Tesi sul tema "Corporations Taxation Law and legislation Australia"

Micro-economic reform is a primary objective of modern Australian socio-economic policy. The key outcome targetted by this reform is increased efficiency, measured by a range of factors, including cost reduction, increased savings, and a more facilitative environment for business activity. These benefits are sought by the proponents of reform as part of a push to increase national prosperity, but concerns that social equity is undermined by it are expressed by opponents of that reform. The debate between efficiency and equity is raging in current Australian tax policy, a key site for micro-economic reform. As Government Budget restructuring occurs in Australia, demographic change (eg, the ageing population) undermines the ability of public funded welfare to provide retirement benefits. Responsibility for self-funded retirement is an important contributor to increasing private savings. Investment in growth assets such as corporate stock is increasing in Australia, however concerns about volatility of asset values and yield stimulate the importance of investment risk management techniques. Financial contract innovation utilising financial derivatives is a dominant mechanism for that risk management. Synthetic equity products which are characterised by capital protection and enhanced yield are popular and efficient equity risk management vehicles, and are observed globally, particularly in the North American market. Financial contract innovation, risk management using financial derivatives, and synthetic equity products suffer from an adverse tax regulatory response in Australia, which deprives Australian investors from access to important savings vehicles. The negative Australian tax response stems from anachronistic legislation and jurisprudence, which emphasises tax outcomes based on legal form. The pinnacle of this approach is the tax law insistence on characterisation of financial contracts as either debt or equity, despite some important financial similarities between these two asset types. Since derivatives produce transactions with novel legal forms this approach is unresponsive to innovation. The negative tax result also stems from a perception that the new products are tax arbitrage vehicles, offering tax benefits properly available to investment in stocks, which is thought to be inappropriate when the new products resemble debt positions (particularly when they are capital protected and yield enhanced). The negative tax response reflects administrative concerns about taxpayer equity and revenue leakage. This approach seeks to impose tax linearity by proxy: rather than utilising systemic reform to align the tax treatment of debt and equity, the current strategy simply denies the equity tax benefits to a variety of innovative financial contracts. It deprives Australians of efficiency enhancing savings products, which because of an adverse tax result are unattractive to investors. The weakness of the current approach is illustrated by critical analysis of three key current and proposed tax laws: the ???debt dividend??? rules in sec. 46D Income Tax Assessment Act 1936 (the ???Tax Act???); the 1997 Budget measures (which seek to integrate related stock and derivative positions); and the proposals in the Taxation of Financial Arrangements Issues Paper (which include a market value tax accounting treatment for ???traded equity,??? and propose a denial of the tax benefits for risk managed equity investments). The thesis develops a model for financial analysis of synthetic equity products to verify the efficiency claims made for them. The approach is described as the ???Tax ReValue??? model. The Tax ReValue approach isolates the enhanced investment returns possible for synthetic equity, and the model is tested by application to the leading Australian synthetic equity product, the converting preference share. The conclusions reached are that the converting preference share provides the key benefits of enhanced investment return and lower capital costs to its corporate issuer. This financial efficiency analysis is relied upon to support the assertion that a facilitative tax response to such products is appropriate. The facilitative response can be delivered by a reformulation of the existing tax rules, or by systemic reform. The reformulation of the existing tax rules is articulated by a Rule of Reason, which is proposed in the thesis as the basis for the allocation and retention of the equity tax benefits. To avoid concerns about taxpayer equity and revenue leakage the Rule of Reason proposes a Two Step approach to the allocation of the equity tax benefits to synthetics. The financial analysis is used to quantify non-tax benefits of synthetic equity products, and to predict whether and to what extent the security performs financially like debt or equity. This financial analysis is overlayed by a refined technical legal appraisal of whether the security contains the essential legal ???Badges of Equity.??? The resulting form and substance approach provides a fair and equitable control mechanism for perceived tax arbitrage, whilst facilitating efficient financial contract innovation. The ultimate source of non-linearity in the taxation of investment capital is the differential tax benefits provided to equity and debt. To promote tax linearity the differentiation needs to be removed, and the thesis makes recommendations for systemic reform, particularly concerning the introduction of a system of ???Franked Debt.??? The proposed system of ???Franked Debt??? would align the tax treatment of debt and equity by replacing the corporate interest deduction tax benefit with a lender credit in respect of corporate tax paid. This credit would operate mechanically like the existing shareholder imputation credit. The interface of this domestic tax credit scheme with the taxation of International investment capital, and the problems occasioned by constructive delivery of franking credits to Australian taxpayers via synthetics, are resolved by the design and costings of the new system, which has the potential to be revenue positive.

Taxpayer certainty is the most frequently cited argument against statutory General Anti-Avoidance Rules (GAARs). However the vast literature criticising statutory GAARs fails to consider the extent of taxpayer uncertainty, and the potential for taxpayer uncertainty, in jurisdictions without a statutory GAAR. This thesis examines that gap in the literature. The thesis uses inductive reasoning to suggest that there is greater taxpayer certainty where a statutory GAAR exists and is appropriately administered. Specifically, it uses a case study to demonstrate that there is greater uncertainty for taxpayers where the administration, the judiciary and the legislature may use their vast powers to address perceived avoidance. The thesis then considers the form of a statutory GAAR that may best be expected to promote taxpayer certainty. Such analysis involves a comparison of Australia???s oldest statutory GAAR, Part IVA of the Income Tax Assessment Act 1936 (Cth) (and its predecessor section 260), with the more recent GAARs in Australia???s indirect tax legislation (GST and state stamp duty), and the GAARs of other jurisdictions, including New Zealand, Canada and South Africa. In order to promote taxpayer certainty, a uniform statutory GAAR is ultimately proposed for all Australian taxation legislation, with safeguards to ensure the appropriate administration of the uniform GAAR.

