An historical analysis of the development of a company as a single enterprise and the impact on group company taxation
- Authors: Els, Tania
- Date: 2020
- Subjects: Taxation -- South Africa , Taxation -- History , Taxation -- Law and legislation -- South Africa , Business enterprises -- South Africa , Business enterprises -- Taxation -- Law and legislation -- South Africa , Corporation law -- South Africa , South Africa. Income Tax Act, 1962 , South Africa. Companies Act, 2008 , Separate legal personality , Group taxation
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/154241 , vital:39628
- Description: The company is considered a separate legal entity in both legislation and jurisprudence. The “veil” separating the company and its shareholders is a doctrine entrenched in company law that originated centuries ago. The doctrine is based on conditions that existed during a period that commenced with trading forms less complicated than the corporate groups found today. Trading forms known as guilds could be traced back to 1087, which gradually developed into regulated companies and, in the last century, into the joint-stock company form. The modern era has seen the development of groups of companies carrying on business as economic units. Company law, in regulating business forms, has failed to acknowledge the corporate group as a new business entity. The main purpose of this research was to analyse the origins of the separate legal personality of a company and its relevance for the present corporate group structures. The research aimed to understand company law and jurisprudence in South Africa in relation to the legal personality of a company and a corporate group. The final objective of this reform-orientated doctrinal research thesis was to provide clarity on the need to consider granting separate legal identity to corporate groups in recognition of their economic unity. A historically contextualised analysis was carried out on the development of trading through unregulated forms of businesses to the creation of the company as a regulated entity. The development of the legal persona of a company in legislation as well as jurisprudence was critically analysed in on the context of companies within a corporate group. A case study of a South African corporate group was used to highlight the different characteristics of the companies doing business in the form of a corporate group. The thesis concluded by recommending that legal personality should be extended to include a corporate group in order to facilitate the introduction of a group taxation regime.
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- Date Issued: 2020
An analysis, from a South African case law perspective, of the deductibility of losses due to embezzlement, fraud, theft, damages and compensation
- Authors: Jachi, Adelaide Gamuchirai
- Date: 2018
- Subjects: South Africa. Income Tax Act, 1962 , Tax deductions -- South Africa , Taxation -- Law and legislation -- South Africa , Tax courts -- South Africa , Tax administration and procedure -- South Africa , Tax accounting -- South Africa , Income tax deductions for losses -- South Africa
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/60855 , vital:27846
- Description: When calculating the income tax payable for a year of assessment, a taxpayer deducts from his or her or its income, allowable deductions in terms of the preamble to section 11 and section 11(a) as read with section 23(g) of the Income Tax Act, 58 of 1962. Amongst the expenditure and losses incurred by a taxpayer during a year of assessment, a claim may be sought for the deduction of losses incurred due to embezzlement, fraud and theft as well as damages and compensation. The requirements of the preamble and section 11(a) include the requirement that expenditure and losses must be incurred “in the production of the income”. Losses incurred due to defalcations, as well as expenditure on damages and compensation must satisfy this requirement to be allowed as deductions. The objective of the research was to analyse the judicial decisions dealing with “in the production of the income” in granting a deduction for income tax purposes in cases dealing with embezzlement, fraud and theft, and damages and compensation, to establish why the courts grant or disallow the deduction of expenditure and losses. A doctrinal research methodology was applied to the research. The provisions of the Income Tax Act, relevant case law relating to embezzlement, fraud and theft, and damages and compensation, and the contributions of the revenue authority and tax experts in articles of accredited journals, textbooks and other writings were analysed. The major conclusions drawn from the research were that losses due to defalcations are regarded as having been incurred “in the production of the income” if the taxpayer discharges the onus of proof that the risk of the act leading to misappropriation is an incidental risk of the business. Expenditure on damages and compensation is deductible provided the expense is attached to the performance of a business operation bona fide performed for the purpose of earning income and the expense is so closely connected with the business operation as to be regarded as part of the cost of performing it. Where negligence is attached to an expense or loss, the South African courts have held that negligence does not increase the likelihood of disallowing an expense or loss as not having been incurred “in the production of the income”.
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- Date Issued: 2018