The application of the “reasonable suspicion of bias” test in relation to the appointment of a tax Ombud in South Africa
- Authors: Tendayi, Tatenda Lovemore
- Date: 2016
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/4190 , vital:20631
- Description: The South African Parliament established a tax Ombud to act as an oversight body which reviews administrative complaints against SARS. Concerns have, however, been raised by academics and experts that the tax Ombud is not adequately independent of SARS so as to be able to investigate the complaints effectively and without bias. The manner in which the appointment, funding and staffing of the tax Ombud have been provided for, have been cited as the major sources of the perception of impartiality. According to decisions of the highest courts in South Africa, the “reasonable suspicion of bias” test must be applied in cases where institutional bias is alleged. The test investigates whether or not the reasonable person would suspect that the particular decision maker will be biased, due to institutional factors. After applying the “reasonable suspicion of bias” test to the model of the South African tax Ombud, the conclusion reached is that the model of the tax Ombud gives rise to a reasonable suspicion of bias. Notwithstanding the fact that the model gives rise to a suspicion of bias, it is concluded that the model, in its current form, remains fair as safeguards have been put in place by the legislature to ensure that fairness prevails. There is, however, international precedent which suggests that the sources of institutional bias can be eliminated completely from the model of the tax Ombud. Specifically, if the funding and staffing of the tax Ombud’s office is removed from SARS, the model of the tax Ombud would move closer to the ideal standards of fairness.
- Full Text:
- Date Issued: 2016
- Authors: Tendayi, Tatenda Lovemore
- Date: 2016
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/4190 , vital:20631
- Description: The South African Parliament established a tax Ombud to act as an oversight body which reviews administrative complaints against SARS. Concerns have, however, been raised by academics and experts that the tax Ombud is not adequately independent of SARS so as to be able to investigate the complaints effectively and without bias. The manner in which the appointment, funding and staffing of the tax Ombud have been provided for, have been cited as the major sources of the perception of impartiality. According to decisions of the highest courts in South Africa, the “reasonable suspicion of bias” test must be applied in cases where institutional bias is alleged. The test investigates whether or not the reasonable person would suspect that the particular decision maker will be biased, due to institutional factors. After applying the “reasonable suspicion of bias” test to the model of the South African tax Ombud, the conclusion reached is that the model of the tax Ombud gives rise to a reasonable suspicion of bias. Notwithstanding the fact that the model gives rise to a suspicion of bias, it is concluded that the model, in its current form, remains fair as safeguards have been put in place by the legislature to ensure that fairness prevails. There is, however, international precedent which suggests that the sources of institutional bias can be eliminated completely from the model of the tax Ombud. Specifically, if the funding and staffing of the tax Ombud’s office is removed from SARS, the model of the tax Ombud would move closer to the ideal standards of fairness.
- Full Text:
- Date Issued: 2016
The tax benefits available to investors in immovable property in South Africa
- Authors: Baines, Daniel
- Date: 2016
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/4026 , vital:20589
- Description: The object of this thesis is to provide guidelines relating to the tax benefits that are available to investors in immovable property in South Africa. This was done by analysing the various sections of the Income Tax Act, as well as case law and South African Revenue Service guidelines that interpret these sections, which provide for expenditure which may be deducted by taxpayers from their income when conducting the trade of letting immovable property in order to reduce their overall tax liability. The thesis also includes a chapter dealing with the four different types of vehicles that taxpayers may use when investing in property. It was found that there are significant tax benefits available to investors in immovable property through the general deductions provided in terms of section 11(a) of the Act, as well as the specific deductions that the legislature has promulgated for investors in immovable property. It was also found that each of the four vehicles has its own advantages and that a taxpayer’s personal circumstances will dictate which of the vehicles will best suit his or her needs.
- Full Text:
- Date Issued: 2016
- Authors: Baines, Daniel
- Date: 2016
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/4026 , vital:20589
- Description: The object of this thesis is to provide guidelines relating to the tax benefits that are available to investors in immovable property in South Africa. This was done by analysing the various sections of the Income Tax Act, as well as case law and South African Revenue Service guidelines that interpret these sections, which provide for expenditure which may be deducted by taxpayers from their income when conducting the trade of letting immovable property in order to reduce their overall tax liability. The thesis also includes a chapter dealing with the four different types of vehicles that taxpayers may use when investing in property. It was found that there are significant tax benefits available to investors in immovable property through the general deductions provided in terms of section 11(a) of the Act, as well as the specific deductions that the legislature has promulgated for investors in immovable property. It was also found that each of the four vehicles has its own advantages and that a taxpayer’s personal circumstances will dictate which of the vehicles will best suit his or her needs.
