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The Sasol Oil case – Would the present South African GAAR stand up to the rigours of the court?South Africa finds itself vulnerable to exploitation by the measures taken by multinational enterprises (MNEs) who seek to enter into tax avoidance schemes that artificially shift profits to low- or no-tax jurisdictions. While common law, specific and general anti-avoidance measures may be used as a defence against these schemes, there has been no judicial consideration of the current South African general anti avoidance rule (GAAR) since its replacement in 2006. In this context this paper makes two contributions. First, the paper applies the current GAAR to a recent case where the predecessor to the current GAAR was applied to a scheme entered into by an MNE. This is done in order to determine if the current GAAR (unlike its predecessor) is able to stand up to the rigours of court when presented with similar facts. In doing so it demonstrates how the untested GAAR may be interpreted and applied. Second, the paper makes suggestions for amendment to the current GAAR in order to improve its efficacy in an international context.By: Teresa Pidduck
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OTHER
The Sasol Oil case – Would the present South African GAAR stand up to the rigours of the court?South Africa finds itself vulnerable to exploitation by the measures taken by multinational enterprises (MNEs) who seek to enter into tax avoidance schemes that artificially shift profits to low- or no-tax jurisdictions. While common law, specific and general anti-avoidance measures may be used as a defence against these schemes, there has been no judicial consideration of the current South African general anti avoidance rule (GAAR) since its replacement in 2006. In this context this paper makes two contributions. First, the paper applies the current GAAR to a recent case where the predecessor to the current GAAR was applied to a scheme entered into by an MNE. This is done in order to determine if the current GAAR (unlike its predecessor) is able to stand up to the rigours of court when presented with similar facts. In doing so it demonstrates how the untested GAAR may be interpreted and applied. Second, the paper makes suggestions for amendment to the current GAAR in order to improve its efficacy in an international context. Read moreBy: Teresa Pidduck
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OTHER
Tax research methodology for untested legislation: An exemplar for the tax scholarTax scholars using typical doctrinal and reform-oriented methodologies often struggle to articulate the process undertaken in their research and at the same time, these methods often require an analysis of legislation that has already been the subject of judicial inquiry. However, this raises the challenge of what method to employ in the absence of such judicial inquiry. The tax environment has become so dynamic that law reform occurs rapidly and the law has to be researched, in the absence of case law post legislative amendment. This article provides tax scholars with a methodological approach described as a structured pre-emptive analysis that overcomes this problem (in other words an adaptation of typical doctrinal reform-oriented approaches). Using an exemplar of an actual tax law problem, the paper demonstrates how to conduct rigorous research in the absence of case law dealing with legislation that is the subject of enquiry. The article makes two contributions. First, it gives transparency to the traditional doctrinal reform-oriented methods primarily used in law. Second, it illustrates a method that can be used to overcome the absence of case law.By: Teresa Pidduck
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OTHER
Tax research methodology for untested legislation: An exemplar for the tax scholarTax scholars using typical doctrinal and reform-oriented methodologies often struggle to articulate the process undertaken in their research and at the same time, these methods often require an analysis of legislation that has already been the subject of judicial inquiry. However, this raises the challenge of what method to employ in the absence of such judicial inquiry. The tax environment has become so dynamic that law reform occurs rapidly and the law has to be researched, in the absence of case law post legislative amendment. This article provides tax scholars with a methodological approach described as a structured pre-emptive analysis that overcomes this problem (in other words an adaptation of typical doctrinal reform-oriented approaches). Using an exemplar of an actual tax law problem, the paper demonstrates how to conduct rigorous research in the absence of case law dealing with legislation that is the subject of enquiry. The article makes two contributions. First, it gives transparency to the traditional doctrinal reform-oriented methods primarily used in law. Second, it illustrates a method that can be used to overcome the absence of case law. Read moreBy: Teresa Pidduck
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OTHER
