Taxation

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The analysis of value added tax, the effects of zero-rated VAT and exempt supplies and a look into who benefits more, the rich or the poor.
(2021) Mjindi, Wandisa.; Schembri, Christopher Carl.; Bosch, Shannon Joy.
No abstract available.
The common law conduit pipe principle: should we retain this principle in our South African law?
(2018) Zwezwe, Mlungisi.; Schembri, Christopher Carmelo.; Bosch, Shannon Joy.
More than a decade has passed since the ‘common law conduit pipe principle’ was introduced into our South African law of taxation. Following this introduction in 1938, a trust has in some situations operated as a retainer or saver of the identity of certain types of amounts from the point the trust receives each amount type up until that amount exits the trust. Consequently these amounts are not exposed to normal tax even when they finally reach the hands of their beneficial owner. This principle was later incorporated into the Income Tax Act 58 of 1962 by the insertion of both section 25B and para 80 of the Eighth Schedule to that Act. With the passage of time and taxpayers becoming more and more knowledgeable and consistently strategizing new ways of avoiding triggers of certain types of taxes, they realised that the conduit pipe principle could easily be manipulated within a discretionary trust to obtain various tax benefits. As a result of these tax benefits the use of discretionary trusts in South Africa is constantly on the rise. However, their continued use was first brought into question after the 2013 National Budget speech in which it was indicated that these types of trusts would no longer operate as a conduit pipe. This suggested the repeal of section 25B and para 80 of the Eighth Schedule. The doing away with the conduit pipe principle in our law of taxation has necessitated the imposition of the question whether its real purpose and value is properly understood. The National Treasury and SARS do not appear to fully comprehend this purpose – the purpose seems to be to facilitate the avoidance of normal tax. Hence the aim of this study is to attempt to determine the true purpose and value of this principle within our tax law system. This study realises this objective by embarking on an in-depth analysis of Armstrong v Commissioner for Inland Revenue 1938 AD 343 which introduced this principle into our South African law of taxation. This study successfully found that the true purpose of the ‘conduit pipe principle’ is to rule out the possibility of double taxing the amount which has already suffered the consequences of tax at its originating source when it subsequently lands in the hands of its beneficial owner. This means that through the conduit pipe operation of a trust there is assurance that each identity of amount is protected against being lost between the time that amount is paid to the trust and the time the trust pays it over to the beneficiary who will also take advantage of the exempt status of that amount in his hands. This tax benefit is only available if the amount is paid over in the year of assessment during which the trust received it – otherwise it gets caught up in the normal tax net in the beneficiary’s hands. Trustees successfully escape this trap by insisting on making this payment within the same tax period the trust received the amount. The study also looked at the current normal tax treatment of the income that is inclusive of both local dividend(s) and interest from investment(s) and analysed the tax impact these types of amount have on reducing the taxable income of both a discretionary trust and its beneficiary. A comparison was made from a current income tax treatment point of view with the hypothetical time when the conduit pipe principle is finally abolished. It was discovered that beneficiaries of these types of trusts would be taxed more than they are currently being taxed as the dividends and basic interest exemption under the Income Tax Act 58 of 1962 would no longer be available to them. A discretionary trust would no longer be an ideal tool to use in a tax avoidance strategy but will still be a good shelter for the protection of assets. This study further concludes that the conduit pipe principle should be retained in our law because it abolition was apparently recommendation on the basis of its true purpose being misunderstood for tax avoidance rather than avoidance of imposing double tax on an amount that has already been taxed at its source.
A comparative analysis of the taxation of dividends between South Africa and Mauritius.
(2015) Robb, Daniel Peter Derek.; Schembri, Christopher Carmelo.; Bosch, Shannon Joy.