- Full Text:
- Date Issued: 2016
A critical analysis of the tax consequences of debt reductons, in the context of insolvency, death and the liquidaton of a deceased estate
- Authors: Simango, Samuel
- Date: 2014
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/54464 , vital:26567
- Description: The present research was conducted in an effort to address certain problems and a legal anomaly that is specifically related to the tax treatment of reduced debts stemming from the death or insolvency of natural persons in South Africa. At the beginning of 2013 the National Treasury enacted certain amendments to the debt reduction provisions of the Income Tax Act 58 of 1962 with the intention of streamlining the tax treatment of reduced debts and granting debt relief to financially distressed debtors. In spite of these recent amendments to the provisions of the Income Tax Act, there are certain problems and a legal anomaly which still currently relate to the tax consequences of reduced debts in South Africa. These problems and the legal anomaly are based on the failure of the recent amendments to successfully address debt reduction which arises in the context of the death and/or insolvency of natural persons. The objective of this research was therefore to analyse the tax consequences of reduced debts arising in the context of the death and the insolvency of natural persons and to explain how the problems and legal anomaly associated with these tax consequences can be rectified. The research design was qualitative within the framework of an interpretive paradigm. A mixed methodology approach was followed as identified in the Arthurs Report (1983), namely the interdisciplinary and the doctrinal methodologies. This approach encompassed two legal research methods namely the expository and legal reform research methods. The research explained the underlying nature of the tax consequences of reduced debts arising in the context of the death and the insolvency of natural persons and formulated specific reform measures aimed at remedying the problems and the legal anomaly that currently exist. Two amendments were proposed. It was proposed that the tax liability which arises when debts are reduced through the wills of deceased persons and the reduction of debts stemming from the insolvency of natural persons should be expressly excluded from falling within the ambit of the provisions which give rise to tax consequences whenever debt reduction takes place.
- Full Text:
- Date Issued: 2014
- Authors: Simango, Samuel
- Date: 2014
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/54464 , vital:26567
- Description: The present research was conducted in an effort to address certain problems and a legal anomaly that is specifically related to the tax treatment of reduced debts stemming from the death or insolvency of natural persons in South Africa. At the beginning of 2013 the National Treasury enacted certain amendments to the debt reduction provisions of the Income Tax Act 58 of 1962 with the intention of streamlining the tax treatment of reduced debts and granting debt relief to financially distressed debtors. In spite of these recent amendments to the provisions of the Income Tax Act, there are certain problems and a legal anomaly which still currently relate to the tax consequences of reduced debts in South Africa. These problems and the legal anomaly are based on the failure of the recent amendments to successfully address debt reduction which arises in the context of the death and/or insolvency of natural persons. The objective of this research was therefore to analyse the tax consequences of reduced debts arising in the context of the death and the insolvency of natural persons and to explain how the problems and legal anomaly associated with these tax consequences can be rectified. The research design was qualitative within the framework of an interpretive paradigm. A mixed methodology approach was followed as identified in the Arthurs Report (1983), namely the interdisciplinary and the doctrinal methodologies. This approach encompassed two legal research methods namely the expository and legal reform research methods. The research explained the underlying nature of the tax consequences of reduced debts arising in the context of the death and the insolvency of natural persons and formulated specific reform measures aimed at remedying the problems and the legal anomaly that currently exist. Two amendments were proposed. It was proposed that the tax liability which arises when debts are reduced through the wills of deceased persons and the reduction of debts stemming from the insolvency of natural persons should be expressly excluded from falling within the ambit of the provisions which give rise to tax consequences whenever debt reduction takes place.