Progressive tax: A proposal for customer loyalty programmesPurposeThe South African Government needs to increase fiscal revenues to cater to increased government spending. This paper aims to argue that the South African Revenue Service (SARS) has an opportunity to tax the receipt of customer loyalty programme awards in the hands of customers, with little amendment to current tax legislation or administration. This provides the South African Government an opportunity to increase much needed tax revenue in spite of limited resources.Design/methodology/approachFive instrumental case studies were used and analysed from a financial reporting perspective to quantify customer loyalty points earned by customers. These can form a basis for deriving the potential benefits from the taxation of customer loyalty programmes in the retail industry. The multiple instrumental case studies used and the application of accounting guidance in International Financial Reporting Standards allow generalisations to be made to highlight the amount of customer loyalty awards granted and possible tax revenues forgone in just one sector of the South African economy.FindingsShould the proposals for taxation of customer loyalty programmes be implemented, the fiscus would be able to collect over R 234.35m (US$16.91m) in tax revenue from only five companies providing customers with loyalty awards. This indicates that this proposal for taxation is critical for investigation by the South African Government, as it may aid in achieving revenue goals for South Africa.Originality/valueThis paper contributes to the literature on taxation legislation within South Africa by proposing a model that may be used by the SARS to increase tax revenues to meet the Government’s needs.By: Teresa Pidduck
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OTHER
Progressive tax: A proposal for customer loyalty programmesPurposeThe South African Government needs to increase fiscal revenues to cater to increased government spending. This paper aims to argue that the South African Revenue Service (SARS) has an opportunity to tax the receipt of customer loyalty programme awards in the hands of customers, with little amendment to current tax legislation or administration. This provides the South African Government an opportunity to increase much needed tax revenue in spite of limited resources.Design/methodology/approachFive instrumental case studies were used and analysed from a financial reporting perspective to quantify customer loyalty points earned by customers. These can form a basis for deriving the potential benefits from the taxation of customer loyalty programmes in the retail industry. The multiple instrumental case studies used and the application of accounting guidance in International Financial Reporting Standards allow generalisations to be made to highlight the amount of customer loyalty awards granted and possible tax revenues forgone in just one sector of the South African economy.FindingsShould the proposals for taxation of customer loyalty programmes be implemented, the fiscus would be able to collect over R 234.35m (US$16.91m) in tax revenue from only five companies providing customers with loyalty awards. This indicates that this proposal for taxation is critical for investigation by the South African Government, as it may aid in achieving revenue goals for South Africa.Originality/valueThis paper contributes to the literature on taxation legislation within South Africa by proposing a model that may be used by the SARS to increase tax revenues to meet the Government’s needs. Read moreBy: Teresa Pidduck
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OTHER
Avoiding tax in South Africa's retail industry via customer loyalty programsThe Medium Term Budget Policy Statement presented by the South African Minister of Finance in late 2013, highlighted that government expenditure substantially exceeded revenues collected. In investigating the possible broadening of the South African tax base as well as improving revenue administration, there is evidence of a gap in the taxation of customer loyalty programmes within many industries. The problem is that customer loyalty award credits is currently not being taxed by the revenue authority in South Africa. This study uses a multiple instrumental case study design to identify the tax leakages resulting from inadequate revenue administration within the South African retail industry’s use of customer loyalty programmes. The study has found that the loss to the fiscus in the non-taxing of customer loyalty award credits is substantial.By: Teresa Pidduck
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OTHER
Avoiding tax in South Africa's retail industry via customer loyalty programsThe Medium Term Budget Policy Statement presented by the South African Minister of Finance in late 2013, highlighted that government expenditure substantially exceeded revenues collected. In investigating the possible broadening of the South African tax base as well as improving revenue administration, there is evidence of a gap in the taxation of customer loyalty programmes within many industries. The problem is that customer loyalty award credits is currently not being taxed by the revenue authority in South Africa. This study uses a multiple instrumental case study design to identify the tax leakages resulting from inadequate revenue administration within the South African retail industry’s use of customer loyalty programmes. The study has found that the loss to the fiscus in the non-taxing of customer loyalty award credits is substantial. Read moreBy: Teresa Pidduck
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OTHER
Customer loyalty programmes: The loss to the fiscus in South AfricaThe 2013 Budget Speech presented by the South African Minister of Finance highlighted that the best way to generate resources is to grow the economy and increase the tax base. In investigating the possible broadening of the South African tax base, as well as improving revenue administration, there is evidence of a gap in the taxation of customer loyalty programmes. The complexity of identifying and administering the receipt of customer loyalty award credits for millions of individuals has led to the receipt of customer loyalty award credits not being taxed whilst the expenses related to these award credits are being deducted by businesses. In closing this gap, the South African Revenue Service may be able to increase the tax base and limit fiscal leakage. For this reason, any gaps in the taxation of receipts and accruals is of interest to any researcher, taxpayer and government interested in understanding where current administration of legislation may be failing. In this study, the authors consider the tax leakage from a legislative and administrative perspective as well as investigate possible solutions. The revenue authorities in South Africa are urged to make changes to the current tax administration in order to prevent inconsistencies in treatment and tax leakage without negatively impacting the essence of the customer loyalty programmes.By: Teresa Pidduck
