Tesi: "Income tax – Law and legislation – Australia"

1

Tooma, Rachel Anne Law Faculty of Law UNSW. "A case for a uniform statutory general anti-avoidance rule in Australian taxation legislation". Awarded by:University of New South Wales. School of Law, 2007. http://handle.unsw.edu.au/1959.4/29348.

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Abstract (sommario):

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.

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2

McKerchar, Margaret Anne Australian Taxation Studies Program UNSW. "The impact of complexity upon unintentional noncompliance for Australian personal income taxpayers". Awarded by:University of New South Wales. Australian Taxation Studies Program, 2002. http://handle.unsw.edu.au/1959.4/19253.

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Abstract (sommario):

This study explores the impact of complexity upon unintentional non-compliance behaviour for personal taxpayers in Australia. This area of research did not appear to have been previously studied in an Australian context and in this respect, the study represents an original contribution. While studies have been conducted both in Australia and overseas, they have generally been directed at other types of compliance behaviour and tend to be inconclusive in their findings. According to the compliance literature, there appeared to be little consensus of opinion on the factors that determined behaviour and appropriate research methods. It emerged that more narrowly-defined studies with stronger research methods offered potential for furthering knowledge in this field. Thus the study focused on one behavioural outcome and one type of taxpayer, using a multi-paradigm research method. Unintentional non-compliance, as an outcome, was selected as it appeared to hold promise for improvements in overall compliance to be readily made, provided its causes were understood. Complexity was considered to be the most likely cause of unintentional non-compliance, and those who prepared their own income tax return, the group likely to be most affected. The study used both a quantitative and qualitative component from which a number of convergent results emerged. These included that the major cause of complexity was the ambiguity of tax laws and the volume of explanatory material required. Further, personal taxpayers were committed to compliance even though they regarded the system as less than fair. Together, complexity and commitment to compliance caused taxpayers to experience unnecessary compliance costs. Where taxpayers completed their own return, complexity resulted in a high level of errors that generally resulted in an overstatement of tax liability. In addition, some taxpayers chose to be over-compliant as a means of dealing with complexity and commitment. It was concluded that complexity compromised the integrity of the Australian income tax system by imposing an unfair burden on personal taxpayers in respect of both tax paid and compliance costs incurred. However, there appeared to be little, if any, financial incentive for the tax authority to address the causes of complexity for personal taxpayers.

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3

Pillay, Neermala Neelavathy. "Assessed losses: the trade and income from trade requirements as set out in section 20 of the Income Tax Act of 1962". Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/1670.

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Abstract (sommario):

Section 20 of the Income Tax Act, No 58 of 1962 allows a taxpayer that incurs an assessed loss to carry forward the balance of assessed loss incurred, to be set off against taxable income earned in or added to losses incurred in future years. The issues regarding the carry forward of assessed losses in terms of section 20 is complex and in terms of the said section, a company is only entitled to set off its assessed loss from the previous year against its taxable income in the current year, if the taxpayer has carried on a trade during the current year and has derived income from that trade. Under the provisions of section 20(2A), a taxpayer other than a company can utilise an assessed loss even if no trading has been conducted. Assessed losses of natural persons, may however be ring-fenced. The aim of this treatise was twofold. Firstly it was to gain clarity on the „trade‟ and „income from trade‟ issues and secondly to compare South African legislation with that of Australia, with a view to recommending a change in our rules regarding the treatment of assessed losses in the context of companies. The critical lessons to be learned from the cases presented, is that liquidators, creditors and others must ensure that the company continues trading in order to x keep the assessed losses valid. Realisation of assets (including stock), and the collection of outstanding debts during liquidation does not constitute the carrying on of a trade in terms of s 20(1). The continuity of trade is an important element in regard to the carry forward of assessed losses to be utilised in the current and future years. Therefore it is important that a company carries on some activity that falls within the definition of trade. In the landmark case of SA Bazaars, it was held that a company did not have to trade continuously throughout the year to qualify for the set-off of the assessed loss or carry forward of the assessed loss, that is, to trade for say part of the year. The court however left open the issue of whether it was necessary to derive income from that trade. In order to clarify the issues regarding assessed losses, SARS issued Interpretation Note 33 granting taxpayers a concession in certain cases where a company has traded, but not derived income from that trade. But in ITC 1830, the court ruled that a company must trade and must derive income from that trade in order to carry forward its assessed loss, which effectively means that SARS cannot apply Interpretation Note 33. SARS does not have the authority to make concession which is contrary to the wording of the Act. xi In Australia, operating losses can be carried forward indefinitely to be set-off against future income, provided a company meets the more than 50% continuity of ownership test. Where the continuity test fails, losses can be deducted if the same business is carried on in the income year (the same business test). From the research conducted and in order to solve the issues surrounding the carry forward of assessed losses it was suggested that one of the following be adopted :- The method used in Australia for the carry forward of assessed losses., or A decision of the Supreme Court of Appeal is needed for a departure from the literal meaning of the words pertaining to the requirements regarding the carry forward of assessed losses. Furthermore, to clarify the definition of „income‟, as used in the context of s20, is it gross income less exempt income or taxable income?. If section 20 relates to taxable income, then an assessed loss will never be increased, which it is submitted, is not what the legislature intended. Section 20 ought to be revisited to eliminate any uncertainty about the income requirement and in the context in which the word „income‟ is used in that section.

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4

Stroope, John C. (John Clarence). "Income Tax Evasion and the Effectiveness of Tax Compliance Legislation, 1979-1982". Thesis, University of North Texas, 1988. https://digital.library.unt.edu/ark:/67531/metadc330580/.

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Abstract (sommario):

The federal income tax system in the United States depends upon a high degree of voluntary compliance. The IRS estimates that the voluntary compliance level is declining and that this tax compliance gap cost the government an estimated $90.5 billion in 1981. Between 1979 and 1982, Congress made several changes in the tax laws designed to improve tax compliance. Extensive data was collected by the IRS for 1979 and 1982 through the random sample audits of approximately 50,000 taxpayers on the Taxpayer Compliance Measurement Program (TCMP), which is conducted every three years. During the period 1979 through 1982, Congress lowered the marginal tax rates, added some fairly severe penalties, for both taxpayers and paid return preparers, and increased information reporting requirements for certain types of income. In this research, it was hypothesized that voluntary compliance should increase in response to lower marginal rates, a higher risk of detection due to additional reporting requirements, and increased penalties. Multiple regression analysis was employed to test these hypotheses, using 1979 and 1982 TCMP data. Because of the requirements for taxpayer confidentiality, it was necessary for the IRS to run the data and provide the aggregate data results for the research. The results provided insight into the effectiveness of tax compliance legislation. While the overall voluntary compliance level (VCL) increased from 1979 to 1982 by 1.53 per cent, the VCL increase for taxpayers in high marginal rates was much smaller (.42 percent) than the overall increase. This is very inconsistent with the notion that high marginal rates are driving noncompliance, and suggests that marginal rates may not be strong determinants of compliance. Probably other factors, such as opportunity for evasion, may be more important. There was little change from 1979 to 1982 of the compliance of returns done by paid return preparers. Because of the timing of many TEFRA provisions (effective in 1983), further research for years after 1982 is needed.

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5

Kanyenze, Rumbidzai. "An analysis of the income tax consequences resulting from implementing the Income Tax Bill (2012) in Zimbabwe". Thesis, Rhodes University, 2015. http://hdl.handle.net/10962/d1017536.

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Abstract (sommario):

The Income Tax Bill (2012) proposes certain changes to the existing Income Tax Act that will impact on the method used to determine the taxable income of a taxpayer in Zimbabwe. Therefore, it is important to understand the tax consequences the Income Tax Bill creates for the taxpayer. The research aimed to elaborate on and explain the tax consequences that will arise as a result of applying the Income Tax Bill in Zimbabwe. The research was based on a qualitative method which involved the analysis and the interpretation of extracts from legislation and articles written on the proposed changes. The current “gross income” of a taxpayer consists of amounts earned from a source within or deemed to be from within Zimbabwe The proposed changes to the Act will change the tax system to a residence-based system, where resident taxpayers are taxed on amounts earned from all sources. Therefore, the driving factor which determines the taxability of an amount will become the taxpayer’s residency. Clause 2 of the proposed Act provides that income earned by a taxpayer should be separated into employment income, business income, property income and other specified income. This will make it unnecessary to determine the nature of an amount because capital amounts will be subject to income tax. The current Act provides for the deduction of expenditure incurred for the purpose of trade or in the production of income. Section 31(1)(a) of the proposed Act will restrict permissible deductions to expenditure incurred in the production of income. Consequently, expenditure not incurred for the purpose of earning income will no longer be deductible when the Income Tax Bill is implemented. The proposed Income Tax Act will increase the taxable income of a taxpayer as it makes amounts that are not currently subject to tax taxable, whilst restricting the deductions claimable.

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6

Henderson, James. "A study of income tax compliance costs". Thesis, Queensland University of Technology, 1994. https://eprints.qut.edu.au/36261/1/36261_Henderson_1994.pdf.

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Abstract (sommario):

As I write this Research Project, taxation compliance costs are gaining more prominence in the taxation legislators and administrators eyes. It has only taken approximately seven to ten years for this general recognition to be made. Indeed, we probably would not have endured the copious changes to the Income Tax Assessment Act that have arisen over the aforementioned period, if compliance costs were seen to be a consideration. The purpose of this project is to examine the relationship between compliance costs and taxation policy issues and to understand that there is a delicate balance between the two and where political issues are also involved compliance costs may escalate. While study in this area is fairly limited both here and overseas, there has been some relatively recent studies carried out that will be examined. These studies when contrasted with such overseas studies have a tendency to suggest Australia is carrying high compliance costs. The paper will conclude that compliance costs can be influenced by consideration of simple drafting techniques, further self-assessment considerations and some common sense approaches to business taxes.

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7

Grebe, Alta-Mari. "The income tax implications resulting from the introduction of section 12N of the Income Tax Act". Thesis, Nelson Mandela Metropolitan University, 2014. http://hdl.handle.net/10948/d1020787.

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Abstract (sommario):

Section 12N, introduction into the Income Tax Act by way of Taxation Laws Amendment Act and which became effective on 2 November 2010, provides for allowances on the leasehold improvements on government-owned land and land leased from certain tax exempt entities as stipulated in section 10 (1) (cA) and (t). As section 12N deems the lessee to be the owner of the leasehold improvement, the lessee now qualifies for capital allowances which were previously disallowed.

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8

Surtees, Peter Geoffrey. "An historical perspective of income tax legislation in South Africa, 1910 to 1925". Thesis, Rhodes University, 1986. http://hdl.handle.net/10962/d1004578.

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Abstract (sommario):

From Introduction: This work considers the period from Union, 31 May 1910 until promulgation of the Income Tax Act No. 40 of 1925.(1) It will describe the means, both financial and otherwise, by which the fledgling Government of the Union of South Africa contrived to balance its budget, and will consider the various sources of revenue available up to 1914, when the Government of Gen. Louis Botha first decided that a tax on income was necessary in order to maintain the solvency of the new State. Similarly the political pressures which shaped the nature of the Income Tax Acts up to 1925 will be discussed, and the political principles (or expediencies, depending on the degree of cynicism of the reader) which led the parties in power from time to time to make the decisions they did regarding the provisions of the various Acts. The effect of external political situations such as the Great War of 1914 - 1918 will be examined, as will the consequences of the rebellion of 1914 and the strikes of 1913 and 1922. The legislation predictably spawned a considerable body of litigation as taxpayers hastened to find and exploit loopholes in it; the resultant Income Tax Cases, in the Income Tax Special Court, Supreme Court and Appeal Court, formed the embryo of a body of judicial precedent which today encompasses some two thousand case reports. A few of the cases decided in the period up to 1925 are still quoted today; for example, CIR v Lunnon 1924 AD 1 SATC 7. The relevant cases from the period will enjoy consideration, with descriptions of how their verdicts affected either subsequent income tax principles or later legislation. Also considered will be the inception during this period of the way in which income tax legislation largely develops: the legislature promulgates an Act, the taxpayers discover legitimate ways to reduce their tax burden and the Minister of Finance consequently causes the Act to be changed in order to protect the tax base. Thereupon the resolute taxpayers seek loopholes anew. The effect of economic conditions on income tax legislation will engage attention; several such conditions cast their shadows into the House of Assembly during that 15 year period, notably the post-war recession and the drought of 1919. The selection of this period is apposite for several reasons: it covers the period during which income tax legislation came into being; - it includes several notable political occurrences. thus making possible a consideration of their effect on income tax legislation; it includes a natural cataclysm. namely a major drought. which also had an effect on subsequent Income Tax Acts; - a sufficient number of income tax cases was heard during the period to afford a fair indication both of how the body of case law would develop and how it would perpetually interplay with the legislation; it clearly illustrates the differences between the two great political parties of the time, differences largely caused by the vested interests of each; the dominant South African Party, with its need to retain the support of the commercial and particularly the mining sectors, and the smaller but even then growing National Party with its face set firmly towards the rural constituencies and the embattled farmers; - the period culminates in the Income Tax Act of 1925, a significant change from its predecessors, and the second Income Tax Act of the Pact Government. The imposition of taxes by the respective provinces does not form part of this work, as the scope of the discussion is limited to the various Income Tax Acts, and their development has been overseen by the central government.

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9

Stopforth, David Paul. "A history of the anti-avoidance legislation applying to settlements for income tax purposes". Thesis, University of Glasgow, 1988. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.254093.