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

This research examined the concept of base erosion and profit shifting in the context of tax schemes employed by multinational corporations. The objective of this thesis was to identify weaknesses within South Africa’s income tax legislation, based on these schemes, and further to propose recommendations to counter the occurrence of base erosion and profit shifting by multinational companies. The research also comprised of a limited review of current global and South African initiatives to address the problem of base erosion and profit shifting. It was concluded that there are a number of weaknesses in the definitions and provisions of the South African income tax legislation that need to be addressed in order to reduce base erosion and profit shifting. Brief recommendations were proposed in relation to each of the weaknesses, in order to address them.

The purpose of this study was an empirical investigation of the factors considered by the United States Tax Court in determining whether the principal purpose for an acquisition was tax avoidance (or alternatively, given the totality of the surrounding circumstances, whether there was an overriding business purpose for the acquisition).

The research examined whether the services provided by the “sharing economy” platforms are adequately dealt with by the current South African tax systems. In addressing this main goal, the research analysed how the South African tax systems deal with the income and expenses of Uber, Airbnb and their respective service providers. The research also investigated how South Africa could classify “sharing economy” workers and how this would affect the deductibility of the worker’s expenses. A brief analysis was made of the taxation of the “sharing economy” businesses in Australia and the United States of America. These countries have implemented measures to effectively deal with regulating the “sharing economy” businesses. An interpretative research approach was used to provide clarity on the matter. Documentary data used for the research consists of tax legislation, case law, textbooks, commentaries, journal articles and theses. The research concluded that the current taxation systems have loopholes that are allowing participants in the “sharing economy” to avoid paying tax in South Africa. The thesis recommends that the legislature could adopt certain measures applied in Australia and the United States of America to more effectively regulate “sharing economy” in South African and remedy the leakages the current tax systems suffer, causing SARS to lose potential revenue.

The trust figure in South Africa has undergone an interesting process of evolution during the last century – from a mere gratuity or private tax evasion tool to a proper family protection, business entity, investment, and structured finance vehicle. Its flexibility and multi-functionality positioned the trust as an ideal legal institution for many innovative ideas in the search for holistic business structures, economic empowerment transactions, general estate planning and risk protection initiatives, and ultimately, its application as financial instrument and structured finance entity. The development of both traditional and synthetic securitisation schemes in South Africa has been investigated, with some emphasis on the application of the special purpose institution, which may be in trust form. It is submitted that the application of the trust figure has developed without any significant contribution from the local legislator. A sound legal and regulatory framework is crucial for the creation of a strong future environment for legal and financial vehicles. The question is, however, whether the current South African legal framework for the application of the business trust, and also as a vehicle for financial instruments, is adequately sound and robust in light of the standards set in the international business and financial environment. It is submitted that the hybrid nature of the South African legal landscape is conducive for the development of sound legal systems in an ever-changing legal and economic reality. It is further submitted that in the development of proper legal frameworks, South Africa should position itself particularly in its context as a Southern African developing democracy. The South African trust development is compared with that of some foreign jurisdictions as well as with international conventions and treaties of relevance. Some recommendations for necessary changes are made and it is submitted that such future development of the trust figure should not take place haphazardly, but within the context of a structured regulatory model.

