varying forms has had mixed success. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

In recent years, number of initiatives arised from the European Union and OECD towards active cooperation and coordination between countries in the fight against international tax avoidance practices. The abuse of double taxation treaties and tax legislation in general became subject of increasing interest also among the Czech professional public. The aim of my thesis is to examine whether and to what extent double taxation tax treaties are used by taxpayers for purposes other than those originally negotiated between states, explore what are the tools that can prevent abuse of tax treaties and to assess whether tools used in the Czech Republic correspond to international standards and whether there is scope for more effective aplication of these tools with regard to international practice. As my research within international context showed, there are a number of anti avoidance rules against abuse of tax treaties and tax avoidance in general. The anti avoidance rules are incorporated in national substantive and procedural legislation, as well as in international law. Other relevant anti avoidance rules are elaborated by the courts. Effective tool to prevent undesirable international tax practices is, not least, international cooperation, and especially timely and relevant exchange of tax...

Abstract The South African Revenue Service (‘SARS’) and National Treasury has in the recent past identified various areas of tax in which taxpayers have been avoiding tax by arranging their affairs in a certain way. An area which SARS and National Treasury sees as being a danger to the South African tax base is the utilisation of trusts by individuals. This was made evident in the 2013 National Budget Speech by way of a passing high-level comment on how SARS proposes to mitigate the risk that trusts pose to the South African tax base. This research evaluates whether trusts do in fact pose a valid risk to erode the tax base and whether they are as ‘deadly’ as they are made out to be. A discussion of the taxation of local trusts is included in this paper and it continues by analysing the various antiavoidance provisions contained in the Income Tax Act. In addition, this paper discusses the proposed amendments to be made to the current tax regime as well as the revised tax return format for trusts and the supposed purpose thereof. The paper concludes on the validity of the concern raised by both SARS and National Treasury in respect of trusts being used as vehicles to erode the South African tax base.

Tax avoidance is a key international tax issue. Combating tax avoidance has been placed high on the agenda by the South African Revenue Service (SARS) and other tax authorities in the world. This research report will examine how the judgments of certain South African cases would have been different if the anti-avoidance provisions in sections 80A to 80L were applied instead of those in section 103(1).

Tax avoidance has been a concern to revenue authorities throughout the ages, and revenue authorities worldwide are engaged in a constant struggle to ensure taxpayer compliance while combating tax avoidance. South Africa is no exception to this struggle and the increasingly innovative ways in which taxpayers seek to minimise their tax burdens necessitate amendments in order to remain at the forefront of taxpayer compliance. In view of the above, the general anti-avoidance rules (GAAR) have been amended numerous times to address weaknesses. The most recent of these amendments are those of 1996 and 2006. The research on GAAR in South Africa has focused on critical analyses once the legislation fails to stand up to the rigours of court, and has thus used the principle of hindsight to criticise GAAR and recommend improvements. However, in their current form (post-2006 amendments) the GAAR have not been presented before the courts, and thus the use of hindsight is not an appropriate tool to determine if the current GAAR regime has improved upon the weaknesses identified in the past. This study applied a qualitative case study approach to determine if the 2006 amendments to GAAR have in fact addressed these weaknesses. The current GAAR regime was applied to previous cases to determine if the unfavourable judgments for the Commissioner would now be considered favourable. In executing this process, an instrument was developed in phase 1 of the literature study to apply the new GAAR to the cases. In the second phase of the study this framework was applied to case law in which the previous GAAR regimes failed to stand up to the rigours of court, thus determining whether the 2006 amendments to GAAR addressed the weaknesses of the previous GAAR regime. The final phase of the study consisted of a literature control to determine if similar such conclusions have been made by other commentators to support the findings of the study. The findings of the case studies revealed that, on a balance of probabilities, none of the cases selected for analysis would have been held in favour of the Commissioner if they were brought to the courts today on the same grounds that they were attacked at the time and the courts used the instrument developed in phase 1 to apply the GAAR to these transactions. The study therefore indicates that the use of similar (often identical) wording of the purpose test as in the previous GAAR, as well as the use of the purpose test in conjunction with the amended abnormality test still result in a GAAR regime that may be an ineffective deterrent to tax avoidance. / Thesis (M.Com. (South African and International Taxation))--North-West University, Potchefstroom Campus, 2011.