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10

Haffejee, Yaasir. "A critical analysis of South Africa's general anti avoidance provisions in income tax legislation". Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1243.

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Abstract (sommario):

This treatise was undertaken to critically analyse the new general anti avoidance rules (new GAAR) as set out in sections 80A to 80L of the Income Tax Act1. A discussion on the difference between tax evasion and tax avoidance was performed in the first chapter. The goals of this treatise were then set out. An analysis of the requirements for the application of the new GAAR was performed in the second chapter. The courts have historically reviewed the circumstances surrounding an arrangement when determining whether tax avoidance has occurred. The new GAAR requires the individual steps of an arrangement to be reviewed in isolation. Secondly, the courts have historically held that the purpose test, when determining the taxpayer‘s purpose, was subjective. The wording of the new GAAR indicates that this test is now objective. Thirdly, the courts have historically viewed the abnormality of an arrangement based of the surrounding circumstances. The wording of the new GAAR requires an objective view of the arrangement. An analysis of the secondary provisions contained in sections 80I, 80B and 80J of the new GAAR was performed in the third chapter. With regards to section 80B, it was submitted that the Commissioner should issue an Interpretation Note detailing all the methods ―he deems appropriate.

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11

Wessels, Jacques. "The tax implications of non-resident sportspersons performing and earning an income in South Africa". Thesis, Rhodes University, 2008. http://hdl.handle.net/10962/d1003719.

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Abstract (sommario):

As the number of non-resident sports persons competing in South Africa increases so does the need to tax them more effectively. It was for this reason that the South African legislature decided to insert Part IlIA into the Income Tax Act which regulates the taxation of non-resident sports persons in South Africa. The new tax on foreign sports persons, which came into effect during August 2006, is a withholding tax placing the onus upon the organizer of the event to withhold the tax portion of the payment to the non-resident sportsperson and pay it over to the revenue services. The rate of taxation has been set at 15 percent on all amounts received by or accruing to a foreign sportsperson. The question which the research addressed is whether this new tax will prove to be an effective tax, both from the point of view of its equity and the administration of the tax. In order to determine the impact of the new tax, it was compared to similar taxes implemented in the United Kingdom and Australia and also to other withholding taxes levied in South Africa. The new tax was also measured against a theoretical model for effectiveness, compared to the pre-August 2006 situation and to the taxation of resident sportsmen and women, using hypothetical examples. The major shortcomings of the new withholding tax are the uncertainty with regard to the intention of the legislature on matters such as the taxation of capital income versus revenue income, the question whether payments to support staff are included in the ambit of the new tax, the taxation of the award of assets in lieu of cash payments and the definition of a resident. A further area of concern is that the rate of taxation of 15 percent appears to be too low and creates horizontal inequity between the taxation of resident and non-resident sports persons. The new tax on non-resident sports persons may have its shortcomings but, depending upon the administrative and support structures put in place to deal with it, will be an effective tax. The rate at which the tax is levied could result in a less tax being collected than before but, with the reduced administrative cost of tax collection, the effective/statutory ratio of the tax could well be much higher than it was. This is a new tax in South Africa and certain initial problems are inevitable and will undoubtedly be solved as the administrators gain experience and as the case law governing this tax develops.
KMBT_363

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12

Nxumalo, Delani. "A critical analysis of the income tax implication of income from illegal activities in South Africa". Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/12780.

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Abstract (sommario):

Moneymaking schemes such as prostitution, drug dealing, fraud, corruption, pyramid schemes and the sale of counterfeit goods have been around for years. The taxing of these transactions/schemes has become a contentious issue. It has recently been reported in the press that SARS has lodged a claim for R183 million in income taxes against the estate of the slain mining magnate, Brett Kebble, in respect of the R2 billion allegedly stolen by him from the mining companies of which he was a director.4 It is further reported that the Master of the High Court has rejected the claim on the grounds that the amounts on which SARS sought to levy tax constituted money stolen by Kebble, and that stolen money is not subject to income tax. It has been reported that SARS is to take the Master’s decision in this regard on review.5 The Kebble case raises an interesting and unresolved tax issue and, in view of the large sum at stake, it may be a case that will go all the way to the Supreme Court of Appeal and bring long-overdue certainty to the law. The Income Tax Act No. 58 of 1962 (the Act) is of no assistance in determining the issue. Section 23(o) states that payments that are illegal in terms of Chapter 2 of the Prevention and Combating of Corrupt Activities Act No. 12 of 2004 or that constitute a fine or penalty for any “unlawful activity carried out in the Republic or in any other country if that activity.

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13

Poetschke, Martin Erik. "Investors' deductions and allowances in film funds : German and South African income tax laws compared". Master's thesis, University of Cape Town, 2003. http://hdl.handle.net/11427/15436.

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Abstract (sommario):

Includes bibliographical references (leaves 138-139).
By comparing the income tax allowances and deductions for private investors in film production funds in Germany and in South Africa, the author aims to show how the governments of these two countries are taxing private individuals who invest in film funds, i.e. what incentives are offered to such venturesome investors. The tax incentives examined here provide the taxpayer with a deferment of his tax payments. By making the comparison the author intends examine what role a domestic film fund can play as an instrument for financing domestic and export films and how the government can promote film production in this way.

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14

Le, Roux Ayesha. "An analysis of the South African income tax legislation in respect of transfer pricing". Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/13105.

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Abstract (sommario):

Transfer pricing has become a very popular term in South Africa over the last few years, even more so since July 2013 when the Base Erosion and Profit Shifting (BEPS) Action plan was issued by the Organisation for Economic Co-operation and Development (OECD) and G20 (an international forum for the governments and central bank governors from 20 major economies). The OECD and G20 has issued the plan to address the perceived flaws in international tax rules, giving rise to profit shifting. Subsequently, the OECD has issued numerous reports and as a result has updated its 2010 Transfer Pricing Guidelines. Many countries have adopted these guidelines. However as South Africa is not an OECD member, there is no certainty that it will be adopted. The question is therefore: has the South African Tax legislation met the OECD guidelines and addressed the BEPS issue? Therefore, the objective of the research is to understand whether the current South African tax legislation is in line with the OECD Transfer Pricing Guidelines and BEPS Action Plan. The South African tax legislation provides South African taxpayers with no guidance as to how the OECD Transfer Pricing Guidelines needs to be implemented and interpreted. However, even though not legislation, the SARS practice note 7 and draft interpretation note on thin capitalisation provides taxpayers with a good basis of understanding the OECD Transfer Pricing Guidelines, as these documents provided by SARS is similar to that of the guidance in the OECD Transfer Pricing Guidelines, specifically relating to transfer pricing documentation. The issue that may result where the South African tax legislation is not in line with the OECD guidelines and the BEPS Action Plan is that Multinational Enterprises (MNEs) may use South Africa as the country to shift its profits to or from, thus effectively resulting in a loss to the Fiscus.

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15

Tarrant, Greg. "The distinction between tax evasion, tax avoidance and tax planning". Thesis, Rhodes University, 2008. http://hdl.handle.net/10962/d1004549.

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Abstract (sommario):

Tax avoidance has been the subject of intense scrutiny lately by both the South African Revenue Service ("the SARS") and the media. This attention stems largely from the recent withdrawal of section 103(1) together with the introduction of section 80A to 80L of the South African Income Tax Act. However, this attention is not limited to South Africa. Revenue authorities worldwide have focused on the task of challenging tax avoidance. The approach of the SARS to tackling tax avoidance has been multi-faceted. In the Discussion Paper on Tax Avoidance and Section 103 (1) of the South African Income Tax Act they begin with a review of the distinction between tax evasion, tax avoidance and tax planning. Following a call for comment the SARS issued an Interim Response followed by the Revised Proposals which culminated in the withdrawal of the longstanding general anti-avoidance rules housed in section 103(1) and the introduction of new and more comprehensive anti-avoidance rules. In addition, the SARS has adopted an ongoing media campaign stressing the importance of paying tax in a country with a large development agenda like that of South Africa, the need for taxpayers to adopt a responsible attitude to the management of tax and the inclusion of responsible tax management as the greatest measure of a taxpayer's corporate and social investment. In tandem with this message the SARS have sought to vilify those taxpayers who engage in tax avoidance. The message is clear: tax avoidance carries reputational risks; those who engage in tax avoidance are unpatriotic or immoral and their actions simply result in an unfair shifting of the tax burden. The SARS is not alone in the above approach. Around the world tax authorities have been echoing the same message. The message appears to be working. Accounting firms speak of a "creeping conservatism" that has pervaded company boardrooms. What is not clear, however, is whether taxpayers, in becoming more conservative, are simply more fully aware of tax risks and are making informed decisions or whether they are simply responding to external events, such as the worldwide focus by revenue authorities and the media on tax avoidance. Whatever the reason, it is now critical, particularly in the case of corporate taxpayers, that their policies for tax and its attendant risks need to be as sophisticated, coherent and transparent as its policies in all other areas involving multiple stakeholders, such as suppliers, customers, staff and investors. How does a company begin to set its tax philosophy and strategic direction or to determine its appetite for risk? A starting point, it is submitted would be a review of the distinction between tax evasion, avoidance and planning with a heightened sensitivity to the unfamiliar ethical, moral and social risks. The goal of this thesis was to clearly define the distinction between tax evasion, tax avoidance and tax planning from a legal interpretive, ethical and historical perspective in order to develop a rudimentary framework for the responsible management of strategic tax decisions, in the light of the new South African general anti-avoidance legislation. The research methodology entails a qualitative research orientation consisting of a critical conceptual analysis of tax evasion and tax avoidance, with a view to establishing a basic framework to be used by taxpayers to make informed decisions on tax matters. The analysis of the distinction in this work culminated in a diagrammatic representation of the distinction between tax evasion, tax avoidance and tax planning emphasising the different types of tax avoidance from least aggressive to the most abusive and from the least objectionable to most objectionable. It is anticipated that a visual representation of the distinction, however flawed, would result in a far more pragmatic tool to taxpayers than a lengthy document. From a glance taxpayers can determine the following: That tax avoidance is legal; that different forms of tax avoidance exist, some forms being more aggressive than others; that aggressive forms of tax avoidance carry reputational risks; and that in certain circumstances aggressive tax avoidance schemes may border on tax evasion. This, it is envisaged, may prompt taxpayers to ask the right questions when faced with an external or in-house tax avoidance arrangement rather than simply blindly accepting or rejecting the arrangement.

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16

Kula, Xoliswa Beverley. "An analysis of interest deductions and other financial payments in terms of South African income tax legislation". Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/8188.

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Abstract (sommario):

Tax avoidance through interest deductions has been highlighted internationally as a concern with the effect of eroding tax revenues of countries, including South Africa (SA). The evident cause of this concern is what is termed base erosion and profit shifting (BEPS) mainly orchestrated by multinational companies using aggressive tax planning schemes. Although the concern continues to exist, comprehensive measures are in place in SA such as the anti-avoidance rules and exchange control regulations to mitigate the concern. The study was undertaken to analyse the legislation on interest deductions in terms of the Income Tax Act No 58 of 1962 (‘the Act’) with particular focus on anti-avoidance. A number of issues pertaining to the operation of the provisions in the Act; administrative challenges as well the possible exploitation of loopholes within the provisions were identified. Furthermore, a comparative analysis conducted against Australia and the United Kingdom indicated that the measures adopted in SA are relatively similar, if not ahead. The effect the anti-avoidance measures have on the economic growth was considered. The results were positive in that the measures do not counteract the pursuit of economic growth. Lastly, the study assessed the position of SA against the internationally recommended best practice on the subject matter and it became evident that opportunities exist to improve the current measures applied in SA to mitigate the BEPS risks through interest deductions.

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17

Hodge, Dominic Shaughn. "The income tax consequences of the in-house development of software". Thesis, Rhodes University, 2014. http://hdl.handle.net/10962/d1013550.

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Abstract (sommario):

The objective of this thesis was to explore the nature of expenditure incurred on the internal development of software and its treatment in terms of the accounting and taxation frameworks to which it is subject. In fulfilling the primary objective the thesis had a number of subsidiary considerations. These included, firstly, a brief analysis of the approach of the software industry in South Africa to the taxation treatment of this type of software. The second consideration was a discussion and analysis of the taxation framework which differentiates between capital and revenue and the extent to which the receipts produced by internally developed software may be informative of the nature of the expenditure. The third was an analysis of the deductibility of expenditure incurred in the production of software with the fourth analysing the tests employed in the determination of whether expenditure is capital or revenue in nature. The fifth objective was to briefly analyse the accounting standards which find application in the determination of whether or not the software created can be considered a capital asset. The final subsidiary objective of the thesis was an analysis of the taxation framework applicable to software in respect of research and development incentives, as well as the position in the United States of America. Throughout the thesis the most apparent commonality is that there exists a significant level of uncertainty as to the taxation treatment of software both in South Africa and in America. The research concludes by stating that such uncertainty is prejudicial to the interests of research and development in relation to software.

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18

Fourie, Catherine. "Fairness and efficacy of the penalty provisions in the Tax Administration Act 28 of 2011". Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/12426.

