The effect of global e-commerce on taxation legislation and the permanent establishment concept in South Africa
- Authors: Young, Nikita Jade
- Date: 2013
- Subjects: Electronic commerce , Electronic commerce -- Taxation , Electronic commerce -- South Africa , Taxation -- Law and legislation -- South Africa , South African taxation , E-commerce , Permanent establishment , Foreign business entity
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:876 , http://hdl.handle.net/10962/d1001608 , Electronic commerce , Electronic commerce -- Taxation , Electronic commerce -- South Africa , Taxation -- Law and legislation -- South Africa
- Description: The objective of this thesis was to analyse the effect of the increasing popularity of global e-commerce on the South African legislative framework in respect of the taxation of non-resident enterprises, and to propose a possible solution for the taxation of e-commerce, taking into account previous theories. The methodology utilised comprised of a critical analysis of the legal rules relating to the taxation of a foreign entity's business profits by virtue of the application of the permanent establishment principle, its definition and evolution as a conceptual basis for taxation. Furthermore, an in depth evaluation of the various solutions that have already been proposed and, in some cases, implemented was undertaken. It was concluded that the application of the permanent establishment principle is wholly ineffective as a means to levy tax on the e-commerce business profits of a foreign entity as the principle relies too heavily upon a physical intermediary in the source state, whereas e-commerce transactions are conducted on the intangible trading platform of the Internet. In light of the numerous policy proposals advanced over the years, it was concluded that the most feasible and practical solution for the taxation of foreign e-commerce would be the imposition on a foreign entity in South Africa of a low withholding tax on the active business profits in excess of a pre-determined threshold. Key words: South African taxation; e-commerce; foreign business entity; permanent establishment; withholding tax
- Full Text:
- Date Issued: 2013
- Authors: Young, Nikita Jade
- Date: 2013
- Subjects: Electronic commerce , Electronic commerce -- Taxation , Electronic commerce -- South Africa , Taxation -- Law and legislation -- South Africa , South African taxation , E-commerce , Permanent establishment , Foreign business entity
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:876 , http://hdl.handle.net/10962/d1001608 , Electronic commerce , Electronic commerce -- Taxation , Electronic commerce -- South Africa , Taxation -- Law and legislation -- South Africa
- Description: The objective of this thesis was to analyse the effect of the increasing popularity of global e-commerce on the South African legislative framework in respect of the taxation of non-resident enterprises, and to propose a possible solution for the taxation of e-commerce, taking into account previous theories. The methodology utilised comprised of a critical analysis of the legal rules relating to the taxation of a foreign entity's business profits by virtue of the application of the permanent establishment principle, its definition and evolution as a conceptual basis for taxation. Furthermore, an in depth evaluation of the various solutions that have already been proposed and, in some cases, implemented was undertaken. It was concluded that the application of the permanent establishment principle is wholly ineffective as a means to levy tax on the e-commerce business profits of a foreign entity as the principle relies too heavily upon a physical intermediary in the source state, whereas e-commerce transactions are conducted on the intangible trading platform of the Internet. In light of the numerous policy proposals advanced over the years, it was concluded that the most feasible and practical solution for the taxation of foreign e-commerce would be the imposition on a foreign entity in South Africa of a low withholding tax on the active business profits in excess of a pre-determined threshold. Key words: South African taxation; e-commerce; foreign business entity; permanent establishment; withholding tax
- Full Text:
- Date Issued: 2013
The tax implications of a private equity buy-out : a case study of the Brait-Shoprite buy-out
- Authors: Mawire, Patrick N
- Date: 2008
- Subjects: South African Revenue Service , Consolidation and merger of corporations -- Finance , Taxation -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:8959 , http://hdl.handle.net/10948/803 , South African Revenue Service , Consolidation and merger of corporations -- Finance , Taxation -- Law and legislation -- South Africa
- Description: This treatise examines the history of private equity as a context in which to understand its role in the economy and specifically, the background for the high profile leveraged buy-outs that have been entered into in the past year. The treatise then focuses specifically on the Brait-Shoprite buy-out, examining its structure and the tax implications. The treatise then reviews the reaction of the South African Revenue Authority (“SARS”) to the buy-out and evaluates whether it was the best approach that could have been taken under the circumstances. As a result of the research, the following conclusions have been reached: Private equity transactions Private equity transactions have a role to play in the business world despite the apprehensions of tax authorities. The perception that these transactions are tax driven as part of an avoidance scheme is not justified. Structure of the Shoprite buy-out transaction: The Shoprite buy-out transaction was structured to obtain deduction for interest. The transaction was also structured to utilise the relief provisions of Part II of Chapter II (Special Provisions Relating to Companies) of the Income Tax Act no.58 of 1962, as amended (“the Act”). The relief was for capital gains tax (“CGT”) on disposal of the Shoprite assets. Finally, the transaction was designed to allow the existing shareholders to exit their investments free of Secondary Tax on Companies (“STC”). The reaction of SARS to the Shoprite buy-out transaction Whereas SARS may have been justified in questioning the structure and its impact on fiscal revenue, the response in the form of withdrawing STC relief from amalgamation transactions in section 44 was not in the best interest of a stable tax system and the majority of tax payers who are not misusing or abusing loopholes in the income tax legislation. It may have been possible for SARS to attack the structure based on the General Anti-Avoidance Rule (GAAR) in part IIA of the Chapter III of the Act.
