An analysis of the South African income tax legislation in respect of transfer pricing
- Authors: Le Roux, Ayesha
- Date: 2016
- Subjects: Transfer pricing -- Taxation -- South Africa Transfer pricing -- Taxation -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10948/13105 , vital:27152
- Description: 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.
- Full Text:
- Date Issued: 2016
- Authors: Le Roux, Ayesha
- Date: 2016
- Subjects: Transfer pricing -- Taxation -- South Africa Transfer pricing -- Taxation -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10948/13105 , vital:27152
- Description: 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.
- Full Text:
- Date Issued: 2016
The rights of employees following a transfer of an undertaking in terms of section 197 of the Labour Relation Act in an outsourcing context
- Authors: Crouse, Chantell Belinda
- Date: 2012
- Subjects: Employee rights , Employees -- Transfer -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10241 , http://hdl.handle.net/10948/d1015060
- Description: The protection that employees enjoy under our common law in the transfer of a business of its employer is very little. Common law only concerns itself with the lawfulness of a contract of employment. Common law is, however, now also experiencing the effect of the Constitution which provides for fair labour practices. Proper legislation was enacted to afford employees proper protection against dismissals resulting out of a transfer of a business by the employer as a going concern. Such a dismissal would be automatically unfair in terms of section 187(1)(g) of the LRA. The protection that employees enjoy is governed by section 197 of the LRA. This section provides that the new employer is placed in the “shoes” of the old employer. It also further states that the new employer could be held accountable for the unlawful actions of the old employer against an employee prior to the transfer taking place. Section 197 of the LRA, however, does not apply to all transfers of businesses. There are some key concepts that are of importance to determine its applicability. Such concepts include whether there was a transfer of a business or a part of the business and whether it was transferred as a going concern. The words “transfer” and “business” are defined in section 197(1)(a) and (1)(b) of the LRA. However, the words “going concern” are not defined and one would have to scrutinise case law for guidance in considering whether the transfer was done as a going concern. A leading case is that of Schutte Powerplus Performance (Pty) Ltd.1 In this case the court held that one must consider the substance of the agreement in determining whether the business was transferred as a going concern. It further held that the lists of factors that one should have regard to are not exhaustive. Section 197 of the LRA also applies to employees whose services have been outsourced. Outsourcing of services occurs where an employer discontinues a service or activity that is in most cases not part of the main business of the employer, and contract an outside contractor to take over that service or activity. This matter was given clarity in the case of SA Municipal Workers Union v Rand Airport Management Company (Pty) Ltd.2 The court came to the conclusion that section 197 could apply to outsourcing, provided it passes the test of “transfer” as well as the test of what constitutes a “business or service”. Outsourcing to labour brokers is, however, not covered by section 197 of the LRA. The matter was given consideration by the Labour Court in CEPPWAWU v Print Tech (Pty) Ltd.3 Another question is whether second-generation outsourcing is covered by section 197 of the LRA. Second Generation Outsourcing occurs when an employer put the outsourced service out to tender upon the outsource contract coming to an end and a new entity is awarded the outsourcing opportunity following the original outsource entity being unsuccessful in its bid to secure the contract for an additional term.
- Full Text:
- Date Issued: 2012
- Authors: Crouse, Chantell Belinda
- Date: 2012
- Subjects: Employee rights , Employees -- Transfer -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10241 , http://hdl.handle.net/10948/d1015060
- Description: The protection that employees enjoy under our common law in the transfer of a business of its employer is very little. Common law only concerns itself with the lawfulness of a contract of employment. Common law is, however, now also experiencing the effect of the Constitution which provides for fair labour practices. Proper legislation was enacted to afford employees proper protection against dismissals resulting out of a transfer of a business by the employer as a going concern. Such a dismissal would be automatically unfair in terms of section 187(1)(g) of the LRA. The protection that employees enjoy is governed by section 197 of the LRA. This section provides that the new employer is placed in the “shoes” of the old employer. It also further states that the new employer could be held accountable for the unlawful actions of the old employer against an employee prior to the transfer taking place. Section 197 of the LRA, however, does not apply to all transfers of businesses. There are some key concepts that are of importance to determine its applicability. Such concepts include whether there was a transfer of a business or a part of the business and whether it was transferred as a going concern. The words “transfer” and “business” are defined in section 197(1)(a) and (1)(b) of the LRA. However, the words “going concern” are not defined and one would have to scrutinise case law for guidance in considering whether the transfer was done as a going concern. A leading case is that of Schutte Powerplus Performance (Pty) Ltd.1 In this case the court held that one must consider the substance of the agreement in determining whether the business was transferred as a going concern. It further held that the lists of factors that one should have regard to are not exhaustive. Section 197 of the LRA also applies to employees whose services have been outsourced. Outsourcing of services occurs where an employer discontinues a service or activity that is in most cases not part of the main business of the employer, and contract an outside contractor to take over that service or activity. This matter was given clarity in the case of SA Municipal Workers Union v Rand Airport Management Company (Pty) Ltd.2 The court came to the conclusion that section 197 could apply to outsourcing, provided it passes the test of “transfer” as well as the test of what constitutes a “business or service”. Outsourcing to labour brokers is, however, not covered by section 197 of the LRA. The matter was given consideration by the Labour Court in CEPPWAWU v Print Tech (Pty) Ltd.3 Another question is whether second-generation outsourcing is covered by section 197 of the LRA. Second Generation Outsourcing occurs when an employer put the outsourced service out to tender upon the outsource contract coming to an end and a new entity is awarded the outsourcing opportunity following the original outsource entity being unsuccessful in its bid to secure the contract for an additional term.
