Browsing by Author "Warneke, David"

Now showing 1 - 7 of 7
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    An analysis of the income tax treatment of South African collective investment schemes in securities
    (2013) Salmon, Catherine Anne; Warneke, David
    This dissertation analyses the legal nature of the relationship between a South African collective investment scheme in securities and the investors in such a scheme and on the basis of these findings identifies how the income tax treatment of such schemes differs, in law and in practice, from the tax treatment which would apply in the absence of any specific provisions in the Income Tax Act relating to these parties.
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    The creation of a permanent establishment in South Africa as a result of the activities or presence of a partner or partners in South Africa
    (2017) Van Schalkwyk, Esther Maria; Warneke, David; West, Craig
    This dissertation seeks to establish whether the presence or activities of a partner or partners in South Africa creates (or is at risk of creating) a permanent establishment for that partner, the partnership or the co-partners in South Africa. At the outset, the major legal and fiscal consequences of a partnership under South African law are investigated. The unique legal and fiscal treatment of a partnership as a mere aggregate of persons that is treated as fiscally transparent under South African law is relevant to determine the potential application of double taxation agreements to partnerships or their partners. Once the terms of a double taxation agreement are found to apply in the circumstances, the creation of a permanent establishment in terms thereof becomes relevant. The different types of partnerships and partners under South African partnership law are set out and their differentiating characteristics analysed in an effort to identify whether the activities or presence of certain partners are more at risk of giving rise to a permanent establishment than others. In a commercial context, the important distinction is drawn between ordinary and extraordinary partners as very different commercial consequences attach to these partners. In particular, whereas ordinary partners automatically derive an implied authority or mutual mandate to manage the business of the partnership as agents of their co-partners by virtue of the partnership agreement, extraordinary partners are excluded from the mutual mandate. The implied authority amongst partners becomes particularly relevant when considering one of the alternative tests for creating a permanent establishment that appear in the prevalent model tax conventions commonly used in the South African context, in terms of which the existence of authority is one of the required elements for the creation of a permanent establishment. The special rules surrounding the source of partnership income is investigated as a means of establishing jurisdiction to tax under South African domestic source rules. The impact of legislation on the South African source rules pertaining to partnerships as developed under the common law is critically analysed and the relevance of source rules in the permanent establishment context is evaluated. It is submitted that it is premature to consider the rules surrounding the creation of a permanent establishment under the terms of a double taxation agreement before it is established that the relevant contracting state has the requisite jurisdiction to tax and furthermore that the terms of that double taxation agreement apply to the matter at hand. Finally, the relevant articles of the model tax conventions commonly used in the South African context are discussed with specific focus on the unique attributes of a partnership that may impact on the creation of a permanent establishment for the partner or partners by virtue of the presence or activities of a partner or the partners in South Africa. The risk of creating a permanent establishment by virtue of the presence or activities of an ordinary partner in South Africa is contrasted with that of an extraordinary partner. It is concluded that the activities or presence of ordinary partners (as opposed to extraordinary partners) are particularly at risk of creating a permanent establishment in South Africa, although it is acknowledged that certain requirements will have to be met on the facts of each case before a permanent establishment will be found to exist.
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    A critical analysis of the fiscal incentives offered to a particular South African Special Economic Zones
    (2015) Saggers, Graeme Donald; Warneke, David
    Special Economic Zones ("SEZs") have proved an effective tool to encourage and incentivise foreign direct investment in developing countries over the past 50 years. South Africa has been a relatively late adopter of an SEZ regime and only formally incorporated SEZs via the Industrial Development Zone ("IDZ") programme in late 2000. The ID programme has been largely unsuccessful with limited and slow investment. This has resulted in an overhaul of the programme resulting in the launch of the SEZ programme in2012 which included the promulgation of the Special Economic Zones Act and a suite of new tax incentives which were announced in the 2013 Taxation Laws Amendment Act. This study was performed in order to analyse the fiscal incentives available to South African SEZs against the backdrop of successes and failures experienced by other developing nations with more mature SEZ regimes. By firstly reviewing the history of SEZs internationally, context was provided which indicated the need for a successful SEZ programme in South Africa. As globalisation has developed in the modern era, so too has competition for foreign direct investment amongst developing nations. It is thus of paramount importance for South Africa, as late adopters, to ensure that their SEZ programme is designed appropriately. A detailed analysis of each tax incentive was performed which illustrated where opportunities can be found by foreign investors and additionally highlighted some disincentives in the South African regime. A review of the main incentives offered by the more developed and successful developing nations (Brazil, Russia, India and China) identified certain opportunities where South Africa could learn from the successes and failures of these countries. Further, some specific case studies were analysed in order to glean risks to the sustainability of South Africa's SEZ programme. From these reviews and comparisons it was found that whilst it may not be possible to predict whether or not South Africa's SEZ programme will be successful, there are some areas where it is suggested that the current fiscal incentives can be enhanced to encourage quicker investment by foreign companies and the creation of investment which has a sustainable benefit to the local economy.