Tax avoidance has been a concern to revenue authorities throughout the ages, and revenue authorities worldwide are engaged in a constant struggle to ensure taxpayer compliance while combating tax avoidance. South Africa is no exception to this struggle and the increasingly innovative ways in which taxpayers seek to minimise their tax burdens necessitate amendments in order to remain at the forefront of taxpayer compliance. In view of the above, the general anti-avoidance rules (GAAR) have been amended numerous times to address weaknesses. The most recent of these amendments are those of 1996 and 2006. The research on GAAR in South Africa has focused on critical analyses once the legislation fails to stand up to the rigours of court, and has thus used the principle of hindsight to criticise GAAR and recommend improvements. However, in their current form (post-2006 amendments) the GAAR have not been presented before the courts, and thus the use of hindsight is not an appropriate tool to determine if the current GAAR regime has improved upon the weaknesses identified in the past. This study applied a qualitative case study approach to determine if the 2006 amendments to GAAR have in fact addressed these weaknesses. The current GAAR regime was applied to previous cases to determine if the unfavourable judgments for the Commissioner would now be considered favourable. In executing this process, an instrument was developed in phase 1 of the literature study to apply the new GAAR to the cases. In the second phase of the study this framework was applied to case law in which the previous GAAR regimes failed to stand up to the rigours of court, thus determining whether the 2006 amendments to GAAR addressed the weaknesses of the previous GAAR regime. The final phase of the study consisted of a literature control to determine if similar such conclusions have been made by other commentators to support the findings of the study. The findings of the case studies revealed that, on a balance of probabilities, none of the cases selected for analysis would have been held in favour of the Commissioner if they were brought to the courts today on the same grounds that they were attacked at the time and the courts used the instrument developed in phase 1 to apply the GAAR to these transactions. The study therefore indicates that the use of similar (often identical) wording of the purpose test as in the previous GAAR, as well as the use of the purpose test in conjunction with the amended abnormality test still result in a GAAR regime that may be an ineffective deterrent to tax avoidance. / Thesis (M.Com. (South African and International Taxation))--North-West University, Potchefstroom Campus, 2011.