Thesis (MAcc)--Stellenbosch University, 2010.
ENGLISH ABSTRACT: The Income Tax Act, Act 58 of 1962 (‘the Act’) currently defines a permanent establishment in section 1. The definition of a permanent establishment in the Act refers to article 5 of the Model Tax Convention on Income and on Capital of the Organisation for Economic Co- Operation and Development. The existence of a permanent establishment in a tax jurisdiction determines the right of the jurisdiction to tax the profits of the permanent establishment. The concept foreign business establishment was inserted into section 9D of the Act by clause 10(1)(a) of the Revenue Laws Amendment Act, Act 59 of 2000. Section 9D is an antiavoidance provision, which determines that certain foreign-sourced income generated by South African controlled foreign companies are subject to tax in South Africa. The concept foreign business establishment is one of the exclusions from the anti-avoidance provisions in section 9D. The Revenue Laws Amendment Act, Act 59 of 2000, replaced all references to the concept permanent establishment with a reference to the newly introduced concept foreign business establishment in section 9D(9)(b) of the Act. The Explanatory Memorandum on the Revenue Laws Amendment Bill, 2000 (SARS 2000:1-12) does not provide a reason for the replacement of the concept permanent establishment. The objective of this study was to analyse and compare the concepts permanent establishment and foreign business establishment in order to make recommendations regarding the required additions and amendments to replace the concept foreign business establishment with the internationally recognised and accepted concept permanent establishment. The proposed replacement of the concept foreign business establishment with an internationally recognised and accepted tax concept will enhance the international compatibility of the Act. The use of an internationally recognised and accepted tax concept will provide clarity and certainty regarding the tax implications of section 9D(9)(b) for those affected by it. It was found that the concepts permanent establishment and foreign business establishment are used in different contexts within the Act. The concepts also apply to different types of taxpayers in different situations. The two concepts have, however, the same objective, being the identification of criteria for the existence of legitimate and substantive business activities in the foreign tax jurisdiction. A comparison between the definitions of the two concepts reveals that there are various components in the definitions with the same wording and meaning. After a detailed comparison between the two definitions it was found that, subject to some suggested additions and amendments, the internationally recognised and accepted concept permanent establishment can replace the concept foreign business establishment in section 9D(9)(b) of the Act without having a material impact on the objective of section 9D(9)(b). This replacement is possible due to the mutual objective of and similar components contained in the definitions of the concepts permanent establishment and foreign business establishments.
AFRIKAANSE OPSOMMING: Die Inkomstebelastingwet, Wet 58 van 1962 (‘die Wet’) definieer ’n permanente saak in artikel 1. Die definisie van ’n permanente saak verwys na artikel 5 van die ‘Model Tax Convention on Income and on Capital of the Organisation for Economic Co-Operation and Development’. Die bestaan van ’n permanente saak in ’n belastingjurisdiksie bepaal die reg van die belastingjurisdiksie om die winste van die permanente saak te belas. Die begrip buitelandse besigheidsaak is deur artikel 10(1)(a) van die Wysigingswet op Inkomstewette, Wet 59 van 2000 in die Wet ingesluit. Artikel 9D is ’n teenvermydingsbepaling wat bepaal dat sekere inkomste vanaf ’n buitelandse bron gegenereer deur ’n Suid-Afrikaans beheerde buitelandse maatskappy in Suid-Afrika belas word. Die begrip buitelandse besigheidsaak is een van die uitsluitings van die teenvermydingsbepaling in artikel 9D. Alle verwysings in artikel 9D(9)(b) na die begrip permanente saak is deur die Wysigingswet op Inkomstewette, Wet 59 van 2000, vervang met ’n verwysing na die nuwe begrip buitelandse besigheidsaak. Die ‘Explanatory Memorandum on the Revenue Laws Amendment Bill, 2000’ (SARS 2000:1-12) verskaf nie ’n rede vir die vervanging van die begrip permanente saak nie. Die doel van die studie was om die begrippe permanente saak en buitelandse besigheidsaak te vergelyk sodat voorstelle gemaak kan word rakende die nodige byvoegings en wysings om die begrip buitelandse besigheidsaak met die internasionaal aanvaarde en erkende begrip, permanente saak, te vervang. Die voorgestelde vervanging van die begrip buitelandse besigheidsaak met ’n internasionaal aanvaarde en erkende begrip sal die internasionale verenigbaarheid van die Suid Afrikaanse wetgewing bevorder. Die gebruik van ’n begrip wat internasionaal aanvaar en erken word, sal sekerheid en duidelikheid bewerkstellig vir diegene wat deur die artikel geaffekteer word. Daar is bevind dat die begrippe permanente saak en buitelandse besigheidsaak in die Wet in verskillende verbande gebruik word. Die begrippe is ook van toepassing op verskillende belastingbetalers in verskillende situasies. Die twee begrippe het egter dieselfde doelwit naamlik die identifisering van kriteria vir die bestaan van wesenlike en volwaardige besigheidsaktiwiteite in die buitelandse belastingjurisdiksie. ’n Vergelyking tussen die definisies van die twee begrippe toon dat verskeie komponente van die definisies dieselfde woorde en betekenis bevat. Na ’n detail vergelyking van die twee begrippe is daar bevind dat, onderhewig aan sommige voorgestelde byvoegings en wysigings, die internasionaal erkende en aanvaarde begrip permanente saak die begrip buitelandse besigheidsaak in artikel 9D(9)(b) van die Wet kan vervang. Die vervanging is moontlik weens die gemeenskaplike doelwit en soortgelyke komponente in die definisies van die begrippe permanente saak en buitelandse besigheidsaak.

In his 2012 Budget Review, the Minister of Finance, Pravin Gordhan acknowledged that the introduction of the "new" Companies Act had given rise to certain anomalies in relation to tax and subsequently announced that the South African government would undertake to review the nature of company mergers, acquisitions and other restructurings with the view of possibly amending the Income Tax Act and/or the "new" Companies Act, to bring the two legislations in line with one another. These anomalies give rise to the present research. The literature reviewed in the present research revealed and identified the inconsistencies that exist between the "new" Companies Act, 71 of 2008 and the Income Tax Act, 58 of 1962, specifically the inconsistencies that exist in respect of the newly introduced amalgamation or merger provisions as set out in the "new" Companies Act. Moreover, this research was undertaken to identify the potential tax implications insofar as they relate to amalgamation transactions and, in particular, the potential tax implications where such transactions, because of the anomalies, fall outside the ambit section 44 of the Income Tax Act, which would in normal circumstances provide for tax "rollover relief". In this regard, the present research identified the possible income tax, capital gains tax, value-added tax, transfer duty tax and securities transfer tax affected by an amalgamation transaction, on the assumption that the "rollover relief" in section 44 of the Income Tax Act does not apply.

