An analysis, from a South African case law perspective, of the deductibility of losses due to embezzlement, fraud, theft, damages and compensation
- Authors: Jachi, Adelaide Gamuchirai
- Date: 2018
- Subjects: South Africa. Income Tax Act, 1962 , Tax deductions -- South Africa , Taxation -- Law and legislation -- South Africa , Tax courts -- South Africa , Tax administration and procedure -- South Africa , Tax accounting -- South Africa , Income tax deductions for losses -- South Africa
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/60855 , vital:27846
- Description: When calculating the income tax payable for a year of assessment, a taxpayer deducts from his or her or its income, allowable deductions in terms of the preamble to section 11 and section 11(a) as read with section 23(g) of the Income Tax Act, 58 of 1962. Amongst the expenditure and losses incurred by a taxpayer during a year of assessment, a claim may be sought for the deduction of losses incurred due to embezzlement, fraud and theft as well as damages and compensation. The requirements of the preamble and section 11(a) include the requirement that expenditure and losses must be incurred “in the production of the income”. Losses incurred due to defalcations, as well as expenditure on damages and compensation must satisfy this requirement to be allowed as deductions. The objective of the research was to analyse the judicial decisions dealing with “in the production of the income” in granting a deduction for income tax purposes in cases dealing with embezzlement, fraud and theft, and damages and compensation, to establish why the courts grant or disallow the deduction of expenditure and losses. A doctrinal research methodology was applied to the research. The provisions of the Income Tax Act, relevant case law relating to embezzlement, fraud and theft, and damages and compensation, and the contributions of the revenue authority and tax experts in articles of accredited journals, textbooks and other writings were analysed. The major conclusions drawn from the research were that losses due to defalcations are regarded as having been incurred “in the production of the income” if the taxpayer discharges the onus of proof that the risk of the act leading to misappropriation is an incidental risk of the business. Expenditure on damages and compensation is deductible provided the expense is attached to the performance of a business operation bona fide performed for the purpose of earning income and the expense is so closely connected with the business operation as to be regarded as part of the cost of performing it. Where negligence is attached to an expense or loss, the South African courts have held that negligence does not increase the likelihood of disallowing an expense or loss as not having been incurred “in the production of the income”.
- Full Text:
- Date Issued: 2018
- Authors: Jachi, Adelaide Gamuchirai
- Date: 2018
- Subjects: South Africa. Income Tax Act, 1962 , Tax deductions -- South Africa , Taxation -- Law and legislation -- South Africa , Tax courts -- South Africa , Tax administration and procedure -- South Africa , Tax accounting -- South Africa , Income tax deductions for losses -- South Africa
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/60855 , vital:27846
- Description: When calculating the income tax payable for a year of assessment, a taxpayer deducts from his or her or its income, allowable deductions in terms of the preamble to section 11 and section 11(a) as read with section 23(g) of the Income Tax Act, 58 of 1962. Amongst the expenditure and losses incurred by a taxpayer during a year of assessment, a claim may be sought for the deduction of losses incurred due to embezzlement, fraud and theft as well as damages and compensation. The requirements of the preamble and section 11(a) include the requirement that expenditure and losses must be incurred “in the production of the income”. Losses incurred due to defalcations, as well as expenditure on damages and compensation must satisfy this requirement to be allowed as deductions. The objective of the research was to analyse the judicial decisions dealing with “in the production of the income” in granting a deduction for income tax purposes in cases dealing with embezzlement, fraud and theft, and damages and compensation, to establish why the courts grant or disallow the deduction of expenditure and losses. A doctrinal research methodology was applied to the research. The provisions of the Income Tax Act, relevant case law relating to embezzlement, fraud and theft, and damages and compensation, and the contributions of the revenue authority and tax experts in articles of accredited journals, textbooks and other writings were analysed. The major conclusions drawn from the research were that losses due to defalcations are regarded as having been incurred “in the production of the income” if the taxpayer discharges the onus of proof that the risk of the act leading to misappropriation is an incidental risk of the business. Expenditure on damages and compensation is deductible provided the expense is attached to the performance of a business operation bona fide performed for the purpose of earning income and the expense is so closely connected with the business operation as to be regarded as part of the cost of performing it. Where negligence is attached to an expense or loss, the South African courts have held that negligence does not increase the likelihood of disallowing an expense or loss as not having been incurred “in the production of the income”.