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Abstract (sommario):

The purpose of this treatise was to examine the fairness and efficacy of the penalty provisions in the Tax Administration Act (the Act). An integrative literature review research method was used. The study commenced with a review of the local and international literature on tax compliance and the fairness and efficacy of penalties. This was followed by a study of the stated objectives of the Fiscus in respect of the strategy and approach to maintaining and improving taxpayer compliance and an analysis of the penalty regime of the Act. A comparative analysis was then performed of the relevant taxing legislation of five countries, which were chosen using a purposeful sample selected from the major trading partners of the Republic and countries with a similar tax framework. Following this, a review was performed of a cross section of the most recent tax related court cases in South Africa in order to assess the extent, consistency and fairness of the application of the penalty provisions. The study then concluded with an integrated assessment of the fairness and efficacy of the penalty provisions in light of the research conducted, and highlighted areas where the legislation appears to meet this objective, followed by recommendations for amendments in respect of policy and implementation. Finally recommendations were made for areas of further research which might improve the validity of the conclusions with respect to the stated objectives of the present research and to inform policy formulation.

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19

Ogula, Diana Khabale. "An analysis of the judicial approach to the interpretation of tax avoidance legislation in South Africa". Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1012093.

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Abstract (sommario):

Tax evasion and avoidance costs South Africa billions of rand each year. This treatise examines the judiciary’s view and/or attitude to the dividing line between legitimate and illegitimate tax avoidance. It seeks to find out how South African courts have ultimately dealt with the old GAAR section 103(1). The treatise seeks to establish the role that the judiciary plays in tax avoidance and whether it has been pro-fiscus or pro-taxpayer in its deliberations of tax avoidance cases. The treatise focuses specifically on the judicial responses to the General Anti-avoidance Rule Section 103 of the Income Tax Act No. 58 of 1962. In order to show the judicial approaches and/or responses to tax avoidance in South Africa, a selection of income tax cases have been used to illustrate how the judges have interpreted the GAAR and whether they have been sympathetic to the tax payer or to the fiscus. The cases used in this study stem from the old GAAR section 103. There have not been important cases dealing with the new GAAR section 80A to 80L of the Income Tax Act. In the final analysis of this research it would seem that the effectiveness and scope of the GAAR depends ultimately on its interpretation by the courts. Many of the cases that have been decided under section 103 (1) have provided disappointing outcomes for SARS. However it is noteworthy that the courts which were previously taking a restrictive approach and were pro-taxpayer in their deliberations are beginning to take a different approach and are gallant in their interpretation of the GAAR. Judges are slowly abandoning the long standing judicial approach which was that taxpayers are entitled to arrange their affairs in any legal way in order to minimize their tax and are going further and examining the real substance and purpose of the transactions entered into by taxpayers as opposed to the form of the transactions. The Supreme Court of Appeal has now set a precedent which goes deeper and examines the true intention of parties in entering into transactions and does not tie itself to labels that parties have attached to their transactions. This recent judicial attitude and zeal exhibited by the courts will without a doubt hinder tax avoidance activity and strengthen the effectiveness and scope of the new GAAR sections 80A to 80L.

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20

Woodbridge, Taryn. "The regulation of tax practitioners in South Africa: a proposed model". Thesis, Rhodes University, 2006. http://hdl.handle.net/10962/d1003128.

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Abstract (sommario):

Tax practitioners in South Africa have been operating in an unregulated tax industry. This has allowed certain tax practitioners to fail in their duties to their clients, as many do not have to abide by any code of conduct or ethical principles, to the detriment of the public. Other than the provisions in the Income Tax Act, 58 of 1962, there has been no regulation. As a result of losses suffered by taxpayers either through the incompetence, ignorance or negligence of a tax practitioner, as substantiated by case law, and increased costs borne by the South African Revenue Services due to unnecessary queries and tax disputes, the Minister of Finance, Trevor Manuel, introduced the concept of tax industry regulation in his Budget Speech in 2002. This resulted in the introduction of section 67 A into the Income Tax Act, providing for a registration process for tax practitioners. All practising tax practitioners were required to register with the Commissioner for the South African Revenue Services by 30 June 2005. In addition, a discussion paper was issued in 2002 setting out the proposal of the Revenue Services to regulate the tax industry through the formation of an Association of Tax Practitioners. This proposal includes various contentious issues and casts significant doubt on whether the proposed model is the most suitable. The goal of the research was therefore to evaluate the current status of tax advisory services in order to demonstrate the need for regulation and to compare the proposed SARS model with two established regulatory authorities: the Estate Agency Affairs Board and the Australian Tax Agents Board. A conceptual model for regulation was developed in order to test all the models against a simple regulatory framework to determine whether each was aligned to certain best practices proposed in this framework. The research methodology was qualitative in nature, involving the critical interpretation of documentary data and data generated during a public discussion forum of tax practitioners. It was concluded that the SARS proposal is too prescriptive and, at the same time, too broad in its scope. In order to address the key objective, identified as protection of the taxpaying public, a simplified regulation procedure was recommended, which would adhere to the proposed regulatory framework.
KMBT_363

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21

Peerbhai, Aneesa. "Base erosion and profit shifting by multinational corporations and weaknesses revealed in South African income tax legislation". Thesis, Rhodes University, 2015. http://hdl.handle.net/10962/d1017540.

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Abstract (sommario):

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.

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22

Beck, Tracy Geraldine. "A critical analysis of the definition of gross income". Thesis, Nelson Mandela Metropolitan University, 2008. http://hdl.handle.net/10948/805.

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Abstract (sommario):

Income tax is levied upon a taxpayer’s taxable income. Various steps are taken in order to arrive at the taxpayer’s taxable income. The starting point when calculating taxable income is determining the taxpayer’s ‘gross income’. ‘Gross income’ is defined in terms of section 1 of the Act. Various terms within the gross income definition are not clearly defined, except in the case of a ‘resident’. Even in the case of the definition of a ‘resident’, the aspect of ‘ordinarily resident’ is not defined and nor is the ‘place of effective management’. The following components fall within the definition of ‘gross income’: • The total amount in cash or otherwise; • received by or accrued to, or in favour of, a person; • from anywhere, in the case of a person who is a resident; • from a South African source (or deemed source), in the case of a non-resident; • other than receipts or accruals of a capital nature. The ‘total amount’ in ‘cash or otherwise’ is the first step when determining the taxable income of a taxpayer for a particular year of assessment. Gross income only arises if an amount is received or has accrued; this amount need not be in the form of money but must have a money value. The next component, ‘received by or accrued to’, is related to time and implies that a taxpayer should include amounts that have been ‘received by’, as well as amounts that have ‘accrued to’ him during the year of assessment. ‘Resident’ and ‘non-resident’ unlike the other components, are defined in terms of section 1 of the Income Tax Act. There are two rules used to determine whether natural persons are residents, these are: • To determine whether natural persons are ‘ordinarily resident’; or • where the natural person is not an ‘ordinarily resident’, the ‘physical presence test’ will be applied. ‘Source’ means origin and not place; it is therefore the ‘originating cause of the receipt of the money’. There is no single definition for the word ‘source’ as circumstances may differ in various cases. The facts of each case must be analysed in order to determine the actual source of income for that particular case. The last component of the definition of ‘gross income’ is the exclusion of ‘receipts and accruals of a capital nature’. The Act does not define the meaning of ‘capital nature’ but does indicate that receipts or accruals of a capital nature are, with certain exceptions, not included in ‘gross income’. Receipts or accruals that are not of a capital nature is known as ‘revenue’ and subjected to tax. This study is primarily aimed at an examination of court cases related to the various components falling within the definition of ‘gross income’.

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23

Green, Christopher Terrence. "An analysis of the use of limited real rights in tax planning". Thesis, Nelson Mandela Metropolitan University, 2008. http://hdl.handle.net/10948/809.

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Abstract (sommario):

The aim of this treatise is to provide an analysis of the tax implications of making use of limited real rights in tax planning. In order to understand the tax implications of making use of limited real rights it is necessary to understand the nature and legal form of these rights. The importance of this understanding lies in the determination of the tax legislation applicable to the right in question, and the subsequent tax implications. The next step in working through an analysis of the tax implications of making use of limited real rights is therefore to define the scope of applicable legislation. This required an analysis of the scoping provisions of our tax legislation. Once the scope of applicable legislation had been defined, it was then possible to move onto an analysis of the application of the legislation identified to the various “stages” of limited real rights. The conclusion from this analysis is that the tax implications of making use of limited real rights are spread fairly broadly across several different pieces of legislation, and need to be carefully and fully considered when making a decision to make use of limited real rights in a tax planning strategy. The conclusion on the analysis of certain selected tax planning strategies that make use of limited real rights is that it is possible to make fairly substantial cash flow savings when deciding to implement a particular strategy which makes use of limited real rights. But, that use of these strategies is not without risk. For example, SARS may examine a particular strategy in terms of the “new” GAAR. The financial implications of the successful application of the GAAR may be disastrous to the taxpayer, and the tax planner will need to have considered and advised on the possibility of such a challenge from SARS. In addition, in some of the strategies, there are risks associated with the anticipated life expectancy of parties to the tax plan being shorter than anticipated. The conclusion is that the use of limited real rights in tax planning can be effective and provide savings, but that the use of such a strategy requires, inter alia, a very careful consideration of the interaction and application of our tax legislation to the strategy.

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24

Weston, Tracey Lee. "A comparison of the effectiveness of the judicial doctrine of "substance over form" with legislated measures in combatting tax avoidance". Thesis, Rhodes University, 2004. http://hdl.handle.net/10962/100.

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Abstract (sommario):

Taxation statutes often provide opportunities for tax avoidance by taxpayers who exploit the provisions of the taxing statute to reduce the tax that they are legally required to pay. It is, however, important to distinguish between the concepts of tax avoidance and tax evasion. The central issue, especially where the contract has no business purpose, is whether it is possible for the substance and legal form of the transaction to differ to such an extent that a court of law will favour the substance rather than the legal format. The debate is whether the courts should be encouraged to continue with their "judge-made" law or whether the tax jurisdictions should be supporting a legislative route as opposed to a judicial one, in their efforts not only to combat tax avoidance but also to preserve taxpayer certainty. The question is whether the Doctrine of "Substance over Form" as applied by the judiciary is effective in combating tax avoidance, or whether a legislated general anti-avoidance provision is required. An intensive literature survey examines the changes which have occurred in the application of judicial tests from the 1930's to date and investigates the different approaches tax jurisdictions follow in order to combat tax avoidance. The effect of the introduction of anti-avoidance provisions in combating tax avoidance is evaluated by making a comparison between the United Kingdom and South Africa. [n the United Kingdom, the courts are relied on to create anti-tax avoidance rules, one of which is the Doctrine of "Substance over Form". The doctrine is very broad and identifies various applications of the doctrine, which have been developed by the courts. In South Africa, the Doctrine of "Substance over Form" has been applied in certain tax cases; however the South African Income Tax Act does include anti-tax avoidance sections aimed at specific tax avoidance schemes, as well as a general anti-tax avoidance measure enacted as section 103. The judicial tests have progressed and changed over time and the introduction of anti-avoidance legislation in the Income Tax Act has had an effect on tax planning opportunities. A distinction needs to be made between fraudulent and bona fide transactions while recognising the taxpayer's right to arrange his or her affairs in a manner which is beneficial to him or her from a tax perspective. Judicial activism and judicial legislation in the United Kingdom has created much uncertainty amongst taxpayers and as a result strongly supports the retention of a general anti-avoidance section within an Income Tax Act. A general anti-avoidance provision, following a legislative route, appears to be more consistent and effective in combating tax avoidance.

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25

Schweitzer, A. G. "Aspects of the administrative law relationship between the taxpayer and the Commissioner for Inland Revenue". Master's thesis, University of Cape Town, 1991. http://hdl.handle.net/11427/22172.

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Abstract (sommario):

Bibliography: pages 133-135.
There is an administrative law relationship between the taxpayer and the Commissioner for Inland Revenue, (hereinafter referred to as 'the Commissioner') The basis of this relationship is that the Commissioner is required to collect tax and the taxpayer is required to pay the tax. In exercising his powers under the Income Tax Act No. 58 of 1962 (hereinafter referred to as the Act), the Commissioner has been conferred with discretionary powers. In this thesis, this administrative law relationship is examined with specific reference to the means of regulating the exercise by the Commissioner of his discretionary powers. There are a number of ways in which the discretionary powers of the Commissioner may be regulated. Generally discretion may be regulated by 'rule based administrative action' (1). This means that discretionary power is exercised subject to internal rules which state how discretionary power must be exercised. Another method of regulating the exercise of discretionary power is subsumed under the category of 'adjudicative techniques of decision' (2). The essence of the latter category is that the affected person participates in the decision which affects him. The exercise of discretionary power may be regulated furthermore if the Minister who has responsibility for the Department is required to be responsible for and account publicly for the actions of his subordinate. In this thesis, examples of rule based administrative action and adjudicative techniques of decision are examined.

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26

Wiese, Adelle. "Artikel 9C van die inkomstebelastingwet met spesiale verwysing na aktiewe en passiewe inkomste". Thesis, Stellenbosch : Stellenbosch University, 1998. http://hdl.handle.net/10019.1/50898.

