A critical analysis of the practical man principle in Commissioner for Inland Revenue v Lever Brothers and Unilever Ltd
- Authors: Grenville, David Paul
- Date: 2014
- Subjects: Unilever (Firm) , South African Revenue Service , Taxation -- Law and legislation -- South Africa , Income tax -- Law and legislation -- South Africa -- Cases , Income tax -- South Africa -- Cases , Business enterprises -- Taxation -- South Africa , Law -- South Africa -- Philosophy
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:909 , http://hdl.handle.net/10962/d1013238
- Description: This research studies the practical person principle as it was introduced in the case of Commissioner for Inland Revenue v Lever Brothers and Unilever Ltd 1946 AD 441. In its time the Lever Brothers case was a seminal judgment in South Africa’s tax jurisprudence and the practical person principle was a decisive criterion for the determination of source of income. The primary goal of this research was a critical analysis the practical man principle. This involved an analysis of the extent to which this principle requires judges to adopt a criterion that is too flexible for legitimate judicial decision-making. The extent to which the practical person principle creates a clash between a philosophical approach to law and an approach that is based on common sense or practicality was also debated. Finally, it was considered whether adopting a philosophical approach to determining the source of income could overcome the problems associated with the practical approach. A doctrinal methodology was applied to the documentary data consisting of the South African and Australian Income Tax Acts, South African and other case law, historical records and the writings of scholars. From the critical analysis of the practical person principle it was concluded that the anthropomorphised form of the principle gives rise to several problems that may be overcome by looking to the underlying operation of the principle. Further analysis of this operation, however, revealed deeper problems in that the principle undermines the doctrine of judicial precedent, legal certainty and the rule of law. Accordingly a practical approach to determining the source of income is undesirable and unconstitutional. Further research was conducted into the relative merits of a philosophical approach to determining source of income and it was argued that such an approach could provide a more desirable solution to determining source of income as well as approaching legal problems more generally.
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- Authors: Grenville, David Paul
- Date: 2014
- Subjects: Unilever (Firm) , South African Revenue Service , Taxation -- Law and legislation -- South Africa , Income tax -- Law and legislation -- South Africa -- Cases , Income tax -- South Africa -- Cases , Business enterprises -- Taxation -- South Africa , Law -- South Africa -- Philosophy
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:909 , http://hdl.handle.net/10962/d1013238
- Description: This research studies the practical person principle as it was introduced in the case of Commissioner for Inland Revenue v Lever Brothers and Unilever Ltd 1946 AD 441. In its time the Lever Brothers case was a seminal judgment in South Africa’s tax jurisprudence and the practical person principle was a decisive criterion for the determination of source of income. The primary goal of this research was a critical analysis the practical man principle. This involved an analysis of the extent to which this principle requires judges to adopt a criterion that is too flexible for legitimate judicial decision-making. The extent to which the practical person principle creates a clash between a philosophical approach to law and an approach that is based on common sense or practicality was also debated. Finally, it was considered whether adopting a philosophical approach to determining the source of income could overcome the problems associated with the practical approach. A doctrinal methodology was applied to the documentary data consisting of the South African and Australian Income Tax Acts, South African and other case law, historical records and the writings of scholars. From the critical analysis of the practical person principle it was concluded that the anthropomorphised form of the principle gives rise to several problems that may be overcome by looking to the underlying operation of the principle. Further analysis of this operation, however, revealed deeper problems in that the principle undermines the doctrine of judicial precedent, legal certainty and the rule of law. Accordingly a practical approach to determining the source of income is undesirable and unconstitutional. Further research was conducted into the relative merits of a philosophical approach to determining source of income and it was argued that such an approach could provide a more desirable solution to determining source of income as well as approaching legal problems more generally.
