Browsing by Author "Emslie, Trevor"

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    A comparative analysis of the South African and Australian general tax avoidance enactments
    (1998) Aucamp, Johan Louis; Emslie, Trevor
    From a tax planning perspective, it is important to take note of the general trend of the developments in anti-tax avoidance provisions and the manner in which they are interpreted by the Supreme Court. From an international perspective it is important to take cognizance of the fact that internationally, a flurry of tax avoidance provisions are being promulgated to curtail the increasing efforts of taxpayers to avoid the effect of harsh tax measures being taken by different authorities.
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    Capital gains tax in South Africa
    (2006) Carlson, Mark Kenneth; Emslie, Trevor
    Albert Einstein once said that the "hardest thing in the world to understand is the income tax"'. It is thus most appropriate that Capital Gains Tax ("CGT") has not been introduced into South African law as a separate tax but has rather been added to the Income Tax Act 58 of 1962 ("the Act") by means of an Eighth Schedule ("the Schedule"), with the effect that the levying, collection and administration of CGT al I take place in terms of the Act. The detail of much of the South African version of CGT is difficult to come to grips with, as many of the provisions of the Schedule are lengthy and complex, and some of the key definitions and concepts are extremely technical. A further problem with understanding CGT is that while the legislation pertaining thereto was introduced by the Taxation Laws Amendment Act 5 of 200 I, such legislation was shortly thereafter amended by the Revenue Laws Amendment Act 19 of 2001 and further proposed amendments have already been gazetted in the form of the Second Revenue Laws Amendment Bill, no. 84 of 2001. It is thus apparent that the authorities intend regularly amending the CGT legislation in until it 'settles down'.
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    Capital gains tax in South Africa
    (2006) Calson, Mark Kenneth; Emslie, Trevor
    Albert Einstein once said that the "hardest thing in the world to understand is the income tax"'. It is thus most appropriate that Capital Gains Tax ("CGT") has not been introduced into South African law as a separate tax but has rather been added to the Income Tax Act 58 of 1962 ("the Act") by means of an Eighth Schedule ("the Schedule"), with the effect that the levying, collection and administration of CGT al I take place in terms of the Act
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    Causation and the concomitant issue of apportionment with reference to gross income in South African income- tax law
    (Juta Law, 1989) Emslie, Trevor; Jooste, Richard
    The objective of this article is twofold: first, to set out the correct role, in our view, of the notion of causation in the application of two elements of the definition of gross income-the characterization of an amount as being from a source within the Republic (or not) and as being of a capital nature (or not); and secondly, to ascertain the apportionment implications where two or more causae with differing tax consequences are found to have given rise to the receipt or accrual of a single amount.
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    The Classification, for purposes of the calculation of taxable income, of land and assets incidental to land, that are used as trading stock
    (2009) Wakefield, Yvonne; Emslie, Trevor
    In calculating the taxable income of a taxpayer, items of income and expenditure are classified as being either capital or revenue in nature, and are treated differently according to such classification. Over the years, a debate has emerged regarding the classification of items of income that are either part of the ground or accede to it, but which are treated by the taxpayer as trading stock. The debate extends to the classification of items of expenditure laid out in the production of income and for the purposes of trade, but which relate to land or things adhered to land. Items forming the subject matter of the discussion include sand, stone, coal, trees and other plants to be used not for the sale or use of their fruit, but for sale or use themselves
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    A critical analysis of the requirements of the South African General Anti Avoidance Rule Section 80A of the Income Tax Act 58 of 1962
    (2013) Loof, Grethe; Emslie, Trevor
    I welcome you in reading this research dissertation looking at the South African General Anti Avoidance Rule. I hope that this paper will shed some light on the complex requirements of the GAAR as contained in section 80A, read together with relevant sections.
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    Cross - border partnerships and the issue of qualification conflicts: A German perspective
    (2010) Reis, Dominik; Emslie, Trevor
    The ongoing process of economic globalization entails integration of national economies into the international economy and requires internationalization of national business structures. The progressing internationalization and globalization processes do however no longer only prompt the big concerns to operate on the world market. To an increasing extent smaller businesses also start to maintain international economic relations in order to resist the national and international competitive pressure and to represent marketability. Cross-border partnership structures are consequently increasingly common.
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    International tax planning and anti-tax avoidance provisions - Hila Zetler.