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    The extinction of 'intra-group' debt : a case study analysis of the interaction between sections 8(4)(m) and 20(1)(a)(ii) and the applicability of the eighth schedule to the Income Tax Act 58 of 1962
    (2010) Huisamer, Dirk Esau; Warneke, David
    A group finance company (or treasury company) is often established within a group of companies on the basis that all excess cash of the group will be deposited with that finance company and said finance company will act as a moneylender to the rest of the group. It is however not only the finance company that acts as a lender; loan accounts commonly exist between various companies within a group. These loans are required for a number of reasons, ranging from capital to operating requirements. It also happens that goods are supplied or services rendered between companies within the group which are not immediately paid for but remain outstanding on the loan account.
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    Simulated transactions from a common-law perspective and whether this doctrine is still relevant in respect to the application of the current anti-avoidance rules
    (2016) Fredericks, Martin; Warneke, David
    The purpose of this paper is to analyse the common-law principles pertaining to simulated transactions in an effort to protect our tax base and to expose unlawful tax evasion. This paper highlights what is currently regarded as a 'simulation' and how South Africa compares to international practices. I have divided my discussion into five parts, viz: 1. Analysis of the requirements for an effective tax system; 2. Discussion of common-law principles; 3. Simulated transactions from a common law perspective, 4. International case law on simulated transactions; and 5. Relevance of common-law principles to the current GAAR.
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    The income tax consequences of the clawback of shares in the context of employee share schemes
    (2021) Keke, Anelisa; Warneke, David; West, Craig
    The objective of this dissertation is to examine the income tax consequences of the clawback of shares awarded in terms of employee share schemes in South Africa in terms of the Income Tax Act 58 of 1962 as amended (“the ITA”). The dissertation first examines how section 8C of the ITA would apply in the context of clawback, and concludes that in certain circumstances clawback will postpone the tax vesting date. It then examines the capital gains tax implications of clawback provisions, which hinge on the interpretation of section 8C and the legal nature of clawback respectively. The tax implications of clawback in respect of cash-based payments is another area of focus, and generally clawback will only delay the taxing point if it is framed as a suspensive condition. The tax implications for the employer and employee respectively are then assessed. It concludes that where the employer has claimed a deduction upon settlement, when the award is subsequently clawed back, only the value claimed as a deduction should be included in the employer's income. Where an employee claims a deduction for the amount which is clawed back (where the employer withheld Employees' Tax), a concomitant tax deduction may be available in certain circumstances. Ambiguities in the existing tax law (which may lead to unintended consequences) are then considered, and it is suggested that certain amendments to section 8C may resolve some of the ambiguities. The final chapter summarises the key findings.
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    The treatment of section 24J instruments denominated in a foreign currency with regard to the categorisation as fixed or variable rate instruments and the interaction between section 24J, section 25D (foreign currency translation rules) and section 24I (gains and losses on foreign exchange transactions)
    (2014) Fourie, Susanna Janine.; Warneke, David
    Section 24J is regarded to be one of the most complex provisions in the Income Tax Act No. 58 of 1962. This study specifically focuses on the income tax treatment of section 24Jinstruments denominated in a foreign currency, specifically with regards to whether such instruments are fixed or variable rate instruments for purposes of section 24J and the interaction between section 24J, section 25D (foreign currency translation rules) and section 24I (gains and losses on foreign exchange transactions).The basic concepts surrounding the incurral and accrual of interest for income tax purposes, as well as of some of the general issues faced when section 24J is practically applied are discussed. Importantly it is found that although the definition of 'instrument' includes all debt instruments, regardless of whether such instruments are interest-bearing, the application of section 24J would have no impact on the issuer or holder of an instrument that is a non-interest bearing debt instrument. Also, the section 24J definition of 'interest' is wider than the common law meaning of the same term. However, as 'interest'is defined with reference to itself, the common law meaning is still very relevant. It is confirmed that section 24J poses various interpretational uncertainties which are especially highlighted when some of the key provisions of section 24J are applied in determining the interest accrual amounts based on the yield to maturity method. Applying the rules of statutory interpretation and with the aid of hypothetical examples, itis argued that foreign exchange rates would fall within the definition of a variable rate for purposes of section 24J. However, an instrument denominated in a foreign currency would be regarded as a fixed rate instrument to the extent that the amounts payable are fixed amounts specified in the applicable foreign currency or the calculation of the amount payable in the applicable foreign currency does not involve the application of a 'variable rate' (as defined).Further is it argued that section 24J merely provides for a single accrual or incurral event during each year of assessment in relation to each instrument. Therefore, where accrual amounts be denominated in a foreign currency it should be translated at the spot rate on the last day of the year of assessment (or on the date of redemption/transfer in the instance where the instrument was transferred/redeemed during the year of assessment) for purposes of determining the sum of the accrual amounts to be included in taxable income. It is also argued that the timing of the accrual and incurral of interest amounts in terms of section 24J is applied in establishing the 'transaction date' of the interest amount owing for purposes of determining 'exchange differences' at the end of any year of assessment in terms of section 24I.