The term ‘beneficial ownership’ is included in numerous tax treaties that are concluded between countries today but the majority of these treaties do not define the term. The purpose of this study is four fold. Firstly, to investigate what the meaning is of the term ‘beneficial owner’ for tax treaty purposes? Secondly, what factors should be taken into account to determine the beneficial owner, if any? Thirdly, what the meaning of the term ‘beneficial ownership’ is in the context of those tax treaties where the term has been incorporated, and lastly, if the term ‘beneficial owner’ should have a domestic law, international tax or tax treaty meaning? The study was conducted by reviewing various articles, opinions, court cases and government publications, that deals with the issues raised in the preceding paragraph, and then to identify if there are answers to these questions that were raised? The study concludes that there is no concrete on-line definition for the term “beneficial owner” and that various factors need to be considered in support of the term. The Chinese revenue authority has recently issued various circulars, setting out various factors that need to be considered in an attempt to identify the beneficial owner. Equally important is the factors that need to be considered as set out in the ‘Limitation on Benefits’ clause that appears in most US tax treaties. The study also concludes that the findings of the Court in the Indofood International Finance Ltd v JP Morgan Chase Bank NA regarding the fact that the term ‘beneficial owner’ should have an international fiscal meaning is appropriate. Although there are counter arguments supporting the fact that an domestic tax law meaning pertaining to the specific taxes should prevail over any other meaning or that the term should be interpreted in a purely treaty framework, and not be referenced to domestic law, where there is a well established international law meaning for the term, an international fiscal meaning will result in a more consistent interpretation between Contracting States and limit misinterpretation due to differences in tax and legal systems. AFRIKAANS : Die term ‘voordelige eienaar’ is ingesluit in menige belasting ooreenkomste wat tussen lande gesluit word vandag, maar die meerderheid van hierdie ooreenkomste, definieer nie die term ‘voordelige eienaar’ in die ooreenkoms nie. Die doel van hierdie studie is vier voudig. Eerstens, om vas te stel wat die betekenis van die term ‘voordelige eienaar’ vir belasting ooreenkoms doeleindis is. Tweedens, watter faktore inaggeneem moet word in die vasstelling van die betokens van die term ‘voordelige eienaar’, indien enige. Derdens, wat die betekenis van die term ‘voordelige eienaar’ is in die belasting ooreenkomste waar die term reeds geïnkorporeer is en laastens, of die term ‘voordelige eienaar’ ‘n nasionale, internasionale of belasting ooreenkoms betekenis moet hê. Die studie is uitgevoer deur artikels, opinies, hofsake en regering’s publikasies te hersien, wat met die vrae wat in die vorige paragraaf aangespreeks is handel, en om dan te identifiseer of daar antwoorde is op die vrae wat geopper is? In die die studie wat gedoen is is gevind dat daar tans geen vaste een-lyn definisie is vir die term ‘voordelige eienaar’ nie, en dat menigde faktore inaggeneem moet word ter ondersteuning van die term. Die Chinese Belastingowerheid het onlangs menigde Omskrywings uitgereik wat menigde fatore uiteensit wat oorweeg moet word in ‘n poging om die voordelige eienaar te identifiseer. Ewe belangrik is die faktore wat oorweeg moet word soos uiteengesit in die ‘beperking op voordele’ klousule wat in meeste Verenigde State van Amerika belasting ooreenkomste voorkom. Die studie het ook gevind dat die bevinding deur die Hof in die “Indofood International Finance Ltd v JP Morgan Chase Bank NA” saak rakende die feit dat die term ‘voordelige eienaar’ ‘n internasionale fiskale betekenis moet he toepaslik is. Alhoewel teen argumente ter ondersteuning is van die feit dat ‘n nasionale belasting wetgewing betekenis rakende die spesifieke belasting voorkeer moet kry bo enige ander mening van die term ‘voordelige eienaar’ of dat die term uitsluitlik in ‘n belasting ooreenkoms hoedanigheid geïntreperteer moet word, en nie moet verwys na nasional wetgewing waar daar reeds ‘n goed gevestigde internasionale wetgewing betekenis vir die term is nie, sal ‘n internasionale fiskale betekenis ‘n meer konsekwente interpretasie tussen Kontrakterende State tot gevolg hê en die verkeerde interpretasie as gevolg van verskille in belasting sisteme en wetgewing voorkom. / Dissertation (MCom)--University of Pretoria, 2010. / Taxation / unrestricted