- Full Text:
- Date Issued: 2008
- Authors: Mawire, Patrick N
- Date: 2008
- Subjects: South African Revenue Service , Consolidation and merger of corporations -- Finance , Taxation -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:8959 , http://hdl.handle.net/10948/803 , South African Revenue Service , Consolidation and merger of corporations -- Finance , Taxation -- Law and legislation -- South Africa
- Description: This treatise examines the history of private equity as a context in which to understand its role in the economy and specifically, the background for the high profile leveraged buy-outs that have been entered into in the past year. The treatise then focuses specifically on the Brait-Shoprite buy-out, examining its structure and the tax implications. The treatise then reviews the reaction of the South African Revenue Authority (“SARS”) to the buy-out and evaluates whether it was the best approach that could have been taken under the circumstances. As a result of the research, the following conclusions have been reached: Private equity transactions Private equity transactions have a role to play in the business world despite the apprehensions of tax authorities. The perception that these transactions are tax driven as part of an avoidance scheme is not justified. Structure of the Shoprite buy-out transaction: The Shoprite buy-out transaction was structured to obtain deduction for interest. The transaction was also structured to utilise the relief provisions of Part II of Chapter II (Special Provisions Relating to Companies) of the Income Tax Act no.58 of 1962, as amended (“the Act”). The relief was for capital gains tax (“CGT”) on disposal of the Shoprite assets. Finally, the transaction was designed to allow the existing shareholders to exit their investments free of Secondary Tax on Companies (“STC”). The reaction of SARS to the Shoprite buy-out transaction Whereas SARS may have been justified in questioning the structure and its impact on fiscal revenue, the response in the form of withdrawing STC relief from amalgamation transactions in section 44 was not in the best interest of a stable tax system and the majority of tax payers who are not misusing or abusing loopholes in the income tax legislation. It may have been possible for SARS to attack the structure based on the General Anti-Avoidance Rule (GAAR) in part IIA of the Chapter III of the Act.
- Full Text:
- Date Issued: 2008
The tax implications of non-resident sportspersons performing and earning an income in South Africa
- Authors: Wessels, Jacques
- Date: 2008
- Subjects: South African Revenue Service , Sports -- Taxation -- Law and legislation -- South Africa , Taxation -- Law and legislation -- South Africa , Income tax -- Law and legislation -- South Africa , Income tax -- Foreign income , Income tax -- South Africa -- Foreign income , Withholding tax -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:893 , http://hdl.handle.net/10962/d1003719 , South African Revenue Service , Sports -- Taxation -- Law and legislation -- South Africa , Taxation -- Law and legislation -- South Africa , Income tax -- Law and legislation -- South Africa , Income tax -- Foreign income , Income tax -- South Africa -- Foreign income , Withholding tax -- Law and legislation -- South Africa
- Description: As the number of non-resident sports persons competing in South Africa increases so does the need to tax them more effectively. It was for this reason that the South African legislature decided to insert Part IlIA into the Income Tax Act which regulates the taxation of non-resident sports persons in South Africa. The new tax on foreign sports persons, which came into effect during August 2006, is a withholding tax placing the onus upon the organizer of the event to withhold the tax portion of the payment to the non-resident sportsperson and pay it over to the revenue services. The rate of taxation has been set at 15 percent on all amounts received by or accruing to a foreign sportsperson. The question which the research addressed is whether this new tax will prove to be an effective tax, both from the point of view of its equity and the administration of the tax. In order to determine the impact of the new tax, it was compared to similar taxes implemented in the United Kingdom and Australia and also to other withholding taxes levied in South Africa. The new tax was also measured against a theoretical model for effectiveness, compared to the pre-August 2006 situation and to the taxation of resident sportsmen and women, using hypothetical examples. The major shortcomings of the new withholding tax are the uncertainty with regard to the intention of the legislature on matters such as the taxation of capital income versus revenue income, the question whether payments to support staff are included in the ambit of the new tax, the taxation of the award of assets in lieu of cash payments and the definition of a resident. A further area of concern is that the rate of taxation of 15 percent appears to be too low and creates horizontal inequity between the taxation of resident and non-resident sports persons. The new tax on non-resident sports persons may have its shortcomings but, depending upon the administrative and support structures put in place to deal with it, will be an effective tax. The rate at which the tax is levied could result in a less tax being collected than before but, with the reduced administrative cost of tax collection, the effective/statutory ratio of the tax could well be much higher than it was. This is a new tax in South Africa and certain initial problems are inevitable and will undoubtedly be solved as the administrators gain experience and as the case law governing this tax develops. , KMBT_363
