A research report submitted to the faculty of Commerce, Law and Management, University of the Witwatersrand, Johannesburg in fulfilment of the requirements for the degree of Master of Commerce (specialising in Taxation). Johannesburg - March, 2015 / Where Contracting States to a Double Taxation Agreement (DTA) refer to their respective domestic law concepts in respect of determining residence for purposes of a DTA, conflicting results may arise which can lead to double taxation and Contracting States being denied treaty relief. The interpretation of the concept of ‘Place of Effective Management’ as found in the residency tie-breaker clause in Art 4(3) of DTAs (based on the OECD Model Tax Convention on Income and Capital) used to resolve issues of dual-resident companies for purposes of applying the DTA, provides a pertinent example of a need for a common international understanding of treaty terms in order to avoid such potential conflicts. This paper explores how the term ‘Place of Effective Management’ should be interpreted in the above context by a South African court of law in order to conform to an internationally accepted meaning of the phrase.

Companies trading in international markets and assigning their employees to these global positions has become a daily occurrence, also in the lives of many South Africans. The taxation planning around these assignments can become a complex matter which can either be beneficial to the employee or result in surprising tax liability. Although many articles have been written on the taxation effect on South African employees working abroad, little research has been performed combining not only the South African legislation, but also taking the effect of double taxation agreements and the legislation of other countries into consideration. This study extends on these prior articles by analysing the taxation of an individual from a South African perspective in combination with double taxation agreements and legislation of the United States of America, Australia and Saudi Arabia. The aim of this study is to create a structure for planning an employee’s taxation liability when sent on a secondment assignment and to provide all the relevant aspects that should be taken into consideration to determine the employee’s final tax liability. This study discusses the South African legislation relevant to employment income, determining the employee’s resident status, the relevant double taxation agreements articles and three countries: USA, Australia and Saudi Arabia, double taxation agreements and legislation on non-residents. The study concludes by summarising the taxation effect on a South African employee working in one of these countries. AFRIKAANS : Maatskappye wat in internasionale markte handeldryf en hulle werknemers in buitelandse poste aanstel het ʼn alledaagse deel van baie Suid-Afrikaners se lewens geword. Die belastingbeplanning rondom hierdie opdragte kan ‘n komplekse berekening word wat of gunstig vir die werknemer kan wees of in ‘n onverwagse belastingimplikasie kan ontaard. Alhoewel daar al baie artikels geskryf is ten opsigte van die belastingeffek vir Suid-Afrikaanse werknemers wat oorsee werk, is daar min navorsing gedoen wat die Suid-Afrikaanse wetgewing met die effek van dubbelbelastingooreenkomste asook die belastingwetgewing van ander lande kombineer. Hierdie studie is ‘n uitbreiding van hierdie artikels deurdat dit die belastingeffek van Suid-Afrikaanse individue analiseer deur Suid-Afrikaanse wetgewing te kombineer met dubbelbelastingooreenkomste en belastingwetgewing van die Verenigde State van Amerika, Australië en Saoedi-Arabië. Die doel van die studie is om ‘n struktuur daar te stel om ‘n individu se belastingaanspreeklikheid te beplan wanneer hy in ‘n internasionale pos aangestel word en om al die relevante aspekte in ag te neem om sy finale belastingaanspreeklikheid te bepaal. Die studie bespreek Suid-Afrikaanse wetgewing rakende werknemers inkomste, die bepaling van die individu se inwoner-status, die relevante dubbel belasting-ooreenkomste artikels en drie lande: VSA, Australië en Saoedi-Arabië, se dubbel belasting-ooreenkomste en wetgewing op nie-inwoners. Die studie kom tot die gevolgtrekking deur die belasting effek van ‘n Suid-Afrikaanse werknemer wat in een van die bogenoemde lande werk, op te som. Copyright 2011, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. Please cite as follows: Van Wyk, TC 2011, Critical analysis of the taxation of South African employees working abroad, MCom dissertation, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-03092012-125019 / > F12/4/169/gm / Dissertation (MCom)--University of Pretoria, 2012. / Taxation / unrestricted

