A comparison between the South African "source rules" in relation to income tax and the "permanent establishment rules" as contained in double taxation agreements
- Authors: Fourie, Leonie
- Date: 2008
- Subjects: Income tax -- South Africa , Income tax -- Law and legislation -- South Africa , Double taxation -- South Africa , Business enterprises -- Taxation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:905 , http://hdl.handle.net/10962/d1008203
- Description: 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.
- Full Text:
- Date Issued: 2008
- Authors: Fourie, Leonie
- Date: 2008
- Subjects: Income tax -- South Africa , Income tax -- Law and legislation -- South Africa , Double taxation -- South Africa , Business enterprises -- Taxation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:905 , http://hdl.handle.net/10962/d1008203
- Description: 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.
- Full Text:
- Date Issued: 2008
A critical analysis of selected clauses in selected Double Tax Agreements (DTAs) with South Africa
- Authors: Ndzimakhwe, Vusumzi Allen
- Date: 2020
- Subjects: Double taxation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10948/49986 , vital:41967
- Description: The purpose of this treatise was to analyse selected clauses in selected double taxation agreements with South Africa. An integrative literature review research method was used. The study commenced with an overview of double tax agreements from both an international and South African perspective. This was followed by a critical analysis of the Mutual Agreement Procedures, the Most-Favoured Nation clause and the Non-discrimination obligation. Selected court cases domestic and foreign court cases were used to illustrate the gaps that sometimes exist between revenue authorities’ and taxpayers’ understanding of the clauses being studied. An analysis was then performed of the measures and their appropriateness that South Africa can implement to close the loopholes arising from the selected clauses. This was informed by the action plans suggested by the OECD and the Davis Tax Committee on base erosion and profit shifting. The study then concluded with a synopsis of the key findings of the selected clauses and their recommendations. Finally recommendations were made for areas of further research which might assist in closing the loopholes arising from the words employed within double tax agreements and the intention of the legislature/the executive can be closed.
- Full Text:
- Date Issued: 2020
- Authors: Ndzimakhwe, Vusumzi Allen
- Date: 2020
- Subjects: Double taxation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10948/49986 , vital:41967
- Description: The purpose of this treatise was to analyse selected clauses in selected double taxation agreements with South Africa. An integrative literature review research method was used. The study commenced with an overview of double tax agreements from both an international and South African perspective. This was followed by a critical analysis of the Mutual Agreement Procedures, the Most-Favoured Nation clause and the Non-discrimination obligation. Selected court cases domestic and foreign court cases were used to illustrate the gaps that sometimes exist between revenue authorities’ and taxpayers’ understanding of the clauses being studied. An analysis was then performed of the measures and their appropriateness that South Africa can implement to close the loopholes arising from the selected clauses. This was informed by the action plans suggested by the OECD and the Davis Tax Committee on base erosion and profit shifting. The study then concluded with a synopsis of the key findings of the selected clauses and their recommendations. Finally recommendations were made for areas of further research which might assist in closing the loopholes arising from the words employed within double tax agreements and the intention of the legislature/the executive can be closed.
- Full Text:
- Date Issued: 2020
A critical analysis of the income tax implications of persons ceasing to be a resident of South Africa
- Authors: Loyson, Richard Michael
- Date: 2010
- Subjects: Income tax -- South Africa , Double taxation -- South Africa , Aliens -- Taxation -- South Africa , Capital gains tax -- South Africa , Citizenship -- South Africa , Emigration and immigration law -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:8957 , http://hdl.handle.net/10948/1180 , Income tax -- South Africa , Double taxation -- South Africa , Aliens -- Taxation -- South Africa , Capital gains tax -- South Africa , Citizenship -- South Africa , Emigration and immigration law -- South Africa
- Description: Over the last 10 years the South African fiscus has introduced numerous changes to the Income Tax Act (ITA) which affect the income tax implications of persons ceasing to be a resident of South Africa. The two main changes were: - The introduction of a world-wide basis of taxation for residents - The introduction of capital gains tax (CGT) as part of the ITA The aim of this treatise was to identify the income tax implications of persons ceasing to be a resident of South Africa. Resulting from this research, several issues in the ITA have been identified, and the two major ones are summarised below. Firstly, upon the emigration of the taxpayer, there is a deemed disposal of a taxpayer’s assets in terms of paragraph 12 of the Eighth Schedule. It is submitted that the resulting exit tax may be unconstitutional for individuals. It is recommended that South Africa should adopt the deferral method within its domestic legislation for individuals who are emigrating. The deferral method postpones the liability until the disposal of the asset. Secondly, on the subsequent disposal of assets by former residents where there was no exit charge in terms of the exemption under paragraph 12(2)(a)(i) of the Eighth Schedule. Depending on the specific double tax agreement (DTA) that has been entered into with the foreign country, taxpayers have been given vii the opportunity to minimise or eliminate the tax liability with regard to certain assets. This should be of concern from the point of view of the South African government. Further issues noted in this treatise were the following: - It is submitted that the term ‘place of effective management’ has been incorrectly interpreted by SARS in Interpretation Note 6. - It is further submitted that the interpretation by SARS of paragraph 2(2) of the Eighth Schedule is technically incorrect. The above issues that have been identified present opportunities to emigrants to take advantage of the current tax legislation. It is further recommended that taxpayers who are emigrating need to consider the South African domestic tax law implications, respective DTA’s, as well as the domestic tax laws of the other jurisdiction, not only on the date of emigration but also on the subsequent disposal of the respective assets.