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The income tax consequences of the in-house development of software
- Authors: Hodge, Dominic Shaughn
- Date: 2014
- Subjects: Computer software -- Accounting , Income tax -- Data processing , Research and development projects , Income tax -- Law and legislation -- South Africa , Computer software -- Development -- South Africa , Computer software -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:910 , http://hdl.handle.net/10962/d1013550
- Description: The objective of this thesis was to explore the nature of expenditure incurred on the internal development of software and its treatment in terms of the accounting and taxation frameworks to which it is subject. In fulfilling the primary objective the thesis had a number of subsidiary considerations. These included, firstly, a brief analysis of the approach of the software industry in South Africa to the taxation treatment of this type of software. The second consideration was a discussion and analysis of the taxation framework which differentiates between capital and revenue and the extent to which the receipts produced by internally developed software may be informative of the nature of the expenditure. The third was an analysis of the deductibility of expenditure incurred in the production of software with the fourth analysing the tests employed in the determination of whether expenditure is capital or revenue in nature. The fifth objective was to briefly analyse the accounting standards which find application in the determination of whether or not the software created can be considered a capital asset. The final subsidiary objective of the thesis was an analysis of the taxation framework applicable to software in respect of research and development incentives, as well as the position in the United States of America. Throughout the thesis the most apparent commonality is that there exists a significant level of uncertainty as to the taxation treatment of software both in South Africa and in America. The research concludes by stating that such uncertainty is prejudicial to the interests of research and development in relation to software.
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- Authors: Hodge, Dominic Shaughn
- Date: 2014
- Subjects: Computer software -- Accounting , Income tax -- Data processing , Research and development projects , Income tax -- Law and legislation -- South Africa , Computer software -- Development -- South Africa , Computer software -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:910 , http://hdl.handle.net/10962/d1013550
- Description: The objective of this thesis was to explore the nature of expenditure incurred on the internal development of software and its treatment in terms of the accounting and taxation frameworks to which it is subject. In fulfilling the primary objective the thesis had a number of subsidiary considerations. These included, firstly, a brief analysis of the approach of the software industry in South Africa to the taxation treatment of this type of software. The second consideration was a discussion and analysis of the taxation framework which differentiates between capital and revenue and the extent to which the receipts produced by internally developed software may be informative of the nature of the expenditure. The third was an analysis of the deductibility of expenditure incurred in the production of software with the fourth analysing the tests employed in the determination of whether expenditure is capital or revenue in nature. The fifth objective was to briefly analyse the accounting standards which find application in the determination of whether or not the software created can be considered a capital asset. The final subsidiary objective of the thesis was an analysis of the taxation framework applicable to software in respect of research and development incentives, as well as the position in the United States of America. Throughout the thesis the most apparent commonality is that there exists a significant level of uncertainty as to the taxation treatment of software both in South Africa and in America. The research concludes by stating that such uncertainty is prejudicial to the interests of research and development in relation to software.
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The presumption of gult created by Section 235(2) of the Tax Administration Act: a constitutional and comparative perspective
- Authors: Faifi, Farai
- Date: 2014
- Subjects: Guilt (Law) -- South Africa , Presumption of innocence -- South Africa , Income tax -- Law and legislation -- South Africa , Human rights -- Taxation -- South Africa , Taxpayer compliance -- Moral and ethical aspects -- South Africa , Taxation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:907 , http://hdl.handle.net/10962/d1012979
- Description: This research examined the legal nature of the presumption of guilt created by section 235(2) of the South African Tax Admiration Act and considered whether or not its practical application violates the taxpayer’s fundamental right contained in section 35(3) of the Constitution, which gives every accused taxpayer the right to a fair trial, including the right to be presumed innocent. The research also provided clarity on the constitutionality of this presumption because it has been widely criticised for unjustifiably violating the taxpayer's constitutional right to a fair trial. The conclusion reached is that the presumption created by section 235(2) of the Tax Administration Act constitutes an evidentiary burden rather than a reverse onus. It does not create the possibility of conviction, unlike a reverse onus where conviction is possible, despite the existence of a reasonable doubt. Therefore, it does not violate the accused taxpayer’s the right to a fair trial and the right to be presumed innocent and hence it is constitutional. Accordingly, the chances that the accused taxpayer will succeed in challenging the constitutionality of section 235(2) of the Act are slim.
