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Author: Chengetai Pamela Museka Publisher: ISBN: Category : Languages : en Pages :
Book Description
The Income Tax Act 58 of 1962 makes provision for the taxation of taxpayers under the new General Anti Avoidance Rule (GAAR) which is encompassed in section 80A- 80G. This research basically deals with the analysis of the new general anti avoidance rule. Each provision is critically analysed. An anti avoidance rule has been part of the South African legislation since 1941, in section 90 of the Income Tax Act. Section 103 was later introduced to deal with the provisions of the anti avoidance rule because section 90 had proved to be insufficient to combat tax abuses. However, section 103 was repealed and replaced by the current section 80A (under discussion) because it proved to be an inconsistent and ineffective deterrent to the increasing form of tax arrangements. Furthermore, it was stated that it was not in line with international standards and developments, hence resulting in the introduction of section 80A-80G in 1996. The aim of this research is to determine whether the new rule is an effective deterrent for abusive tax abuses by the taxpayers. Furthermore, it aims at investigating whether the new general anti avoidance rule has been phrased in clear, unambiguous terms so as to ensure that the taxpayer, the Commissioner and the courts are clear as to what each provision entails. In general each of the provisions of section 80A of the New General Anti Avoidance is analysed. The research deals with the meaning of the terms arrangement, thereafter tax benefit, 'sole and main purpose, commercial substance, and lastly, misuse and abuse of the provisions of the Act. The analysis of each of the provisions is aimed at determining whether the new general anti avoidance rule is clear and easy to understand. It aims at determining what constitutes an impermissible tax avoidance rule, which in the event that an arrangement or agreement is impermissible tax avoidance, would lead to the provisions of the GAAR being applicable. Furthermore, this research aims to determine whether the Act makes provision for, or rather explains in clear terms, what amounts to permissible tax avoidance. Lastly, after all the provisions are discussed, the research identifies the major weaknesses of the new GAAR and provides recommendations. It has to be noted that regardless of the fact that the new GAAR might have deficiencies, it is imperative that the legislature makes the provisions the GAAR clear by inserting sections in the Act, or replacing certain provisions in the Act where necessary and applicable, so as to ensure that the there is clarity and certainty when dealing with such provisions. Therefore this research is necessary to ensure that taxpayers are aware of the provisions which qualify as impermissible tax avoidance and when the arrangements they enter into are regarded as permissible. In addition, clarity is required to ensure that the taxpayer, the Commissioner and the courts understand exactly what the new GAAR entails, thus preventing the opening of the floodgates of litigation. Lastly, after all the provisions are discussed, the research identifies the major weaknesses of the new GAAR and provides recommendations. It has to be noted that regardless of the fact that the new GAAR might have deficiencies, it is imperative that the legislature makes the provisions the GAAR clear by inserting sections in the Act, or replacing certain provisions in the Act where necessary and applicable, so as to ensure that the there is clarity and certainty when dealing with such provisions. Therefore this research is necessary to ensure that taxpayers are aware of the provisions which qualify as impermissible tax avoidance and when the arrangements they enter into are regarded as permissible. In addition, clarity is required to ensure that the taxpayer, the Commissioner and the courts understand exactly what the new GAAR entails, thus preventing the opening of the floodgates of litigation. Copyright.