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OTHER
Customer loyalty programmes: The loss to the fiscus in South AfricaThe 2013 Budget Speech presented by the South African Minister of Finance highlighted that the best way to generate resources is to grow the economy and increase the tax base. In investigating the possible broadening of the South African tax base, as well as improving revenue administration, there is evidence of a gap in the taxation of customer loyalty programmes. The complexity of identifying and administering the receipt of customer loyalty award credits for millions of individuals has led to the receipt of customer loyalty award credits not being taxed whilst the expenses related to these award credits are being deducted by businesses. In closing this gap, the South African Revenue Service may be able to increase the tax base and limit fiscal leakage. For this reason, any gaps in the taxation of receipts and accruals is of interest to any researcher, taxpayer and government interested in understanding where current administration of legislation may be failing. In this study, the authors consider the tax leakage from a legislative and administrative perspective as well as investigate possible solutions. The revenue authorities in South Africa are urged to make changes to the current tax administration in order to prevent inconsistencies in treatment and tax leakage without negatively impacting the essence of the customer loyalty programmes. Read moreBy: Teresa Pidduck
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OTHER
GAAR’s in Australia and South Africa: Mutual LessonsWhile the South African and Australian general anti-avoidance rules ('GAARs') differ in their structure and design, each is directed towards the same end. Although the South African GAAR was substantially amended in 2006 to address perceived inadequacies, there has yet to be any judicial consideration of the 'new' provision. While it is a highly prescriptive provision (at least in comparison with its Australian counterpart) considerable uncertainty as to its effectiveness remains, especially as an earlier attempt to remedy many of the same deficiencies in 1996 was spectacularly unsuccessful.Meanwhile, after a slow start, the jurisprudence on the Australian 1981 GAAR continues to gather momentum. Although many of the application and interpretative issues have gradually been resolved, others seem insoluble.In this paper the authors examine these two GAARs with a view to identifying if any lessons for their application and interpretation can be gathered from each other. The authors argue that, notwithstanding design differences, there are some remarkably similar issues to be resolved. Some of the Australian case law may therefore be instructive as to the approach that could be adopted in South Africa, while some of the prescriptions in the South African legislation could be of value in assisting the Australian judiciary to direct their attention to relevant considerations or, possibly more likely, could form the basis for further legislative prescriptions in the Australian GAAR.By: Teresa Pidduck
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OTHER
GAAR’s in Australia and South Africa: Mutual LessonsWhile the South African and Australian general anti-avoidance rules ('GAARs') differ in their structure and design, each is directed towards the same end. Although the South African GAAR was substantially amended in 2006 to address perceived inadequacies, there has yet to be any judicial consideration of the 'new' provision. While it is a highly prescriptive provision (at least in comparison with its Australian counterpart) considerable uncertainty as to its effectiveness remains, especially as an earlier attempt to remedy many of the same deficiencies in 1996 was spectacularly unsuccessful.Meanwhile, after a slow start, the jurisprudence on the Australian 1981 GAAR continues to gather momentum. Although many of the application and interpretative issues have gradually been resolved, others seem insoluble.In this paper the authors examine these two GAARs with a view to identifying if any lessons for their application and interpretation can be gathered from each other. The authors argue that, notwithstanding design differences, there are some remarkably similar issues to be resolved. Some of the Australian case law may therefore be instructive as to the approach that could be adopted in South Africa, while some of the prescriptions in the South African legislation could be of value in assisting the Australian judiciary to direct their attention to relevant considerations or, possibly more likely, could form the basis for further legislative prescriptions in the Australian GAAR. Read moreBy: Teresa Pidduck
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EDUCATION
STEM Education in the United States: Progress without a PlanAn overview of K-16 STEM education in the United StatesBy: Christopher Reimann
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EDUCATION
STEM Education in the United States: Progress without a PlanAn overview of K-16 STEM education in the United StatesBy: Christopher Reimann