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Abstract (sommario):

Thesis (MComm)--Stellenbosch University, 1998.
ENGLISH ABSTRACT: In the Fifth Interim Report of the Katz Commission recommendations were made on a number of fundamental tax issues, including the distinction between the source and residence principle. The Commission decided that the source principle should remain but that a distinction between "active" and "passive" income should be made. "Active" income should then be taxed on the source principle and "passive" income on the residence principle. With effect from 1 July 1997 exchange controls for South African residents were softened, which meant that South Africans could thereafter invest in foreign countries to a limited extent. To protect the South African tax base, sections 9C and 90 were incorporated in the Income Tax Act with effect from 1 July 1997. Section 9C regulates the taxation of investment income earned in foreign countries. The main purpose of this study was to investigate the taxation of foreign investment income in South Africa. For this purpose a critical analysis of section 9C was done within the context of the recommendations made by the Katz Commission in their Fifth Report. The focus of the study was aimed at the requirements for the exclusion of so-called active investment income according to section 9C(3)(a). In the analysis of section 9C it was necessary to determine where the terms used in the section were derived from. The terms which are not new in the South African tax context were analysed based on the opinions of tax specialists and national case law. The terms which are new in the South African tax context were mostly derived from international models of tax conventions and foreign tax codes. These were analysed according to the use thereof mainly in the Model Tax Convention on Income and on capital of the Organisation for Economic Co-operation and Development and the Commentaries thereon. The critical analysis of section 9C also included the applicability of the section on other sections in the Income Tax Act, a brief commentary on section 90 and the relief provided to taxpayers where the section leads to double taxation. The ability of the South African Revenue Service to collect the tax, the effect of the tax on immigrants and the effect of the electronic future on the tax were also investigated. The conclusion arrived at in this study is that most of the terms in section 9C are based on internationally used terms and could be analysed according to international tax conventions and case law. The South African Revenue Service will have to provide guidelines for the uncertainties and provide measures to rectify the irregularities and inconsistencies found in the section. In the light of further examinations to be done by the South African Revenue Service, based on the recommendations of the Katz Commission in their Fifth Report, section 9C provides a set of internationally accepted principles as a solid base for future regulation.
AFRIKAANSE OPSOMMING: Die Katz-kommissie het in die Vyfde Interim Verslag aanbevelings aangaande 'n aantal fundamentele belastingkwessies, insluitend die onderskeid tussen die bron- en verblyf-grondslag, gemaak. Die Kommissie het tot die gevolgtrekking gekom dat die bron-grondslag behou moet word, maar dat daar 'n onderskeid tussen "aktiewe" en "passiewe" inkomste gemaak moet word. "Aktiewe" inkomste moet dan op die bron-grondslag belas word en "passiewe" inkomste op die verblyf-grondslag. Met ingang 1 Julie 1997 is die valutabeheermaatreels vir Suid-Afrikaanse inwoners verslap wat beteken het dat Suid-Afrikaners voortaan tot 'n beperkte mate in die buiteland beleggings kan maak. Om die Suid-Afrikaanse belastingbasis in die tussentyd te beskerm is artikels 9C en 9D met ingang 1 Julie 1997 tot die Wet gevoeg. Artikel 9C reguleer die belasting van beleggingsinkomste uit buitelandse bronne. Die hoofdoel van hierdie studie was om die belasting van beleggingsinkomste uit buitelandse bronne in Suid-Afrika te ondersoek. 'n Kritiese analise van artikel 9C is gedoen binne die konteks van die voorstelle gemaak deur die Katz-kommissie in die Vyfde Verslag. Die klem van die studie het op die vereistes vir die uitsluiting van sogenaamde aktiewe beleggingsinkomste in artikel 9C(3)(a) geval. Tydens die ontleding van artikel 9C was dit noodsaaklik om vas te stel waar die terme wat in die artikel gebruik is, ontstaan het. Die terme wat nie vir die eerste maal in die Suid-Afrikaanse belastingkonteks gebruik is nie, is ontleed na aanleiding van die menings van Suid-Afrikaanse belastingspesialiste en nasionale regspraak. Die nuwe terme kom meesal in internasionale modelle van belastingkonvensies en buitelandse belastingkodes voor. Die terme is hoofsaaklik ontleed na aanleiding van die gebruik daarvan in die Model Tax Convention on Income and on capital of the Organisation for Economic Cooperation and Development. Die kritiese ontleding van artikel 9C het die toepaslikheid van die artikel op ander afdelings in die lnkomstebelstingwet, 'n kortlikse verwysing na artikel 9D en die verligting beskikbaar aan belastingpligtiges ten opsigte van dubbele belasting, ingesluit. Die invorderbaarheid van die belasting, die effek van die belasting op immigrante en die effek van die elektroniese toekoms op die belasting is ook ondersoek. Die slotsom waartoe die skrywer in hierdie studie gekom het, is dat meeste van die begrippe in artikel 9C internasionaal verstaanbaar is en ontleed kon word, wat die Wet wereldwyd meer aanvaarbaar en verstaanbaar behoort te maak. Die Suid-Afrikaanse lnkomstediens sal egter riglyne ten opsigte van die onduidelike begrippe moet verskaf en die nodige ongelykhede en inkonsekwenthede in die Wet moet regstel. In die lig van verdere ondersoeke deur die Suid-Afrikaanse lnkomstediens, na aanleiding van die voorstelle deur die Katz-kommissie in die Vyfde Verslag, verskaf artikel 9C 'n stel internasionaal aanvaarde beginsels waarop toekomstige regulasies gebaseer sal kan word.

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27

Sloane, Justin. "A discussion and comparison of company legislation and tax legislation in South Africa, in relation to amalgamations and mergers". Thesis, Rhodes University, 2014. http://hdl.handle.net/10962/d1013028.

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Abstract (sommario):

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.

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28

Steenkamp, Casper Jan Hendrik. "Die rol van rekeningkundige beginsels en praktyk in die uitleg van die inkomstebelastingwetgewing in Suid-Afrika". Thesis, Stellenbosch : Stellenbosch University, 2006. http://hdl.handle.net/10019.1/20424.

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Abstract (sommario):

Thesis (MComm)--Stellenbosch University, 2006.
AFRIKAANSE OPSOMMING: Hierdie werkstuk begin deur te ondersoek watter rol rekeningkundige beginsels en praktyk tot op datum by die uitleg van die inkomstebelastingwetgewing in Suid-Afrika gespeel het. Die gevolgtrekking word gemaak dat rekeningkundige beginsels 'n baie beperkte rei gespeel het. Die beginsels van wetsuitleg word dan ondersoek en die gevolgtrekking word gemaak dat daar wei ruimte vir rekeningkundige beginsels en praktyk is om 'n meer uitgebreide rol in die uitleg van die inkomstebelastingwetgewing, en meer spesifiek die bruto inkomste-omskrywing en die algemene aftrekkingsformule, te speel. Die werkstuk oorweeg dan die rol wat rekeningkundige beginsels en praktyk in die uitleg van die inkomstebelastingwetgewing in beide Australie en die Verenigde Koninkryk gespeel het. Die gevolgtrekking word gemaak dat rekeningkundige praktyk in beide hierdie jurisdiksies 'n meer uitgebreide rei in die uitleg van inkomstebelastingwetgewing as in Suid-Afrika gespeel het. Die mening word uitgespreek dat Suid-Afrika baat kan vind deur 'n soortgelyke benadering te volg as wat in bogenoemde jurisdiksies gevolg word. Die werkstuk sluit dan af deur die voor- en nadele van 'n stelsel te ondersoek waar die belasbare inkomste en rekeningkundige inkomste ooreenstem. Die gevolgtrekking word gemaak dat 'n mate van ooreenstemming aan te bevel is, maar dat volkome ooreenstemming nie sinvol is nie. Die inagneming van rekeningkundige beginsels in die uitleg van inkomstebelastingwetgewing kan bydra om die optimale graad van ooreenstemming te bereik.
ENGLISH ABSTRACT: Traditionaly accounting principles and practice played a very limited role in the interpretation of the income tax legislation in South Africa. This study starts off by investigating the role that accounting principles and practice played to date in the interpretation of the income tax legislation in South Africa. The conclusion is reached that accounting principles played a limited role. The principles of interpretation of legislation is then considered and a conclusion is reached that there is scope for accounting principles and practice to play an extended role in the interpretation of the income tax legislation, especially in the interpretation of the gross income definition and the general deduction formula. The study then considers the role that accounting principles and practice played in the interpretation of the income tax legislation in both Australia and the United Kingdom. The conclution is reached that in both these jurisdictions accounting practice played a more extensive role in the interpretation of income tax legislation than in South Africa. The opinion is expressed that South Africa can benefit from a similar approach as was taken in the abovementioned jurisdictions. The study concludes with an investigation into the advantages and disadvantages of having the calculation of taxable income conform to the calculation of income for accounting purposes. The conclusion is reached that conformity to some degree is advisable but that total conformity is not sensible. Taking accounting principles and practice into account in the interpretation of income tax legislation can help attain the optimal degree of conformity.

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29

Cloete, Loriaan. "A critical analysis of the distintion between mining and manufacturing for South African income tax purposes". Thesis, Nelson Mandela Metropolitan University, 2010. http://hdl.handle.net/10948/1344.

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Abstract (sommario):

"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.

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30

Smit, Jacobus Gideon. "Analysis of the interaction between the income tax and capital gains tax provisions applicable to share dealers". Thesis, Stellenbosch : Stellenbosch University, 2013. http://hdl.handle.net/10019.1/85830.

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Abstract (sommario):

Thesis (MAccounting)--Stellenbosch University, 2013.
ENGLISH ABSTRACT: The interaction between the income tax provisions contained in sections 9B, 9C, 11(a) and 22 of the Income Tax Act No. 58 of 1962 (the Act), and the capital gains tax (CGT) provisions of the Eighth Schedule of the Act, are complex and share dealers should approach the tax consequences of share dealing profits with caution. The objective of the assignment was to ensure that the share dealing profits of share dealers (who transact on revenue account) are taxed correctly, with specific reference to the interaction between the aforementioned provisions. This was achieved by considering tax cases, the interpretation notes of the South African Revenue Services (SARS) and commentary of tax writers. Examples of share disposals were incorporated to illustrate that consistency is required between the calculation of profits for income tax and CGT purposes. The guidelines laid down by case law to determine the revenue nature of share disposals were investigated. It was concluded that share dealing profits which are designedly sought for and worked for, either as part of a business operation or not, are of a revenue nature and taxable as such. The method of identification of shares sold as trading stock is important when calculating the income tax profit, since it is used in order to determine both which shares are sold as well as the cost of the shares sold. It was concluded that the method of identification applied in terms of generally accepted accounting practice (GAAP) is generally also acceptable from an income tax perspective. Section 9C of the Act provides a share dealer income tax relief when a ‘qualifying share’ is disposed of. Any amount received or accrued as a result of the disposal of a qualifying share is deemed to be of a capital nature, regardless of the revenue intention of the share dealer. Prior to 1 October 2007, section 9B of the Act provided similar relief to the disposal of an ‘affected share’. It was concluded that section 9C of the Act has a wider scope of application compared to section 9B of the Act. Because the proceeds received on the disposal of affected or qualifying shares are excluded from gross income, the acquisition costs previously incurred and deducted in respect of such shares must be included in taxable income. It was determined that the amount to be included in income is the actual cost of such shares and not the opening trading stock value determined in terms of GAAP and claimed in terms of section 22(2) of the Act. It was concluded that the first-in-first-out (FIFO) method of identification should be applied to determine which affected or qualifying shares have been disposed of. From a CGT perspective, it was illustrated that a share dealer loses the opportunity to choose which identification method to apply and is obliged to also apply the FIFO method in calculating the CGT base cost of the shares. It is concluded that the Eighth Schedule of the Act should be amended to clarify that the FIFO method should be applied for CGT purposes where sections 9B or 9C of the Act find application. Only then will the tax profits of a share dealer be in sync with his or her cash benefit.
AFRIKAANSE OPSOMMING: Die interaksie tussen die inkomstebelastingbepalings vervat in artikels 9B, 9C, 11(a) en 22 van die Inkomstebelastingwet No. 58 van 1962 (die Wet), en die kapitaalwinsbelastingbepalings (KWB bepalings) van die Agtste Bylae tot die Wet is kompleks en aandelehandelaars moet die belastinggevolge van aandelewinste met omsigtigheid benader. Die doelwit van die werkstuk was om te verseker dat die winste van aandelehandelaars (wat aandele verkoop op inkomsterekening) korrek belas word, met spesifieke verwysing na die interaksie tussen die voorgenoemde bepalings. Dit is bereik deur die oorweging van hofsake, uitlegnotas van die Suid-Afrikaanse Inkomstediens en kommentaar deur belastingskrywers. Voorbeelde van aandeleverkope is gebruik om te illustreer dat konsekwentheid tussen die berekening van winste vir inkomstebelasting en KWB-doeleindes ‘n vereiste is. Die riglyne wat deur regspraak daargestel is om die inkomste-aard van aandeleverkope vas te stel, is ondersoek. Daar is bevind dat aandelewinste wat opsetlik nagejaag word en voor gewerk word, ongeag of dit deel van die bedryf van 'n besigheid is al dan nie, van ‘n inkomste-aard is en aldus belasbaar is. Die metode van identifikasie van aandele wat as handelsvoorraad verkoop word is belangrik by die berekening die inkomstebelastingwins aangesien dit gebruik word om vas te stel watter aandele verkoop is en wat die koste van die verkoopte aandele is. Daar is bevind dat die metode wat ingevolge algemeen aanvaarde rekeningkundige praktyk (AARP) toegepas is, gewoonlik ook vir inkomstebelastingdoeleindes toelaatbaar is. Artikel 9C van die Wet verskaf aan ‘n aandelehandelaar inkomstebelastingverligting met die verkoop van 'n 'kwalifiserende aandeel' deurdat die bedrag ontvang of toegeval geag word van 'n kapitale aard te wees, ongeag die inkomstebedoeling van die aandelehandelaar. Voor 1 Oktober 2007 het artikel 9B van die Wet soortgelyke verligting verskaf met die verkoop van n 'geaffekteerde aandeel’. Daar is vasgestel dat artikel 9C van die Wet 'n wyer toepassing het in vergelyking met artikel 9B van die Wet. Omrede die opbrengs ontvang met die verkoop van geaffekteerde of kwalifiserende aandele uitgesluit word van bruto inkomste, moet die vorige aankoopskostes wat voorheen ten opsigte van die aandele aangegaan en afgetrek is, by belasbare inkomste ingesluit word. Daar is bepaal dat die bedrag wat by belasbare inkomste ingesluit word, die werklike koste van die aandele is en nie die AARP openingswaarde van handelsvoorraad wat ingevolge artikel 22(2) van die Wet geëis nie. Daar is bevind dat die eerste-in-eerste-uit (EIEU) metode van identifikasie gebruik moet word om te bepaal watter geaffekteerde of kwalifiserende aandele verkoop is. Vir KWB doeleindes verloor 'n aandelehandelaar ook die geleentheid om te kan kies watter identifikasiemetode toegepas moet word. Hy of sy is verplig om die EIEU metode toe te pas in die berekening van die KWB basiskoste van die aandele. Daar word tot die gevolgtrekking gekom dat die Agtste Bylae van die Wet gewysig moet word om te bevestig dat die EIEU metode toegepas moet word vir KWB doeleindes waar artikels 9B of 9C van die Wet van toepassing is. Slegs dan is die belasbare wins van 'n aandelehandelaar in lyn is met sy of haar kontantvoordeel.