Author: Chengetai Pamela Museka Publisher: ISBN: Category : Languages : en Pages :
Book Description
The Income Tax Act 58 of 1962 makes provision for the taxation of taxpayers under the new General Anti Avoidance Rule (GAAR) which is encompassed in section 80A- 80G. This research basically deals with the analysis of the new general anti avoidance rule. Each provision is critically analysed. An anti avoidance rule has been part of the South African legislation since 1941, in section 90 of the Income Tax Act. Section 103 was later introduced to deal with the provisions of the anti avoidance rule because section 90 had proved to be insufficient to combat tax abuses. However, section 103 was repealed and replaced by the current section 80A (under discussion) because it proved to be an inconsistent and ineffective deterrent to the increasing form of tax arrangements. Furthermore, it was stated that it was not in line with international standards and developments, hence resulting in the introduction of section 80A-80G in 1996. The aim of this research is to determine whether the new rule is an effective deterrent for abusive tax abuses by the taxpayers. Furthermore, it aims at investigating whether the new general anti avoidance rule has been phrased in clear, unambiguous terms so as to ensure that the taxpayer, the Commissioner and the courts are clear as to what each provision entails. In general each of the provisions of section 80A of the New General Anti Avoidance is analysed. The research deals with the meaning of the terms arrangement, thereafter tax benefit, 'sole and main purpose, commercial substance, and lastly, misuse and abuse of the provisions of the Act. The analysis of each of the provisions is aimed at determining whether the new general anti avoidance rule is clear and easy to understand. It aims at determining what constitutes an impermissible tax avoidance rule, which in the event that an arrangement or agreement is impermissible tax avoidance, would lead to the provisions of the GAAR being applicable. Furthermore, this research aims to determine whether the Act makes provision for, or rather explains in clear terms, what amounts to permissible tax avoidance. Lastly, after all the provisions are discussed, the research identifies the major weaknesses of the new GAAR and provides recommendations. It has to be noted that regardless of the fact that the new GAAR might have deficiencies, it is imperative that the legislature makes the provisions the GAAR clear by inserting sections in the Act, or replacing certain provisions in the Act where necessary and applicable, so as to ensure that the there is clarity and certainty when dealing with such provisions. Therefore this research is necessary to ensure that taxpayers are aware of the provisions which qualify as impermissible tax avoidance and when the arrangements they enter into are regarded as permissible. In addition, clarity is required to ensure that the taxpayer, the Commissioner and the courts understand exactly what the new GAAR entails, thus preventing the opening of the floodgates of litigation. Lastly, after all the provisions are discussed, the research identifies the major weaknesses of the new GAAR and provides recommendations. It has to be noted that regardless of the fact that the new GAAR might have deficiencies, it is imperative that the legislature makes the provisions the GAAR clear by inserting sections in the Act, or replacing certain provisions in the Act where necessary and applicable, so as to ensure that the there is clarity and certainty when dealing with such provisions. Therefore this research is necessary to ensure that taxpayers are aware of the provisions which qualify as impermissible tax avoidance and when the arrangements they enter into are regarded as permissible. In addition, clarity is required to ensure that the taxpayer, the Commissioner and the courts understand exactly what the new GAAR entails, thus preventing the opening of the floodgates of litigation. Copyright.
Author: David G. Duff Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
In addition to the requirement of a tax benefit or advantage, the application of most modern general anti-avoidance rules turns on two elements: a so-called "subjective element" which considers the purpose for which the transaction or arrangement resulting in the tax benefit or advantage was undertaken or arranged; and an "objective element" which considers the object or purpose of the relevant provisions to determine if the tax benefit resulting from the transaction or arrangement is or is not consistent with this object or purpose.Although these two elements are present in most modern GAARs, the function of each element within these rules and the relationship between them is often poorly understood. Other unresolved issues concern the roles of artificiality and economic substance in the application of these rules, and the relationship, if any, between these concepts and the "subjective" and "objectives" elements of the rules. A final set of issues involves the uncertainty that GAARs may engender, the ability of judges to apply these rules and principles in a coherent and consistent manner, and the compatibility of these rules and principles with the rule of law.This essay addresses these issues by reflecting on Tim Edgar's article “Building a Better GAAR”. Part 1I considers the rationale for a general anti-avoidance rule or principle, arguing that it not only represents a useful policy response to the harmful consequences of tax avoidance (the consequentialist argument that Professor Edgar espoused), but that it may also be justified on the non-consequentialist grounds that it protects the integrity of the provisions at issue and thereby upholds the rule of law. Part III builds on this analysis to consider the design of a general anti-avoidance rule or principle, arguing that it should be codified in the form of an explicit rule, should include subjective and objective elements like the purpose and misuse or abuse requirements in the Canadian GAAR, and should be informed by concepts of artificiality and economic substance which apply respectively to the subjective and objective elements of the rule. Part IV concludes.