The step transaction doctrine is one of the judicial doctrines used by the courts to interpret tax law. The doctrine requires that a series of transactions be treated as a single transaction if the transactions share a single, integrated purpose. Many authors believe there is a great deal of uncertainty as to when the doctrine will be applied. Uncertainty and inconsistency in the application of tax law add to the complexity of the law. One of the most complex areas of tax law is Subchapter C of the Internal Revenue Code, which governs corporate formations, redemptions, liquidations, distributions, and reorganizations. The purpose of this study was to determine if the step transaction doctrine is being consistently applied by the Tax Court and what variables affect the judges' decision in these cases. Hierarchical logit analysis was used to derive a full model and two restricted models. The full model was used to determine the predictive power of the variables that were identified and to explain the extent to which the individual variables affect the judges' decisions. One restricted model was used to test temporal stability. The other was used to test consistency when different issues of tax law are involved. The data source was the sample of step transaction cases involving Subchapter C issues decided by the Tax Court and its predecessor, the Board of Tax Appeals. Eight variables were identified to evaluate the factors discussed in the literature and major court cases involving the doctrine. Four of the variables were found to be statistically significant. The full model correctly predicted the outcome of 79.5 percent of the cases. The restricted model to test temporal stability correctly predicted the outcome of 86.3 percent of the cases. The restricted model to test the consistency of the decisions relating to a specific topic correctly predicted the outcome of 85.7 percent of the cases.

This treatise examines the history of private equity as a context in which to understand its role in the economy and specifically, the background for the high profile leveraged buy-outs that have been entered into in the past year. The treatise then focuses specifically on the Brait-Shoprite buy-out, examining its structure and the tax implications. The treatise then reviews the reaction of the South African Revenue Authority (“SARS”) to the buy-out and evaluates whether it was the best approach that could have been taken under the circumstances. As a result of the research, the following conclusions have been reached: Private equity transactions Private equity transactions have a role to play in the business world despite the apprehensions of tax authorities. The perception that these transactions are tax driven as part of an avoidance scheme is not justified. Structure of the Shoprite buy-out transaction: The Shoprite buy-out transaction was structured to obtain deduction for interest. The transaction was also structured to utilise the relief provisions of Part II of Chapter II (Special Provisions Relating to Companies) of the Income Tax Act no.58 of 1962, as amended (“the Act”). The relief was for capital gains tax (“CGT”) on disposal of the Shoprite assets. Finally, the transaction was designed to allow the existing shareholders to exit their investments free of Secondary Tax on Companies (“STC”). The reaction of SARS to the Shoprite buy-out transaction Whereas SARS may have been justified in questioning the structure and its impact on fiscal revenue, the response in the form of withdrawing STC relief from amalgamation transactions in section 44 was not in the best interest of a stable tax system and the majority of tax payers who are not misusing or abusing loopholes in the income tax legislation. It may have been possible for SARS to attack the structure based on the General Anti-Avoidance Rule (GAAR) in part IIA of the Chapter III of the Act.

"October 2008"
Thesis (PhD)--Macquarie University, Division of Society, Culture, Media and Philosophy, Dept. of Sociology 2009.
Bibliography: leaves 273-293.
Introduction -- Patterns of corporate activity as patterns of corporate dominance: legal, organisational, and economic features of corporations -- Representations of corporate dominance in insidious injuries -- The legal basis of corporate dominance: History of the corporation -- Legal individualism and corporate personhood -- Theories of the corporation -- The legal regulation of corporations - corporate liability laws -- Conclusion.
Corporations are no longer simply a type of business structure; they are dominant social institutions. As institutions, corporations are archetypes of contemporary complex social organisation and should, therefore, be a central concern for sociology. Yet with few notable exceptions, sociologists have failed to address their increasingly dominant position in contemporary societies. In this thesis I argue the importance of a renewed sociological interest in corporations. This must acknowledge, but go beyond, the political-economic outcomes of corporations to address the profound consequences of the legal foundations of the corporate form. Corporations are created and regulated by legal doctrine; it is only with a legal mandate that corporations are able to act as employers, suppliers and investors. On this basis, I claim that any understanding of corporate dominance and its effects must commence with an appreciation of the laws that enable the corporation to exist and operate. -- While contributing significantly to wealth creation, corporate dominance also increases the potential for harm to occur to individuals and communities who fall within a corporation's scope. The contemporary proliferation of industrial illnesses is a prime example of this and is examined through a case study of the operations of an Australian asbestos corporation, James Hardie. This case study is timely and unique in its specification of the link between corporate activity and law in contemporary society. -- I argue that corporate activity such as that in the case study is enhanced and legitimated by the legal description of the corporation that assigns to it the capacities of a human individual through corporate legal personhood. Corporate personhood is examined as an example of the legal individualism endorsed in liberal common law countries. By exploring accounts of corporate structure, decision-making and work processes, I explain how the individualised description of the corporation is at odds with its collective realities; the largest and most successful corporations are collectives of human and monetary resources. -- In light of this, I question the extent to which the effective regulation of corporations can be achieved within existing legal frameworks. Building upon research into workplace health and safety in the United Kingdom, the regulation of workplace deaths in Australia is examined to demonstrate the various approaches to regulating corporations and to identify their shortcomings. This is a striking example of the problems law faces in regulating corporations by virtue of its individualistic design. -- The thesis concludes with an affirmation that sociology needs to grapple with issues of corporate activity and that an understanding of the legal basis of the corporation is the foundation of such studies.
Mode of access: World Wide Web.
295 leaves

