A comparative analysis of the taxation of dividends between South Africa and Mauritius.

Abstract

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.