Author: D.G. Duff Publisher: ISBN: Category : Languages : en Pages :
Book Description
In addition to the requirement of a tax benefit or advantage, the application of most modern general anti-avoidance rules (GAARs) turns on two elements: a "subjective element", which considers the purpose for which the transaction or arrangement resulting in the tax benefit or advantage was undertaken or arranged; and an "objective element", which considers the object or purpose of the relevant provisions to determine whether the tax benefit resulting from the transaction or arrangement is consistent with this object or purpose. Although these two elements are present in most modern GAARs, the function of each element within these rules and the relationship between them are often poorly understood. Other unresolved issues concern the roles of artificiality and economic substance in the application of these rules, and the relationship, if any, between these concepts and the "subjective" and "objective" elements of the rules. A final set of issues involves the uncertainty that GAARs may engender, the ability of judges to apply these rules and principles in a coherent and consistent manner, and the compatibility of these rules and principles with the rule of law. The author addresses these issues by reflecting on Tim Edgar's article "Building a Better GAAR". The first part of the paper considers the rationale for a general antiavoidance rule or principle, arguing that such a rule not only represents a useful policy response to the harmful consequences of tax avoidance (the consequentialist argument that Professor Edgar espoused), but also may be justified on the non-consequentialist grounds that it protects the integrity of the provisions at issue and thereby upholds the rule of law. In the second part of the paper, the author builds on this analysis to consider the design of a general anti-avoidance rule or principle, arguing that it should be codified in the form of an explicit rule, should include subjective and objective elements such as the "purpose" and "misuse or abuse" requirements in the Canadian GAAR, and should be informed by concepts of artificiality and economic substance that apply to, respectively, the subjective and objective elements of the rule.
Author: American Bar Association. House of Delegates Publisher: American Bar Association ISBN: 9781590318737 Category : Law Languages : en Pages : 216
Book Description
The Model Rules of Professional Conduct provides an up-to-date resource for information on legal ethics. Federal, state and local courts in all jurisdictions look to the Rules for guidance in solving lawyer malpractice cases, disciplinary actions, disqualification issues, sanctions questions and much more. In this volume, black-letter Rules of Professional Conduct are followed by numbered Comments that explain each Rule's purpose and provide suggestions for its practical application. The Rules will help you identify proper conduct in a variety of given situations, review those instances where discretionary action is possible, and define the nature of the relationship between you and your clients, colleagues and the courts.
Author: Benjamin Alarie Publisher: ISBN: Category : Languages : en Pages : 24
Book Description
The General Anti-Avoidance Rule (the GAAR) was originally introduced in Canadian income tax law in 1988 with prospective effect. The GAAR was amended in May 2005 to broaden its scope (by bringing under its ambit the regulations, treaties, etc.) and to lessen the burden of persuasion faced by the Minister in the misuse or abuse demonstration. What is peculiar about this amendment is that it was explicitly stated to have retroactive effect to the date the GAAR was first in effect - September 12, 1988.This chapter discusses the retroactive nature of the amendment of the GAAR. It proceeds in three stages. First, it provides an account of the relevant law surrounding the effectiveness and applicability of retroactive legislation in Canada, outlining the general presumption against retroactive legislation and addressing how express terms can override this presumption in many (but not all) contexts. Particular attention is paid to how Canadian courts have approached the application of retroactive enactments to pending proceedings. Second, this background is used to evaluate the Supreme Court of Canada's handling of the amendment of the GAAR in its first GAAR judgment (Canada Trustco). Finally, the chapter closes with a discussion of the policy underlying retroactivity and the GAAR more generally, suggesting that so long as retroactive fiscal legislation is possible (as it is in Canada) it is somewhat curious that so much reliance is placed on the GAAR. Enacting retroactive specific anti-avoidance rules (perhaps with a penalty) is possible and, from a policy perspective, arguably more effective and desirable at curbing aggressive tax avoidance.