- Full Text:
- Date Issued: 2010
- Authors: Loyson, Richard Michael
- Date: 2010
- Subjects: Income tax -- South Africa , Double taxation -- South Africa , Aliens -- Taxation -- South Africa , Capital gains tax -- South Africa , Citizenship -- South Africa , Emigration and immigration law -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:8957 , http://hdl.handle.net/10948/1180 , Income tax -- South Africa , Double taxation -- South Africa , Aliens -- Taxation -- South Africa , Capital gains tax -- South Africa , Citizenship -- South Africa , Emigration and immigration law -- South Africa
- Description: Over the last 10 years the South African fiscus has introduced numerous changes to the Income Tax Act (ITA) which affect the income tax implications of persons ceasing to be a resident of South Africa. The two main changes were: - The introduction of a world-wide basis of taxation for residents - The introduction of capital gains tax (CGT) as part of the ITA The aim of this treatise was to identify the income tax implications of persons ceasing to be a resident of South Africa. Resulting from this research, several issues in the ITA have been identified, and the two major ones are summarised below. Firstly, upon the emigration of the taxpayer, there is a deemed disposal of a taxpayer’s assets in terms of paragraph 12 of the Eighth Schedule. It is submitted that the resulting exit tax may be unconstitutional for individuals. It is recommended that South Africa should adopt the deferral method within its domestic legislation for individuals who are emigrating. The deferral method postpones the liability until the disposal of the asset. Secondly, on the subsequent disposal of assets by former residents where there was no exit charge in terms of the exemption under paragraph 12(2)(a)(i) of the Eighth Schedule. Depending on the specific double tax agreement (DTA) that has been entered into with the foreign country, taxpayers have been given vii the opportunity to minimise or eliminate the tax liability with regard to certain assets. This should be of concern from the point of view of the South African government. Further issues noted in this treatise were the following: - It is submitted that the term ‘place of effective management’ has been incorrectly interpreted by SARS in Interpretation Note 6. - It is further submitted that the interpretation by SARS of paragraph 2(2) of the Eighth Schedule is technically incorrect. The above issues that have been identified present opportunities to emigrants to take advantage of the current tax legislation. It is further recommended that taxpayers who are emigrating need to consider the South African domestic tax law implications, respective DTA’s, as well as the domestic tax laws of the other jurisdiction, not only on the date of emigration but also on the subsequent disposal of the respective assets.
- Full Text:
- Date Issued: 2010
An analysis of the tax consequences of the double tax agreement between South Africa and the Democratic Republic of Congo
- Authors: Mkabile, Nwabisa
- Date: 2015
- Subjects: Double taxation -- South Africa , Double taxation -- Congo (Democratic Republic) , Income tax -- South Africa -- Foreign income , Income tax -- Congo (Democratic Republic) -- Foreign income
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:916 , http://hdl.handle.net/10962/d1017539
- Description: As a result of the different tax systems adopted by countries, foreign-sourced income earned by taxpayers may be subject to double taxation. This may therefore impede cross-border trade and investment. Double taxation relief is provided unilaterally, in terms of a country’s domestic laws or bilaterally in terms of Double Taxation Agreements. South African residents earning income from the Democratic Republic of Congo may be subject to tax in both countries. To eliminate such double taxation the South African Income Tax Act, No 58 of 1962, provides for unilateral relief from double taxation in the form of exemptions, rebates and deductions. The double tax agreement between South Africa and the Democratic Republic of the Congo came into effect recently and double taxation relief for South African residents is now also available in terms of tax treaty law. The objective of the research was to determine whether the combination of the unilateral measures and the double tax agreement provide relief in respect of all types of income earned by South African residents in the Democratic Republic of the Congo. It was concluded that the double tax agreement, together with the unilateral relief provided for in the Income Tax Act will grant relief for all types of income earned by South African residents in the Democratic Republic of the Congo.
