A critical analysis of the interpretation of a permanent establishment created where a subsidiary acts as a dependent agent for its parent company
- Authors: Potgieter, Gizelle Kara
- Date: 2024-04
- Subjects: Double taxation , Taxation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65389 , vital:74112
- Description: In recent years, the need arose to amend the DAPE provisions in the OECD MTC due to the ever-evolving nature of the tax avoidance strategies employed globally. This research study analysed the amendments that were made to the DAPE provisions of Article 5(5) of the 2014 OECD MTC, including the related OECD Commentary thereto and the extent to which the Commentary can be relied on. The relevance of the amended DAPE provisions were discussed by analysing the PE definition in SA’s domestic tax law, SA’s position on the MLI and consequently its position on Article 12 of the MLI which incorporates the amended DAPE provisions into existing DTAs. The scope of the research was limited to the DAPE provisions, and the research did not focus on the PE provisions in general. The focal point of the study was specifically on SA subsidiaries acting as dependent agents for its parent companies located in foreign jurisdictions, thereby creating deemed PEs for the foreign parent companies in SA based on the relevant criteria set out in Article 5(5) of the OECD MTC. The research study further explored specific French court cases that focussed on the interpretation of the DAPE provisions in the relevant DTAs and commented on the appropriateness of the decisions reached in these cases. The primary objective of the research was to determine how the DAPE provisions should be interpreted for purposes of SA’s domestic law, as well as its DTAs concluded with both France and Ireland. The research study therefore concluded with an interpretation of a case study based on a similar set of facts to the foreign court cases explored, where an SA subsidiary acted as a dependent agent on behalf of its foreign parent company. The conclusion reached on the appropriate interpretation for domestic law purposes differed significantly to the interpretation for purposes of the DTAs as a result of the significant amendments that were made to the DAPE provisions in the 2017 MTC. , Thesis (MCom) -- Faculty of Business and Economic Sciences, School of Accounting, 2024
- Full Text:
- Date Issued: 2024-04
- Authors: Potgieter, Gizelle Kara
- Date: 2024-04
- Subjects: Double taxation , Taxation
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/65389 , vital:74112
- Description: In recent years, the need arose to amend the DAPE provisions in the OECD MTC due to the ever-evolving nature of the tax avoidance strategies employed globally. This research study analysed the amendments that were made to the DAPE provisions of Article 5(5) of the 2014 OECD MTC, including the related OECD Commentary thereto and the extent to which the Commentary can be relied on. The relevance of the amended DAPE provisions were discussed by analysing the PE definition in SA’s domestic tax law, SA’s position on the MLI and consequently its position on Article 12 of the MLI which incorporates the amended DAPE provisions into existing DTAs. The scope of the research was limited to the DAPE provisions, and the research did not focus on the PE provisions in general. The focal point of the study was specifically on SA subsidiaries acting as dependent agents for its parent companies located in foreign jurisdictions, thereby creating deemed PEs for the foreign parent companies in SA based on the relevant criteria set out in Article 5(5) of the OECD MTC. The research study further explored specific French court cases that focussed on the interpretation of the DAPE provisions in the relevant DTAs and commented on the appropriateness of the decisions reached in these cases. The primary objective of the research was to determine how the DAPE provisions should be interpreted for purposes of SA’s domestic law, as well as its DTAs concluded with both France and Ireland. The research study therefore concluded with an interpretation of a case study based on a similar set of facts to the foreign court cases explored, where an SA subsidiary acted as a dependent agent on behalf of its foreign parent company. The conclusion reached on the appropriate interpretation for domestic law purposes differed significantly to the interpretation for purposes of the DTAs as a result of the significant amendments that were made to the DAPE provisions in the 2017 MTC. , Thesis (MCom) -- Faculty of Business and Economic Sciences, School of Accounting, 2024
- Full Text:
- Date Issued: 2024-04
The complexities of transfer pricing methods and the role of advance pricing agreements and tax audits in addressing disputes
- Authors: Ndou, Wavhudi
- Date: 2023-10-13
- Subjects: Transfer pricing Taxation Law and legislation South Africa , Advance pricing agreement , Double taxation , Arms-length transactions , Tax auditing , Advance tax ruling , Organisation for Economic Co-operation and Development , United Nations , World Bank
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/419631 , vital:71661