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31

Van, der Merwe de Vos Wouter. "Taxation of non-residents in South Africa with specific reference to withholding taxes". Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/21296.

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Abstract (sommario):

This treatise tests the effectiveness of withholding taxes imposed by the South African tax authorities with respect to amounts paid from a South African source to a non-resident in respect of interest, royalties and foreign entertainers and sportspersons. The first research objective discusses the alignment of the meaning of words and phrases in both the domestic law of South Africa and Double Tax Agreements (DTA.) The second issue outlines whether the DTA supports the domestic law through the waiving of tax claims in favour of the country of source. In last instance the attribution of income is discussed. The interpretation attached to the words for the purpose of levying normal tax, serves as the methodology for identifying inconsistencies with the levying of withholding tax. The wider scope of withholding taxes with respect to the meaning of ‘interest’, ‘royalties’ as well as ‘foreign entertainer and sportsperson’ misaligns with the corresponding meaning of it in the DTA. This creates the risk that amounts paid to non-residents will either not be subjected to withholding tax in the source state or that the income will be taxable in the resident state as a result of the application of other articles of the DTA. DTA’s concluded between South Africa and other countries are based on the OECD Model Tax Convention. These DTA’s tend to favour the residence state with respect to the waiving of tax claims. The source state’s right to collect withholding tax on income from royalties and interest is prevented if the foreign person is physically present in South Africa for more than 183 days and if the interest/royalty payment is effectively connected with a permanent establishment in South Africa. The domestic law and DTA are misaligned with respect to the attribution of interest and royalty income since the recipient of the income for the purpose of the domestic law is not necessarily the beneficial owner of the debt claim or intellectual property. It can therefore be recommended that South Africa must renegotiate DTA’s to favour taxation in the source state. Withholding tax provisions must also be redrafted to align them with the DTA meaning.

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32

Arendse, Jacqueline A. "An investigation into the introduction of a new wealth tax in South Africa". Thesis, Rhodes University, 2018. http://hdl.handle.net/10962/61379.

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Abstract (sommario):

In a world of economic uncertainty and manifold social problems, South Africa has its own unique challenges of low economic growth, persistent budget deficits that produce increasing government debt and the highest level of economic inequality in the world. The history of injustice and economic marginalisation and the failure of the economy to provide inclusive growth drives an urgent need to address economic inequality through tax policy, placing ever more focus on wealth taxes as a possible solution. There is a hope is that taxing the wealthy may provide the opportunity to redistribute desperately-needed resources to those denied the opportunity to build wealth and who are trapped in the cycle of poverty. Yet, as appealing as a new wealth tax may seem, the introduction of such a tax carries with it a range of risks, not all of which are known. Of great concern is the possible effect on the economy, which, in its vulnerable state, cannot afford any loss of capital and investment. Very little research has been done on wealth tax in the South African context and there is a dearth of literature focusing on the views and perceptions of the wealthy individuals themselves. This qualitative study investigates the merits and disadvantages of a new wealth tax and seeks to identify any unintended consequences that could result from the implementation of a new wealth tax in South Africa, drawing from historical and international experience and primary data obtained from interviews with individuals likely to be affected by such a tax. Having explored the literature and international experiences with wealth tax and having probed the thinking of wealthy individuals who would be the payers of a wealth tax, the study finds that a new wealth tax may contribute towards the progressivity of the tax system, but it is doubtful whether such a tax would provide a sustainable revenue stream that would be sufficient to address economic inequality and there is a risk of causing harm to the economy. Recognising that the motivation for wealth taxes is often driven more by political argument and public perception than by rational quantitative analysis, the study also anticipates the introduction of a new wealth tax and suggests guidelines for the design of such a tax within the framework for evaluating a good tax system. This study informs the debate on wealth taxes in South Africa and contributes to the design of such a tax, should it be implemented.

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33

李盧麗兒 e Lo Lai-yee Dora Lee. "The determinants of penalty tax in the Hong Kong Special Administrative Region". Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2002. http://hub.hku.hk/bib/B31244555.

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34

Geldenhuys, Bernard, e Schalkwyk Linda Van. "An analysis of Section 80A(C)(ii) of the Income Tax Act no. 58 of 1962 as amended". Thesis, Stellenbosch : University of Stellenbosch, 2009. http://hdl.handle.net/10019.1/15520.

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Abstract (sommario):

Thesis (MAcc)--University of Stellenbosch, 2009.
ENGLISH ABSTRACT: In November 2006 section 103(1) of the Act was abolished and replaced by a new Part IIA, containing sections 80A to 80L, which targets impermissible tax avoidance arrangements. Section 80A(c)(ii) introduced a new concept to the South African tax law: a misuse or abuse of the provisions of the Act, including Part IIA thereof. The objective of this study was to establish the origin, meaning, application and effect of section 80A(c)(ii) of the Act. The evolution of section 80A(c)(ii) was therefore examined where after the enacted version was analyzed. It was essential to determine the origin of section 80A(c)(ii) in order to establish some point of reference from which inferences could be drawn as to the possible application and effect thereof. Case law, practice statements and articles relating to its proposed root was then examined. A ‘misuse or abuse’ of a provision, it was found, implies, frustrating or exploiting the purpose of the provision. This contention was confirmed by existing Canadian precedent. Such an interpretation, however, has a strong resemblance to the words in which the draft version of section 80A(c)(ii) was couched. It is therefore in contrast to the presumption that different words (in the enacted version) imply a different meaning. The precise meaning of the words ‘misuse or abuse’ is thus still elusive. It was established that section 80A(c)(ii) has its roots in section 245 of the Canadian Act. Section 245(4) was regarded as an effective comparative to section 80A(c)(ii) as it also contained a so-called misuse or abuse rule. The application of this rule in the Canadian tax environment required the following process: - Interpret (contextually and purposively) the provisions relied on by the taxpayer, to determine their object, spirit and purpose. - Determine whether the transaction frustrates or defeats the object, spirit or purpose of the provisions. Section 245(4) had the effect of reviving the modern approach (a contextual and/or purposive theory) to the interpretation of statutes in Canada. Reference to the ‘spirit’ of a provision (above) was found not to extend the modern approach to statutory interpretation: it does not require of the court to look for some inner and spiritual meaning within the legislation. As section 245(4) was regarded as an effective comparative to section 80A(c)(ii) it was contented that it would have a similar effect, than that of its Canadian counterpart, on the approach to statutory interpretation in South Africa. However, it was established that a modern approach to statutory interpretation was already authoritative in South Africa. This finding led the author to the conclusion that section 80A(c)(ii) could at best only reinforce the case for applying such an approach. Such a purpose for section 80A(c)(ii) was however found to be void in the light of the Constitution of the Republic of South Africa, which was enacted in 1996, and provides a sovereign authority for the application of the modern approach. It was also found that the practical burden of showing that there was a ‘misuse or abuse of the provisions of this Act (including the provisions of this Part)’ will rest on the shoulders of the Commissioner, notwithstanding section 82 of the Act.
AFRIKAANSE OPSOMMING: Artikel 103(1) van die Inkomstebelastingwet is herroep in November 2006 en vervang deur Deel IIA, bestaande uit artikels 80A tot 80L, wat daarop gemik is om ontoelaatbare belastingvermydingsreëlings te teiken. Artikel 80A(c)(ii) het ‘n nuwe konsep in die Suid-Afrikaanse Inkomstebelastingreg ingebring: ‘n misbruik of ‘n wangebruik van die bepalings van die Wet, insluitende Deel IIA. Die doel van hierdie studie was om die oorsprong, betekenis, toepassing en uitwerking van artikel 80A(c)(ii) vas te stel. Die ontwikkeling van artikel 80A(c)(ii) is daarom ondersoek waarna die verordende weergawe daarvan geanaliseer is. ‘n Sleutelaspek van die analise was om die oorsprong van artikel 80A(c)(ii) vas te stel. Hierdie oefening het ‘n verwysbare bron daargestel waarvan afleidings rondom die moontlike toepassing en uitwerking van artikel 80A(c)(ii) gemaak kon word. Hofsake, praktyknotas en artikels rakende die voorgestelde oorsprong is vervolgens ondersoek. Daar is vasgestel dat ‘n ‘misbruik of wangebruik’ van ‘n bepaling neerkom op die frustering of uitbuiting van die doel van ‘n bepaling. Hierdie bewering is bevestig deur bestaande Kanadese presedent. So ‘n interpretasie is egter soortgelyk aan die woorde waarin die konsepweergawe van artikel 80A(c)(ii) uitgedruk is. Dit is daarom in teenstelling met die vermoede dat ‘n wysiging van die woorde (in die verordende weergawe) ‘n gewysigde betekenis impliseer. Die presiese betekenis van die woorde ‘misbruik of wangebruik’ is dus steeds ontwykend. Daar is bevind dat artikel 80A(c)(ii) waarskynlik sy ontstaan in artikel 245 van die Kanadese Inkomstebelastingwet gehad het. Artikel 245(4) van die Kanadese Inkomstebelastingwet is beskou as ‘n effektiewe vergelykende artikel vir artikel 80A(c)(ii), aangesien dit ook oor ‘n sogenaamde misbruik of wangebruik reël beskik. Die toepassing van hierdie reël in die Kanadese belastingmilieu vereis die volgende werkswyse: - Interpreteer (kontekstueel en doeldienend) die bepalings waarop die belastingpligtige steun, ten einde die oogmerk, gees en doel daarvan vas te stel. - Bepaal of die transaksie, deur die belastingpligtige aangegaan, die oogmerk, gees of doel van die bepalings frustreer. Artikel 245(4) het aanleiding gegee tot die herstel van die moderne benadering (‘n kontekstuele en/of doeldienende teorie) tot die interpretasie van wetgewing in Kanada. Daar is bevind dat die verwysing na die ‘gees’ van ‘n bepaling (hierbo) nie aanleiding gee tot die uitbreiding van die moderne benadering tot wetsuitleg nie: dit vereis nie dat die hof moet soek na die innerlike of geestelike betekenis van die wetgewing nie. Aangesien artikel 245(4) as ‘n effektiewe vergelykende artikel vir artikel 80A(c)(ii) beskou is, is daar aangeneem dat dit ‘n soortgelyke uitwerking, as sy Kanadese eweknie, op wetsuitleg in Suid Afrika sal hê. By nadere ondersoek is daar egter bevind dat ‘n moderne benadering tot wetsuitleg alreeds gesaghebbend in Suid Afrika is. Hierdie bevinding het die skrywer tot die gevolgtrekking gebring dat artikel 80A(c)(ii), in beginsel, slegs die saak vir die moderne benadering tot wetsuitleg in Suid Afrika sal versterk. Indien hierdie die doel is wat die wetgewer gehad het met die verordening van artikel 80A(c)(ii), sal dit egter niksseggend wees in die lig van die Grondwet van die Republiek van Suid Afrika, wat verorden is in 1996, en ‘n oppermagtige gesag bied vir die moderne benadering tot wetsuitleg. Daar is ook vasgestel dat die onus op die Kommissaris rus om te bewys dat daar ‘n ‘misbruik of wangebruik van die bepalings van hierdie Wet (waarby ingesluit die bepalings van hierdie Deel)’ was, ondanks artikel 82 van die Wet.

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35

Singh, Shalona. "The tax consequences of income and expenses arising from illegal activities". Thesis, Rhodes University, 2018. http://hdl.handle.net/10962/59456.

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Abstract (sommario):

Income tax in South Africa is levied in terms of the Income Tax Act, 58 of 1962 (the South African Income Tax Act) on taxable income, which by definition, is arrived at by deducting from ''gross income" receipts and accruals that are exempt from tax as well as deductions and allowances provided for in the Act. The South African Income Tax Act provides no guidance with regard to the taxation of income and expenditure from illegal activities. In this mini thesis, case law and legislation is reviewed in an attempt to provide clarity on the tax consequences of income and expenses arising from illegal activities. An overview is provided of the taxation of income and expenditure in respect of illegal activities in the United States of America, Australia and New Zealand. Similarities are found between the American, Australian, New Zealand and South African tax regimes in relation to the taxation of income earned from illegal activities, but there appears to be more certainty in America, Australia and New Zealand with regard to the deduction of expenses arising from illegal activities. In South Africa, taxpayers earning income from ongoing illegal activities will, in principle, comply with the definition of “trade” as defined in section 1 of the South African Income Tax Act. However, this is contrary to the view of the South African Revenue Service that illegal activities do not meet the definition of “trade”, a viewpoint that may not hold if challenged in court. Recommendations are made for the amendment of the South African Income Tax Act to specifically provide for the inclusion in “gross income” of income from illegal activities and to prohibit the deduction of expenditure arising from illegal activities.