This study investigates the impact of aspects of tax design on the operating costs of the tax system. The thesis focuses on the Australian and UK regimes for taxing the capital gains of individuals. It contends that the compliance burden faced by personal taxpayers and the administrative costs incurred by revenue authorities are directly influenced by the design of the capital gains tax ('CGT') regimes in each country. The study bridges the divide between theoretical analysis of CGT and empirical studies on tax operating costs. It uses a hybrid research design to test a series of hypotheses that emerge from a review of the literature and the experience of the researcher. It combines a technical analysis of the relevant Australian and UK legislative provisions (including an analysis of the policy and other background data that underpins those provisions) with empirical research on the views and experience of practitioners who are responsible for the operation of the legislation in the two countries. The results obtained from this combined methodology indicate that the operating costs of taxing capital gains in Australia and the UK are directly affected by the design of the legislative provisions. Moreover, the study outcomes indicate that operating costs in both countries are high (on a number of comparative measures), have not reduced over time, and are both horizontally and vertically inequitable. The research indicates that the primary factors that cause the high operating costs include the complexity of the legislation and the frequency of legislative change, together with record-keeping and valuation requirements. The thesis identifies specific legislative changes that would address operational cost concerns. These include the phasing out of the 'grandfathering' exemption together with the introduction of an annual exempt amount, and the rationalisation of business concessions in Australia; and the abolition of taper relief and its possible replacement with a 50% exclusion in the UK. More importantly, it seeks a more principled approach to the taxation of capital gains in both countries, and emphasises that legislative change can and should only be enacted with a full and clear understanding of the operating cost implications of that change.

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The research objective is to determine the tax advantage of the goodwill in the corporate restructuring operations and its relevance in decision making by businesses. The research methodology is classified qualitatively and quantitatively; the first held by the literature and document review; effected by the second crossing of the information collected. With the combination of these techniques was possible to achieve the research objective. Most of the improper use of tax goodwill in corporate restructuring operations has been identified by the amount of tax credit released on assessments due by practitioners and companies planning abusive. However, this credit also reveals the importance of the use of goodwill in these operations if it were representative of a tax elision economy. The feared extinction of goodwill did not occur, but their deduction was maintained only for transactions that occurred between unrelated parties.
O objetivo da pesquisa ?? apurar o aproveitamento tribut??rio do ??gio nas opera????es de reorganiza????o societ??ria e a sua relev??ncia na tomada de decis??o pelas empresas. A metodologia da pesquisa ?? classificada qualitativa e quantitativamente; a primeira realizada pela revis??o bibliogr??fica e documental; a segunda efetivada pelo cruzamento das informa????es coletadas. Com a combina????o dessas t??cnicas foi poss??vel atingir o objetivo da pesquisa. Na sua maioria, o aproveitamento tribut??rio indevido do ??gio nas opera????es de reorganiza????o societ??ria foi identificado pelo montante de cr??dito tribut??rio lan??ado em autua????es e devido pelas empresas praticantes de planejamentos abusivos. Em contrapartida, referido cr??dito tamb??m revela a import??ncia do aproveitamento do ??gio nessas opera????es se fosse representativo de uma economia elisiva tribut??ria. A temida extin????o do ??gio n??o ocorreu, mas sua dedu????o foi mantida apenas para as opera????es ocorridas entre partes independentes

La thèse est une collection de cinq articles académiques, chacun apportant une contribution originale à la connaissance et à la recherche scientifique dans le domaine de l’économie de l’imposition du capital et des sociétés. Les travaux empiriques de Gaëtan Nicodème se situent dans le contexte de la concurrence fiscale en Europe.

Le premier chapitre ‘Corporate Tax Competition and Coordination in the European Union: What do we know? Where do we stand? (Publié dans International Taxation Handbook) revisite la problématique de la concurrence fiscale dans l’Union Européenne, discute la littérature économique théorique et empirique sur la question et analyse les réponses politiques qui y sont apportées. Après avoir remis la problématique dans son contexte institutionnel, l’auteur compare les résultats provenant de la littérature avec les caractéristiques propres à l’Union Européenne, notamment en termes de l’étendue et des conséquences de la concurrence fiscale. Il passe ensuite en revue les questions théoriques et de mise en œuvre pratique que soulèvent une possible harmonisation et consolidation des bases fiscales de l’impôt des sociétés en Europe. Tout en gardant à l’esprit la diversité des solutions qui existent dans la mise en œuvre, il montre que l’harmonisation des bases fiscales est à même de générer des gains économiques. Le deuxième chapitre ‘Comparing Effective Corporate Tax Rates’ (à paraître dans Frontiers in Finance and Economics) passe en revue les méthodes de calcul de taux effectifs de l’impôt des sociétés. Le mérite de la contribution est non seulement d’offrir une typologie des ces taux mais également de montrer que leurs résultats sont très différents selon la méthode utilisée, que ce soit en niveau ou en classement des pays. L’auteur calcule également ces taux pour un échantillon de pays Européens avec une désagrégation sectorielle. Le troisième chapitre ‘Do Large Companies have Lower Effective Corporate Tax rates ?A European Survey’ utilise ces méthodes pour étudier s’il existe un lien entre les taux effectifs et la taille des entreprises. Utilisant de multiples méthodes d’estimation, l’auteur trouve un lien robuste et négatif entre le nombre d’employés et le taux effectif d’imposition des entreprises. Le quatrième chapitre ‘Foreign Ownership and Corporate Income Taxation :an Empirical Evaluation’ (co-auteur H. Huizinga et publié dans European Economic Review) constitue la première évaluation empirique pour l’Europe des théories d’exportation fiscale. Lorsque la mobilité du capital est imparfaite et que celui-ci est détenu par des actionnaires étrangers, les Etats ont un incitant à hausser la fiscalité pour exporter la charge fiscale sur ces actionnaires. L’étude empirique trouve une relation positive robuste entre le degré d’actionnariat étranger et la charge fiscale moyenne, validant ces théories. Le cinquième et dernier chapitre ‘Are International Deposits Tax Driven ?(Co-auteur H. Huizinga et publié dans Journal of Public Economics) analyse l’impact de l’imposition de l’épargne et de la fortune ainsi que de l’échange d’informations fiscales sur les dépôts bancaires internationaux. Utilisant des données bilatérales confidentielles de la BRI, l’étude montre que ces variables fiscales ont un impact sur ces dépôts, suggérant qu’ils sont en partie effectués pour éluder l’impôt.

