A critical analysis of the distintion between mining and manufacturing for South African income tax purposes
- Authors: Cloete, Loriaan
- Date: 2010
- Subjects: Mining corporations -- South Africa , Income tax -- South Africa , Income tax -- Law and legislation -- South Africa , Mining law -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:8948 , http://hdl.handle.net/10948/1344 , Mining corporations -- South Africa , Income tax -- South Africa , Income tax -- Law and legislation -- South Africa , Mining law -- South Africa
- Description: "Mining operations" and "mining" are defined in s 1 of the Income Tax Act (ITA). A concept that is of great significance to this definition is the matter of when a mineral is won and the related question of when does the mining process end and the process of manufacture commences. Case law has not established a definitive point that can be used by the mining taxpayer to determine where the mining process ends for income tax purposes. The Supreme Court of Appeal was presented with the perfect opportunity in the Foskor1 case to clearly define the boundaries between these processes. Unfortunately, the court did not seize this opportunity to provide legal certainty. The significance of the distinction lies in the fact that a mining taxpayer is allowed to claim accelerated capital allowances. The objective of these allowances is to provide tax relief to the mining taxpayer taking the immense risk of investing billions of rands in capital expenditure. The capital expenditure incurred will also result in direct foreign investment. This in turn will result in economic growth and job creation. Currently, there is no legal certainty as to which processes will qualify as mining operations for income tax purposes. This may result in mining taxpayers being hesitant to incur capital expenditure as the risk relating to a project would have increased. The accelerated capital allowances may therefore not serve their intended purpose. The gross domestic product (GDP) contribution from gold mining has been decreasing in the last number of years, but this decrease has to a large extent been offset by an increase in the downstream or beneficiated minerals industry. This industry has also been identified by Government as a growth sector. The downstream or beneficiated mineral industry may not be catered for in the current definition of "mining operations" and "mining" and may therefore not qualify for beneficial tax allowances. It is therefore proposed that the term "won" as used in the definition of "mining operations" and "mining" should be defined in s 1 of the ITA as follows: A mineral is "won" when all the requisite and necessary processes, including, amongst other things, refinement, beneficiation, smelting, separation, have been undertaken to the mineral to render it saleable in an open and general market. This extension will provide legal certainty to a mining taxpayer and will ensure that South Africa obtains direct foreign investment and maximum value for its minerals. This will contribute to economic growth for South Africa's developing economy and result in job creation.
- Full Text:
- Date Issued: 2010
- Authors: Cloete, Loriaan
- Date: 2010
- Subjects: Mining corporations -- South Africa , Income tax -- South Africa , Income tax -- Law and legislation -- South Africa , Mining law -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:8948 , http://hdl.handle.net/10948/1344 , Mining corporations -- South Africa , Income tax -- South Africa , Income tax -- Law and legislation -- South Africa , Mining law -- South Africa
- Description: "Mining operations" and "mining" are defined in s 1 of the Income Tax Act (ITA). A concept that is of great significance to this definition is the matter of when a mineral is won and the related question of when does the mining process end and the process of manufacture commences. Case law has not established a definitive point that can be used by the mining taxpayer to determine where the mining process ends for income tax purposes. The Supreme Court of Appeal was presented with the perfect opportunity in the Foskor1 case to clearly define the boundaries between these processes. Unfortunately, the court did not seize this opportunity to provide legal certainty. The significance of the distinction lies in the fact that a mining taxpayer is allowed to claim accelerated capital allowances. The objective of these allowances is to provide tax relief to the mining taxpayer taking the immense risk of investing billions of rands in capital expenditure. The capital expenditure incurred will also result in direct foreign investment. This in turn will result in economic growth and job creation. Currently, there is no legal certainty as to which processes will qualify as mining operations for income tax purposes. This may result in mining taxpayers being hesitant to incur capital expenditure as the risk relating to a project would have increased. The accelerated capital allowances may therefore not serve their intended purpose. The gross domestic product (GDP) contribution from gold mining has been decreasing in the last number of years, but this decrease has to a large extent been offset by an increase in the downstream or beneficiated minerals industry. This industry has also been identified by Government as a growth sector. The downstream or beneficiated mineral industry may not be catered for in the current definition of "mining operations" and "mining" and may therefore not qualify for beneficial tax allowances. It is therefore proposed that the term "won" as used in the definition of "mining operations" and "mining" should be defined in s 1 of the ITA as follows: A mineral is "won" when all the requisite and necessary processes, including, amongst other things, refinement, beneficiation, smelting, separation, have been undertaken to the mineral to render it saleable in an open and general market. This extension will provide legal certainty to a mining taxpayer and will ensure that South Africa obtains direct foreign investment and maximum value for its minerals. This will contribute to economic growth for South Africa's developing economy and result in job creation.