- Full Text:
- Date Issued: 2008
- Authors: Wessels, Jacques
- Date: 2008
- Subjects: South African Revenue Service , Sports -- Taxation -- Law and legislation -- South Africa , Taxation -- Law and legislation -- South Africa , Income tax -- Law and legislation -- South Africa , Income tax -- Foreign income , Income tax -- South Africa -- Foreign income , Withholding tax -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:893 , http://hdl.handle.net/10962/d1003719 , South African Revenue Service , Sports -- Taxation -- Law and legislation -- South Africa , Taxation -- Law and legislation -- South Africa , Income tax -- Law and legislation -- South Africa , Income tax -- Foreign income , Income tax -- South Africa -- Foreign income , Withholding tax -- Law and legislation -- South Africa
- Description: As the number of non-resident sports persons competing in South Africa increases so does the need to tax them more effectively. It was for this reason that the South African legislature decided to insert Part IlIA into the Income Tax Act which regulates the taxation of non-resident sports persons in South Africa. The new tax on foreign sports persons, which came into effect during August 2006, is a withholding tax placing the onus upon the organizer of the event to withhold the tax portion of the payment to the non-resident sportsperson and pay it over to the revenue services. The rate of taxation has been set at 15 percent on all amounts received by or accruing to a foreign sportsperson. The question which the research addressed is whether this new tax will prove to be an effective tax, both from the point of view of its equity and the administration of the tax. In order to determine the impact of the new tax, it was compared to similar taxes implemented in the United Kingdom and Australia and also to other withholding taxes levied in South Africa. The new tax was also measured against a theoretical model for effectiveness, compared to the pre-August 2006 situation and to the taxation of resident sportsmen and women, using hypothetical examples. The major shortcomings of the new withholding tax are the uncertainty with regard to the intention of the legislature on matters such as the taxation of capital income versus revenue income, the question whether payments to support staff are included in the ambit of the new tax, the taxation of the award of assets in lieu of cash payments and the definition of a resident. A further area of concern is that the rate of taxation of 15 percent appears to be too low and creates horizontal inequity between the taxation of resident and non-resident sports persons. The new tax on non-resident sports persons may have its shortcomings but, depending upon the administrative and support structures put in place to deal with it, will be an effective tax. The rate at which the tax is levied could result in a less tax being collected than before but, with the reduced administrative cost of tax collection, the effective/statutory ratio of the tax could well be much higher than it was. This is a new tax in South Africa and certain initial problems are inevitable and will undoubtedly be solved as the administrators gain experience and as the case law governing this tax develops. , KMBT_363
- Full Text:
- Date Issued: 2008
The continued viability of the discretionary Inter vivos trust as an instrument for estate planning
- Lötter, Therésilda Sieglinde
- Authors: Lötter, Therésilda Sieglinde
- Date: 2007
- Subjects: Taxation -- Law and legislation -- South Africa , Trusts and trustees -- South Africa , Trusts and trustees -- Taxation -- South Africa , Estate planning -- South Africa , Estates (Law) -- South Africa
- Language: Afrikaans
- Type: Thesis , Masters , MCom
- Identifier: vital:900 , http://hdl.handle.net/10962/d1006148 , Taxation -- Law and legislation -- South Africa , Trusts and trustees -- South Africa , Trusts and trustees -- Taxation -- South Africa , Estate planning -- South Africa , Estates (Law) -- South Africa