Doctorat en Sciences économiques et de gestion
info:eu-repo/semantics/nonPublished

This study discusses South Africa’s tax incentives for small businesses and identifies shortcomings and areas of concern within the tax incentive regimes. A comparison of small business tax incentives provided by Australia, India, and the United Kingdom is made with South Africa’s small business tax incentives to identify similarities and differences, and new lessons are learned from the approaches of other countries. As a result of the comparison with the tax dispensations available to small businesses in other countries, the study recommends additional tax incentives that could be implemented by South Africa. Only those tax incentives that are available in other countries but not in South Africa that were deemed worthwhile were recommended to be introduced in the Republic. Recommendations were also made based on the gaps identified in South Africa’s small business tax incentives.
Taxation
M. Phil. (Accounting Sciences)

A research report submitted to the Faculty of Commerce, Law and Management, University of the Witwatersrand, Johannesburg, in partial fulfilment of the requirements of the degree of Master of Commerce (specialising in Taxation), Johannesburg, 2017
Tax Base Erosion and Profit Shifting (BEPS)1 has become an epidemic of global legal tax avoidance being used by Multinational Enterprises (MNEs). BEPS has resulted in the structuring of transactions within groups of companies, with these including: transfer pricing, manipulating prices of goods, services, management fees, professional fees, royalties, interest and dividends. This study is a critical analysis of South African legislation in relation to the Double Taxation Agreement (DTA) with the United Kingdom (UK). Reference is made to the Mutual Agreement Procedure (MAP) as proposed by the Organisation for Economic Co-operation and Development (OECD).2 Even though South Africa follows the OECD guidelines (2010),3 Advance Pricing Agreements (APA) are not included in South African legislation, which may result in double non-taxation or double taxation and disputes. Recourse in the event of double taxation is examined in this research report. The application of APA legislation in the UK, as a leading tax authority,4 is analysed, as well as Davis Tax Committee recommendations in relation to Transfer Pricing. KEYWORDS Advance Pricing Agreement, Arm’s length price, Base Erosion and Profit Shifting, Davis Tax Committee, Double Taxation, Double Taxation Agreement, Multinational Enterprises, Mutual Agreement Procedure, OECD, South African Revenue Service, Transfer Pricing. 1 Organisation for Economic Co-operation and Development (OECD). (n.d.a), ‘About BEPS and the inclusive framework’, , retrieved 5 November 2016. 2 Organisation for Economic Co-operation and Development (OECD). (2010b), Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations. Paris: OECD. 3 Supra note 2. 4 Broomberg, E. B. (2007), Tax avoidance then and now, Tax Planning Corporate and Personal, vol. 21, no. 5, pp112-118.
GR2018

A research report submitted to the Faculty of Commerce, Law and Management in partial fulfilment of the requirements for the degree of Master of Commerce (specialising in Taxation) 13 April 2017
‘The Organisation for Economic Co-operation and Development (OECD) Action Plan on Base Erosion and Profit Shifting (BEPS), is designed to prevent multinational businesses achieving nontaxation on profits or artificially shifting profits across borders to exploit lower corporate income tax rates’ (KPMG, 2014, p 5). ‘The OECD’s BEPS Action Plan, launched in July of 2013 and endorsed by the G20, included 15 key areas for identifying and curbing aggressive tax planning and practices and modernizing the international tax system’ (KPMG, 2013). It can be argued that the aim of the ‘OECD Action Plan on BEPS’ is to make provision for G20 countries, OECD countries and all other interested stakeholders to come together on an equal footing to inter alia develop new international tax rules. One of the key focus areas of the ‘OECD Action Plan on BEPS’, is ‘Preventing the Artificial Avoidance of Permanent Establishment Status - Action 7'. ‘The aim of Action 7 is to develop changes to the definition of a permanent establishment (PE) to prevent abuses of that threshold, including through the use of commissionaire arrangements and the specific activity exemptions to avoid PE status where core activities are involved’ (KPMG, 2015, p 14). The technical arguments to be argued for the purposes of this research report will inter alia involve commenting on commissionaire arrangements and how such arrangements have been problematic for international tax rules in their current form. In addressing the problems inherent in the definition of a PE, ‘Preventing the Artificial Avoidance of Permanent Establishment Status - Action 7' specifically proposes changes to Articles 5(5) and 5(6) of the ‘OECD Model Tax Convention’ which seek to revamp the dependent agent rule. The specific activity exceptions in Article 5(4) have also been further clarified in the OECD commentary on the ‘OECD Model Tax Convention’ through the inclusion of an explanation of the activities that will be considered as being preparatory or auxiliary in nature, as well as supporting examples which help illustrate the meaning of the said terms. ii In addition, the PE rule for construction projects set out in Article 5(3) will now include a principal purposes test, as well the addition of an example illustrating the application of the principal purposes test in the OECD commentary on the ‘OECD Model Tax Convention’ dealing with Article 5(3). ‘On 5 October 2015, the OECD issued a final package of reports in connection with its Action Plan to address BEPS, as well as a plan for follow-up work and a timetable for implementation. Many countries have already adopted or are poised to adopt changes to their international tax systems based on the OECD recommendations. While implementation and timing will vary across borders, this final OECD release marks a crucial shift from the recommendation and consultation phase of BEPS to legislation and implementation’ (KPMG, 2015, p 2). Key Words: ‘Action 7’, Article 5, ‘BEPS Action Plan’, Commissionaire Arrangements, Dependent Agent, Multinational Enterprises, ‘OECD Model Tax Convention’, PE.
GR2018