- Full Text:
- Date Issued: 2014
The impact of the new dividend withholding tax on regulated investment intermediaries
- Authors: Schafer, Carolyn
- Date: 2011
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:880 , http://hdl.handle.net/10962/d1001634
- Description: The introduction of the proposed new Dividends Tax will have a significant impact on financial institutions such as Collective Investment Schemes, Linked Investment Service Providers and Long-term Insurers. The reason for this is that South African listed companies declaring local dividends will not necessarily have all the details of and know the identity of their shareholders. These financial institutions may be regarded as regulated intermediaries in terms of the new Dividends Tax legislation and therefore may have the responsibility of withholding the Dividends Tax from dividends received on behalf of their clients, who may in most cases be the beneficial owners of the underlying equity shares. The motivating factor for the research is the fact that there does not appear to be any guidance on the impact of the new Dividends Tax on financial institutions, since the Dividends Tax is new legislation. The research problem addressed in this thesis is how the systems and processes of a financial institution will be affected by the implementation of the new Dividends Tax. The research took the form of a case study designed to investigate the impact of the Dividends Tax on the financial institution at which the researcher is employed. The data required for the research was collected by means of a study of the relevant legislation enacted in connection with the topic, journal articles in financial/tax journals, as well as articles published in the media. The systems and processes presently in place, as well as the changes to these systems that will be needed to accommodate the new dividend tax were ascertained by means of in-depth interviews with relevant staff at the financial institution. In addition, the researcher also applied her personal knowledge of the business of the financial institution at which she works to the problem. As a result of the research it was determined that a Collective Investment Scheme, Linked Investment Service Provider and Long-Term Insurer will all be regarded as regulated intermediaries for the purposes of the new dividend withholding tax. This means that these financial institutions will be required to withhold Dividends Tax from dividends paid to their clients and pay this Dividends Tax so withheld to SARS. Furthermore, the findings of the research confirmed that the new Dividends Tax will have a significant impact on the client services department in areas such as notifying clients, training of client service staff, handling of declaration of exemption forms received from clients, amending client statements and tax certificates (to cater for the new Dividends Tax). In addition to this, it was ascertained that significant systems development will be required by these financial institutions in order to comply with the new Dividends Tax legislation. This would include the development of data input fields to enable users to capture the relevant information required and development of the system to enable it to flag local dividends received to which the Dividends Tax applies. The system would also need to cater for Secondary Tax on Companies credits as well as foreign tax rebates. The system should also be able to calculate the amount of Dividends Tax to withhold per dividend received by a client, as well as be able to handle the payment of the Dividends Tax to SARS and the refund to clients of Dividends Tax over deducted. It is essential that systems are able to flag the correct date of payment of the dividend so that the Dividends Tax can be paid over timeously to SARS in order to avoid interest and penalties being levied. To summarise, the new Dividends Tax has a significant impact on these financial institutions in areas such as client services, administration and system development.
- Full Text:
- Date Issued: 2011
- Authors: Schafer, Carolyn
- Date: 2011
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:880 , http://hdl.handle.net/10962/d1001634
- Description: The introduction of the proposed new Dividends Tax will have a significant impact on financial institutions such as Collective Investment Schemes, Linked Investment Service Providers and Long-term Insurers. The reason for this is that South African listed companies declaring local dividends will not necessarily have all the details of and know the identity of their shareholders. These financial institutions may be regarded as regulated intermediaries in terms of the new Dividends Tax legislation and therefore may have the responsibility of withholding the Dividends Tax from dividends received on behalf of their clients, who may in most cases be the beneficial owners of the underlying equity shares. The motivating factor for the research is the fact that there does not appear to be any guidance on the impact of the new Dividends Tax on financial institutions, since the Dividends Tax is new legislation. The research problem addressed in this thesis is how the systems and processes of a financial institution will be affected by the implementation of the new Dividends Tax. The research took the form of a case study designed to investigate the impact of the Dividends Tax on the financial institution at which the researcher is employed. The data required for the research was collected by means of a study of the relevant legislation enacted in connection with the topic, journal articles in financial/tax journals, as well as articles published in the media. The systems and processes presently in place, as well as the changes to these systems that will be needed to accommodate the new dividend tax were ascertained by means of in-depth interviews with relevant staff at the financial institution. In addition, the researcher also applied her personal knowledge of the business of the financial institution at which she works to the problem. As a result of the research it was determined that a Collective Investment Scheme, Linked Investment Service Provider and Long-Term Insurer will all be regarded as regulated intermediaries for the purposes of the new dividend withholding tax. This means that these financial institutions will be required to withhold Dividends Tax from dividends paid to their clients and pay this Dividends Tax so withheld to SARS. Furthermore, the findings of the research confirmed that the new Dividends Tax will have a significant impact on the client services department in areas such as notifying clients, training of client service staff, handling of declaration of exemption forms received from clients, amending client statements and tax certificates (to cater for the new Dividends Tax). In addition to this, it was ascertained that significant systems development will be required by these financial institutions in order to comply with the new Dividends Tax legislation. This would include the development of data input fields to enable users to capture the relevant information required and development of the system to enable it to flag local dividends received to which the Dividends Tax applies. The system would also need to cater for Secondary Tax on Companies credits as well as foreign tax rebates. The system should also be able to calculate the amount of Dividends Tax to withhold per dividend received by a client, as well as be able to handle the payment of the Dividends Tax to SARS and the refund to clients of Dividends Tax over deducted. It is essential that systems are able to flag the correct date of payment of the dividend so that the Dividends Tax can be paid over timeously to SARS in order to avoid interest and penalties being levied. To summarise, the new Dividends Tax has a significant impact on these financial institutions in areas such as client services, administration and system development.
- Full Text:
- Date Issued: 2011