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- Authors: Faifi, Farai
- Date: 2014
- Subjects: Guilt (Law) -- South Africa , Presumption of innocence -- South Africa , Income tax -- Law and legislation -- South Africa , Human rights -- Taxation -- South Africa , Taxpayer compliance -- Moral and ethical aspects -- South Africa , Taxation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:907 , http://hdl.handle.net/10962/d1012979
- Description: This research examined the legal nature of the presumption of guilt created by section 235(2) of the South African Tax Admiration Act and considered whether or not its practical application violates the taxpayer’s fundamental right contained in section 35(3) of the Constitution, which gives every accused taxpayer the right to a fair trial, including the right to be presumed innocent. The research also provided clarity on the constitutionality of this presumption because it has been widely criticised for unjustifiably violating the taxpayer's constitutional right to a fair trial. The conclusion reached is that the presumption created by section 235(2) of the Tax Administration Act constitutes an evidentiary burden rather than a reverse onus. It does not create the possibility of conviction, unlike a reverse onus where conviction is possible, despite the existence of a reasonable doubt. Therefore, it does not violate the accused taxpayer’s the right to a fair trial and the right to be presumed innocent and hence it is constitutional. Accordingly, the chances that the accused taxpayer will succeed in challenging the constitutionality of section 235(2) of the Act are slim.
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Voluntary disclosure programmes and tax amnesties: an international appraisal
- Authors: Jaramba, Toddy
- Date: 2014
- Subjects: Tax amnesty -- South Africa , Tax evasion -- South Africa , Investments, Foreign -- Taxation -- South Africa , Tax collection -- South Africa , Tax administration and procedure -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:911 , http://hdl.handle.net/10962/d1015666
- Description: Tax amnesties are government programs that typically allow a short period of time for tax evaders to voluntarily repay previously evaded taxes without being subject to penalties and prosecution that discovery of such tax evasion normally brings. Tax amnesties differ widely in terms of coverage, tax types, and incentives offered. A state’s Voluntary Disclosure Programme is another avenue available to taxpayers to assist them in resolving their state tax delinquencies. This programme is an on-going programme as compared to a tax amnesty, which is there for a limited time period only. The main goal of the research was to describe the tax amnesty and the voluntary disclosure programmes in South Africa and to assess their advantages and disadvantages. This thesis also discussed another form of voluntary disclosure programme, referred to as an Offshore Voluntary Disclosure Programme, which allows taxpayers with unreported foreign bank accounts, and presumably unreported foreign income, to voluntarily disclose their affairs. The study found that, due to tax amnesties, Government raises more tax revenue not only in the short run from collecting overdue taxes but also by bringing former non-filers back into the tax system for the long run. It was also found that, initially short-run revenue brought in from overdue taxes will be positive for the first amnesty and then decline each time the amnesty is offered repeatedly. The reason for the decline in revenue might be that tax amnesties provide incentives for otherwise honest taxpayers to start evading taxes because they will anticipate the offering of future amnesties, thereby weakening tax compliance. The costs associated with amnesty programmes include negative long run revenue impact and also that amnesty programmes reduce compliance by taxpayers in the long-run. In South Africa tax amnesties, especially the voluntary disclosure programme, are likely to be successful since they will increase the revenue yield and also bring non-filers back on the tax rolls.
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- Authors: Jaramba, Toddy
- Date: 2014
- Subjects: Tax amnesty -- South Africa , Tax evasion -- South Africa , Investments, Foreign -- Taxation -- South Africa , Tax collection -- South Africa , Tax administration and procedure -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:911 , http://hdl.handle.net/10962/d1015666
- Description: Tax amnesties are government programs that typically allow a short period of time for tax evaders to voluntarily repay previously evaded taxes without being subject to penalties and prosecution that discovery of such tax evasion normally brings. Tax amnesties differ widely in terms of coverage, tax types, and incentives offered. A state’s Voluntary Disclosure Programme is another avenue available to taxpayers to assist them in resolving their state tax delinquencies. This programme is an on-going programme as compared to a tax amnesty, which is there for a limited time period only. The main goal of the research was to describe the tax amnesty and the voluntary disclosure programmes in South Africa and to assess their advantages and disadvantages. This thesis also discussed another form of voluntary disclosure programme, referred to as an Offshore Voluntary Disclosure Programme, which allows taxpayers with unreported foreign bank accounts, and presumably unreported foreign income, to voluntarily disclose their affairs. The study found that, due to tax amnesties, Government raises more tax revenue not only in the short run from collecting overdue taxes but also by bringing former non-filers back into the tax system for the long run. It was also found that, initially short-run revenue brought in from overdue taxes will be positive for the first amnesty and then decline each time the amnesty is offered repeatedly. The reason for the decline in revenue might be that tax amnesties provide incentives for otherwise honest taxpayers to start evading taxes because they will anticipate the offering of future amnesties, thereby weakening tax compliance. The costs associated with amnesty programmes include negative long run revenue impact and also that amnesty programmes reduce compliance by taxpayers in the long-run. In South Africa tax amnesties, especially the voluntary disclosure programme, are likely to be successful since they will increase the revenue yield and also bring non-filers back on the tax rolls.