The aim of this dissertation was to determine whether there was any benefit to shareholders (corporate or individuals) in utilising offshore structures in Mauritius to minimise their ultimate dividends tax liability. Due to multiple factors, including the lack of prolific secondary sources in Mauritius, the dissertation was written, for the most part, from a South African perspective. In undertaking this study, a comprehensive review of dividends tax was undertaken (excluding dividends in specie and dividends from listed companies) under South African law, Mauritian law and the tax treaty that is effective between the two jurisdictions. A brief analysis of the Agreement between the Government of the Republic of South Africa and the Government of the Republic of Mauritius for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, which is set to become effective on 1 January 2016 was also undertaken. In each chapter, a review was performed, analysis was made and practical examples were given in order to give the reader a better understanding of the practical application of the analysis. Comparisons were made using different commonly used entities such as companies (including Global Business License 1 and 2 companies) trusts, foreign trusts and also individuals. The dissertation provided examples of each of these types of entities in order to show the effectiveness of utilising Mauritius’ low tax rates and generous provisions in the tax treaty between South Africa and Mauritius. The study revealed that, without making any comments on the cost of setting up offshore structures, offshore structures could in certain circumstances, if properly structured, substantially reduce a shareholders dividends tax liability. The study did however also reveal that such structures would have to be legitimate foreign business enterprises to avoid the complex anti-avoidance provisions provided in the South African Income Tax Act No 58 of 1962 such as the controlled foreign company provisions which, in certain circumstances, attribute the net income of the offshore company to the shareholder(s). The dissertation described certain important principles which would need to be complied with by the shareholder and the foreign entity concerned, in order to avoid the pitfalls associated with such structures, including the very important place of effective management tests. The dissertation therefore had a positive result and could benefit any high net worth individual or company seeking to minimise its dividends tax burden.
A critical analysis of the balance between effective tax collection and permissible tax avoidance provided by legislation.
(2020) De la Rey, Chrichan.; Schembri, Christopher Carmelo.; Bosch, Shannon Joy.
Abstract available in PDF.
A critical analysis of the effectiveness of taxation regulation of cryptocurrencies in mitigating the facilitation of tax evasion in South Africa.
(2021) Singh, Pratista Yudvir.; Swales, Lee Jay Edwin.; Bosch, Shannon Joy.
In finance, law and technology, change is an inevitable result of development. Whilst governments, legal authorities and financial regulatory bodies may be sceptical or hesitant to accept the natural progression of technology, the digital revolution will not regress, but merely continue to thrive against a background of hostility. Thus, the importance of regulatory structures which effectively standardise digital innovations is reflected through the necessity thereof. It is submitted therefore, that it is wise to mitigate the consequences of the ineffective regulation of digital innovations. One such innovation which has been exponentially gaining traction in the field of technology is that of cryptocurrency.1 This research explores the need for effective cryptocurrency regulation by examining the necessity of a solid legal regulatory foundation upon which it may be integrated into the financial sphere in South Africa.2 Submissions will be made that it is insufficient to merely impose superficial legal regulations on cryptocurrency without accounting for various factors of consideration where the novelty of cryptocurrency is concerned in relation to the nature thereof. In SA specifically, taxation authorities3 have been implementing regulations regarding cryptocurrency, which will be analysed and evaluated through this research. In the likely event of cryptocurrency becoming a primary medium of transacting, the taxation regulations thereof must be effective to mitigate any negative effects (of insufficient and ineffective regulation) for taxpayers and the fiscus. It is imperative that regulatory bodies such as the legislature and the South African Revenue Service,4 ensure that the regulation of cryptocurrency in SA is effective so that any lacunae in existing legislation which could yield negative consequences for taxpayers and/or the fiscus are adequately addressed and effectively mitigated. From a taxation perspective, it is submitted that one of the main negative consequences of the lack of effective regulation of cryptocurrency is the potential of tax evasion. Tax evasion in relation to cryptocurrency will be analysed and discussed in this research based on the nature of cryptocurrency. The lack of cryptocurrency regulation is also cause for concern among taxpayers who use cryptocurrency without surety of how the proceeds therefrom will be taxed. Recommendations will thus be made regarding the implementation of a legislative definition of cryptocurrency to provide preliminary regulatory clarity on the taxation of cryptocurrency. This research envisages that the lack of understanding and effective regulation of cryptocurrency in SA should also be addressed by advisory, regulatory and authoritative bodies insofar as these bodies taking active steps to resolve the confusion surrounding the categorisation of cryptocurrency is concerned. The effectiveness of taxation regulations (or rather, the lack thereof) of cryptocurrency in SA will therefore be examined through this research, by analysing existing plans, proposed policies and new legislation as well as criticising the lacunae in the law which exist in cryptocurrency regulation. Furthermore, this research aims to prove that cryptocurrency regulation in SA is inadequate and ineffective. This issue will be explored in a holistic sense in order to assert that the lack of adequate cryptocurrency regulation is in fact a global issue. The legislation addressing the taxation of cryptocurrency in SA will be evaluated in order to ascertain whether the relevant legislative provisions will be sufficient in addressing the issues related to the taxation of cryptocurrency and tax evasion specifically, and subsequently used to prove that cryptocurrency regulation is in fact insufficient. In addressing the issues explored through this research, it is proposed that the nature of cryptocurrency must be considered as the foundation upon which the legislature constructs cryptocurrency regulations. From a practical perspective, it is proposed that a formal definition of cryptocurrency be implemented in legislation (in order to provide further clarity on the taxation treatment thereof) and a provision be inserted in legislation addressing the taxation treatment of cryptocurrency. It is also recommended that the UK and Germany be looked towards for cryptocurrency regulation in terms of SARS implementing an interpretation note thereon as well as ensuring that the content of the interpretation note/position paper is formulated in accordance with the UK government’s position paper on the taxation treatment of crypto assets. This research proposes that authoritative bodies must ensure cohesion regarding the categorisation of cryptocurrency as well as regulation thereof in order to provide clarity on cryptocurrency regulation as well as ensure the effective regulation thereof.