Individuals are constantly on the lookout for tax incentives or ways in which they can pay less tax without ending up in the tax authorities‟ bad books. Driven by the desire for a better life, individuals are willing to try everything within their legal powers and rights to avoid having to pay exorbitant taxes. South African employees are in no way an exception to these circumstances. Urged on by their belief that South African taxes are unreasonably high, individuals have crossed international borders in the hope of finding a location where their income will not be subject to exorbitant taxes. Research on the effects of taxation on labour migration has been carried out in countries such as Australia, the Netherlands, Norway and Indonesia. Although greatly affected by the growing population of labour migration, the majority of the research conducted in South Africa with regard to labour migration has focused mainly on the reasons motivating migration among skilled South African labourers. As far as could be determined, little or no research has been conducted to assess whether the reasons (inter alia, the South African personal income tax system) cited by South Africans justify the rapid rate at which South Africans flee from the country. The aim of this study is to establish whether South African employees working in the Netherlands and Australia receive any tax incentives or beneficial tax treatment that they otherwise would not have received had they remained employed in South Africa. This objective will be achieved by assessing whether a South African employee is placed in a more beneficial tax position when they accept international employment assignments in the Netherlands and Australia as opposed to the tax position they would find themselves in should they turn down any and all international employment assignments (i.e. remain employed in South Africa no matter what). The study will discuss the tax principles an employee will be subject to upon accepting an international employment assignment in either Australia or the Netherlands. The tax principles of the respective countries will then be compared to those applicable to employees who remain employed in South Africa. This comparison will be conducted with the primary objective of establishing in which of the three countries a South African employee receives the most beneficial tax treatment. AFRIKAANS : Individue is voortdurend op die uitkyk vir belastingtoegewings of maniere waarop hulle minder belasting kan betaal sonder om by die belastingowerheid in die moeilikheid te kom. Aangedryf deur die begeerte vir 'n beter lewe, is individue bereid om alles te probeer om binne hul wetlike magte en regte te voorkom dat hulle buitensporige belasting betaal. Suid-Afrikaanse werknemers is geen uitsondering in hierdie verband nie. Gemotiveer deur hul siening dat Suid-Afrikaanse belasting onredelik hoog is, het individue internasionale grense oorgesteek het in die hoop om 'n plek te vind waar hul inkomste nie onderhewig sal wees aan buitensporige belasting nie. Navorsing oor die effek van belasting op arbeidsmigrasie is in lande soos Australië, Nederland, Noorweë en Indonesië onderneem. Die meeste van hierdie navorsing het gefokus op die redes waarom geskoolde Suid-Afrikaanse werkers emigreer. Sover vasgestel kon word, is min of geen navorsing gedoen om te bepaal of die redes (onder meer, die Suid-Afrikaanse persoonlike inkomstebelastingstelsel) aangehaal deur Suid- Afrikaners die vinnige tempo regverdig waarteen Suid-Afrikaners die land verlaat nie. Die doel van hierdie studie is om vas te stel of Suid-Afrikaanse werknemers in Nederland en Australië enige belastingtoegewings of voordelige belastingbehandeling ontvang wat hulle nie sou ontvang het as hulle in Suid-Afrika in diens gebly het nie. Hierdie doel sal bereik word deur te bepaal of 'n Suid-Afrikaanse werknemer in 'n meer voordelige belasting posisie geplaas word wanneer hulle internasionale indiensnemingsopdragte in Nederland en Australië aanvaar, in teenstelling met die belasting posisie waarin hulle hulself sal bevind indien hulle alle internasionale indiensneming werkopdragte van die hand wys (maw tot elke prys in Suid-Afrika in diens bly). Die studie sal die belastingbeginsels bespreek waaraan 'n werknemer onderhewig sal wees by die aanvaarding van 'n internasionale indiensnemingsopdrag in Australië of Nederland. Die belastingbeginsels van die onderskeie lande sal dan vergelyk word met dié wat van toepassing op werknemers wat in Suid-Afrika in diens bly. Hierdie vergelyking sal plaasvind met die primêre doel om te bepaal in watter van die drie lande 'n Suid-Afrikaanse werknemer die mees voordelige belastinghantering ontvang. 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: Mabaso, ND 2011, An international comparative study of the effect of personal income tax on labour migration, MCom dissertation, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-03122012-125824 / > F12/4/170/gm / Dissertation (MCom)--University of Pretoria, 2012. / Taxation / unrestricted

The concept "beneficial use" plays a pivotal role in South African water law reform. It forms the foundation of the mechanism to make water use rights available for the reform of the allocation of water use entitlements. The mechanism involves that water use rights that were unexercised in the two years before the promulgation of the National Water Act 36 of 1998 are not defined as existing lawful water uses. Where the concept "beneficial use" is utilised to cancel unexercised water use rights, it can cause potential hardship. Some people whose rights have been cancelled believe that they should be able to rely on the property clause in section 25 of the Constitution of 1996 to either have the legislation declared unconstitutional or to demand compensation. Section 25 of the Constitution of 1996 prohibits the arbitrary deprivation of property and states that property may only be expropriated for a public purpose or in the public interest, subject to compensation. Section 25(4) states, however, that the public interest includes the nation's commitment to land reform and to reforms to bring about equitable access to all South Africa's natural resources. It