A research report submitted to the Faculty of Commerce, Law and Management in partial fulfilment of the requirements for the degree of Master of Commerce (specialising in Taxation)
The popularity of hybrid instruments as a tax planning technique has grown over the years. There is an increasing global awareness on the use of these instruments and on addressing the tax gaps created by these instruments. South Africa introduced significant amendments to the legislation on hybrid debt instruments, ahead of many countries around the globe. This research report examines hybrid debt instruments and the tax concerns which have created the need for specific tax legislation addressing such instruments. It considers tax policies proposed by the international tax fraternity, global trends in changes to tax policies and South Africa‘s stance on such tax policies. The amended section 8F and new section 8FA of the Income Tax Act are included in this consideration. Key words: arrangement, debt, deductible, dividend, equity, host country, interest, hybrid debt instrument, hybrid interest, home country, tax
MT2017

Thesis (M.Com. (Taxation))--University of the Witwatersrand, Faculty of Commerce, Law and Management, School of Accountancy, 2017
Share incentive schemes have been used for many years as a mechanism to compensate, retain and attract talent by offering employees a stake in the business. Share incentives, however, usually contribute an increasingly larger portion of executive pay in comparison with general employees. The motive for larger share incentive based compensation is on the foundation that management must have a skin in the game in order for their interest to be appropriately aligned with shareholders. The Treasury and the South African Revenue Service (‘SARS’) have historically viewed share incentive schemes with suspicion. Treasury and SARS consider these schemes as salary conversion plans designed avoid tax. This has led to a litany of tax legislation that has sought to combat this so called avoidance. As things stand it appears the legislation is far too reaching and no longer reflects the commercial and economic reality of an increasingly entrepreneurial world. The aim of this research report is to ascertain whether the current tax policy is effectively discouraging employee share ownership. This paper will consider the impact of the current tax provisions on share incentive schemes for both the employees and their companies’. The United Kingdom offer tax advantages for employee share ownership plans thus the report will also include a comparison with the tax legislation governing share option schemes in the UK. The comparison will aid in recommending a more sensible and equitable way forward with regards to the taxation of share incentive schemes in South Africa. Key words: Share incentive plans, Section 8B, Section 8C, executive remuneration, equity based compensation
GR2018

The aim of this dissertation is to carry out the following: • Discuss the concept of residency in South Africa and the evolution to the residence basis of taxation in South Africa. • Examine the Organisation for Economic Co-operation and Development's (OECD) stance on the concept of 'effective management'. • Examine the laws of the United Kingdom, certain European countries and Australia with regard to the concepts of 'management and control', 'management or control', ' place of effective management' and 'effective management'. • Formulate a definition of the term 'place of effective management' in South Africa using these guidelines obtained from the various countries discussed.
Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2002.