- Full Text:
- Date Issued: 2018
An investigation into the introduction of a new wealth tax in South Africa
- Authors: Arendse, Jacqueline A
- Date: 2018
- Subjects: Wealth tax -- Law and legislation -- South Africa , Taxation -- Law and legislation -- South Africa , Income tax -- South Africa , Fiscal policy -- South Africa , South Africa -- Economic conditions , Income distribution -- South Africa
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/61379 , vital:28020
- Description: In a world of economic uncertainty and manifold social problems, South Africa has its own unique challenges of low economic growth, persistent budget deficits that produce increasing government debt and the highest level of economic inequality in the world. The history of injustice and economic marginalisation and the failure of the economy to provide inclusive growth drives an urgent need to address economic inequality through tax policy, placing ever more focus on wealth taxes as a possible solution. There is a hope is that taxing the wealthy may provide the opportunity to redistribute desperately-needed resources to those denied the opportunity to build wealth and who are trapped in the cycle of poverty. Yet, as appealing as a new wealth tax may seem, the introduction of such a tax carries with it a range of risks, not all of which are known. Of great concern is the possible effect on the economy, which, in its vulnerable state, cannot afford any loss of capital and investment. Very little research has been done on wealth tax in the South African context and there is a dearth of literature focusing on the views and perceptions of the wealthy individuals themselves. This qualitative study investigates the merits and disadvantages of a new wealth tax and seeks to identify any unintended consequences that could result from the implementation of a new wealth tax in South Africa, drawing from historical and international experience and primary data obtained from interviews with individuals likely to be affected by such a tax. Having explored the literature and international experiences with wealth tax and having probed the thinking of wealthy individuals who would be the payers of a wealth tax, the study finds that a new wealth tax may contribute towards the progressivity of the tax system, but it is doubtful whether such a tax would provide a sustainable revenue stream that would be sufficient to address economic inequality and there is a risk of causing harm to the economy. Recognising that the motivation for wealth taxes is often driven more by political argument and public perception than by rational quantitative analysis, the study also anticipates the introduction of a new wealth tax and suggests guidelines for the design of such a tax within the framework for evaluating a good tax system. This study informs the debate on wealth taxes in South Africa and contributes to the design of such a tax, should it be implemented.
- Full Text:
- Date Issued: 2018
- Authors: Arendse, Jacqueline A
- Date: 2018
- Subjects: Wealth tax -- Law and legislation -- South Africa , Taxation -- Law and legislation -- South Africa , Income tax -- South Africa , Fiscal policy -- South Africa , South Africa -- Economic conditions , Income distribution -- South Africa
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/61379 , vital:28020
- Description: In a world of economic uncertainty and manifold social problems, South Africa has its own unique challenges of low economic growth, persistent budget deficits that produce increasing government debt and the highest level of economic inequality in the world. The history of injustice and economic marginalisation and the failure of the economy to provide inclusive growth drives an urgent need to address economic inequality through tax policy, placing ever more focus on wealth taxes as a possible solution. There is a hope is that taxing the wealthy may provide the opportunity to redistribute desperately-needed resources to those denied the opportunity to build wealth and who are trapped in the cycle of poverty. Yet, as appealing as a new wealth tax may seem, the introduction of such a tax carries with it a range of risks, not all of which are known. Of great concern is the possible effect on the economy, which, in its vulnerable state, cannot afford any loss of capital and investment. Very little research has been done on wealth tax in the South African context and there is a dearth of literature focusing on the views and perceptions of the wealthy individuals themselves. This qualitative study investigates the merits and disadvantages of a new wealth tax and seeks to identify any unintended consequences that could result from the implementation of a new wealth tax in South Africa, drawing from historical and international experience and primary data obtained from interviews with individuals likely to be affected by such a tax. Having explored the literature and international experiences with wealth tax and having probed the thinking of wealthy individuals who would be the payers of a wealth tax, the study finds that a new wealth tax may contribute towards the progressivity of the tax system, but it is doubtful whether such a tax would provide a sustainable revenue stream that would be sufficient to address economic inequality and there is a risk of causing harm to the economy. Recognising that the motivation for wealth taxes is often driven more by political argument and public perception than by rational quantitative analysis, the study also anticipates the introduction of a new wealth tax and suggests guidelines for the design of such a tax within the framework for evaluating a good tax system. This study informs the debate on wealth taxes in South Africa and contributes to the design of such a tax, should it be implemented.
