Browsing by Author "Jansen van Rensburg, Enelia"

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    The application and interpretation by South African courts of general renvoi clauses in South African double taxation agreements
    (North-West University, Faculty of Law, 2019-11-15) Jansen van Rensburg, Enelia
    General renvoi clauses in DTAs based on article 3(2) of the OECD MTC provide that an undefined term in a DTA shall have the meaning that it has in the domestic law of the contracting state applying the DTA unless the context otherwise requires. All South African DTAs include such a clause. Many interpretational issues remain with regard to the application and interpretation of general renvoi clauses. This article considers four of these issues in the light of South African cases in which general renvoi clauses were referred to. The following cases are considered: ITC 789 (1954) 19 SATC 434, Baldwins (South Africa) Ltd v Commissioner for Inland Revenue (1961) 24 SATC 270 and Commissioner for the South African Revenue Service v Tradehold Ltd 2012 3 All SA 15 (SCA). The first of the issues considered in the article is relevant in those cases where a DTA includes a general renvoi clause based on the pre-1995 version of article 3(2) and where amendments were made to a relevant domestic meaning after the conclusion of the particular DTA. These clauses do not expressly state whether the relevant domestic meaning is the domestic meaning existing at the time of the conclusion of the DTA, or at the time of the application of the DTA. The second issue arises if the expression used in the domestic law is not identical to the undefined treaty term. The question is whether the expression in the domestic law can be used to give meaning to the treaty term under the general renvoi clause. Another interpretational issue considered in the article concerns deeming provisions in the domestic law. The issue is whether a meaning that a term is deemed to have under a provision in domestic legislation can be used under the general renvoi clause to give meaning to the undefined term in the DTA. The last issue deals with the meaning of the phrase "unless the context requires otherwise". The question raised is whether this phrase means that the domestic meaning should be given only as a "last resort", or whether it should apply unless "reasonably strong" arguments to the contrary are made.
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    Commissioner, South Afrikan Revenue Service v Brummeria Renaissance (PTY) LTD and others : does the judgement benefit an understanding of the concept amount
    (Juta Law Publishing, 2008-01) Jansen van Rensburg, Enelia
    INSTRODUCTION: It has been said that the decision by the Supreme Court of Appeal (SCA) in Commissioner, South African Revenue Service v Brummeria Renaissance (Pty) Ltd is the most important tax case decided in the past 30 years. The case has far-reaching consequences for the many retirement village developers who financed the construction of units in retirement villages by obtaining interest-free loans from retirees in return for granting occupation rights in respect of these units. Questions have also been raised regarding the possible application of the decision to other interest-free loans and even other areas of taxation law. The case deals with the question whether a borrower of money under an interest-free loan can be taxed on the “benefit” of not having to pay interest. This paper argues that this question should be answered in the negative, since the borrower does not acquire property and no amount accordingly accrues to or is received by her, as required by the definition of “gross income”.
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    Share value shifting: a comparison between the anti-avoidance provisions in South African and Australian tax legislation
    (Juta Law Publishing, 2007-02) Jansen van Rensburg, Enelia
    INTRODUCTION: For as long as countries have imposed capital gains tax (CGT), taxpayers have been looking for ways of transferring economic value without becoming liable to pay it. Since CGT is usually triggered by the realisation of an asset, taxpayers soon realised that if they could shift economic value from their assets without selling or otherwise realising the assets, they could avoid, or at least defer, CGT. This led to the notion of share value shifting, which achieves this objective in relation to shares. Taxation authorities in turn recognised the danger which this form of tax avoidance holds for the integrity of a CGT regime and the need for measures to counter it. At the outset the article provides some background on what share value shifting is and how anti-avoidance measures generally aim to prevent this form of tax avoidance. It also explains the scope of the anti-avoidance measures in the South African and Australian tax legislation and the manner in which the measures are incorporated in the general South African and Australian CGT regimes. The article then focuses on the special rules in the South African tax legislation that govern the calculation of CGT in respect of share value shifting and considers some of the difficulties that arise from the fact that these measures fail to interact properly with the general CGT provisions. In the second part of the article, it considers which kinds of share value shifting are targeted by the value shifting anti-avoidance measures in the South African tax legislation and criticises the limited scope of these measures.