Abstract in English, Afrikaans and Zulu
In 2016, Zimbabwe introduced specific transfer pricing legislation to prevent abusive tax strategies by taxpayers. This study uses a qualitative interpretive inquiry to assess the adequacy of the new transfer pricing regime. This study contributes to the body of knowledge in that it explores transfer pricing as a tax avoidance tool, a concept that is at its nascent stage in academic taxation literature. Furthermore, it addresses a methodological gap by employing a qualitative inquiry in an area that is predominated by quantitative research. Indepth interviews and document review were used to gather data, and deductive content analysis was employed with the aid of ATLAS.ti 8™. This study confirms previous findings that tax consultants play a significant role in the compliance decisions of Multinational Enterprises (MNEs) through the examination of the exploitative strategies practiced by these MNEs. The comparison of the OECD and UN transfer pricing guidelines in search for the applicability of international guidelines to Zimbabwe’s specific needs helped uncover the contemporary dilemmas in global standards versus domestic standards. This study responds to the knowledge gap regarding the transfer pricing phenomenon in Zimbabwe through the lenses of an under-explored three-layered rationality concept; legal, implementation and exploitative rationality. The argument maintained in this study is that this rationality trichotomy is a useful lens to understand transfer pricing as a tax avoidance tool, and that international standards are not universal and so each country’s unique situation should be addressed at a domestic level.
Zimbabwe het in 2016 bepaalde oordragprysingswetgewing ingestel om onregmatige belastingstrategieë deur belastingbetalers te voorkom. Hierdie studie het ’n kwalitatief-interpretatiewe ondersoek gebruik om die toereikendheid van die nuwe oordragprysingsregime te assesseer. Die studie lewer ’n bydrae tot die kennismateriaal omdat dit oordragprysing as ’n belastingvermydingsinstrument ondersoek, ’n konsep wat in sy kinderskoene in akademiese belastingliteratuur staan. Dit verken ook ’n metodologiese gaping deur ’n kwalitatiewe ondersoek te gebruik op ’n gebied wat deur kwantitatiewe navorsing oorheers word. Omvattende onderhoude en dokumentbeoordelings is gebruik om data in te samel en deduktiewe inhoudsontleding is met behulp van ATLAS.ti 8™ gedoen. Hierdie studie bevestig vorige bevindinge dat belastingkonsultante ’n baie belangrike rol speel by die nakomingsbesluite van multinasionale ondernemings (MNO’s), gebaseer op die ondersoek van die uitbuitende strategieë wat deur hierdie MNO’s beoefen word. ’n Vergelyking van die Organisasie vir Ekonomiese Samewerking en Ontwikkeling (OESO) en die Verenigde Nasies (VN) se oordragprysingsriglyne om die toepaslikheid van internasionale riglyne ten opsigte van Zimbabwe se bepaalde behoeftes te bepaal, het gehelp om die eietydse dilemmas van globale standaarde versus huishoudelike standaarde bloot te lê. Hierdie studie stem ooreen met die kennisgaping rakende die oordragprysingsverskynsel in Zimbabwe deur deur die lens van ’n onderontgindedrielaag-rasionaliteitskonsep, naamlik wetlike, implementerings- en uitbuitende rasionaliteit, te kyk. Die studie voer aan dat hierdie rasionaliteitsdrieledigheid ’n nuttige manier is om oordragprysing as ’n belastingvermydingsinstrumente te verstaan, dat internasionale standaarde nie universeel is nie en dat elke land se unieke situasie derhalwe op ’n huishoudelike vlak aangespreek moet word.
Ngonyaka we-2016, izwe laseZimbabwe lithula imithetho ebhekene ngqo nokwedluliselwa kwezezimali zentengiselwano ukuvimbela ukusetshenziswa ngendlela esakuhlukumeza amasu ezentela ngabakhokhintela. Lolu cwaningo lusetshenziselwa uphenyo olukhombisa ukuhumusha okuphathelene nobungaki bento ukuze luhlolisise ukudluliselwa kwesikhathi sokuphatha esisha ekudlulisweni kokubekwa kwamanani emali. Ucwaningo lunomethelela olwazini olufanele ngokuthi lihlola ukubekwa kwamanani njengethuluzi eligwema ukukhokhwa kwentela, njengomqondo osesesigabeni sokuqala ukukhula ezifundweni zemibhalo yezentela. Ngaphezu kwalokho, sikhuluma ngegebe elikhombisa indlela yokwenza izinto ngokusebenzisa uphenyo olukhombisa ubungako bento endaweni egxile ocwaningweni olubheke obungako bento. Ukuthola ulwazi ngalokhu kuye kwasetshenziswa izinhlolokhono ezijulile kanye nokubuyekezwa kwemiqulu yamabhuku, kanye nokusetshenziswa kokuhlaziya okuqukethwe okuphunguliwe ngokubambisana nosizo le-ATLAS.ti 8™. Lolu cwaningo luqinisekisa okutholakale ngaphambilini okubonisa ukuthi abeluleki bezentela badlala indima ebalulekile ezinqumweni zokuthobela imithetho yezinkampani zamazwe angaphandle ngokusekelwe ekuhlolweni kokuxhashazwa kwamasu enziwa yizo izinkampani zamazwe angaphandle. Ukuqhathaniswa kwe-OECD kanye ne-UN mayelana nokudlulisela imihlahlandlela yamanani ekufuneni ukusebenza kwemihlahlandlela yeziqondiso zomhlaba wonke ngokwezidingo zaseZimbabwe kusize ekwembuleni izinkinga zesikhathi esizayo emazingeni omhlaba ngokuhambisana namazinga ezindinganiso zomhlaba jikelele ngokuhambisana namazinga asekhaya. Lesi sifundo siphendula igebe lolwazi elimayelana nokwedluliselwa kwesimo sokubekwa kwenani lemali kwezezintengiselwano eZimbabwe ngokusetshenziswa kokubhekwa komqondo onezigaba ezintathu ongaphansi kwesilanganiso sokuhlola, okungumthetho, ukwenziwa kwakhona kanye nokuxhashazwa kwemiqondo. Lolu cwaningo luphikisana nokuthi lomqondo ongunxantathu yinto ebhekwe ngamehlo abomvu futhi ebalulekile ekuqondeni ukudluliselwa kokubekwa kwesimo sezemali njengethuluzi lokugwema ukukhokhwa kwentela, okusho ukuthi amazinga omhlaba awasiyo into efanayo nokuthi izwe ngalinye linesimo salo esingafanani nelinye okwenza ukuthi isimo ngasinye sibhekwe ngokwesimo sezinga lasekhaya.
Financial Accounting
D. Phil. (Accounting Sciences)