is clear from this that reforms to bring about access to water are allowed by the property clause. One of the main questions discussed in this thesis was whether section 32 of the National Water Act 36 of 1998 that made more water available for distribution for reform purposes by cancelling unexercised water user rights, leads to an arbitrary deprivation or an expropriation of property. It should be noted that section 32 of the National Water Act did not constitute an arbitrary deprivation of property, as sufficient reason exists for water law reform. A possible constitutional challenge based on the lack of due process of law because of the retrospective operation of the section may possibly be averted because of the existence of section 33 of the National Water Act. Section 33 of the Act mitigates hardship by allowing unexercised water uses to be declared existing lawful water uses in certain circumstances where a good reason for the non–exercise of the water use right existed. Even in cases where section 33 does not prevent section 32 from being regarded as an arbitrary deprivation of property because there still was not a proper procedure, the government will probably be able to show that the limitation in section 32 is, in terms of section 36(1) of the Constitution of 1996, reasonable and justifiable in an open and democratic society. Despite the fact that section 25(1) prohibits arbitrary deprivations, it does not prohibit the government from regulating competing rights to use water even though some people may be negatively affected by the regulation. Because the Minister merely acts as public trustee of the nation's water resources on behalf of the national government in terms section 3(1) of the National Water Act, it cannot be claimed that the government acquired the cancelled water use rights. A claim that compensation should be paid for an expropriation of property will therefore not succeed. Compensation is only payable in terms of section 22(6) and section 22(7) of the National Water Act 36 of 1998 for a loss of existing water entitlements, such as existing lawful water uses or existing licences. A court should thus consider interpreting section 25 by providing for compensation where an individual was unfairly burdened and was therefore denied the protection of the equality clause in section 9 of the Constitution when his unexercised water use rights were cancelled by section 32. The concept "beneficial use" currently restricts the content of the water use entitlement existing in terms of section 4 of the National Water Act 36 of 1998. The loss of the entitlement when inter alia a licence for an existing lawful water use is refused, is not protected by the payment of compensation when water is used in an unfair or disproportionate manner, because such utilisation would not be regarded to be beneficial use. It became apparent that in terms of the current water law dispensation in South Africa, the possibility of compensation for an amendment of a water use licence and the refusal of a licence for an existing lawful water use implies that a water use entitlement is a right in property. The fact that section 22(7) of the National Water Act states that the amount of the compensation must be determined in accordance with section 25(3) of the Constitution implies that the legislature also recognises that a water use entitlement is constitutional property. Section 22(7) of the National Water Act underlines the basic premises of the National Water Act by subjecting the amount of the compensation that is payable to the same limitations that restrict the entitlement to use the water. The stipulations of section 22(7) draw the attention to the fact that the exercise of both existing lawful water uses and water use licences as rights in property is subject to basic principles of the National Water Act such as the Reserve and the concepts "public trusteeship" and "beneficial use" of the water resources. The fact that compensation is only payable when there has been severe prejudice to the economic viability of an undertaking implies that water use entitlements have to be exercised at the time of the application for the compensation to be payable. The concept "beneficial use" – in the sense that a water use must not be wasteful or polluting and in the sense that only water use entitlements that are being exercised are protected – thus restricts the water use entitlement as a property right. During the research, American and Australian water law reform and their interpretation of their property clauses were compared to water law reform in South Africa and the South African property clause. Furthermore, Australian policy to encourage more beneficial water use by the trade in water entitlements or allocations, was also discussed. South Africans will likely in future be encouraged to trade in water use entitlements or allocations. The objective with allowing the trade in water use entitlements or allocations is to encourage people to rather use water for uses with a high value instead of uses with a lower value. In this way the concept "beneficial use" may be broadened to include water allocation or entitlement trading. However, it was argued that a disproportionate impact on third parties would mean that water allocation or entitlement trading would in some cases not be regarded as beneficial use anymore. / Thesis (LL.D.)--North-West University, Potchefstroom Campus, 2011.