- Full Text:
- Date Issued: 2018
The South African general anti-tax avoidance rule and lessons from the first world: a case law approach
- Pidduck, Teresa Michelle Calvert
- Authors: Pidduck, Teresa Michelle Calvert
- Date: 2018
- Subjects: Tax evasion -- South Africa , Taxpayer compliance -- South Africa , Taxation -- Law and legislation -- South Africa , South Africa. Income Tax Act, 1962 , Taxation -- Law and legislation -- Australia , Taxation -- Law and legislation -- Canada , Tax evasion -- Law and legislation -- South Africa , General anti-avoidance rule (GAAR)
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/60328 , vital:27768
- Description: Tax avoidance has been a concern to revenue authorities since the time that the concept of tax was first introduced. Revenue authorities worldwide constantly strive to ensure taxpayer compliance, while combating impermissible tax avoidance. South Africa uses a general anti-avoidance rule (GAAR) as part of its arsenal to combat the increasingly innovative ways in which taxpayers seek to minimise their tax. However, the GAAR has been the source of much criticism and its effectiveness in combatting impermissible tax avoidance is untested in the courts. Therefore, the use of hindsight to criticise the GAAR is not possible. This study applied a qualitative approach to compare the South African, Australian and Canadian GAARs in order to propose changes which are intended to improve the efficacy of the South African GAAR. This research was performed by first comparing the three GAARs using a doctrinal research methodology and then applying the South African GAAR to the facts of selected cases from Australia and Canada in the form of reform-oriented research. In order to apply the South African GAAR to the facts of the cases a framework was developed in phase 1 of the research in order to ensure consistency in the application. This allowed for a more reliable analysis to be made regarding the areas where the South African GAAR could be improved. The convergence of results from the two research methodologies validated many of the suggestions made for the improvement of the South African GAAR This thesis examined the GAARs in South Africa, Australia and Canada with a view to identifying if there are any lessons to be learned for their application and interpretation, in order to suggest improvements which can be made to the South African GAAR. Further, relevant Australian and Canadian case law was found to be instructive as to the approach that could be adopted for purposes of applying the South African GAAR. The findings of the research revealed that while the South African, Australian and Canadian GAARs differ in their structure, each is directed to achieve the same end. The results of the study identified two types of improvements to the South African GAAR. Firstly, the South African GAAR should be consolidated into a three-part enquiry instead of the current four-part enquiry. In doing so the tainted elements (previously the abnormality requirement) could be used to inform an objective test of purpose. Secondly, guidance on areas of uncertainty regarding the application of the South African GAAR needs to be provided in order to prevent possible inconsistent judicial interpretations that may limit the efficacy of the GAAR whilst still protecting the right for taxpayers to legitimately minimise their tax burdens. One additional cause for concern highlighted in this research is the use of provisions from other jurisdictions without guidance on the application in the South African context. The use of similar provisions to that of its much-criticised predecessor has also introduced areas of uncertainty regarding the application of the South African GAAR. These areas of weakness and uncertainty arguably prevent the South African GAAR from being an effective deterrent to tax avoidance and many could be addressed by the legislature.
- Full Text:
- Date Issued: 2018
- Authors: Pidduck, Teresa Michelle Calvert
- Date: 2018
- Subjects: Tax evasion -- South Africa , Taxpayer compliance -- South Africa , Taxation -- Law and legislation -- South Africa , South Africa. Income Tax Act, 1962 , Taxation -- Law and legislation -- Australia , Taxation -- Law and legislation -- Canada , Tax evasion -- Law and legislation -- South Africa , General anti-avoidance rule (GAAR)
- Language: English
- Type: text , Thesis , Doctoral , PhD
- Identifier: http://hdl.handle.net/10962/60328 , vital:27768
- Description: Tax avoidance has been a concern to revenue authorities since the time that the concept of tax was first introduced. Revenue authorities worldwide constantly strive to ensure taxpayer compliance, while combating impermissible tax avoidance. South Africa uses a general anti-avoidance rule (GAAR) as part of its arsenal to combat the increasingly innovative ways in which taxpayers seek to minimise their tax. However, the GAAR has been the source of much criticism and its effectiveness in combatting impermissible tax avoidance is untested in the courts. Therefore, the use of hindsight to criticise the GAAR is not possible. This study applied a qualitative approach to compare the South African, Australian and Canadian GAARs in order to propose changes which are intended to improve the efficacy of the South African GAAR. This research was performed by first comparing the three GAARs using a doctrinal research methodology and then applying the South African GAAR to the facts of selected cases from Australia and Canada in the form of reform-oriented research. In order to apply the South African GAAR to the facts of the cases a framework was developed in phase 1 of the research in order to ensure consistency in the application. This allowed for a more reliable analysis to be made regarding the areas where the South African GAAR could be improved. The convergence of results from the two research methodologies validated many of the suggestions made for the improvement of the South African GAAR This thesis examined the GAARs in South Africa, Australia and Canada with a view to identifying if there are any lessons to be learned for their application and interpretation, in order to suggest improvements which can be made to the South African GAAR. Further, relevant Australian and Canadian case law was found to be instructive as to the approach that could be adopted for purposes of applying the South African GAAR. The findings of the research revealed that while the South African, Australian and Canadian GAARs differ in their structure, each is directed to achieve the same end. The results of the study identified two types of improvements to the South African GAAR. Firstly, the South African GAAR should be consolidated into a three-part enquiry instead of the current four-part enquiry. In doing so the tainted elements (previously the abnormality requirement) could be used to inform an objective test of purpose. Secondly, guidance on areas of uncertainty regarding the application of the South African GAAR needs to be provided in order to prevent possible inconsistent judicial interpretations that may limit the efficacy of the GAAR whilst still protecting the right for taxpayers to legitimately minimise their tax burdens. One additional cause for concern highlighted in this research is the use of provisions from other jurisdictions without guidance on the application in the South African context. The use of similar provisions to that of its much-criticised predecessor has also introduced areas of uncertainty regarding the application of the South African GAAR. These areas of weakness and uncertainty arguably prevent the South African GAAR from being an effective deterrent to tax avoidance and many could be addressed by the legislature.
- Full Text:
- Date Issued: 2018
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