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36

Lignier, Philip Andre Cyberspace Law &amp Policy Centre Faculty of Law UNSW. "Identification and evaluation of the managerial benefits derived by small businesses as a result of complying with the Australian tax system". Publisher:University of New South Wales. Cyberspace Law & Policy Centre, 2008. http://handle.unsw.edu.au/1959.4/41018.

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Abstract (sommario):

This thesis explores the managerial benefits derived by small business entities as a result of complying with their tax obligations. This is the first study on managerial benefits that considers all federal taxes in the Australian context. While the managerial benefits of tax compliance were first identified by Sandford in the 1980s, there is only limited evidence to date about their perception by business taxpayers and no evidence at all about their actual occurrence. The work undertaken by Sandford together with the findings of empirical research on accounting in small businesses, provide the framework for the development of research hypotheses. With the purpose of testing these hypotheses, the research examines concurrently a sample of small businesses located in a regional area of Australia, and a sample of similar entities located in an external territory of Australia exempt from federal taxes and with minimal tax compliance obligations. The thesis adopts a mixed research method which combines a survey and a case study component from which a number of convergent results emerge. Results show that bookkeeping requirements imposed by tax compliance compel small businesses to upgrade their accounting systems, typically in the form of computerisation. The increased sophistication of the accounting system following this upgrade allows small businesses to derive managerial benefits in the form of a better knowledge of their financial affairs. The study also demonstrates that when small businesses seek the assistance of an accountant to comply with their tax compliance obligations, managerial benefits may be derived in the form of informal business advice and other services that come as a spin-off from tax compliance work. The findings of the research also indicate that a majority of small businesses value positively the accounting information generated as a result of tax imposed record keeping requirements, however further studies are required to establish the extent to which the additional information has a positive effect on decision making. Finally, the study identifies various possible approaches to quantify managerial benefits including a method based on the costs of alternative resources, and a valuation based on what owner-managers would be prepared to pay for the information.

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37

Rupping, Jacobus Adriaan. "Determining to what extent the “money-lender test” needs to be satisfied in the context of South African investment holding companies, focusing on the requirements of section 11(a) and 24J(2) of the Income Tax Act No. 58 of 1962". Thesis, Stellenbosch : Stellenbosch University, 2014. http://hdl.handle.net/10019.1/86326.

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Abstract (sommario):

Thesis (MAcc)--Stellenbosch University, 2014.
ENGLISH ABSTRACT: The requirements of section 11(a) and section 24J(2) were considered in this research assignment, from both a money-lender’s and an investment holding company’s perspective, to determine whether interest, losses on irrecoverable loans and raising fees were tax deductible. It was determined, that if the trade requirement is satisfied by the money-lender, then the above-mentioned expenses are fully tax deductible. However, if the trade requirement is satisfied by the investment holding company then only the interest is fully tax deductible. It is further submitted however in this research assignment that it cannot be said that the money-lender alternative is better than the investment holding company alternative – both alternatives are of equal value in the current tax system. What is important though is that taxpayers who will fit the mould of an investment holding company will now be able to use the principles set out in this research assignment to prove that it is in fact carrying on a trade for tax purposes, something that taxpayers are generally reluctant to pursue. If this is pursued, taxpayers may have the added tax benefit of tax deductible interest expenditure (in full) in cases where this was not previously the norm (and an investment holding company will not have to satisfy any of the guidelines of the “money-lender test” when it seeks to deduct its interest expense in full). However, if an investment holding company seeks to deduct losses on irrecoverable loans and raising fees for tax purposes, it will not have to satisfy all the guidelines of the “money-lender test”, but it will have to satisfy one guideline, that being the “system or plan” and “frequent turnover of capital” guideline. It will be very difficult for an investment holding company to prove this on the facts of the case – it will arguably take a special set of facts to accomplish this mean feat.
AFRIKAANSE OPSOMMING: Die vereistes van artikel 11(a) en artikel 24J (2) is in hierdie navorsingsopdrag vanuit ŉ geldskieter en 'n beleggingshouermaatskappy se perspektief oorweeg, om die belastingaftrekbaarheid van rente, verliese op oninvorderbare lenings en diensfooie te bepaal. Daar is vasgestel dat indien die bedryfsvereiste deur ŉ geldskieter nagekom word, bogenoemde uitgawes ten volle vir belastingdoeleindes aftrekbaar is. Indien die bedryfsvereiste egter nagekom word deur ŉ beleggingshouermaatskappy sal slegs die rente ten volle aftrekbaar wees vir belastingdoeleindes. Verder word dit in die navorsingsopdrag aan die hand gedoen dat daar nie gesê kan word dat die geldskieter-alternatief beter is as die beleggingshouermaatskappy-alternatief nie – beide alternatiewe is van gelyke waarde in die huidige belastingbestel. Die onderskeid is egter belangrik, aangesien die belastingbetalers wat aan die vereistes van ŉ beleggingshouermaatskappy voldoen, nou in staat sal wees om die beginsels wat in hierdie navorsingsopdrag uiteengesit word, te gebruik om te bewys dat die beleggingshouermaatskappy in werklikheid ŉ bedryf vir belastingdoeleindes beoefen. Belastingbetalers is oor die algemeen huiwerig om dit te poog. Indien wel, kan belastingbetalers ŉ belastingaftrekking ten opsigte van rente uitgawes kry, wat voorheen nie die norm was nie (ŉ beleggingshouermaatskappy sal nie enige van die “geldskietertoets” riglyne hoef na te kom wanneer dit poog om ŉ belastingafrekking vir die rente uitgawe te kry nie). Indien ŉ beleggingshouermaatskappy verliese op oninvorderbare lenings en diensfooie vir belastingdoeleindes wil aftrek, sal die belastingbetaler nie al die “geldskietertoets” riglyne hoef na te kom nie, maar sal egter moet voldoen aan die “stelsel of plan” en “gereelde omset van kapitaal” riglyne. Dit sal baie moeilik wees vir 'n beleggingshouermaatskappy om dit te bewys op grond van die feite van die saak – dit sal waarskynlik ŉ spesiale stel feite verg om dit te bereik.

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38

Roberts, Justin Esrom. "The proposed new gambling tax in South Africa". Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/1639.

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Abstract (sommario):

In the 2011/2012 Budget Speech delivered by the Minister of Finance, Pravin Gordhan, it was announced that a 15% withholding tax on gambling winnings above R 25 000 was to be introduced with effect from 1 April 2012. This treatise was undertaken to critically analyse the different elements of the proposed new withholding tax. It was established that the fiscus already benefits significantly from the gambling industry and levies and taxes from the gambling industry dwarf the revenue SARS collect from other forms of taxes such as Donations tax and Estate Duty tax. The necessity, therefore, of taxing gambling winnings in the hands of the individual is debatable. A comparison with the three foreign countries used by the Minister as an example of countries who have successfully implemented a withholding tax on gambling winnings exposed operational or other characteristics which bear no significant relationship to the situation in which the industry operates in South Africa. Probably the most significant difference is the fact that in the three foreign countries, losses are deductible and only the net gains are taxed. Although it iv could add to an already seemingly administrative-intensive legislation, it is submitted that taxing gambling winnings and ignoring losses suffered by gamblers will be disproportionately unfair towards the taxpayer. The many questions raised in this treatise illustrate the level of uncertainty still surrounding the new proposed gambling tax. It is hoped that communication will be provided by SARS as soon as possible to address the issues at hand. This would go a long way in ensuring that the implementation of the proposed withholding tax on gambling winnings is as smooth and efficient as possible.

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39

Olson, William H. (William Halver). "An Empirical Investigation of the Factors Considered by the Tax Court in Determining Principal Purpose Under Internal Revenue Code Section 269". Thesis, North Texas State University, 1987. https://digital.library.unt.edu/ark:/67531/metadc332329/.

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Abstract (sommario):

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).

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40

Kroukamp, Susan. "Possible tax treatments of the transfer of accounting provisions during he sale of a business and subsequent tax considerations /". Thesis, Stellenbosch : University of Stellenbosch, 2006. http://hdl.handle.net/10019.1/3336.

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Abstract (sommario):

Thesis (MAcc (Accountancy))--University of Stellenbosch, 2006.
The potential buyer of a business evaluates the attractiveness of the transaction by considering the financial status of the business being sold. In determining the financial status of a business it is more important to determine the nature of the assets and liabilities recorded on the balance sheet rather than the mere existence thereof. Included in the liabilities are accounting provisions recorded in terms of the Generally Accepted Accounting Practice (GAAP) to reflect a fair representation of the financial status. Although these provisions are made for accounting purposes, they cannot necessarily be deducted under the terms of the Income Tax Act, no 58 of 1962. The tax deductibility of accounting provisions has long been a potential contention when a business is sold. The Income Tax Act has specific sections that must be applied in determining the deductibility of accounting provisions, for example, section 11(a), which is the general deduction formula; section 23(g), which prohibits expenses not laid out for the purposes of trade; and section 23(e), which does not allow a deduction when a reserve fund is created (for example a leave pay provision). In conducting this study, seven types of accounting provision generally recorded by businesses were identified: the bonus provision, leave pay provision, warranty provision, settlement discount and incentive-rebate provision, post employment provision, retrenchment cost provision and other provisions. These provisions are discussed in view of their possible income tax deductibility, and relevant case studies were identified to confirm the possible deductibility of these accounting provisions. In this study, the transfer of accounting provisions during the sale of a business is considered for the purposes of both the buyer and seller. The tax implications for the buyer and seller are then evaluated, as well as the subsequent treatment of the accounting provisions for the purposes of the buyer. Because the wording of the purchase contract is extremely important when a business is acquired, three examples of the wording of a purchase contract are discussed as well as the income tax implications thereof. The extent of the advice given by a tax practitioner will depend on the allegiance of the practitioner (either for the buyer or seller) and will determine how the contract will be concluded. In conclusion a tax practitioner would want to assist his client to obtain the most effective tax position for the transaction and therefore each purchase contract must be reviewed on its own set of facts.

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41

Doidge, Stephen. "The tax treatment of receipts and accruals arising from equity option contracts". Thesis, Rhodes University, 2013. http://hdl.handle.net/10962/d1007921.

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Abstract (sommario):

In this thesis the tax treatment of equity option contracts is examined. The writer gives an overview of the derivatives market in general and discusses the nature and effect of equity options in detail. Limited amendments have been made to the South African Income Tax Act No 58 of 1962 ('the Act') since the emergence of derivative instruments and at present only three types of derivative instruments are recognised: forward exchange and option contracts relating to forward exchange, interest rate swaps based on notional capital amounts and option contracts. Other than section 241 of the Act which deems all receipts and accruals from foreign exchange contracts to be income, the other sections dealing with derivatives do not concern themselves with capital or revenue classification. Accordingly, the classification of receipts and accruals arising from an equity option transaction is generally governed by the ordinary principles of South African tax law with the added problem of there being limited South African case law applying these general prinCiples to such transactions. The research undertaken in this thesis results in the establishment of a framework designed to determine the classification as revenue or capital the receipts and accruals arising from equity option contracts. Speculating, trading and investing in equity options is examined with regard to the general principles of South African tax and available case law. Hedging transactions are analysed with specific reference to their exact nature as well as general tax principles and available case law. The analogy of Krugerrands is used to draw parallels with the tax treatment of receipts and accruals arising from equity options used for hedging purposes. Once the theoretical framework has been established for revenue or capital classification, the actual tax treatment of both revenue and capital receipts is examined with reference to the Act and issues such as the gross income definition, the general deduction formula, trading stock and timing provisions are analysed and applied to receipts and accruals arising from equity option transactions. The thesis concludes with a summary of the findings and recommendations are made based on the research conducted.

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42

Fourie, Leonie. "A comparison between the South African "source rules" in relation to income tax and the "permanent establishment rules" as contained in double taxation agreements". Thesis, Rhodes University, 2008. http://hdl.handle.net/10962/d1008203.

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Abstract (sommario):

South Africa's right to tax the income of a non-resident is determined in terms of the South African "source rules" established by court decisions in relation to the imposition of tax in terms of the Income Tax Act. Unless a non-resident's income is captured by the South African "source rules" (on the basis that hi slits income is derived from a South African source), South Africa would have no right to tax such income, even if such non-resident creates a permanent establishment in South Africa by performing business activities within South Africa which could be considered essential (but not dominant) in nature. In such scenario the activities performed by the non-resident in South Africa may utilise the natural resources and the infrastructure of South Africa, but the South African fiscus would be deprived of the right to any tax revenues attributable to the income produced partly by such activities within South Africa. The South African "source rules" refer only to the main or dominant activities giving rise to the income for the purpose of determining the source of such income (and accordingly the right to tax such income). On the other hand, the "permanent establishment rules" as set out under the Organisation for Economic Cooperation and Development Model Tax Convention on Income and on Capital refer to all the taxpayer's essential business activities for the purpose of determining whether or not such activities create a pennanent establishment. The result of the narrow nature of the South African "source rules" is that, under certain circumstances, the South African fiscus would not necessarily be granted the right to tax all income produced partly within South Africa. The research demonstrated that incorporating the principles underlying the "pennanent establishment rules" into South African legislation would be a reasonable and logical solution to the problem of detennining the source of income. In so doing, the South African "source rules" would determine the source of income, and consequently South Africa's taxing rights, with reference to the essential business activities giving rise to such income. In such case South Africa would be afforded the right to tax the income of a non-resident in the event that it performs any of its essential business activities within South Africa, albeit not the dominant or main activities giving rise to the income.

