published_or_final_version / Law / Master / Doctor of Legal Studies

Globalization has placed a considerable strain on the current international tax structure predicated upon bilateral tax treaties. Multilateral cooperation may allow nation states to overcome many of globalization's effects. / The two prospects for multilateral cooperation are the creation of an international tax organization and a multilateral tax treaty to replace the current bilateral tax treaty network. Whereas there is currently no organization responsible for the surveillance of the international tax system, such an organization is within the realm of possibility. The perfect home for such an organization would be the OECD given its large expertise and history in taxation. However for political reasons it is difficult to foresee such scenario in the near future. / A more likely prospect is the creation of a series of multilateral tax treaties for economic regions. This is due to the fact that a multilateral tax treaty, as demonstrated by the Nordic Tax Convention, can be most successful within a group of nations that share close cooperation and highly integrated economies such as members of the EU or NAFTA already tied together through trade agreements.

South African investors who have invested or plan to invest their funds offshore have to comply with various legislations, more particularly, the Income Tax Act and the Exchange Control Act. The change-over process from a source basis to a world-wide basis has left many resident investors confused. The need for clarity is exacerbated by the amnesty granted to residents of South Africa, in terms of exchange control and income tax contraventions relating to offshore assets. Resident investors put together complex structures using trusts and companies to 'conceal' their assets. This amnesty provided investors with an opportunity to declare their investments and to legalise their foreign investment tax affairs without the fear of criminal prosecution. The practical application of the various tax provisions is complex and the consequences of non-compliance are severe. Many resident investors are unaware that they could apply to them. There are two crucial questions that are the cornerstone of this study and they have a significant impact on the future planning opportunities that may exist: • First, is the use of an offshore trust or foreign company beneficial? • Secondly, what is the most tax-efficient offshore investment vehicle? The aim of this dissertation is to investigate and identify the various forms of tax legislation as it relates to these foreign structures and investment vehicles, and then to provide a focused analysis of the relevant legislation. A case study is provided to facilitate the understanding and research of this topic. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2009.

For eighty-six years up to the year 2000, the South African income tax system was based primarily on the source principle. This meant that only income which was from a source in the Republic or deemed to be from a source in the Republic was taxable in the hands of residents. The election of a new Government in 1994, and the subsequent relaxation in exchange controls, necessitated a change from the source-based system of taxation to a residence-based system of taxation. The residence-based system of taxation in turn necessitated the introduction of new legislation to ensure that South African residents were taxed on their foreign source income, and appropriate anti-avoidance provisions were in place in order to prevent an erosion of the South African tax base. The residence-based system of taxation was phased into South Africa by the introduction of section 9C to the Act. Section 9C was introduced in 1997 as an interim and partial provision which provided for the taxation of foreign passive income on a residence-basis. A possible loophole that the revenue authorities needed to deal with at the time was the fact that residents could establish controlled foreign companies in low tax jurisdictions and divert and accumulate income in such foreign jurisdictions, thereby escaping the South African tax net by avoiding or at least deferring South African tax on such income. Section 9D was introduced simultaneously with section 9C in 1997 as the specific antiavoidance provision in this regard. With the introduction of a residence-based system of taxation effective from years of assessment commencing on or after 1 January 2001, section 9C was repealed. As a result section 9C and the concepts of 'active, and 'passive' income are of historical significance, and the main focus in terms of a residence-based taxation system now remains a decision regarding whether or not a taxpayer is a 'resident' as defined in the Act. This dissertation critically analyses the structure, application, exemptions and shortcomings of section 9D as an anti-avoidance provision consequential upon the introduction of a residence-based system of taxation, and states the law up to and including the Revenue Laws Amendment Act 74 of 2002, which took effect from the commencement of years of assessment ending on or after 1 January 2003. / Thesis (M.Com.)-University of Natal, Pietermaritzburg, 2003.

The purpose of this dissertation was to study the property tax and property tax exemptions in the United States and in Indiana. The main body of this dissertation, however, deals with the State of Indiana. The method of the study is primarily legalistic: the Constitution of Indiana, the laws of Indiana, and relevant decisions of the Indiana courts provide the major portion of the research material. These constitutional and statutory provisions were considered as to the manner in which they were interpreted by the judicial authorities of the State of Indiana.Taxes and taxation are areas of great concern in the United States today. As this concern has increased, more and more attention has been paid to the property tax. This tax provides much of the revenue of county and municipal governments in the United States and plays a very important part in our national revenue system.This tax has been severely castigated by numerous critics who have studied it over the years, with some of the strongest criticisms aimed at exemptions, which have been made from the taxes. Every state in the Union has provided for at least some categories of exemption, with most allowing fairly large amounts of property to be exempted. These categories of exemptions include the property of: the federal government, states, local governments, churches, charitable organizations, veterans, and others.Very much the same thing has been done in Indiana. The State Constitution gives the legislature the power to grant exemptions from the property tax through law. This has been done in all the categories listed above, as well as some others.The scope of a statute can be expanded or contracted trememdously by judicial interpretation. Judges can make new law through their decisions or greatly change the scope of laws already written.Indiana courts have interpreted the tax exemption statutes numerous times over the years. In the cases brought before them the courts have made certain rules to guide those who are applying for exemption. These rules have also let the taxing authorities know the meaning and scope of the tax exemption statutes.The courts in construing these statutes have read them in a strict manner and have not, as a rule, expanded their meaning through interpretation.The courts have held that all exemptions are a departure from the principle that all real estate should be taxed and construed them in a narrow manner. The courts have also considered them in the light of whether or not there is a public benefit involved.In looking at the numerous exemptions that have been granted by state law, the courts determine if this has been done under a constitutional grant of power. If there is a constitutional basis for the statute, the courts than look at other aspects of the law.The courts in Indiana have not contributed to the increase in the amount of tax exempt property in the state. This has been done by the State Legislature. The courts have construed the statutes in the way that they felt was intended by the legislature. If the amount of tax exempt property is to be decreased, it will have to be done by the legislative body of the state and not the courts.

