Tesis sobre el tema "Qualification for income tax purposes"

This thesis is concerned with the theoretical and computational aspects of generating solutions to problems involving materials with fading memory, known as viscoelastic materials. Viscoelastic materials can be loosely described as those whose current stress configuration depends on their recent past. Viscoelastic constitutive laws for stress typically take the form of a sum of an instantaneous response term and an integral over their past responses. Such laws are called hereditary integral constitutive laws.

The objective of this thesis was to critically analyse the deductibility of bad debts for income tax purposes. This was achieved by applying a doctrinal research methodology to the data, which consisted of local and international legislation and case law, as well as other relevant writings. In setting out to achieve this primary objective, this thesis addressed certain subsidiary goals. The requirements of section 11 (i) of the South African Income Tax Act that provides for the deduction of bad debts were examined with reference to local case law, together with case law from selected international jurisdictions. To clarify the requirement of section 11 (i) that a debt must have become bad, this thesis set out to ascribe a meaning to the term “bad debt” which is currently not defined in the South African Income Tax Act and to ascertain the principles applicable in determining when a debt will be regarded as having become bad. The research also addressed the timing in relation to the identification of a debt as bad, as well as other commercial considerations. This research concluded that there is a need for further guidance in this area and provided brief recommendations that could provide more certainty in relation to the deductibility of bad debts.

The South African ("SA") mining industry played (and continues to play) a pivotal role in the development of the SA economy. It is therefore no surprise that the industry has long been the beneficiary of favourable tax concessions. One of these favourable tax concessions is the 100% capital expenditure allowance. Access to this allowance is dependent on the interpretation of the definition of "mining operations" in section 1(1) of the Income Tax Act, No. 58 of 1962 ("the ITA"). Currently, there is legal uncertainty in SA regarding the meaning of "mining operations". This is so because central to the term "mining operations" is the term "mineral", which is not defined in the ITA, nor does it have an ordinary fixed meaning. SA courts have further not authoritatively dealt with the meaning of "mining operations" despite being presented with the opportunity to do so in recent case law. This legal uncertainty is further fuelled by a recent draft interpretation note issued by the South African Revenue Service ("SARS"), expressing the view that quarrying operations for inter alia clay for brickmaking and limestone for the manufacture of cement, do not constitute "mining operations". Practically, this legal uncertainty may act as a deterrent to mining companies incurring capital expenditure, essentially curbing the development of the SA mining industry. This study seeks to analyse the different meanings attributed by SARS, SA academic writers and SA courts to the definition of "mining operations" (and the related meaning of "mineral") for income tax purposes. The purpose of this analysis is to determine whether the extraction of clay for brickmaking and limestone for the manufacture of cement constitutes "mining operations". Against this background, Australian legislation and case law on the interpretation of the term "mining operations" and "mineral" will be studied in order to draw a comparison between SA and Australia's treatment of "mining operations". This study further interprets the meaning of "mining operations" through the application of the Savignian interpetation model in terms of which it is concluded that useful guidance can be sought by SA from Australian jurisprudence when interpreting the meaning of the term "mining operations" for income tax purposes and that the purposive test applied in Australia should be adopted by SA courts. Based on the application of this guidance, the key finding of this dissertation is that the extraction of clay for brickmaking and limestone for the manufacture of cement should in principle qualify as "mining operations" and that the capital expenditure incurred in this regard should be eligible for the 100% capital expenditure allowance.