    (2013) Zetler, Hila; Emslie, Trevor
    'The avoidance of tax may be lawful, but it is not yet a virtue' – Lord Denning¹. The famous English judge, Lord Denning, explained that the avoidance of tax may be legal, but it is not necessarily ethical. By said words, Justice Denning implied that, when a taxpayer avoids paying taxes through legal tax planning, he may, despite the ostensible legality thereof, nevertheless harm society. Assuming that such action does, indeed, involve an immoral act, should the legislature intervene?
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    Interpretation of fiscal statutes by the courts: a South African tax law perspective
    (2011) Kafesu, Lovemore Takudzwa; Emslie, Trevor
    This study examines the way in which the South African judiciary approaches the interpretation of fiscal legislation. It refers back to the use of the literal/textual approach (traditional approach), its shortcomings and the modification of such approach if it leads to absurdity. It also explores the purposive and contextual approaches to the interpretation of fiscal statutes. It then ana- lyses whether the advent of the Constitution (The Constitution of the Republic of South Africa of 1996) has brought a paradigm shift from the strict literal approach to the purposive approach. The conclusion reached is that the Constitution has been a catalyst for change from the literal/textual approach to a purpo- sive approach. However, the conclusion does not shy away from showing that, in practice; there is a continued practical applica- tion of the literal/textual approach by South African courts.
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    Investing into africa: comparison between South African headquarter company and Mauritian GBC1 regime
    (2014) Ward, Grant; Emslie, Trevor
    In the 2010 Budget review The South African National Treasury announced it intended to create a business environment that would promote South Africa as a gateway to investment into Africa.1 As such a headquarter company regime would be considered. With globalisation and free movement of capital internationally countries are pursuing holding company regimes to attract investment to, and through, their shores. At the forefront are countries such as Belgium, Denmark, Luxemburg, Mauritius, the Netherlands, Singapore and the United Kingdom.2 Following the 2010 Budget review South Africa has now joined this group.
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    Substance and form in South African Revenue Cases
    (1997) Stewart, Fiona Isabel; Emslie, Trevor; Davis, Dennis
    To remain within the law and at the same time order your affairs so as to pay less tax, is the solution to the fiscal riddle, the search for which has led to many complicated financial schemes, skirmishes with the Commissioner for Inland Revenue; and the creation of a booming market for astute tax planners.
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    Taking the wrong road in the capital/revenue enquiry: the controversial case of the share incentive trust
    (1993) Esat, Intikab-Alam; Emslie, Trevor
    It is sometimes said that taxation is the price we pay for civilisation. 1 What is perhaps not said as often is that not every citizen or organisation pays taxes, nor are many of them, and justifiably at that, obliged to do so. The share incentive trust, according to the highest court of the land, is one such organisation. After a chequered, controversial, and sometimes protagonistic seven-year history, the Appellate Division of the Supreme Court, in C.I.R. vs Pick 'N Pay Employee Share Purchase Trust2 ruled, by a majority of 3-2, that share incentive trusts, as presently structured, are not liable for normal income tax on profits made through dealing in its founder company's shares. The Rise of the Share Incentive Trust During the boom years of the stock exchange in the late 1960's, the idea of providing a tax-free employment fringe benefit for corporate employees by the use of stock option plans gained widespread popularity. 3 Key management staff were granted options to purchase shares in their employer company exercisable in the future (subject to continued employment) at the market value prevailing on the date the options had been granted.
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    Taxation in relation to trusts: an introduction
    (2010) Coetzee, Martin Edward; Emslie, Trevor
    While the focus of this paper is an introduction to taxation in relation to the Trust as established in South African Law today it is clear that tax law and legislation is extremely complex in its diverse application. It is accordingly beyond the scope of this paper to provide a detailed analysis of the current tax laws as applied to Trusts. It will first be necessary to briefly examine the origins of South African Trust Law and historic development through the authorities to present day.
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    The taxation of income and expenditure of trusts in South Africa
    (2009) Sogoni, Zanele; Emslie, Trevor
    For many decades men have made provisions for their illegitimate children and mistresses by using secret trusts ' hiding their embarrassing secrets from their families and friends. Many politicians and other public figures have been known to transfer assets to a trustee to manage in secret in order to avoid conflict of interest. Businesses employ trusts to protect the interests of debenture holders, to manage pension funds and to create employee share purchase and management incentive schemes. Parents set up trusts to preserve funds for their children, others to support a religious or social cause. For decades the trust has been a key tool in estate planning for wealthier individuals and for a very long time trusts have been described as cosy vehicles for tax avoidance. But recently, as a result of the changes in the tax legislation, trusts have received some bad press.