- Full Text:
- Date Issued: 2015
- Authors: Mkabile, Nwabisa
- Date: 2015
- Subjects: Double taxation -- South Africa , Double taxation -- Congo (Democratic Republic) , Income tax -- South Africa -- Foreign income , Income tax -- Congo (Democratic Republic) -- Foreign income
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:916 , http://hdl.handle.net/10962/d1017539
- Description: As a result of the different tax systems adopted by countries, foreign-sourced income earned by taxpayers may be subject to double taxation. This may therefore impede cross-border trade and investment. Double taxation relief is provided unilaterally, in terms of a country’s domestic laws or bilaterally in terms of Double Taxation Agreements. South African residents earning income from the Democratic Republic of Congo may be subject to tax in both countries. To eliminate such double taxation the South African Income Tax Act, No 58 of 1962, provides for unilateral relief from double taxation in the form of exemptions, rebates and deductions. The double tax agreement between South Africa and the Democratic Republic of the Congo came into effect recently and double taxation relief for South African residents is now also available in terms of tax treaty law. The objective of the research was to determine whether the combination of the unilateral measures and the double tax agreement provide relief in respect of all types of income earned by South African residents in the Democratic Republic of the Congo. It was concluded that the double tax agreement, together with the unilateral relief provided for in the Income Tax Act will grant relief for all types of income earned by South African residents in the Democratic Republic of the Congo.
- Full Text:
- Date Issued: 2015
An exploration of whether using a global employment company could mitigate the South African tax risks in relation to inbound expatriates in multinational companies
- Authors: Pavey, Janet Gail
- Date: 2018
- Subjects: Double taxation -- South Africa , Corporations, Foreign -- South Africa , Foreign workers -- Taxation -- South Africa , International business enterprises -- South Africa , Corporations -- Taxation -- South Africa , Value-added tax -- Law and legislation -- South Africa
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/61368 , vital:28019
- Description: The main objective of this research paper was to explore whether a multinational company could use a global employment company to employ its expatriates to mitigate, simplify or limit the tax risk for that foreign company when sending expatriates to South Africa. To investigate this topic, an interpretive research approach was used, a doctrinal research methodology was followed, and inductive reasoning was applied. The documentary data used in this research was publicly available. Firstly, the meaning of the term “expatriate” was explored, together with the types of employment arrangements commonly used to employ this type of employee. The South African tax consequences that an inbound expatriate may create for a multinational company were then analysed. These tax consequences were applied to the common types of employment arrangements to determine what the South African tax impact of these arrangements is likely to be and which entity within a multinational group is likely to be affected. It was investigated whether using a foreign global employment company provides any tax simplification or tax mitigation strategies for the multinational company for expatriates inbound to South Africa. The primary conclusions of this research were that it was found that using a global employment company may only provide a tax benefit in South Africa in very specific circumstances: (i) where the economic employer of the expatriate is the South African entity; (ii) where flexibility is required to easily move the expatriate to other jurisdictions; and (iii) where there are multiple home-host country combinations that the multinational group needs to consider when moving its expatriates. It would appear that using a global employment company as the employment arrangement for an inbound expatriate to South Africa may have a fairly limited application if its purpose is to mitigate tax risks. In effect, a global employment company is likely to provide tax benefits only where it acts as an international labour broker for the multinational company of which it is a part.