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The mining industry is a major contributor towards the South African economy. There are several types of corporate transactions that could typically be found in the mining industry and these include merger transactions. Mergers could lead to a number of tax consequences which could include capital gains tax, the recoupment of capital allowances and dividends tax. Merger transactions do not necessarily lead to an immediate increase in profits. Therefore, the tax authorities provide for relief in respect of merger transactions. The relief takes place in the form of tax roll-overs that effectively postpone tax consequences until such time as a true economic profit is realised in the future. Taxpayers typically wish to minimise the amount of tax which they pay. Therefore, they may abuse the relief provided to avoid paying tax. In an attempt to protect the state’s revenue and to prevent tax avoidance, the tax authorities introduce anti-avoidance provisions into the tax legislation. The roll-over relief provided in respect of merger transactions, as well as the provisions dealing with mining capital allowances contain a number of provisions to combat opportunities for tax avoidance. The study explains the principles of tax avoidance and anti-avoidance in the mining industry in South Africa, and indicates the need for tax relief in the context of merger transactions in the mining industry in South Africa. The study further illustrates how tax relief presents opportunities for tax avoidance and how anti-avoidance legislation restricts these opportunities. The study also shows that there is a cycle in which an onerous tax leads to a need for relief which in turn leads to opportunities for tax avoidance which in turn leads to anti-avoidance provisions. The research conducted as part of this study shows that this cycle is an international trend that often affects the manner in which merger transactions are structured. AFRIKAANS : Die mynbedryf in Suid-Afrika lewer 'n aansienlike bydrae tot die Suid-Afrikaanse ekonomie. Samesmeltings is een van verskeie tipe korporatiewe transaksies wat in die mynbedryf in Suid-Afrika aangetref word. Samesmeltings gee ook aanleiding tot verskeie belastingimplikasies, soos Kapitaalwinsbelasting, die verhaling van belastingtoelaes en die belasting op dividende. Samesmeltings lei nie noodwendig tot 'n onmiddellike verhoging in ekonomiese voordele nie. Die belastingowerhede maak voorsiening vir belastingverligting ten opsigte van hierdie gebeure. Die verligting word gewoonlik verskaf in die vorm van die uitstel van belastingverpligtinge tot ‘n datum wanneer ‘n ekonomiese wins in die toekoms gerealiseer word. Belastingbetalers streef gewoonlik na 'n vermindering in hul belastinglas, en mag dus die verligting wat voorsien word probeer misbruik. Die belastingowerhede daarenteen maak voorsiening vir wetgewing om hierdie pogings van die belastingbetalers om belasting te vermy, teen te werk en so die inkomste van die staat te beskerm. Die uitstel wat aan samesmeltingsooreenkomste verleen word asook die voorsiening van mynboukapitaaltoelaes bevat verskeie voorsorg maatreëls om pogings tot belastingvermyding teen te werk. Die studie ontleed die beginsels van belastingvermyding en teen-vermyding wetgewing in die mynbedryf in Suid-Afrika, en wys op die behoefte vir verligting ten opsigte van samesmeltings in die mynbedryf in Suid-Afrika. Die studie toon verder ook hoe die verligting lei tot geleenthede vir belastingvermyding en hoe teen-vermyding wetgewing dit kan teenwerk. Die studie toon ook dat daar ‘n siklus bestaan, waarin die behoefte vir verligting as gevolg van n oormatige belastinglas tot geleenthede vir belastingvermyding lei, en wat op sy beurt lei tot wetgewing om die belastingvermyding te ontmoedig. Die navorsing wat as deel van hierdie studie uitgevoer is dui daarop dat hierdie siklus ‘n internasionale neiging is wat dikwels die struktuur van samesmeltingsooreenkomste affekteer. / Dissertation (MCom)--University of Pretoria, 2012. / Taxation / unrestricted

South Africa has adopted a general anti-avoidance rule (GAAR) as one of the methods to combat the innovative tax avoidance schemes into which taxpayers may enter. Nevertheless, since its introduction it has undergone numerous amendments due to weaknesses highlighted by its failures in court. Yet, since its most recent amendment in 2006, the efficacy of the South African GAAR has not been established as it has not been tested in the courts. This study addresses this concern by employing a ‗structured pre-emptive analysis‘ to identify the weaknesses of the South African GAAR when compared to its New Zealand counterpart. This approach is essentially qualitative and combines the typical doctrinal or black letter law approach used in law with that of reform-oriented approaches. Firstly, the South African and New Zealand GAARs were analysed and compared using a doctrinal approach to gain an understanding of the interpretation and application of the two GAARs. This allowed for the identification of weaknesses in the South African GAAR, whilst also making suggestions for its improvement. Thereafter, the South African GAAR was applied to the facts of a case from New Zealand by making use of a reform-oriented methodological approach. In applying the South African GAAR to the facts of the case, a framework of the South African GAAR was used to enhance the reliability of the findings by reducing subjectivity and improving replicability. The findings from the doctrinal and reform-oriented approaches revealed the weaknesses in the current South African GAAR when compared to its New Zealand counterpart. These weaknesses may be addressed in three ways. Firstly, guidance should be provided in order to address uncertainties in the interpretation and application of the South African GAAR so as to prevent inconsistencies that may limit its efficacy. Secondly, the purpose requirement and tainted elements could be consolidated into one requirement, where the presence of one of the tainted elements informs the objective purpose of the arrangement. Thirdly, the purpose requirement should be amended so that it need not be the sole or main purpose, but rather should be one of the purposes, provided it was not merely incidental. It is acknowledged that while the South African and New Zealand GAARs are directed to achieve the same end, the proposals for amendment would arguably go some way towards improving the efficacy of the South African GAAR. / Mini Dissertation (MCom (Taxation))--University of Pretoria, 2020. / Taxation / MCom (Taxation) / Unrestricted