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43

Nguta, Mbulelo. "The meaning of expenditure actually incurred in the context of share-based payments for trading stock or services rendered". Thesis, Rhodes University, 2015. http://hdl.handle.net/10962/d1018661.

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Abstract (sommario):

Section 11(a) of the Income Tax Act 58 of 1962 entitles taxpayers to a deduction in respect of expenditure actually incurred, provided that all the other requirements of section 11 and section 23 of the Act have been met. A company may issue its own shares, credited as fully paid up, as a payment for trading stock or services rendered, as was the case in C:SARS v Labat Africa (2011) 74 SATC 1. The question that was raised by this decision is whether the issue of shares constitutes “expenditure” as contemplated in section 11(a) of the Act. It is trite that a share in a company is a bundle of rights which entitle the holder to dividends when declared and to a vote in shareholders’ meetings and that a share does not come into the hands of a shareholder by way of transfer from the company, but is rather created as a bundle of rights for him in the company. In C: SARS v Labat Africa, the Supreme Court of Appeal decided that to issue shares as a payment for goods is not expenditure as contemplated in section 11(a) of the Act. The Act does not define “expenditure”. It has been interpreted in certain cases as a payment of money or disbursement, while it has been interpreted as the undertaking of a legal obligation in other cases. The Labat Africa case has been criticised for its interpretation of expenditure on the grounds that it is contrary to the principle that “actually incurred” does not mean “actually paid”. This research has argued that, in the context of the Labat Africa case, which related to an issue of shares in payment for goods, Harms AP’s judgment was concerned with showing why a share issue is not expenditure. He could not have intended to deny a deduction to transactions such as credit purchases.

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44

Strauss, Carien. "An analysis of sections 11D(1)(A) and 11D(5)(B) of the income tax Act No. 58 of 1962 as amended". Thesis, Stellenbosch : Stellenbosch University, 2011. http://hdl.handle.net/10019.1/17808.

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Abstract (sommario):

Thesis (MAcc)--Stellenbosch University, 2011.
ENGLISH ABSTRACT: In February 2007 section 11D was inserted into the Income Tax Act 58 of 1962 as amended. The aim of the section was to encourage private-sector investment in scientific or technological research and development (R&D). This was an indirect approach by National Treasury to increase national scientific and technological R&D expenditure in order to complement government expenditure on the subject matter. Although section 11D provides generous income tax incentives, the interpretation thereof was found to be a hindrance in attaining the goal sought by National Treasury. This is due to the fact that this section demands a firm grasp of intellectual property (IP) law, principles of tax, and technology in general. This is clearly shown by the lapse in time (i.e. three years) between the passing of section 11D into law and the release of the South African Revenue Services’ (SARS) final interpretation of section 11D, i.e. Interpretation Note 50. The release of Interpretation Note 50 in August 2009 sparked wide-spread controversy among many a patent attorneys and tax consultants. The interpretation of the section by SARS was found by many to be so draconian that it destroyed the incentive entirely. The objective of this study is to provide greater clarity on the areas of section 11D which have been found to be onerous to taxpayers. Hence the meaning of “new” and “non-obvious” in the context of a discovery of information as eligible R&D activity1 was examined. Hereafter the ambit of the exclusion of expenditure on “management or internal business process”2 from eligibility for the incentive in the context of computer program development was examined. It was established that the meaning of “novel” and “non-obvious” as construed by IP jurisprudence could mutatis mutandis be adopted for purposes of interpreting section 11D(1) of the Income Tax Act. Therefore, information would be regarded as “new” if it did not form part of the state of the art immediately prior to the date of its discovery. The state of the art was found to comprise all matter which had been made available to the public (both in the Republic and elsewhere) by written or oral description, by use or in any other way. Information would also be regarded as non-obvious if an ordinary person, skilled in the art, faced with the same problem, would not have easily solved the problem presented to him by having sole reliance on his intelligence and what was regarded as common knowledge in the art at the time of the discovery. It was submitted that in construing the meaning of the “management or internal business process” exclusion, the intention of the lawgiver should be sought and given effect to. The Explanatory Memorandum issued on the introduction of section 11D states that the lawgiver’s intention with the section was to ensure that South Africa is not at a global disadvantage concerning R&D. The R&D tax legislation of Australia, the United Kingdom and Canada was therefore examined to establish the international bar set in this regard. SARS is of the view that the “management or internal business process” exclusion applies to the development of any computer program (with the said application) irrespective of whether the program is developed for the purpose of in-house use, sale or licensing. However, it was found that such a restrictive interpretation would place homebound computer development at a severe disadvantage when compared with the legislation of the above mentioned countries. In order to give effect to the intention of legislature, it was submitted that the exclusion provision should be construed to only include the development of computer programs for in-house management or internal business process use. Computer programs developed for the said application, but for the purpose of being sold or licensed to an unrelated third party, should still be eligible for the R&D tax incentive.
AFRIKAANSE OPSOMMING: Artikel 11D is gevoeg tot die Inkomstebelastingwet 58 van 1962 gedurende Februarie 2007. Die wetgewing het ten doel om privaatsektor investering in tegniese en wetenskaplike navorsing en ontwikkeling (N&O) aan te moedig. Nasionale Tesourie dra dus op ‘n indirekte wyse by tot die hulpbronne wat die regering op nasionale vlak aan tegniese en wetenskaplike N&O bestee in ‘n gesamentlike poging om N&O in Suid-Afrika te stimuleer. Artikel 11D hou op die oog af baie gunstige inkomstebelasting aansporings in. Dit wil egter voorkom asof die interpretasie daarvan as ernstige struikelblok dien in die bereiking van die doel wat Nasionale Tesourie voor oë gehad het. Dit kan toegeskryf word aan die feit dat die artikel ‘n wesenlike begrip van intellektuele eiendom (IE) wetgewing, belasting beginsels en tegnologie in die algemeen vereis. Die feit dat dit die Suid-Afrikaanse Inkomstebelastingdiens (SAID) ongeveer drie jaar geneem het om hul interpretasie (i.e. Interpretasienota 50) van die artikel te finaliseer dien as bewys hiervan. Die SAID het gedurende Augustus 2009, Interpretasienota 50 vrygestel. Die nota het wye kritiek ontlok by menigte IE prokureurs en belastingkonsultante. Daar is algemene konsensus dat die SAID se interpretasie so drakonies van aard is, dat dit enige aansporing wat die artikel bied, geheel en al uitwis. Die doel van hierdie studie is om die problematiese bepalings van die aansporingsartikel te verlig en groter sekerheid daaroor te verskaf. Gevolglik is die betekenis van “nuut” en “nie-ooglopend” soos van toepassing op ‘n ontdekking van inligting as kwalifiserende N&O aktiwiteit, bestudeer. Verder is die omvang van die bepaling wat besteding op “bestuur of interne besigheidsprosesse” uitsluit van kwalifikasie vir die aansporingsinsentief, bestudeer in die konteks van rekenaar programmatuur ontwikkeling. By nadere ondersoek is daar bevind dat die betekenis van “nuut” en “nie-ooglopend” soos uitgelê vir doeleindes van IE wetgewing mutatis mutandis aangeneem kan word vir die uitleg van artikel 11D(1)(a) van die Inkomstebelastingwet. Vervolgens word inligting as “nuut” beskou indien dit nie deel uitmaak van die stand van die tegniek onmiddellik voor die datum waarop dit ontdek is nie. Die stand van die tegniek vir die bepaling van nuutheid behels alle stof wat reeds aan die publiek beskikbaar gestel is (hetsy binne die Republiek of elders) by wyse van skriftelike of mondelinge beskrywing, deur gebruik of op enige ander wyse. Inligting word as nie-ooglopend beskou indien ‘n gewone werker wat bedrewe is in die tegniek en gekonfronteer is met dieselfde probleem, nie geredelik die antwoord tot die probleem sou vind deur bloot staat te maak op sy intelligensie en die algemene kennis in die bedryf op die tydstip van die ontdekking nie. Daar is aan die hand gedoen dat die doel van die wetgewer nagestreef moet word met die uitleg van die “bestuur of interne besigheidsprosesse” uitsluiting. Die Verklarende Memorandum wat uitgereik is met die bekendstelling van artikel 11D het gemeld dat die wetgewer ten doel gehad het om Suid Afrika op ‘n gelyke speelveld met die res van die wêreld te plaas wat betref N&O. Die N&O belastingbepalings van Australië, die Verenigde Koninkryk (VK) en Kanada is dus bestudeer om die internasionale standaard in die opsig vas te stel. Die SAID is van mening dat die strekwydte van die uitsluiting so omvangryk is dat dit alle rekenaar programmatuur wat ontwikkel is vir ‘n bestuur- of interne besigheidsproses toepassing tref, ten spyte daarvan dat die bedoeling van die belastingpligtige was om die programmatuur te verkoop of te lisensieër aan ‘n onverbonde derde party. Dit was egter bevind dat so ‘n beperkende uitleg die aansporing van rekenaar programmatuur ontwikkeling in Suid Afrika geweldig benadeel in vergelyking met die regime wat geld in lande soos Australië, die VK en Kanada. Ten einde gevolg te gee aan die bedoeling van die wetgewer, is daar aan die hand gedoen dat die uitsluiting slegs so ver moet strek as om rekenaar programme vir eie gebruik te diskwalifiseer. Rekenaar programme wat dus ontwikkel word met die doel om dit te verkoop of te lisensieër aan onverbonde derde partye moet steeds vir die aansporingsinsentief kwalifiseer.

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45

Calitz, Johanna Eliza. "The deductibility of future expenditure on contract in terms of section 24C". Thesis, Stellenbosch : Stellenbosch University, 2015. http://hdl.handle.net/10019.1/96660.

Testo completo

Abstract (sommario):