Abstract In the Assessed Taxes Act 1798, and the Duties upon Income Act 1799, William Pitt the Younger provided exemptions from those taxes for charitable institutions. However, the legislation failed to provide a definition of charitable purposes with respect to either Assessed Taxes or Duties upon Income. The problems for charitable institutions began when Addington introduced deduction at source in 1803, thus catching charitable institutions in the tax net by requiring them to claim refunds of Income Tax that had been deducted from their non-voluntary income. To deal with the issues arising from such claims, Pitt created the Special Commissioners in 1805. The Duties upon Income Act 1799 and its successors were only intended as temporary war-time taxes, and Income Tax was eventually repealed in 1816 once peace with France had been achieved. However, Peel reintroduced Income Tax in 1842, based on the earlier Income Tax Acts. Once again, Income Tax was intended only as a short-term fiscal measure, but that was not to be and, during the course of the Nineteenth Century, the Income Tax became a permanent fixture of the legislative calendar. However, the issue of what was understood by the term “charitable purposes” with respect to Income Tax became an issue which, it was suggested in 1863, Parliament should resolve. That was not to be, and it was not until 1891 that Lord Macnaghten, in Commissioners for the Special Purposes of the Income Tax v Pemsel [1891] AC 531 laid down the four principal divisions of charity that continue to dominate charity case law in the Twenty-First Century. Until then, the exemption of charitable institutions from Income Tax had been a contentious issue. Anthony Highmore, a London lawyer who was also very active in a number of London’s charities in the late Eighteenth and early Nineteenth Centuries until his death in 1829, proposed in 1786, that charities should be exempt from all forms of taxation. In 1863 Gladstone unsuccessfully challenged the exemption of charitable institutions from Income Tax, arguing that income other than voluntary donations should be taxed, and that governments should decide which charitable institutions were worthy of direct government funding. However, charity case law continued to influence the decisions of the Special Commissioners until ultimately in 1891 Pemsel resolved the issue in a case which continues to resonate in the Twenty-first Century. The question that this Thesis seeks to answer is, what was the rationale for the charitable purposes exemption from Income Tax that Pitt had provided in his Income Tax Acts? I propose that the rationale was not founded in fiscal policy, or charity case law, but in social policy as influenced by the Evangelicals of late Eighteenth Century London, predominantly William Wilberforce and Hannah More, who were close friends of William Pitt the Younger.

Includes bibliographical references.
This research paper analyses the income tax impact for international (non-resident) companies that dispose of their shares in mining or oil and gas companies situated in South Africa. Typically, a disposal of shares by a non-resident in a property-rich company in South Africa would attract CGT. In the case of the minerals sector, it is automatically assumed that a mining or oil and gas company is a so-called “land-rich” or “property-rich” company due to the nature of its operations. This paper seeks to test that assumption, ie do shares in a mining or oil gas company whose only asset is a mining or prospecting right or exploration or production right respectively qualify as an ‘interest in immovable property’ as that term is defined in the ITA for CGT purposes? To make this determination, the term ‘immovable property’ as it is used for common –law purposes and the potential misalignment of this definition when compared to the term as it is used in the ITA must be analysed.

This thesis critically analysed the apportionment of dual-purpose expenditure. In doing so, two categories of dual-expenditure were examined: expenditure that has been incurred for both trade and non-trade purposes, and expenditure that has been incurred to produce both taxable and exempt income. In conducting this analysis, this thesis set out to answer three questions: has the apportionment of dual-purpose expenditure been officially sanctioned in South Africa, when does the need for apportionment arise, and on what basis should a taxpayer apportion expenditure that has been incurred for a dual purpose? A doctrinal methodology was applied to the documentary data which consisted of relevant tax legislation; South African, Australian and English case law; and commentary of experts in the field of tax law. From the analysis performed, it was revealed that the apportionment of dual-purpose expenditure has been officially sanctioned in South Africa. In addition, it was concluded that the applicable legal principles for determining the need for apportionment and for performing the apportionment calculation are clear and well-established. The difficulty which taxpayers, the courts and the South African Revenue Service face, however, is applying these principles in practice. This research therefore concluded that there is a need for further guidance in this complex area of tax law. In addition, this research proposed some recommendations which could provide more certainty and clarity.