Doctorat en droit / info:eu-repo/semantics/nonPublished

The primary purpose of this study was to determine the impact of the Tax Reform Act of 1976, the Revenues Act of 1978, and other potential reform measures on investments in typical real estate syndication activities.

The South African fiscal legislators have found it necessary to introduce anti-avoidance legislation which governs controlled foreign companies in order to counteract schemes devised by taxpayers where companies are established outside South Africa for the purpose of diverting income from the South African fiscal net. Whilst the enforcement of such legislation does have merit in that the intention behind the introduction of such domestic legislation is to prevent the erosion of the South African tax base, it is submitted that this does pose a problem from an international perspective. The objective of this treatise is to conduct a critical analysis of how compatible the South African fiscal legislation which governs controlled foreign companies is with the provisions of the double taxation agreement as prescribed in terms of the OECD Model Tax Convention (which was published in July 2010). In addition, the aim of this study is to deduce whether the purpose of the double taxation agreement is not only the avoidance of juridical double taxation but also that it addresses the avoidance of economic double taxation. This will assist in determining whether domestic controlled foreign company legislation (as embodied in section 9D of the Income Tax Act 58 of 1962) conflicts with the purpose of the double taxation agreement. By conducting an extensive research study and by depicting a certain scenario which addresses the issue at hand, the following is concluded: The tax treatment of the business profits generated by a controlled foreign company resident in a State outside South Africa and which have been generated from active business operating activities, is held to be in agreement with the provisions of the double taxation agreement. By contrast, the tax treatment of the controlled foreign company’s passive income in the form of interest income, is found not to correlate with the aforesaid agreement. As will be demonstrated in the chapters that follow, the controlled foreign company’s interest income is subjected to economic double taxation in terms of the scenario depicted in this treatise. This means that such income is taxed twice in the hands of two different taxpayers in two different States. As a result of this it is submitted that the following problem arises: Because section 9D of the Income Tax Act causes economic double taxation to occur (as illustrated in the previous paragraphs) and owing to the fact that the purpose of the double taxation agreement is the avoidance of economic double taxation, it can be shown that the section 9D domestic legislation conflicts with the terms of the double taxation agreement. This conflict is considered to be an area of concern because a contravention of the purpose of the double taxation agreement is regarded as a breach of the Contracting States’ international obligations in terms of the aforesaid agreement. It is further submitted that paragraph 23 of the OECD Commentary on article 1 and paragraph 14 of the OECD Commentary on article 7 are incorrect when they express the sentiment that domestic controlled foreign company legislation does not conflict with the provisions of the double taxation agreement. It is proposed that this be corrected to state the contrary.

Foreign direct investment (FDI) was unknown to Chinese people before the opening policy in 1979, but since then China's economy has been surging ahead in the past twenty eight years. As one aspect of the FDI policy, I focused on the corporate taxation field to be my research interest, and the topic of my thesis. In the thesis, the reader will learn how FDI developed in China and degree of FDI development. Also, I provide the reader with China's tax system and policy-oriented in as much detail as possible, most of which is the tax incentive policy towards the FDI in China. However, the policies and incentives raise some issues. As the result of offering FDI tax preference, Chinese government tax revenue as a percentage of GDP has been declining steadily. Problems such as tax avoidance and evasion, and local "fake" FDI entities are getting serious. The new Corporate Income Tax Law of the People's Republic of China (CIT Law) was passed by the PRC National People's Congress on March 16 2007 and will take effect on January 2008. When China entered into the World Trade Organization (WTO) in 2001, compliance with the general rules required China improve its tax system as soon as possible. The CIT law section in the thesis includes the policy-changing behind the legislation and expected influence on the FDI in China in the future. As a result of the changes to be brought about by the CIT Law, foreign and domestic business in China must adapt to the new tax regime, and I offer some recommendations in that regard. / Law, Peter A. Allard School of / Graduate

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