Thesis (MAcc)--Stellenbosch University, 2015.
ENGLISH ABSTRACT: Section 24C of the Income Tax Act No. 58 of 1962 (‘the Act’) provides for a deduction of future expenditure that will be incurred by the taxpayer in the performance of his obligations under a contract from which the taxpayer derived income. Due to uncertainties regarding the meaning of certain words and phrases used in section 24C, the first aim of this assignment was to determine the meaning of the word ‘expenditure’ and the phrase ‘will be incurred’ as used in section 24C. The second aim was to establish how a taxpayer will prove with certainty that he will incur future expenditure in the performance of his obligations under a contract. This was done by discussing the effect of contractual terms and other circumstances and by taking into account certain additional guidelines regarding the interpretation of section 24C provided for in Interpretation Note: No. 78 (‘IN 78’). It was established that the word ‘expenditure’ means the amount of money spent, including the disbursement of other assets with a monetary value. The word ‘expenditure’ also specifically includes the voluntary payments and disbursements of assets. The word ‘expenditure’ can also include a loss if the word ‘loss’ can be equated to the word ‘expenditure’. The phrase ‘will be incurred’ implies that the taxpayer will, in a subsequent year of assessment, have an unconditional obligation to pay for expenditure, which must arise from the taxpayer’s obligations to perform under the contract. Contractual terms and other circumstances can indicate whether there is certainty that future expenditure will be incurred as aforementioned. Conditions and warranties are contractual terms that indicate that there is uncertainty regarding the taxpayer’s obligations to perform under the contract. A time clause in a contract can indicate that there is certainty regarding the taxpayer’s obligations to perform under the contract. Similar contracts with similar conditional obligations to perform cannot be grouped together in order to determine the probability, and thus the certainty, that future expenditure will be incurred in the performance of the taxpayer’s obligations under a contract. The probability that a taxpayer will perform his unconditional obligation under the contract must, however, be proved in order to demonstrate that there is certainty regarding the incurral of the future expenditure. IN 78 does not specify whether a loss which can, in certain circumstances, be equated to the word ‘expenditure’, is deductible under section 24C. This should be clarified. The new undefined phrases (a high degree of probability, inevitability, certainty and potentially contractually obligatory), as used in IN 78, might cause confusion when interpreting section 24C. These phrases should be defined and it should be explained how the high degree will be measured. Lastly, is was shown that an anomaly occurs regarding trading stock at hand at the end of a year of assessment, which will be utilised in a subsequent year of assessment in the performance of the taxpayer’s obligations under a contract. Such trading stock does not represent ‘future expenditure’ and must be excluded from the section 24C allowance. However, due to the interplay between section 24C and section 22(1), the taxpayer does not receive any tax relief for the expenditure actually incurred to acquire the closing trading stock in the year in which such trading stock is acquired. It is, therefore, questioned whether the established interpretation of section 24C is in agreement with the Legislator’s original intention with section 24C namely, to match income received under a contract with the related deductible expenditure.
AFRIKAANSE OPSOMMING: Artikel 24C van die Inkomstebelastingwet No. 58 van 1962 (‘die Wet’) voorsien ŉ aftrekking vir toekomstige onkoste wat deur die belastingpligtige aangegaan sal word in die nakoming van sy verpligtinge ingevolge ŉ kontrak waaruit hy inkomste verkry het. As gevolg van onsekerhede ten opsigte van die betekenis van sekere woorde en frases wat in artikel 24C gebruik word, was die eerste doelstelling van hierdie navorsingswerkstuk om die betekenis van die woord ‘onkoste’ en die frase ‘aangegaan sal word’, soos wat dit in artikel 24C gebruik word, te bepaal. Die tweede doelstelling was om vas te stel hoe 'n belastingpligtige met sekerheid sal bewys dat hy toekomstige onkoste sal aangaan in die nakoming van sy verpligtinge ingevolge ŉ kontrak. Dit is gedoen deur die effek van kontraksbedinge en ander omstandighede te bespreek en deur sekere bykomende riglyne ten opsigte van die interpretasie van artikel 24C, soos vervat in Interpretasienota No. 78 (‘IN 78’), in ag te neem. Daar is vasgestel dat die woord ‘onkoste’ die bedrag van geld wat bestee word, insluitend die uitbetaling van ander bates met 'n geldwaarde, beteken. Die woord ‘onkoste’ sluit ook spesifiek vrywillige betalings en uitbetalings van bates in. Die woord ‘onkoste’ kan ook 'n verlies insluit, indien die woord ‘verlies’ gelyk gestel kan word aan die woord ‘onkoste’. Die frase ‘aangegaan sal word’ impliseer dat die belastingpligtige, in 'n daaropvolgende jaar van aanslag, 'n onvoorwaardelike verpligting sal hê om vir onkostes te betaal. Hierdie onkostes moet ontstaan weens die belastingpligtige se verpligtinge ingevolge die kontrak. Kontraksbedinge en ander omstandighede kan aandui of daar sekerheid is dat die toekomstige onkoste, soos hierbo genoem, aangegaan sal word. Voorwaardes en waarborge is kontraksbedinge wat daarop dui dat daar onsekerheid is rakende die belastingpligtige se verpligtinge om ingevolge die kontrak op te tree. ŉ Tydsklousule in 'n kontrak kan aandui dat daar sekerheid is rakende die belastingpligtige se nakoming van sy verpligtinge ingevolge die kontrak. Soortgelyke kontrakte, met soortgelyke voorwaardelike verpligtinge kan nie saam gegroepeer word ten einde te bepaal of dit waarskynlik, en gevolglik seker is dat toekomstige onkoste in die nakoming van ŉ belastingpligtige se verpligtinge ingevolge die kontrak aangaan sal word nie. Die waarskynlikheid dat 'n belastingpligtige sy onvoorwaardelike verpligting ingevolge die kontrak sal nakom moet egter bewys word ten einde aan te dui dat daar sekerheid is dat toekomstige onkoste aangegaan sal word. IN 78 spesifiseer nie of 'n verlies wat, in sekere omstandighede, gelyk gestel kan word aan die woord ‘onkoste’, ingevolge artikel 24C aftrekbaar is nie. Duidelikheid hieromtrent moet verskaf word. Die nuwe, ongedefinieerde frases ('n hoë graad van waarskynlikheid, onafwendbaarheid, sekerheid en potensieel kontraktueel verpligtend (vry vertaal)), soos in IN 78 gebruik, kan moontlik verwarring veroorsaak wanneer artikel 24C geïnterpreteer word. Hierdie frases moet gedefinieer word en daar moet verduidelik word hoe ŉ hoë graad gemeet gaan word. Laastens blyk dit dat 'n teenstrydigheid ontstaan ten opsigte van handelsvoorraad op hande aan die einde van 'n jaar van aanslag, wat in 'n daaropvolgende jaar van aanslag deur die belastingpligtige in die nakoming van sy verpligtinge ingevolge 'n kontrak gebruik sal word. Sodanige handelsvoorraad verteenwoordig nie ‘toekomstige onkoste’ nie en moet by die artikel 24C toelaag uitgesluit word. Die belastingpligte ontvang egter, weens die wisselwerking tussen artikel 24C en artikel 22(1), nie ŉ belastingverligting vir die onkoste werklik aangegaan in die jaar waarin sodanige handelsvoorraad verkry is nie. Dit word dus bevraagteken of die bewese interpretasie van artikel 24C in ooreenstemming is met die Wetgewer se oorspronklike bedoeling met artikel 24C, naamlik, om inkomste ontvang ingevolge ŉ kontrak met die verwante aftrekbare uitgawes te paar.

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46

Grenville, David Paul. "A critical analysis of the practical man principle in Commissioner for Inland Revenue v Lever Brothers and Unilever Ltd". Thesis, Rhodes University, 2014. http://hdl.handle.net/10962/d1013238.

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Abstract (sommario):

This research studies the practical person principle as it was introduced in the case of Commissioner for Inland Revenue v Lever Brothers and Unilever Ltd 1946 AD 441. In its time the Lever Brothers case was a seminal judgment in South Africa’s tax jurisprudence and the practical person principle was a decisive criterion for the determination of source of income. The primary goal of this research was a critical analysis the practical man principle. This involved an analysis of the extent to which this principle requires judges to adopt a criterion that is too flexible for legitimate judicial decision-making. The extent to which the practical person principle creates a clash between a philosophical approach to law and an approach that is based on common sense or practicality was also debated. Finally, it was considered whether adopting a philosophical approach to determining the source of income could overcome the problems associated with the practical approach. A doctrinal methodology was applied to the documentary data consisting of the South African and Australian Income Tax Acts, South African and other case law, historical records and the writings of scholars. From the critical analysis of the practical person principle it was concluded that the anthropomorphised form of the principle gives rise to several problems that may be overcome by looking to the underlying operation of the principle. Further analysis of this operation, however, revealed deeper problems in that the principle undermines the doctrine of judicial precedent, legal certainty and the rule of law. Accordingly a practical approach to determining the source of income is undesirable and unconstitutional. Further research was conducted into the relative merits of a philosophical approach to determining source of income and it was argued that such an approach could provide a more desirable solution to determining source of income as well as approaching legal problems more generally.

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47

Ong'wamuhana, Kibuta. "The taxation of income from foreign investments : a case study of some developing countries". Title page, contents and abstract only, 1989. http://web4.library.adelaide.edu.au/theses/09LM/09lmo58.pdf.

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48

Bovijn, Silke. "Warranted and warrantless search and seizure in South African income tax law : the development, operation, constitutionality and remedies of a taxpayer". Thesis, Stellenbosch : Stellenbosch University, 2011. http://hdl.handle.net/10019.1/17961.

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Abstract (sommario):

Thesis (MComm)--Stellenbosch University, 2011.
ENGLISH ABSTRACT: Section 74D of the Income Tax Act No 58 of 1962 (the Act) grants the power of search and seizure to the South African Revenue Service, the basic underlying principle being that the Commissioner has to obtain a warrant from a judge prior to a search and seizure operation. The previous section 74(3) of the Act provided that the Commissioner was allowed himself to authorise and conduct a search and seizure operation without the requirement of a warrant. Section 74D of the Act was recently reviewed and the Tax Administration Bill (the TAB) contains the new provisions on search and seizure that will replace section 74D of the Act. In this assignment, the concept of search and seizure was examined by considering the cases, academic writing and other material on the topic. The objectives were to analyse the development of search and seizure in South African income tax law, to provide a basic understanding of the warranted and warrantless search and seizure provisions of the Act and the TAB, to determine their constitutionality and to determine the remedies available to a taxpayer who has been subject to a search and seizure. It was found that search and seizure has developed from warrantless under the previous section 74(3) of the Act into the requirement of a warrant under section 74D of the Act into a combination of both under the TAB. The concept of an ex parte application was analysed, which was shown to be permissible in certain circumstances under section 74D of the Act, while it is now compulsory in terms of the TAB. It was shown that the TAB closed the lacuna in the Act relating to the validity period of a warrant before it has been executed. It was, however, concluded, regarding whether a warrant expires when exercised or whether the same warrant can be used again to conduct a second search and seizure, that the position is not quite certain in terms of the Act and the TAB. It was found that there is no defined meaning of the reasonable grounds criterion, which is often required to be met in terms of the Act and the TAB, but that anyone that has to comply with the criterion must be satisfied that the grounds in fact exist objectively. The new warrantless search and seizure provisions of the TAB were analysed. It was established that warrantless search and seizure provisions are not uncommon in other statutes, but that the content thereof often differs. The new warrantless provisions were compared to the warrantless search and seizure provisions of, inter alia, the Competition Act No 89 of 1998 (the Competition Act), and it was found that the warrantless TAB provisions are not in all respects as circumscribed as those of the Competition Act and recommendations for counterbalances were made. It was concluded that the warranted search and seizure provisions of the Act and the TAB should be constitutionally valid but that the constitutionality of the new warrantless provisions of the TAB is not beyond doubt. It was furthermore found that the remedies at the disposal of a taxpayer who has been subject to a search and seizure should indeed be sufficient, but that there are no remedies available to a taxpayer to prevent injustice or harm.
AFRIKAANSE OPSOMMING: Artikel 74D van die Inkomstebelastingwet No 58 van 1962, (die Wet) verleen aan die Suid-Afrikaanse Inkomstediens die mag van deursoeking en beslaglegging, die grondliggende beginsel synde dat die Kommissaris ’n lasbrief van ’n regter moet verkry voor die deursoeking en beslaglegging kan plaasvind. Die vorige artikel 74(3) van die Wet het bepaal dat die Kommissaris self ’n deursoeking en beslaglegging kon magtig en uitvoer sonder die vereiste van ’n lasbrief. Artikel 74D van die Wet is onlangs hersien en die nuwe Belastingadministrasie-wetsontwerp (BAW) bevat die nuwe bepalings oor deursoeking en beslaglegging wat artikel 74D van die Wet sal vervang. In hierdie werkstuk is die konsep van deursoeking en beslaglegging ondersoek deur oorweging van die hofsake, akademiese skrywe en ander materiaal oor die onderwerp. Die doelstellings was om die ontwikkeling van deursoeking en beslaglegging in die Suid-Afrikaanse inkomstebelastingreg te ontleed, om ’n basiese begrip van die bepalings in die Wet en die BAW oor deursoeking en beslaglegging met en sonder ’n lasbrief te verskaf, om die grondwetlikheid daarvan te bepaal en om die remedies te bepaal wat beskikbaar is vir ’n belastingpligtige wat onderworpe was aan deursoeking en beslaglegging. Daar is bevind dat deursoeking en beslaglegging ontwikkel het vanaf sonder ’n lasbrief ingevolge die vorige artikel 74(3) van die Wet tot die vereiste van ’n lasbrief ingevolge artikel 74D van die Wet tot die kombinasie van albei ingevolge die BAW. Die konsep van ’n ex parte-aansoek is ontleed, en dit blyk in sekere omstandighede ingevolge artikel 74D van die Wet toelaatbaar te wees, terwyl dit nou ingevolge die BAW verpligtend is. Daar is aangedui dat die BAW die lacuna in die Wet oor die geldigheidsperiode van ’n lasbrief voordat dit uitgevoer is, verwyder het. Daar is egter bevind, rakende die vraag of ’n lasbrief verval wanneer dit uitgevoer word en of dieselfde lasbrief weer gebruik kan word om ’n tweede deursoeking en beslaglegging uit te voer, dat daar nie sekerheid ingevolge die Wet of die BAW bestaan nie. Daar is bevind dat daar geen gedefinieerde betekenis vir die kriterium van redelike gronde is nie, waaraan dikwels ingevolge die Wet en die BAW voldoen moet word, maar dat enigiemand wat aan die kriterium moet voldoen tevrede moet wees dat die gronde inderwaarheid objektief bestaan. Die nuwe bepalings van die BAW oor deursoeking en beslaglegging sonder ’n lasbrief is ondersoek. Daar is vasgestel dat bepalings oor deursoeking en beslaglegging sonder ’n lasbrief nie ongewoon is in ander wette nie, maar dat die inhoud daarvan dikwels verskil. Die nuwe bepalings oor deursoeking en beslaglegging sonder ’n lasbrief is vergelyk met die bepalings oor deursoeking en beslaglegging sonder ’n lasbrief van, inter alia, die Mededingingswet No 89 van 1998 (die Mededingingswet), en daar is bevind dat die BAW-bepalings oor deursoeking en beslaglegging sonder ’n lasbrief nie in alle opsigte so afgebaken is soos dié van die Mededingingswet nie en voorstelle vir teenwigte is gemaak. Die gevolgtrekking is gemaak dat die bepalings oor deursoeking en beslaglegging met ’n lasbrief van die Wet en die BAW grondwetlik geldig behoort te wees, maar dat die grondwetlikheid van die nuwe bepalings van die BAW oor deursoeking en beslaglegging sonder ’n lasbrief nie onweerlegbaar is nie. Daar is verder bevind dat die remedies tot die beskikking van ’n belastingpligtige wat onderworpe was aan deursoeking en beslaglegging inderdaad genoegsaam behoort te wees, maar dat daar geen remedies aan ’n belastingpligtige beskikbaar is om ongeregtigheid of skade te voorkom nie.

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49

Van, Schaik Rozelle. "A critical analysis of the concepts permanent establishment and foreign business establishment". Thesis, Stellenbosch : Stellenbosch University, 2010. http://hdl.handle.net/10019.1/21139.

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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.

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50

Evans, Christopher Charles Law Faculty of Law UNSW. "The operating costs of taxing the capital gains of individuals : a comparative study of Australia and the UK, with particular reference to the compliance costs of certain tax design features". Awarded by:University of New South Wales. Law, 2003. http://handle.unsw.edu.au/1959.4/20738.

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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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Tesi sul tema "Income tax – Law and legislation – Australia"

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