Author: Edited by Chris Evans, Riël Franzsen, Elizabeth (Lilla) Stack Publisher: Pretoria University Law Press ISBN: 1920538968 Category : Law Languages : en Pages : 371
Book Description
Tax simplification - An African Perspective Edited by Chris Evans, Riël Franzsen, Elizabeth (Lilla) Stack 2019 ISBN: 978-1-920538-96-5 Pages: 347 Print version: Available Electronic version: Free PDF available About the publication Why are tax systems so complex and what are the causes and consequences of such complexity? The simplification of tax systems is one of the most important issues faced today in worldwide efforts to modernise and strengthen government finance and revenue raising capacities. Nowhere is it more important than throughout the rapidly emerging economies of the dynamic African region. This volume brings together contributions in this field from a conference held in South Africa in October 2018 and provides a unique synthesis of knowledge and understanding gained from the specialist expertise and diverse backgrounds brought to the tax simplification debate by those authors. Featured topics include: Taxpayers’ rights to simplicity The African experience of tax simplification Simplification trends among small and medium sized entities Pension tax simplification Sources of complexity in value added taxation Simplification of recurrent property taxes Complexity and approaches to international taxation Complexity and taxation of multinational enterprises Lessons from overseas. The analysis of these topics includes timely and relevant perspectives from the experience in other jurisdictions including Australia, Canada, New Zealand, the United Kingdom and the United States. The volume will be an essential reference for researchers and others interested in the field from academia, government, legal and accounting practice and public policy organisations in African and other countries worldwide.Table of Contents Preface Foreword – Tax Simplification in the United Kingdom: Some Personal Reflections John Whiting Contributors Introduction Elizabeth (Lilla) Stack, Chris Evans and Riël Franzsen Tax Complexity and Tax Simplification: A Critical Review of Concepts and Issues Binh Tran-Nam, Annet Wanyana Oguttu and Kyle Mandy The Taxpayers’ Right to Tax Simplicity in South Africa and the United States Carika Fritz and Nina E Olson The Role of the Office of Tax Simplification in the United Kingdom and Lessons for Other Countries Yige Zu and Lynne Oats An Analysis of the Tax Simplification Initiatives for Pension Provision in the United Kingdom and South Africa Bernadene de Clercq, Andy Lymer and Chris Axelson Simplification Lessons from New Zealand Adrian Sawyer, Marina Bornman and Greg Smith Legal Uncertainty in the South African VAT Marius van Oordt and Richard Krever Simplifying Recurrent Property Taxes in Africa Riël Franzsen, Abdallah Ali-Nakyea and Adams Tommy Statutory and Effective Complexity for Individual Taxpayers in South Africa Sharon Smulders, Karen Stark and Deborah Tickle Small and Micro Businesses: Case Studies on the Complexity of ‘Simplified’ Schemes Heinrich Dixon, Judith Freedman and Wollela Abehodie Yesegat Tax Complexity for Multinational Corporations in South Africa – Evidence from a Global Survey Thomas Hoppe, Reyhaneh Safaei, Amanda Singleton and Caren Sureth-Sloane International Tax Simplification in South Africa through Managing Substantive Complexity and Improving Drafting Efficiency Jinyan Li and Teresa Pidduck Bibliography Index
Author: Dennis Weber Publisher: Kluwer Law International B.V. ISBN: 9041192689 Category : Law Languages : en Pages : 272
Book Description
In October 2016, the European Commission relaunched its plan to harmonize national income tax systems via the Common Consolidated Corporate Tax Base (CCCTB), perhaps the most ambitious reform of EU tax law ever attempted. This timely book offers an early analysis of this important proposal and its implications, covering issues such as the project’s scope and main elements, international considerations, the relationship with OECD’s base erosion and profit shifting (BEPS) initiative, consolidation, and anti-abuse rules. With carefully selected papers first presented at a January 2017 conference hosted by the Amsterdam Centre for Tax Law, this volume focuses on such topics and issues as the following: – ways in which the proposed CCCTB is designed to preserve the competence of Member States to set their own tax rates; – reduction of the administrative burden for multinational companies; – incentives for research and development; – automatic cross-border relief within the EU; – detailed analysis of the proposal’s formula apportionment regime; – proposed new controlled foreign company (CFC) rules; and – interest limitation rule. Because of the commitment of many Member States to keep their corporate income tax systems competitive on a stand-alone basis, the proposed CCCTB is enormously controversial. This book provides authoritative insights into problems likely to arise and discusses the prospects of how the proposal is likely to be implemented. Thus, this book proves to be of immeasurable value to taxation policymakers, practitioners, and academics.
Author: Chengetai Pamela Museka
Author: Chengetai Pamela Museka
Author: Grethe Loof
Author: Mandla Kubeka
Author: David G. Duff
Author: D.G. Duff
Author: American Bar Association. House of Delegates
Author: Matias Kunstmann Rioseco
Author: Benjamin Alarie
Author: Edited by Chris Evans, Riël Franzsen, Elizabeth (Lilla) Stack
Author: Dennis Weber