Browsing by Author "Emslie, T S"

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    A brief excursus through the concept of the trust, dealing with its origins and history and generally traversing taxation of a trust and its implications for the taxpayer
    (1995) De Mink, Jason; Emslie, T S
    A 'trust' is defined in the Income Tax Act [1] at section one as 'any trust fund consisting of cash or other assets which are administered and controlled by a person acting in a fiduciary capacity, where such person is appointed under a deed of trust or by agreement or under the will of a deceased person'. This is a recent introduction to the Act, coming into affect in respect of years of assessment ending on or after 1 January 1993 and sums up reasonably regarding satisfactorily what the various authorities have said to date trusts. In Estate Kemp v McDonald's Trustee [2] judge Solomons referred to the fact that in a trust the 'legal dominium of property is vested in the trustee' but that they have 'no beneficial interest in it but are bound to hold and apply it for the purpose of some persons or for the accomplishment of same purpose' [3] In Thome & Molenaar NNO v Receiver of Revenue, Cape Town [4] a trust was described as being 'created by contract, very often by contract of donation . . . or by way of a will. It is created in respect of defined administer property transferred to a trustee, who is burdened with the obligation to the property for the benefit of a third person’ [5]. In the case of Goodricke and Son (Pty) Ltd v Registrar of Deeds. Natal [6] the court held that the concept of a valid trust revolved around the removal of dominium (ownership) from the beneficiaries and placing it in the hands of the trustees [7]. ' ... [A] trust exists when property is to be held or administered by one person on behalf of another, or for some purpose other than his own benefit' [8]. The court went on to say that the essential elements which made up a trust were 'segregation of the trust assets by the founder' and the 'creation of an obligation to administer otherwise than purely for oneself' [9].
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    An analysis of the anti-avoidance provision section 103 of the South African Income Tax Act 58 of 1962
    (1996) Mponco, Nelisa Phiwokazi; Emslie, T S
    "It is trite law that His Majesty's subjects are free if they can, to make their own arrangements so that their cases may fall outside the scope of the Taxing Acts. They incur no legal penalties and strictly speaking, no moral censure if, having considered the lines drawn by the legislature for the imposition of taxes, they make it their business to walk outside them."1 However, the South African Income Tax Act 58 of 1962 contains a general anti avoidance section, as well as specific anti avoidance sections. The legislature, having observed the growing industry of avoidance, enacted the law to counter tax avoidance. Therefore, the purpose of this dissertation is to analyse the law in guestion and see how the courts interpret the law in order to enforce anti tax avoidance provisions. To motivate this objective, this dissertation will be divided into three parts. Firstly, dealing with general anti-tax avoidance section 103, secondly, sections and finally, interpretation will be looked at. specific anti-avoidance of fiscal legislation will be looked at.
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    Personal injury awards: the impact of income tax on damages for loss of earning capacity
    (1996) Van Niekerk, Marc George; Emslie, T S
    It is a vexed question internationally whether, in personal injury actions, damages are awarded for lost earnings or lost earning capacity. As will be more fully discussed in due course, both the case law and the general practice of the courts are inconsistent, with wholesale acceptance of either "concept", and both judges and academic writers are guilty of indiscriminate use of both terms whilst espousing support for one or other concept. It will be submitted that the South African authorities favour the concept of loss of earning capacity, in line with the international trend. Whether or not this distinction should or does have practical implications will be considered and debated. Given, however, the inconsistency mentioned above, the writer will be unable to make reference to only one or other of the generally accepted terms and the reader is accordingly requested to bear this in mind.
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    Some aspects of estate duty on deceased estates in the Republic of South Africa: with special reference to the problems and effects of double taxation occuring in relation to the German Erbschaftsteuergesetz (Inheritance Tax Act)
    (1993) Beckmann, Nicolai Friedrich; Emslie, T S
    'In this world nothing can be said to be certain, except death and taxes'. If one agreed with this statement, made by Benjamin Franklin one year prior to his death, one could come to the ultimate conclusion that there has to be a special certainty about capital transfer taxes, estate duties, inheritance taxes or other death duties levied on deceased estates. There seems to be no reason whatsoever to doubt the final truth of the first part of Franklin's statement. But is it also right to assume that there is a certainty about taxes or, what is more, to draw the conclusion that there could be a special certainty about the different types of taxes connected with the death of an individual? On the one hand it seems to be true. There are only a few countries throughout the world levying very limited or no taxes at all, and if one forgets about a few tax havens, like the Caymen Islands for example, one is also inclined to agree with the latter part of Franklin's statement - there seems to be certainty about the levying of taxes. But, on the other hand, is the amount of taxes, especially the amount of capital transfer taxes, estate duties, inheritance taxes or other death duties levied on a persons death, always that certain? The avoidance of double taxation has been an objective of most of the world's nations since the negotiation of the first Income Tax Convention in the middle of the nineteenth century. The development of most of the world's countries into modern industrial nations, with trade links all over the world, gradually demonstrated the problems which can arise if one country levies taxes without considering the levying of an equal or similar tax in another country. Today the negative consequences of double taxation on the movement of goods, services and capital are widely understood by modern states enacting tax systems for their citizens.
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    Tax avoidance provisions of the South African Income Tax Act
    (1997) Ndema, Yondela; Emslie, T S
    My thesis is on tax avoidance provisions in South Africa. I want to present an overview of tax avoidance in South Africa but I will concentrate more on section 103(1) which is the general anti - tax avoidance provision in South Africa.I will then proceed to look at the artificial tax avoidance, and a comparative analysis between United Kingdom (UK) and South Africa on the substance over form approach as a new approach to tax avoidance. Much has been said on tax avoidance and it is an area which has generated much interest and curiosity to the society at large.
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    The deduction of repairs to property in terms of section 11(d) of the Income Tax Act 58 of 1962
    (1997) Shirk, Abigail; Emslie, T S
    As the burden borne by the South African taxpayer seems to increase yearly, the prudent taxpayer must embrace the various deductions available to him or her in terms of the Act . In order to do so the taxpayer must understand the ambit of each deduction so that he or she may plan accordingly. A deduction that has for many years granted relief to the weary taxpayer is that contained in Section 1 l(d).
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    Transfer pricing: a comparison of the German and the South African system
    (1997) Brodbeck, Jens; Emslie, T S
    The role of multinational enterprises (MNEs) in world trade has increased dramatically over the last 20 years. This in part reflects the increased integration of national economies and technological progress, particularly in the area of communications. The growth of MNEs presents increasingly complex taxation issues for both tax administrations and the MNEs themselves since separate country rules for the taxation of MNEs cannot be viewed in isolation but must be addressed in a broad international context." These are the first few words of the Preface of the 1996 Update to the OECD Report ,,Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations". This trend towards globalisation, together with South Africa's re-entry into the international economic community has lead to a significantly increasing demand for international tax planning by South African businesses. One of the most controversial, and often least understood, issues of international tax planning, concerning multinational enterprises, is that of Transfer Pricing.
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    Use of trusts as a vehicle for estate (tax) planning in South Africa
    (1997) Moosa, Fareed; Emslie, T S
    Estate planning has been described as the process whereby a person acquires property, ensuring that he derives maximum benefits from his ownership and the enjoyment thereof during his lifetime, and that as much as possible and in the most economical manner with the minimum erosion thereof shall devolve upon his heirs when he dies. ( 1) The objective of estate planning is thus, in essence, the disposal of property during the estate owner's ('the planner') lifetime or upon his death.