- Full Text:
- Date Issued: 2018
- Authors: Pavey, Janet Gail
- Date: 2018
- Subjects: Double taxation -- South Africa , Corporations, Foreign -- South Africa , Foreign workers -- Taxation -- South Africa , International business enterprises -- South Africa , Corporations -- Taxation -- South Africa , Value-added tax -- Law and legislation -- South Africa
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/61368 , vital:28019
- Description: The main objective of this research paper was to explore whether a multinational company could use a global employment company to employ its expatriates to mitigate, simplify or limit the tax risk for that foreign company when sending expatriates to South Africa. To investigate this topic, an interpretive research approach was used, a doctrinal research methodology was followed, and inductive reasoning was applied. The documentary data used in this research was publicly available. Firstly, the meaning of the term “expatriate” was explored, together with the types of employment arrangements commonly used to employ this type of employee. The South African tax consequences that an inbound expatriate may create for a multinational company were then analysed. These tax consequences were applied to the common types of employment arrangements to determine what the South African tax impact of these arrangements is likely to be and which entity within a multinational group is likely to be affected. It was investigated whether using a foreign global employment company provides any tax simplification or tax mitigation strategies for the multinational company for expatriates inbound to South Africa. The primary conclusions of this research were that it was found that using a global employment company may only provide a tax benefit in South Africa in very specific circumstances: (i) where the economic employer of the expatriate is the South African entity; (ii) where flexibility is required to easily move the expatriate to other jurisdictions; and (iii) where there are multiple home-host country combinations that the multinational group needs to consider when moving its expatriates. It would appear that using a global employment company as the employment arrangement for an inbound expatriate to South Africa may have a fairly limited application if its purpose is to mitigate tax risks. In effect, a global employment company is likely to provide tax benefits only where it acts as an international labour broker for the multinational company of which it is a part.
- Full Text:
- Date Issued: 2018
An investigation into the tax consequences for individuals performing work abroad
- Authors: De Ponte, Celeste Lidia
- Date: 2020
- Subjects: South Africa. Income Tax Act, 1962 , Income tax -- Law and legislation -- South Africa , Double taxation -- South Africa , International business enterprises -- Taxation -- Law and legislation -- South Africa
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/141235 , vital:37955
- Description: This thesis considered the income tax implications for South African tax resident individuals who render services abroad. The research included an analysis of the impact that the amendment to the section 10(1)(o)(ii) exemption has on individuals rendering services abroad and companies who send their employees abroad. In doing so, this thesis sought to highlight the key factors for consideration, for both employers and individuals. A doctrinal methodology was applied, and an analysis was carried out of relevant tax legislation, commentary of experts in the field of tax law and the relevant case law of South Africa, the United Kingdom (UK), Australia and the United States of America (US), where relevant. It was established that residency is key to determining the tax liability of a person and has an impact on the relief mechanisms that are available where double taxation arises. In addition, the amendment to section 10(1)(o)(ii) was considered. It was concluded that when rendering services abroad, both the employer and employee need to consider the tax consequences that may arise and highlights the factors which may be relevant. The thesis illustrates that, whilst the R1 million exemption alleviates the double tax consequences to a certain extent, further guidance is needed as to how the R1 million threshold will be calculated.
- Full Text:
- Date Issued: 2020
- Authors: De Ponte, Celeste Lidia
- Date: 2020
- Subjects: South Africa. Income Tax Act, 1962 , Income tax -- Law and legislation -- South Africa , Double taxation -- South Africa , International business enterprises -- Taxation -- Law and legislation -- South Africa
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/141235 , vital:37955
- Description: This thesis considered the income tax implications for South African tax resident individuals who render services abroad. The research included an analysis of the impact that the amendment to the section 10(1)(o)(ii) exemption has on individuals rendering services abroad and companies who send their employees abroad. In doing so, this thesis sought to highlight the key factors for consideration, for both employers and individuals. A doctrinal methodology was applied, and an analysis was carried out of relevant tax legislation, commentary of experts in the field of tax law and the relevant case law of South Africa, the United Kingdom (UK), Australia and the United States of America (US), where relevant. It was established that residency is key to determining the tax liability of a person and has an impact on the relief mechanisms that are available where double taxation arises. In addition, the amendment to section 10(1)(o)(ii) was considered. It was concluded that when rendering services abroad, both the employer and employee need to consider the tax consequences that may arise and highlights the factors which may be relevant. The thesis illustrates that, whilst the R1 million exemption alleviates the double tax consequences to a certain extent, further guidance is needed as to how the R1 million threshold will be calculated.
- Full Text:
- Date Issued: 2020
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