"Mining operations" and "mining" are defined in s 1 of the Income Tax Act (ITA). A concept that is of great significance to this definition is the matter of when a mineral is won and the related question of when does the mining process end and the process of manufacture commences. Case law has not established a definitive point that can be used by the mining taxpayer to determine where the mining process ends for income tax purposes. The Supreme Court of Appeal was presented with the perfect opportunity in the Foskor1 case to clearly define the boundaries between these processes. Unfortunately, the court did not seize this opportunity to provide legal certainty. The significance of the distinction lies in the fact that a mining taxpayer is allowed to claim accelerated capital allowances. The objective of these allowances is to provide tax relief to the mining taxpayer taking the immense risk of investing billions of rands in capital expenditure. The capital expenditure incurred will also result in direct foreign investment. This in turn will result in economic growth and job creation. Currently, there is no legal certainty as to which processes will qualify as mining operations for income tax purposes. This may result in mining taxpayers being hesitant to incur capital expenditure as the risk relating to a project would have increased. The accelerated capital allowances may therefore not serve their intended purpose. The gross domestic product (GDP) contribution from gold mining has been decreasing in the last number of years, but this decrease has to a large extent been offset by an increase in the downstream or beneficiated minerals industry. This industry has also been identified by Government as a growth sector. The downstream or beneficiated mineral industry may not be catered for in the current definition of "mining operations" and "mining" and may therefore not qualify for beneficial tax allowances. It is therefore proposed that the term "won" as used in the definition of "mining operations" and "mining" should be defined in s 1 of the ITA as follows: A mineral is "won" when all the requisite and necessary processes, including, amongst other things, refinement, beneficiation, smelting, separation, have been undertaken to the mineral to render it saleable in an open and general market. This extension will provide legal certainty to a mining taxpayer and will ensure that South Africa obtains direct foreign investment and maximum value for its minerals. This will contribute to economic growth for South Africa's developing economy and result in job creation.

Inludes bibliographical references.
The word "royalty" is used in South Africa's Income Tax Act No. 58 of 1962 ("TA") at various points. Although there is a general understanding on the meaning of a royalty, there is no official definition for this term which can be used throughout the ITA. Section 35 of the ITA provides the strongest guidance of what a royalty is. However, this section applies to royalties and similar payments.

La transparence, la semi-transparence, la translucidité ou encore la personnalité fiscale sont autant d’images fiscales formant le paradigme français de la fiscalité internationale des sociétés de personnes, en ce sens que ces images sont mobilisées pour poser et répondre aux problématiques relatives à l’imposition française du revenu réalisé sous la forme d’une société de personnes en situation d’extranéité. Par ce recours aux images fiscales, la conception française de la fiscalité internationale des sociétés de personnes distingue les sociétés de personnes de droit français de celles de droit étranger. D’une part, les sociétés de personnes de droit français, réputées semi-transparentes et disposant d’une personnalité fiscale distincte de leurs associés, sont considérées comme les sujets d’une imposition pourtant assumée par leurs associés. Sur ce fondement, ces sociétés sont qualifiées de résident au sens des conventions visant à éliminer les doubles impositions. Les règles conventionnelles de territorialité sont alors appliquées au niveau de la société et non à celui de leurs associés. D’autre part, le droit fiscal français accepte de recevoir la transparence fiscale des sociétés de personnes étrangère pour appliquer les conventions fiscales à leurs associés. Il en résulte une conception française de la fiscalité internationale des sociétés de personnes difficilement compréhensible, non seulement au regard de celle pratiquée par les droits étrangers, mais également au regard du droit interne. En se détachant du recours constant aux images fiscales pour se concentrer sur une étude des textes français, britannique et américain, la conception française de la fiscalité internationale des sociétés de personnes peut être écartée. Par cette étude critique des images fiscales, l’altérité véhiculée par les images fiscales entre les sociétés de personnes de droit français et les partnerships de droits anglais, écossais et américain peut être dépassée au profit d’une unité (Partie 1). Celle-ci renverse les fondements de la conception française de la fiscalité internationale des sociétés de personnes et offre alors la perspective de son renouvellement (Partie 2)
Transparency, semi-transparency, translucency or fiscal personality are tax images used as a paradigm in the French conception of partnerships in international tax law, in that those images are used to think and resolve the issues raised by the taxation, in France, of international partnerships. Based on those images, the French conception of international taxation of partnership distinguishes between local partnerships and foreign partnerships. On the one hand, local partnerships are said to be semi-transparent or translucent and to have a fiscal personality distinct from their partners. Thusly, local partnerships are construed as the subject of a tax that is yet paid by the partners. Consequently, local partnerships are qualified as resident for the purpose of the bilateral conventions and the foreign partners cannot claim the application of the treaty. On the other hand, the recognition of the transparency of foreign partnerships is accepted in French tax law so the partners may claim the stipulations of the bilateral convention. This conception of international taxation of partnerships, founded on a dual approach of partnerships, is isolated from the taxation known in others countries and lacks coherence in the view of the French tax law. With a critical study of tax images in the light of the British law and the American law, this conception may be challenged. The comparison between French partnerships and British and American partnerships permits to overcome the otherness suggested by the resort of tax images, and to demonstrate instead the unity among those entities (Part 1). Once it has been ascertained, this unity challenges the foundation of the French conception of international taxation of partnership and allows the prospect of its renewal (Part 2)