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    The taxation of income and expenditure of trusts in South Africa
    (2014) Marais, Madelein; Emslie, Trevor
    The use of trusts remains popular in South Africa. Trusts are often perceived to solve all problems but the tax law provisions applicable to trusts are often highly complicated causing the person making use of the trust to be stepping into a minefield. The formation of a trust has for many years been a very popular financial planning tool for various reasons. SARS has been clamping down on trusts and with the introduction of capital gains tax and transfer duty the use of trusts has lost some of its appeal. Trust has however remained a very useful estate planning tool, so useful that the Katz Commission proposed that the use of trusts as a "generation skipping device" should be curtailed and that trusts should be subject to a capital tax at periodic intervals on the market value of their net assets. This has not been implemented yet but should be kept in mind for the future. This research paper has an in depth look at the taxation of the income and expenditure of trusts as it currently stands.
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    Taxation of trust income
    (1997) Mnyatheli, Ntobeko; Emslie, Trevor
    The content of this paper is based on a prescribed syllabi for the fulfilment of a Master of Law degree. The paper seeks to provide a detailed research on the principles applicable in the taxation of trust income on the present day South African Tax Law and to analyse and criticize them. Emphasis will be on the relevant sections of the Income Tax Act and Case law.
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    The characterisation for South African taxation purposes of gains and losses arising from the use of equity financial derivative instruments
    (2021) Smith, Stephen Eugene; Emslie, Trevor; Tracy, Gutuza
    The use of financial derivative instruments has outpaced the development of a comprehensive tax policy framework for these instruments in South Africa. Income character determination relies on common law principles which provide limited certainty within the context of modern portfolio management. How the courts will approach character determination for financial derivative instruments within investment portfolios is uncertain. This thesis considers applicable tax legislation and case law in three common law jurisdictions. The United States, the United Kingdom and Australia provide insight into the difficulties associated with formulating legislation in the light of rapid market innovation. The detailed tax code of the United States has proved a less than satisfactory policy approach and the courts have struggled with doctrines of interpretation. Australia and the United Kingdom have followed accounting principles. Simplifying proxies are used in this thesis to help disentangle the analysis from the varied and complex ways in which derivatives can be used in financial transactions. Only equity derivatives are considered within the context of regulated investment portfolios. Insolvency case law following the filing for bankruptcy by Lehman Brothers Holdings Incorporated in 2008 provides authority with which to analyse the nature of standardised derivative contracts used in the markets and the rights therefrom as ‘property'. The researcher argues per Smalberger JA in CIR v Pick ‘n Pay Employee Share Purchase Trust 1992 (4) SA 39 (A) that, ‘transactions involving shares do not differ from transactions in respect of any other property and the capital or revenue nature of a receipt is determined in the same way whether one is dealing with land or shares'. A definition is proposed to incorporate legal attributes of these instruments highlighted in the literature, and interpretive guidance issued by Her Majesty's Revenue and Customs in the United Kingdom is supported for adoption as policy principles aligned with our own common law. There can be no context distinct from the general concepts of law specific to derivatives. Continuity and coherency within a long tradition of case law on capital and revenue characterisation should be maintained and a policy framework developed from this premise.
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    The reform of section 103(1)
    (1996) Nunes, Tony; Emslie, Trevor
    With the increasing taxation burden that is placed on the citizens of the modern state, the practice has grown for those who are aggrieved by their share of the tax burden to try to reduce it. The methods adopted by those daring enough to challenge the revenue authorities have not always been favourably received and have even been considered improper or "evil", as, it is argued, the tax burden is shifted from those who avoid tax to those who, by reason of lack of access to skilled advice, or because their income is not readily susceptible to tax saving devices, must accept the demands of the Receiver of Revenue. Additionally, the resultant revenue that the State loses from these tax avoidance schemes, is presumably made up by placing a heavier burden on the shoulders of the innocent. Thus the State has taken steps to ensure that tax avoidance schemes do not subvert the Receiver's ability to collect each citizen's fair share of the tax burden. This is achieved either by plugging each hole as it appears in the taxing legislation or by enacting a general anti-avoidance provision, supported by legislation covering specific areas of tax avoidance. Each method merely empowers the revenue authority to disregard the avoidance scheme used by the taxpayer and to regain the tax lost through the taxpayer's use of the scheme. The determination and ingenuity of the taxpaying public is renowned and inevitably a new tax avoidance scheme evolves challenging the limits of the legislation.