A critical analysis of the law that governs the taxation of public benefit organisations (PBOs): a case study of South Africa and Zimbabwe.
(2018) Rice, Johannes.; Schembri, Christopher Carmelo.; Bosch, Shannon Joy.
No abstract available.
The effect that SARS procedures contained in the Tax Administrative Act has on taxpayer’s constitutional rights.
(2019) Ouderajh, Leona Elisha.; Schembri, Christopher Carmelo.; Bosch, Shannon Joy.
No abstract available.
An enquiry into the constitutionality of the ‘pay now, argue later’ principle and the appointment of a third party on behalf of the taxpayer for tax purposes under the Tax Administration Act.
(2020) Zulu, Sikhulile Sithandiwe.; Schembri, Christopher Carl.; Bosch, Shannon Joy.
Prior to 2012, the tax collection practices known as ‘pay now, argue later’ and ‘agent appointment’ respectively were contained in Value Added Tax and Income tax legislation and have been the cause of many disputes between the taxpayer and the revenue collector over the years. These collection practices have sparked much controversy among the legal scholars for the longest time. When the Tax Administration Act came into operation in 2012, it still made provision for a number of controversial summary collection procedures including the ones referred to above. This was probably due to the court decision in Metcash Trading Limited v Commissioner for SARS 2001 (1) BCLR 1(CC) which upheld ‘pay now, argue later rule’ and the decision in Hindry v Nedcor Bank 1999 (2) All SA 38 (W) in which the court found in favour of ‘agent appointment’ rule. These decisions were made in the context of VAT legislation, a system in which there is a much narrower scope for a genuine dispute of tax liability, as it is a self-assessment system as opposed to income tax where tax is paid on the basis of what is assessed by the Commissioner to be due to SARS. As a result of these cases and the subsequent enactment of the Tax Administration Act, there has been an overwhelming level of confusion as to the constitutionality of these collection procedures in the context of income tax. Accordingly the desire to conduct this study was triggered by need to contribute to an attempt to achieve clarity as to whether these court decisions should be applied. In addition, the study contains a comparative analysis of the implementation of the same procedures in other selected jurisdictions. It will be established that SARS’s conduct in exercising its statutory powers more often than not is in conflict with the taxpayers’ rights. Often the remedies are limited and place the taxpayer in an inconvenient situation as they are not directly related to tax. There is an urgent need for affordable and effective relief to which taxpayers can resort instead of litigation the cost of which is rather exorbitant.
An evaluation of the approaches used to determine the taxability of income emanating from illegal pyramid schemes.
(2018) Madiba, Mantwa.; Schembri, Christopher Carmelo.; Bosch, Shannon Joy.
No abstract available.
The tax implication of prompt settlement discount offered by the seller.
(2018) Vilakazi, Nicholas Vusumuzi.; Schembri, Christopher Carmelo.; Bosch, Shannon Joy.
No abstract available.
What South African can learn from Mauritius in order to be the preferred country for multinational companies to establish of headquarter company in African.
(2018) Masina, Ayanda Success.; Schembri, Christopher Carmelo.; Bosch, Shannon Joy.
No abstract available.

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Browsing Taxation by Author "Bosch, Shannon Joy."