The increase in the life expectancy of natural persons has become a worldwide phenomenon. People live longer and need income for longer periods of time. Individuals need to start saving for their retirement early in life while still part of the workforce. Insufficient retirement savings lead to individuals not having sufficient income for their retirement. People become dependent on the government for assistance in paying for their day-to-day living expenses, leading to increases in social grants payable by the government. In South Africa the National Treasury needs to budget through taxation for the increase in the old age pension, which increases government expenditure. Additional income tax will therefore need to be raised to ensure that the national deficit does not increase further. Personal income taxes will directly be affected by the increase in the life expectancy. Research has been done internationally on the increase in life expectancy and the possible effect on the governments of those countries. No research has, however, been done in such detail in South Africa. This study provided information on the increase in the life expectancy of the South African population and the effect on the increase of old age pension as a social grant expense paid by the Government to qualifying beneficiaries. The aim of this study was to gain insight in the increase in the number of elderly people, those individuals aged 60 years and older, and the relation between this increase and the increase in the number of old age pension beneficiaries together with the increase in the budgeted expenses by the Government for old age pension. From a theoretical perspective, this study aimed to identify the possibility of increasing the retirement age to help people receive an income from employment for longer and to provide for themselves during the longer years in retirement. Finally the study aimed to assess this impact on taxation. A number of factors play a role in the increase of the number of old age pension beneficiaries and the resulting old age pension expense in the government budget. This study only focused on the role that the increase in life expectancy plays. AFRIKAANS : Die toename in die lewensverwagting van natuurlike persone het ’n wêreldwye verskynsel geword. Mense leef langer en moet ’n inkomste vir ’n baie langer tydperk hê. Individue moet reeds vroeg, terwyl hulle nog deel is van die werksmag, begin spaar vir hul aftrede. Onvoldoende aftreefondse lei daartoe dat pensioenarisse nie voldoende inkomste tydens hul aftrede verdien nie. Hierdie tekort lei daartoe dat individue afhanklik is van die regering om hulle by te staan vir die betaling van daaglikse uitgawes. Dit lei tot die verhoging in die maatskaplike toelaes wat deur die regering betaal word. In Suid-Afrika moet die Nasionale Tesourie in die begroting voorsiening maak vir die toename in die ouderdomspensioen wat tot ’n toename in regeringsuitgawes lei. Ekstra inkomste moet ook verkry word om te verseker dat die nasionale tekort nie verder toeneem nie. Persoonlike inkomstebelasting word regstreeks hierdeur beïnvloed. Internasionale navorsing is gedoen op die toename in lewensverwagting en die moontlike invloed op die regerings van daardie lande. Soortgelyke navorsing is egter nog nie in Suid-Afrika gedoen nie. Dié studie bied meer inligting oor die toename in lewensverwagting van die Suid-Afrikaanse bevolking en die effek daarvan op die toename in die ouderdomspensioen as ’n maatskaplike toelaag wat deur die regering betaal word aan begunstigdes wat daarvoor kwalifiseer. Die doel van hierdie studie was om insig te verkry in die toename in die aantal bejaardes, individue van 60 jaar en ouer, en die verwantskap tussen hierdie toename en die toename in die aantal ouderdomspensioen begunstigdes asook die begrote regeringsuitgawe vir ouderdomspensioene. Die studie het gepoog om vanuit ’n teoretiese oogpunt te kyk na die moontlikheid om die aftreeouderdom te verhoog sodat mense langer inkomste kan verdien en vir hulleself kan sorg in die langer aftreetydperk. Die studie het ook gekyk na die invloed hiervan op belasting. Verskeie faktore speel ’n rol in die groei van die aantal individue wat ouderdomspensioen ontvang en gepaardgaande toename in die ouderdomspensioenbegroting van die regering. Die studie het slegs gefokus op die rol wat die verhoging in lewensverwagting speel.
Dissertation (MCom)--University of Pretoria, 2012.
Taxation
unrestricted