- Description: The purpose of this study is to determine whether a discretionary inter vivos trust is still an effective instrument for estate planning. The process of estate planning, the role the trust plays in it and the background to the trust are described. The taxability and tax saving opportunities when the trust are utilised are discussed in the light of the Estate Duty Act, 45 of 1955, the Income Tax Act, 58 of 1962 (including the Eighth Schedule thereof) and the Transfer Duty Act, 40 of 1949. The opinions of tax and legal authorities in articles and relevant case law are also discussed. The impact of the "letter of wishes" on the stipulations of the trust deed is examined. Amendments to the Income Tax Act have placed a limit on the use of a trust for estate planning through a number of anti-avoidance measures, the introduction of a capital gains tax (in the Eighth Schedule) and the imposition of a high tax rate. The increase in the deduction granted in arriving at the dutiable amount of an estate, in terms of section 4A of the Estate Duty Act, from R1 500 000 to R2 500 000 has imposed a further limit on the use of the trust as an instrument in estate planning. The research demonstrates that, notwithstanding the amendments to the Income Tax Act, the trust still is a viable instrument, mainly because the trust operates as a conduit and because of its potential use in dividing taxable income amongst a number of beneficiaries. The stipulations included in the trust deed and the "letter of wishes" (if one exists), must be thought through carefully when estate planning is done, as it can give rise to the application of the general and specific anti-avoidance provisions as included in sections 7 and 103 of this Act. The research also concludes that, in assessing the effectiveness of the trust as an instrument in tax planning, the disadvantage of paying the higher transfer duty when the immovable asset is transferred to the trust should be weighed up against the possible saving in income tax and estate duty at a later stage. It is also clear that most assets owned by the trust are tax neutral, whilst many of the amendments under discussion deal with the taxability of trust income. The quantitative considerations underlying the use of the trust as part of the estate plan, remain unchanged. The research concludes by providing a framework of quantitative and qualitative criteria that can be used by an estate planner to determine whether it will be advantageous to transfer an asset to the trust to achieve the objectives of the estate plan.
- Full Text:
- Date Issued: 2007
- Authors: Lötter, Therésilda Sieglinde
- Date: 2007
- Subjects: Taxation -- Law and legislation -- South Africa , Trusts and trustees -- South Africa , Trusts and trustees -- Taxation -- South Africa , Estate planning -- South Africa , Estates (Law) -- South Africa
- Language: Afrikaans
- Type: Thesis , Masters , MCom
- Identifier: vital:900 , http://hdl.handle.net/10962/d1006148 , Taxation -- Law and legislation -- South Africa , Trusts and trustees -- South Africa , Trusts and trustees -- Taxation -- South Africa , Estate planning -- South Africa , Estates (Law) -- South Africa
- Description: The purpose of this study is to determine whether a discretionary inter vivos trust is still an effective instrument for estate planning. The process of estate planning, the role the trust plays in it and the background to the trust are described. The taxability and tax saving opportunities when the trust are utilised are discussed in the light of the Estate Duty Act, 45 of 1955, the Income Tax Act, 58 of 1962 (including the Eighth Schedule thereof) and the Transfer Duty Act, 40 of 1949. The opinions of tax and legal authorities in articles and relevant case law are also discussed. The impact of the "letter of wishes" on the stipulations of the trust deed is examined. Amendments to the Income Tax Act have placed a limit on the use of a trust for estate planning through a number of anti-avoidance measures, the introduction of a capital gains tax (in the Eighth Schedule) and the imposition of a high tax rate. The increase in the deduction granted in arriving at the dutiable amount of an estate, in terms of section 4A of the Estate Duty Act, from R1 500 000 to R2 500 000 has imposed a further limit on the use of the trust as an instrument in estate planning. The research demonstrates that, notwithstanding the amendments to the Income Tax Act, the trust still is a viable instrument, mainly because the trust operates as a conduit and because of its potential use in dividing taxable income amongst a number of beneficiaries. The stipulations included in the trust deed and the "letter of wishes" (if one exists), must be thought through carefully when estate planning is done, as it can give rise to the application of the general and specific anti-avoidance provisions as included in sections 7 and 103 of this Act. The research also concludes that, in assessing the effectiveness of the trust as an instrument in tax planning, the disadvantage of paying the higher transfer duty when the immovable asset is transferred to the trust should be weighed up against the possible saving in income tax and estate duty at a later stage. It is also clear that most assets owned by the trust are tax neutral, whilst many of the amendments under discussion deal with the taxability of trust income. The quantitative considerations underlying the use of the trust as part of the estate plan, remain unchanged. The research concludes by providing a framework of quantitative and qualitative criteria that can be used by an estate planner to determine whether it will be advantageous to transfer an asset to the trust to achieve the objectives of the estate plan.