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“Watch-dogs for an Economy” : a determination of the origins of the South African Public Accountants' and Auditors' Board – as the Regulator of the Profession – principally through an analysis of the debates and related reports to the House of Assembly of the Parliament of the Union of South Africa in the period 1913–1940
- Lancaster, Jonathan Charles Swinburne
- Authors: Lancaster, Jonathan Charles Swinburne
- Date: 2014
- Subjects: Public Accountants' and Auditors' Board (South Africa) , Accounting -- Law and legislation -- South Africa , Accounting -- South Africa -- History , Accounting -- Standards -- South Africa , South Africa -- Economic conditions -- 1918-1961 , South Africa -- Politics and government -- 1909-1948
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:922 , http://hdl.handle.net/10962/d1020876
- Description: This thesis concentrates upon a new field of research in South African accounting scholarship – this being, in general terms, accounting history and more specifically an analysis of the origins of the Public Accountants’ and Auditors’ Board as watch-dog in relation to: ● the South African economy in the period 1913–1940; and ● the changing political framework (also in the period 1913–1940). The integration of economy, politics and personal ambition on the part of early 20th Century accounting societies, led to a variety of responses, counter proposals, stalemates and unfocused activity which caused the process of accountants’ registration to extend over 38 years in South Africa. This confusion was in strong contrast to the process of speedy registration of accountants in New Zealand and Australia. The final unification of South African accounting societies in 1951 created the Public Accountants’ and Auditors’ Board. Its creation, at long last, suggested an overarching control and regulation which was mirrored in the final political unification and economic stability of a South Africa dominated by Afrikaner Nationalists. One further element was interwoven into the fabric of the thesis – this being the application of institutional economic theory and its impact upon the accounting concepts of “material irregularity” and “reportable irregularity”.
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- Authors: Lancaster, Jonathan Charles Swinburne
- Date: 2014
- Subjects: Public Accountants' and Auditors' Board (South Africa) , Accounting -- Law and legislation -- South Africa , Accounting -- South Africa -- History , Accounting -- Standards -- South Africa , South Africa -- Economic conditions -- 1918-1961 , South Africa -- Politics and government -- 1909-1948
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:922 , http://hdl.handle.net/10962/d1020876
- Description: This thesis concentrates upon a new field of research in South African accounting scholarship – this being, in general terms, accounting history and more specifically an analysis of the origins of the Public Accountants’ and Auditors’ Board as watch-dog in relation to: ● the South African economy in the period 1913–1940; and ● the changing political framework (also in the period 1913–1940). The integration of economy, politics and personal ambition on the part of early 20th Century accounting societies, led to a variety of responses, counter proposals, stalemates and unfocused activity which caused the process of accountants’ registration to extend over 38 years in South Africa. This confusion was in strong contrast to the process of speedy registration of accountants in New Zealand and Australia. The final unification of South African accounting societies in 1951 created the Public Accountants’ and Auditors’ Board. Its creation, at long last, suggested an overarching control and regulation which was mirrored in the final political unification and economic stability of a South Africa dominated by Afrikaner Nationalists. One further element was interwoven into the fabric of the thesis – this being the application of institutional economic theory and its impact upon the accounting concepts of “material irregularity” and “reportable irregularity”.
- Full Text:
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