The concept "beneficial use" plays a pivotal role in South African water law reform. It forms the foundation of the mechanism to make water use rights available for the reform of the allocation of water use entitlements. The mechanism involves that water use rights that were unexercised in the two years before the promulgation of the National Water Act 36 of 1998 are not defined as existing lawful water uses. Where the concept "beneficial use" is utilised to cancel unexercised water use rights, it can cause potential hardship. Some people whose rights have been cancelled believe that they should be able to rely on the property clause in section 25 of the Constitution of 1996 to either have the legislation declared unconstitutional or to demand compensation. Section 25 of the Constitution of 1996 prohibits the arbitrary deprivation of property and states that property may only be expropriated for a public purpose or in the public interest, subject to compensation. Section 25(4) states, however, that the public interest includes the nation's commitment to land reform and to reforms to bring about equitable access to all South Africa's natural resources. It is clear from this that reforms to bring about access to water are allowed by the property clause. One of the main questions discussed in this thesis was whether section 32 of the National Water Act 36 of 1998 that made more water available for distribution for reform purposes by cancelling unexercised water user rights, leads to an arbitrary deprivation or an expropriation of property. It should be noted that section 32 of the National Water Act did not constitute an arbitrary deprivation of property, as sufficient reason exists for water law reform. A possible constitutional challenge based on the lack of due process of law because of the retrospective operation of the section may possibly be averted because of the existence of section 33 of the National Water Act. Section 33 of the Act mitigates hardship by allowing unexercised water uses to be declared existing lawful water uses in certain circumstances where a good reason for the non–exercise of the water use right existed. Even in cases where section 33 does not prevent section 32 from being regarded as an arbitrary deprivation of property because there still was not a proper procedure, the government will probably be able to show that the limitation in section 32 is, in terms of section 36(1) of the Constitution of 1996, reasonable and justifiable in an open and democratic society. Despite the fact that section 25(1) prohibits arbitrary deprivations, it does not prohibit the government from regulating competing rights to use water even though some people may be negatively affected by the regulation. Because the Minister merely acts as public trustee of the nation's water resources on behalf of the national government in terms section 3(1) of the National Water Act, it cannot be claimed that the government acquired the cancelled water use rights. A claim that compensation should be paid for an expropriation of property will therefore not succeed. Compensation is only payable in terms of section 22(6) and section 22(7) of the National Water Act 36 of 1998 for a loss of existing water entitlements, such as existing lawful water uses or existing licences. A court should thus consider interpreting section 25 by providing for compensation where an individual was unfairly burdened and was therefore denied the protection of the equality clause in section 9 of the Constitution when his unexercised water use rights were cancelled by section 32. The concept "beneficial use" currently restricts the content of the water use entitlement existing in terms of section 4 of the National Water Act 36 of 1998. The loss of the entitlement when inter alia a licence for an existing lawful water use is refused, is not protected by the payment of compensation when water is used in an unfair or disproportionate manner, because such utilisation would not be regarded to be beneficial use. It became apparent that in terms of the current water law dispensation in South Africa, the possibility of compensation for an amendment of a water use licence and the refusal of a licence for an existing lawful water use implies that a water use entitlement is a right in property. The fact that section 22(7) of the National Water Act states that the amount of the compensation must be determined in accordance with section 25(3) of the Constitution implies that the legislature also recognises that a water use entitlement is constitutional property. Section 22(7) of the National Water Act underlines the basic premises of the National Water Act by subjecting the amount of the compensation that is payable to the same limitations that restrict the entitlement to use the water. The stipulations of section 22(7) draw the attention to the fact that the exercise of both existing lawful water uses and water use licences as rights in property is subject to basic principles of the National Water Act such as the Reserve and the concepts "public trusteeship" and "beneficial use" of the water resources. The fact that compensation is only payable when there has been severe prejudice to the economic viability of an undertaking implies that water use entitlements have to be exercised at the time of the application for the compensation to be payable. The concept "beneficial use" – in the sense that a water use must not be wasteful or polluting and in the sense that only water use entitlements that are being exercised are protected – thus restricts the water use entitlement as a property right. During the research, American and Australian water law reform and their interpretation of their property clauses were compared to water law reform in South Africa and the South African property clause. Furthermore, Australian policy to encourage more beneficial water use by the trade in water entitlements or allocations, was also discussed. South Africans will likely in future be encouraged to trade in water use entitlements or allocations. The objective with allowing the trade in water use entitlements or allocations is to encourage people to rather use water for uses with a high value instead of uses with a lower value. In this way the concept "beneficial use" may be broadened to include water allocation or entitlement trading. However, it was argued that a disproportionate impact on third parties would mean that water allocation or entitlement trading would in some cases not be regarded as beneficial use anymore. / Thesis (LL.D.)--North-West University, Potchefstroom Campus, 2011.