- Full Text:
- Date Issued: 2007
The regulation of tax practitioners in South Africa: a proposed model
- Authors: Woodbridge, Taryn
- Date: 2006
- Subjects: Income tax -- Law and legislation -- South Africa , Taxation -- Law and legislation -- South Africa , South African Revenue Service
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:891 , http://hdl.handle.net/10962/d1003128 , Income tax -- Law and legislation -- South Africa , Taxation -- Law and legislation -- South Africa , South African Revenue Service
- Description: Tax practitioners in South Africa have been operating in an unregulated tax industry. This has allowed certain tax practitioners to fail in their duties to their clients, as many do not have to abide by any code of conduct or ethical principles, to the detriment of the public. Other than the provisions in the Income Tax Act, 58 of 1962, there has been no regulation. As a result of losses suffered by taxpayers either through the incompetence, ignorance or negligence of a tax practitioner, as substantiated by case law, and increased costs borne by the South African Revenue Services due to unnecessary queries and tax disputes, the Minister of Finance, Trevor Manuel, introduced the concept of tax industry regulation in his Budget Speech in 2002. This resulted in the introduction of section 67 A into the Income Tax Act, providing for a registration process for tax practitioners. All practising tax practitioners were required to register with the Commissioner for the South African Revenue Services by 30 June 2005. In addition, a discussion paper was issued in 2002 setting out the proposal of the Revenue Services to regulate the tax industry through the formation of an Association of Tax Practitioners. This proposal includes various contentious issues and casts significant doubt on whether the proposed model is the most suitable. The goal of the research was therefore to evaluate the current status of tax advisory services in order to demonstrate the need for regulation and to compare the proposed SARS model with two established regulatory authorities: the Estate Agency Affairs Board and the Australian Tax Agents Board. A conceptual model for regulation was developed in order to test all the models against a simple regulatory framework to determine whether each was aligned to certain best practices proposed in this framework. The research methodology was qualitative in nature, involving the critical interpretation of documentary data and data generated during a public discussion forum of tax practitioners. It was concluded that the SARS proposal is too prescriptive and, at the same time, too broad in its scope. In order to address the key objective, identified as protection of the taxpaying public, a simplified regulation procedure was recommended, which would adhere to the proposed regulatory framework. , KMBT_363
- Full Text:
- Date Issued: 2006
- Authors: Woodbridge, Taryn
- Date: 2006
- Subjects: Income tax -- Law and legislation -- South Africa , Taxation -- Law and legislation -- South Africa , South African Revenue Service
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:891 , http://hdl.handle.net/10962/d1003128 , Income tax -- Law and legislation -- South Africa , Taxation -- Law and legislation -- South Africa , South African Revenue Service
- Description: Tax practitioners in South Africa have been operating in an unregulated tax industry. This has allowed certain tax practitioners to fail in their duties to their clients, as many do not have to abide by any code of conduct or ethical principles, to the detriment of the public. Other than the provisions in the Income Tax Act, 58 of 1962, there has been no regulation. As a result of losses suffered by taxpayers either through the incompetence, ignorance or negligence of a tax practitioner, as substantiated by case law, and increased costs borne by the South African Revenue Services due to unnecessary queries and tax disputes, the Minister of Finance, Trevor Manuel, introduced the concept of tax industry regulation in his Budget Speech in 2002. This resulted in the introduction of section 67 A into the Income Tax Act, providing for a registration process for tax practitioners. All practising tax practitioners were required to register with the Commissioner for the South African Revenue Services by 30 June 2005. In addition, a discussion paper was issued in 2002 setting out the proposal of the Revenue Services to regulate the tax industry through the formation of an Association of Tax Practitioners. This proposal includes various contentious issues and casts significant doubt on whether the proposed model is the most suitable. The goal of the research was therefore to evaluate the current status of tax advisory services in order to demonstrate the need for regulation and to compare the proposed SARS model with two established regulatory authorities: the Estate Agency Affairs Board and the Australian Tax Agents Board. A conceptual model for regulation was developed in order to test all the models against a simple regulatory framework to determine whether each was aligned to certain best practices proposed in this framework. The research methodology was qualitative in nature, involving the critical interpretation of documentary data and data generated during a public discussion forum of tax practitioners. It was concluded that the SARS proposal is too prescriptive and, at the same time, too broad in its scope. In order to address the key objective, identified as protection of the taxpaying public, a simplified regulation procedure was recommended, which would adhere to the proposed regulatory framework. , KMBT_363
- Full Text:
- Date Issued: 2006
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