- Description: Base erosion and profit shifting is defined as the use of tax planning strategies by multinational enterprises, often through exploiting gaps and mismatches between the countries in which they operate (OECD, 2021: p. 1). Multinational enterprises exploit these gaps through the use of transfer pricing. Goods and services are exchanged between connected persons or associated enterprises at prices that do not reflect their arm’s length price, in order to shift profits from high tax to low tax jurisdictions. In terms of section 31 of the Income Tax Act, transactions between connected persons or associated enterprises must be reflected at their arm’s length price. Transfer pricing has become an issue due to the difficulties in determining an appropriate arm’s length price. Disputes arise between a taxpayer and a tax administration on the methods to use to determine an appropriate transfer price. The use of Advance Pricing Agreements prevents these disputes from arising and provides tax certainty on the treatment of transactions for both the taxpayer and the tax administration. While the OECD recommends the use of Advance Pricing Agreements as a method to prevent disputes from arising, the OECD also argued that if a country has the resources to conduct an audit, an Advance Pricing Agreement will not lead to increased revenue collection. The research therefore analyses the problems faced in determining an appropriate arm's length price and compares the role that Advance Pricing Agreements and audits play in addressing transfer pricing issues. The possible role of Advance Tax Rulings is also explored, but they are found not to be suitable, except for the most simple transactions. The research applies a legal interpretative, doctrinal research methodology and a qualitative research method. The data comprised of relevant South African tax legislation, OECD Guidelines, the World Bank Handbook, and the UN Manual, together with the writings of acknowledged experts in the field. The study establishes that a proper functioning audit system is crucial to increasing revenue collection once a country implements an Advance Pricing Agreement. The research therefore recommends the adoption of Advance Pricing Agreements in South Africa as a dispute prevention measure. , Thesis (MCom) -- Faculty of Commerce, Accounting, 2023
- Full Text:
- Date Issued: 2023-10-13
- Authors: Ndou, Wavhudi
- Date: 2023-10-13
- Subjects: Transfer pricing Taxation Law and legislation South Africa , Advance pricing agreement , Double taxation , Arms-length transactions , Tax auditing , Advance tax ruling , Organisation for Economic Co-operation and Development , United Nations , World Bank
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/419631 , vital:71661
- Description: Base erosion and profit shifting is defined as the use of tax planning strategies by multinational enterprises, often through exploiting gaps and mismatches between the countries in which they operate (OECD, 2021: p. 1). Multinational enterprises exploit these gaps through the use of transfer pricing. Goods and services are exchanged between connected persons or associated enterprises at prices that do not reflect their arm’s length price, in order to shift profits from high tax to low tax jurisdictions. In terms of section 31 of the Income Tax Act, transactions between connected persons or associated enterprises must be reflected at their arm’s length price. Transfer pricing has become an issue due to the difficulties in determining an appropriate arm’s length price. Disputes arise between a taxpayer and a tax administration on the methods to use to determine an appropriate transfer price. The use of Advance Pricing Agreements prevents these disputes from arising and provides tax certainty on the treatment of transactions for both the taxpayer and the tax administration. While the OECD recommends the use of Advance Pricing Agreements as a method to prevent disputes from arising, the OECD also argued that if a country has the resources to conduct an audit, an Advance Pricing Agreement will not lead to increased revenue collection. The research therefore analyses the problems faced in determining an appropriate arm's length price and compares the role that Advance Pricing Agreements and audits play in addressing transfer pricing issues. The possible role of Advance Tax Rulings is also explored, but they are found not to be suitable, except for the most simple transactions. The research applies a legal interpretative, doctrinal research methodology and a qualitative research method. The data comprised of relevant South African tax legislation, OECD Guidelines, the World Bank Handbook, and the UN Manual, together with the writings of acknowledged experts in the field. The study establishes that a proper functioning audit system is crucial to increasing revenue collection once a country implements an Advance Pricing Agreement. The research therefore recommends the adoption of Advance Pricing Agreements in South Africa as a dispute prevention measure. , Thesis (MCom) -- Faculty of Commerce, Accounting, 2023
- Full Text:
- Date Issued: 2023-10-13
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