Esta dissertação tem o objetivo de analisar a figura dos juros sobre o capital próprio, especialmente para definir a sua natureza jurídica e adequada qualificação no âmbito dos acordos para evitar a dupla tributação. Para tanto, além de fazermos uma digressão sobre o histórico de tal figura e os motivos da sua instituição, visando entendê-la melhor, estudamos, sob a perspectiva do Direito Tributário e também do Direito Comercial, as diferentes formas de remuneração do capital financiado por meio de capital próprio e de capital de terceiros, quais sejam: os dividendos e os juros remuneratórios. Analisamos detalhadamente as regras tributárias aplicáveis ao pagamento de juros sobre o capital próprio e também aquelas que definem a sua forma de cálculo. Comparamos as particularidades dos juros sobre o capital próprio às figuras dos dividendos e dos juros remuneratórios, de modo a definir a sua natureza jurídica como espécie de remuneração de sócios, diversa dos dividendos. Criticamos alguns aspectos das correntes atualmente existentes sobre o assunto, justificando a nossa posição. Analisamos, também, a forma adequada de qualificação dos juros sobre o capital próprio nos acordos para evitar a dupla tributação, especialmente em relação à Convenção Modelo da Organização para a Cooperação e Desenvolvimento Econômico (OCDE). Ao final, concluímos que, a despeito de os juros sobre o capital próprio terem natureza de remuneração de sócios diversa da figura dos dividendos, para fins de aplicação dos acordos para evitar a dupla tributação, devem ser qualificados como dividendos.
This dissertation aims at analyzing the interest on equity, especially to define its nature and proper qualification within the treaties to avoid double taxation. For this purpose, in addition to the history of the interest on equity and the reasons that justified its creation, we study, from a Corporate Law and also Tax Law standpoint, the different kinds of remuneration of equity and debt, which is: dividends and interests. We also analyze in details the tax rules applicable to the payment of the interest on equity and the ones that provide for its calculus. We compare the specificities of the interest on equity with the dividends and interests, in order to define its nature as a kind of equity remuneration, which may not be associated to dividends. In this regard, we criticize specific aspects of the existing understandings on the issue, justifying our opinion. Moreover, we analyze the proper qualification of the interest on the equity within the treaties to avoid double taxation, in particular the Model Tax Convention of the Organisation for Economic Co-operation and Development (OECD). We conclude that, even though the interest on equity is a kind of equity remuneration, which is different from the dividends, for the purposes of applying treaties to avoid double taxation, it should be qualified as dividends.

Advertising plays a distinct role in economies around the world and, in this regard, diverse countries have been investigated in this study including the BRICS countries. It focused on the classification of advertising cost for tax purposes. Research questions posed by this study are answered through the development of a classification process that may assist with the classification of advertising cost for the purpose of taxation. It has been established that guidelines for the classification of advertising cost as capital or revenue of nature are needed to correctly classify advertising cost for tax purposes. Furthermore, the determination of when advertising cost will be regarded as capital of nature is required. The study used a mixed method research approach, involving a literature review of case law and income tax acts as well as an analysis of annual financial statements. Findings from this research indicate a growing trend in revenue generated from advertising in South Africa; proving the importance of the advertising market in the economy. Guidelines for the classification of advertising cost for tax purposes were established by using principles from national and international case law.
MCom (Accountancy)--North-West University, Vaal Triangle Campus, 2015