- Full Text:
- Date Issued: 2010
A critical analysis of the income tax implications of persons ceasing to be a resident of South Africa
- Authors: Loyson, Richard Michael
- Date: 2010
- Subjects: Income tax -- South Africa , Double taxation -- South Africa , Aliens -- Taxation -- South Africa , Capital gains tax -- South Africa , Citizenship -- South Africa , Emigration and immigration law -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:8957 , http://hdl.handle.net/10948/1180 , Income tax -- South Africa , Double taxation -- South Africa , Aliens -- Taxation -- South Africa , Capital gains tax -- South Africa , Citizenship -- South Africa , Emigration and immigration law -- South Africa
- Description: Over the last 10 years the South African fiscus has introduced numerous changes to the Income Tax Act (ITA) which affect the income tax implications of persons ceasing to be a resident of South Africa. The two main changes were: - The introduction of a world-wide basis of taxation for residents - The introduction of capital gains tax (CGT) as part of the ITA The aim of this treatise was to identify the income tax implications of persons ceasing to be a resident of South Africa. Resulting from this research, several issues in the ITA have been identified, and the two major ones are summarised below. Firstly, upon the emigration of the taxpayer, there is a deemed disposal of a taxpayer’s assets in terms of paragraph 12 of the Eighth Schedule. It is submitted that the resulting exit tax may be unconstitutional for individuals. It is recommended that South Africa should adopt the deferral method within its domestic legislation for individuals who are emigrating. The deferral method postpones the liability until the disposal of the asset. Secondly, on the subsequent disposal of assets by former residents where there was no exit charge in terms of the exemption under paragraph 12(2)(a)(i) of the Eighth Schedule. Depending on the specific double tax agreement (DTA) that has been entered into with the foreign country, taxpayers have been given vii the opportunity to minimise or eliminate the tax liability with regard to certain assets. This should be of concern from the point of view of the South African government. Further issues noted in this treatise were the following: - It is submitted that the term ‘place of effective management’ has been incorrectly interpreted by SARS in Interpretation Note 6. - It is further submitted that the interpretation by SARS of paragraph 2(2) of the Eighth Schedule is technically incorrect. The above issues that have been identified present opportunities to emigrants to take advantage of the current tax legislation. It is further recommended that taxpayers who are emigrating need to consider the South African domestic tax law implications, respective DTA’s, as well as the domestic tax laws of the other jurisdiction, not only on the date of emigration but also on the subsequent disposal of the respective assets.
- Full Text:
- Date Issued: 2010
- Authors: Loyson, Richard Michael
- Date: 2010
- Subjects: Income tax -- South Africa , Double taxation -- South Africa , Aliens -- Taxation -- South Africa , Capital gains tax -- South Africa , Citizenship -- South Africa , Emigration and immigration law -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:8957 , http://hdl.handle.net/10948/1180 , Income tax -- South Africa , Double taxation -- South Africa , Aliens -- Taxation -- South Africa , Capital gains tax -- South Africa , Citizenship -- South Africa , Emigration and immigration law -- South Africa
- Description: Over the last 10 years the South African fiscus has introduced numerous changes to the Income Tax Act (ITA) which affect the income tax implications of persons ceasing to be a resident of South Africa. The two main changes were: - The introduction of a world-wide basis of taxation for residents - The introduction of capital gains tax (CGT) as part of the ITA The aim of this treatise was to identify the income tax implications of persons ceasing to be a resident of South Africa. Resulting from this research, several issues in the ITA have been identified, and the two major ones are summarised below. Firstly, upon the emigration of the taxpayer, there is a deemed disposal of a taxpayer’s assets in terms of paragraph 12 of the Eighth Schedule. It is submitted that the resulting exit tax may be unconstitutional for individuals. It is recommended that South Africa should adopt the deferral method within its domestic legislation for individuals who are emigrating. The deferral method postpones the liability until the disposal of the asset. Secondly, on the subsequent disposal of assets by former residents where there was no exit charge in terms of the exemption under paragraph 12(2)(a)(i) of the Eighth Schedule. Depending on the specific double tax agreement (DTA) that has been entered into with the foreign country, taxpayers have been given vii the opportunity to minimise or eliminate the tax liability with regard to certain assets. This should be of concern from the point of view of the South African government. Further issues noted in this treatise were the following: - It is submitted that the term ‘place of effective management’ has been incorrectly interpreted by SARS in Interpretation Note 6. - It is further submitted that the interpretation by SARS of paragraph 2(2) of the Eighth Schedule is technically incorrect. The above issues that have been identified present opportunities to emigrants to take advantage of the current tax legislation. It is further recommended that taxpayers who are emigrating need to consider the South African domestic tax law implications, respective DTA’s, as well as the domestic tax laws of the other jurisdiction, not only on the date of emigration but also on the subsequent disposal of the respective assets.
- Full Text:
- Date Issued: 2010
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