- Full Text:
- Date Issued: 2012
An assessment of the effectiveness of trade union participation in municipal decision-making: a case study of the Buffalo City Municipality
- Authors: Apraku, Amos
- Date: 2010
- Subjects: Arbitration, Industrial -- South Africa , Labor unions -- South Africa , Local government -- South Africa -- Buffalo City Municipality
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:9037 , http://hdl.handle.net/10948/1262 , Arbitration, Industrial -- South Africa , Labor unions -- South Africa , Local government -- South Africa -- Buffalo City Municipality
- Description: The objectives of this study were to first identify the decision-making bodies structures in the Buffalo City Municipality. Secondly, to assess compositions, powers and functions of such identified bodies or structures. The field study was limited to the administrative jurisdictions of the Buffalo City Municipality; however, the findings and recommendations were applicable to all municipalities in South Africa with the same or similar decision-making like the Buffalo City Municipality. In order to achieve the research objectives, a review of the relevant literature was done. It began by first looking at the constitutional and other legislative provisions establishing the Municipal government system or concept. The literature review looked at the powers and functions given to municipal governments by such constitutional provisions and how effective are such powers exercised. The literature further highlighted the role of trade unions participation and civil society groups in the smooth and effective administration of the municipality and in making the Integrated Development Planning a successful one. The data collection was done by means of questionnaire, focus group discussions complimented by face-to-face interviews. Forty respondents were sampled from six different trade unions and top municipal management. The data collected were analysed thematically with the use of frequency tables, pie charts and histograms. The findings of the study showed among other things that, the highest decision-making body in the municipality is the municipal council supported by various committees, boards and directorates. All the legislative and executive powers are vested in the municipal council. Again, it became known that, the municipal workers unions participate effectively in labour related issues whereas the non-municipal workers unions participate poorly in all consultative processes. In conclusion, there is the urgent need to bring all stakeholders including trade unions in the municipality during decision-making processes in order promote sustainable development in the municipality.
- Full Text:
- Date Issued: 2010
- Authors: Apraku, Amos
- Date: 2010
- Subjects: Arbitration, Industrial -- South Africa , Labor unions -- South Africa , Local government -- South Africa -- Buffalo City Municipality
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:9037 , http://hdl.handle.net/10948/1262 , Arbitration, Industrial -- South Africa , Labor unions -- South Africa , Local government -- South Africa -- Buffalo City Municipality
- Description: The objectives of this study were to first identify the decision-making bodies structures in the Buffalo City Municipality. Secondly, to assess compositions, powers and functions of such identified bodies or structures. The field study was limited to the administrative jurisdictions of the Buffalo City Municipality; however, the findings and recommendations were applicable to all municipalities in South Africa with the same or similar decision-making like the Buffalo City Municipality. In order to achieve the research objectives, a review of the relevant literature was done. It began by first looking at the constitutional and other legislative provisions establishing the Municipal government system or concept. The literature review looked at the powers and functions given to municipal governments by such constitutional provisions and how effective are such powers exercised. The literature further highlighted the role of trade unions participation and civil society groups in the smooth and effective administration of the municipality and in making the Integrated Development Planning a successful one. The data collection was done by means of questionnaire, focus group discussions complimented by face-to-face interviews. Forty respondents were sampled from six different trade unions and top municipal management. The data collected were analysed thematically with the use of frequency tables, pie charts and histograms. The findings of the study showed among other things that, the highest decision-making body in the municipality is the municipal council supported by various committees, boards and directorates. All the legislative and executive powers are vested in the municipal council. Again, it became known that, the municipal workers unions participate effectively in labour related issues whereas the non-municipal workers unions participate poorly in all consultative processes. In conclusion, there is the urgent need to bring all stakeholders including trade unions in the municipality during decision-making processes in order promote sustainable development in the municipality.
- Full Text:
- Date Issued: 2010
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