Double taxation could arise in a situation where resident- resident conflicts occur. Resident–resident conflicts occur in the situation where both countries regard such a person as a “resident” for tax purposes under their domestic legislation. For that reason, all income that is earned by that person, irrespective of the jurisdiction it is earned in, will be subject to tax in both countries. In order to resolve these conflicts, the Organisation for Economic Cooperation and Development’s (“OECD’s”) Model Tax Convention contains a tie breaker clause which states that a non-individual shall be deemed to be a resident only of the State in which the ‘place of effective management’ is situated. It was found that although there were conflicting views, the expression ‘place of effective management’ was mainly determined with reference to the place where real management actually makes decisions on key business affairs of the company. Based on the following reasons it was concluded that using ‘place of effective management’ as a tie breaker rule was ineffective. • With improved communication technology and increased mobility of top level management, it makes it very difficult to pinpoint a single location where the ‘place of effective management’ is positioned; • Changes to the generic managerial structures seen in the past, makes it increasingly complex to determine where the ‘place of effective management’ is situated; and • There is no universal interpretation of the term ‘place of effective management’ within the international arena. Against the backdrop that each option for determining the ‘place of effective management, analysed in Chapter 4 had its own flaws, it is almost impossible to determine a company’s residency based on a single test. It was therefore, recommended that the tie breaker rule consist of a hierarchy of the following tests. 1. Deemed to be resident of the country in which place of effective management is situated, as defined by SARS’ interpretation. 2. Deemed to be a resident of the country in which its economic nexus is the strongest. 3. Conflict to be resolved by mutual agreement between the two Contracting States. / Thesis (M.Com. (Tax))--North-West University, Potchefstroom Campus, 2011.

Double taxation could arise in a situation where resident- resident conflicts occur. Resident–resident conflicts occur in the situation where both countries regard such a person as a “resident” for tax purposes under their domestic legislation. For that reason, all income that is earned by that person, irrespective of the jurisdiction it is earned in, will be subject to tax in both countries. In order to resolve these conflicts, the Organisation for Economic Cooperation and Development’s (“OECD’s”) Model Tax Convention contains a tie breaker clause which states that a non-individual shall be deemed to be a resident only of the State in which the ‘place of effective management’ is situated. It was found that although there were conflicting views, the expression ‘place of effective management’ was mainly determined with reference to the place where real management actually makes decisions on key business affairs of the company. Based on the following reasons it was concluded that using ‘place of effective management’ as a tie breaker rule was ineffective. • With improved communication technology and increased mobility of top level management, it makes it very difficult to pinpoint a single location where the ‘place of effective management’ is positioned; • Changes to the generic managerial structures seen in the past, makes it increasingly complex to determine where the ‘place of effective management’ is situated; and • There is no universal interpretation of the term ‘place of effective management’ within the international arena. Against the backdrop that each option for determining the ‘place of effective management, analysed in Chapter 4 had its own flaws, it is almost impossible to determine a company’s residency based on a single test. It was therefore, recommended that the tie breaker rule consist of a hierarchy of the following tests. 1. Deemed to be resident of the country in which place of effective management is situated, as defined by SARS’ interpretation. 2. Deemed to be a resident of the country in which its economic nexus is the strongest. 3. Conflict to be resolved by mutual agreement between the two Contracting States. / Thesis (M.Com. (Tax))--North-West University, Potchefstroom Campus, 2011.

South African resident companies engaged in the exploration for and production of oil and gas outside of South Africa are subject to double taxation. This thesis evaluates whether South African resident companies engaged in the exploration for and production of oil and gas outside of South Africa receive full relief from double taxation in South Africa. The thesis provides a qualitative examination of the fundamental legal designs used for the allocation of the right to mine oil and gas and the fiscal regimes applied to the taxation of oil and gas mining at the source. The thesis explores the basis for taxation of foreign oil and gas income in South Africa and the remedies for double taxation in terms of the domestic tax legislation. Assuming that a tax treaty exists between South Africa and the host government, qualification for double taxation relief and classification of income in terms of a double taxation agreement (DTA) are evaluated. It is anticipated that a South African resident Oil and Gas company will choose the most favourable method and form of double tax relief when filing its corporate tax return in South Africa based on the commercial impact thereof. To aid in this decision, the thesis contrasts the quantum of the double tax relief under the domestic tax legislation with that available under the DTA. Using an adaptation of the IMF's FARI methodology, a quantitative analysis of the economic impact for a South African resident Oil and Gas company mining in Egypt, Equatorial Guinea, Ghana and, Nigeria is examined. The thesis concludes that there are circumstances where South African resident Oil and Gas companies are unable to achieve full double tax relief under the domestic tax legislation and make recommendations (where applicable) for amendments to the domestic tax legislation to achieve a form of full double tax relief as close as possible to the single tax principle.