Masters Degrees (Taxation)

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An analysis of the South African tax incentive for research and development and an international comparison.
(2010) Price, Shane Terrence.; Schembri, Christopher Carmelo.
The promotion of science & technology and the creation of an enabling environment for countries innovation systems has been a growing worldwide trend in developed countries, with 21 out of 30 member countries of the Organisation for Economic Co-operation and Development (OECD) currently utilising some form of tax incentive program aimed at encouraging investment in research and development (R&D) by private industry. 1 Encouraging R&D and associated innovation is generally seen as an effective tool in advancing science and technology, which in turn leads to the creation of new products and services, an increase in international competitiveness of local business, direct foreign investment and social spin-offs in the form of increased employment and economic growth? R&D is, however, expensive and involves high levels of technical risk, with the costs and risk involved often outweighing the potential profit. Consequently, many businesses choose not to perform R&D, which has resulted in governments of most developed countries having implemented various incentives to encourage private business to undertake R&D. These incentives can take the form of either direct incentives (grants, soft loans, subsidies etc) or indirect incentives (such as tax incentives). Tax incentives effectively subsidise the costs of R&D, making it a more attractive and profitable alternative for business. Developed countries, including: the United States of America (US), the United Kingdom (UK), Japan, China, Canada and Australia have all adopted a combination of both direct and indirect incentives, with various tax incentive measures receiving much attention in the last 2 decades. In South Africa the legislation providing for R&D tax incentives has been substantially amended in recent years through a number of Taxation Amendment Acts,] culminating in the enactment of s lID of the Income Tax Act 58 of 1962 (the Act). The aim of this dissertation is to critically examine the current South Afi'ican tax incentive scheme as contained in sliD, focusing on the eligibility requirements of that incentive. In addition, the dissertation will highlight design features and characteristics of the incentive, particularly in respect of its generosity, predictability, simplicity, administration and targeting. 4 The design and characteristics of the South African incentive is then compared to those of three different countries: the UK, Australia and Canada.s Based on the analysis and comparison, certain lessons are identified for South Africa6 and various opinions are advanced on the effectiveness of the current structure and whether particular aspects of it could be improved going forward.
The en commandite partnership as a tax structuring tool.
(1999) Brown, Daryn.; Mitchell, Lindsay David.
The aim of this technical report is to provide a detailed and critical review of the suitability of the en commandite partnership for tax structuring both generally and specifically. The report takes cognisance of the requirements that a financial institution might consider in its determination of the utility of the en commandite partnership as a tax structuring tool in a structured or corporate finance environment. The report begins with an overview of the primarily legal requirements for the creation of a valid partnership. It then considers specifically whether the en commandite partnership is able to take the place of the 'Lessor Trust Arrangement' and researches specific issues germane to the enquiry. Specific legislation dealing with en commandite partnerships is then researched and includes a commentary on the provisions of s 24H and s 8(5)(a) of the Income Tax Act. Practical examples of the use of the en commandite partnership are then considered which challenges the concept of traditional loan finance and suggests the capital contribution as a tax efficient alternative. A consideration of the possibility of a challenge under the anti-avoidance provisions of the Income Tax Act concludes the report.
A critical commentary and analysis of South African tax legislation affecting the different offshore investment structures that are available to residents.
(2002) Terry-Lloyd, Jaqueline Jo-Ann.; Mitchell, Lindsay David.
The aim of this dissertation is to provide a detailed and critical commentary on and analysis of South African tax legislation affecting the different offshore business or investment structures available to residents of South Africa so as to establish which is the most tax efficient structure. The different business structures analysed in this dissertation included the following: • Sole proprietorships. • Partnerships. • Companies. • Trusts. The principle provisions of the Income Tax Act dealt with in this dissertation include the following: • Section 9D. • Section 9E. • Section 9F. • Section 25B(2A). • Paragraph 80 of the Eighth Schedule. The following three countries have been selected as countries of investment choice: • The United Kingdom (a ' designated country'). • Kenya (not a ' designated country'). • The Isle ofMan (a tax haven).
The influence and effect of s 7 (the 'deemed income' provisions), s 25B and the donations tax provisions of the Income Tax Act, and the relevant provisions of the Transfer Duty Act, the Value Added Tax Act and the Estate Duty Act, on the establishment, utilisation and dissolution of testamentary and inter vivos trusts.
(1999) Burne, Warren.
The aim of this technical report is to serve as a handy expose of the relevant provisions of various statutes for attorneys, accountants and other advisors who have to deal with the relevant tax laws affecting the establishment, utilisation and dissolution of trusts. The South African Acts which are the subject of this technical report were promulgated on or before 31 December 1998. They are as follows: • The Income Tax Act, No. 58 of 1962. • The Transfer Duty Act, No. 40 of 1949. • The Value Added Tax Act, No. 89 of 1991. • The Estate Duty Act, No. 45 of 1955. The principal South African taxes dealt with in this report are as follows: • Normal Tax. • Donations Tax. • Transfer Duty. • Value Added Tax. • Estate Duty.
Taxation implications arising from South African residents investing abroad.
(2009) Stonier, Linda Ann.; Mitchell, Lindsay David.
South African investors who have invested or plan to invest their funds offshore have to comply with various legislations, more particularly, the Income Tax Act and the Exchange Control Act. The change-over process from a source basis to a world-wide basis has left many resident investors confused. The need for clarity is exacerbated by the amnesty granted to residents of South Africa, in terms of exchange control and income tax contraventions relating to offshore assets. Resident investors put together complex structures using trusts and companies to 'conceal' their assets. This amnesty provided investors with an opportunity to declare their investments and to legalise their foreign investment tax affairs without the fear of criminal prosecution. The practical application of the various tax provisions is complex and the consequences of non-compliance are severe. Many resident investors are unaware that they could apply to them. There are two crucial questions that are the cornerstone of this study and they have a significant impact on the future planning opportunities that may exist: • First, is the use of an offshore trust or foreign company beneficial? • Secondly, what is the most tax-efficient offshore investment vehicle? The aim of this dissertation is to investigate and identify the various forms of tax legislation as it relates to these foreign structures and investment vehicles, and then to provide a focused analysis of the relevant legislation. A case study is provided to facilitate the understanding and research of this topic.
An analyis of the tax implications for an employer and employee of a deferred compensation scheme.
(1999) Pardy, Louise.; Mitchell, Lindsay David.
No abstract available.
The taxation of trusts: an analysis of S 25B and the anti-avoidance provisions contained in S 7 of the Income Tax Act no. 58 of 1962.
(1999) Goebel, Arno.; Mitchell, Lindsay David.
No abstract available.
The taxation of e-commerce : an examination of the impact and challenges posed by electronic commerce on the existing tax regime.
(2003) Naicker, Kershnee.; Williams, Robert Charles.
Rapid advancements in communications technology and the development of the Internet into a global 'network of networks' are said to be drivers of the 'new economy'. The access to these networks have stimulated the emergence of 'cyber business' and 'electronic commerce'. In the world of cyberspace, this 'new economy' represents a channel, rich in information, choices, opportunities, entertainment, knowledge, and commerce. It has changed the manner in which society works and interacts, whilst embracing the commercial sphere. The 'net' may be seen as an instantaneously accessible global shopping mall. Thus, there is a need to understand the problems associated with this new technology. As e-commerce continues to boom, globalisation presents new challenges to governments around the world, tax policymakers and administrators with regard to the application of existing tax norms. Whether or not the Internet continues to be a driving force behind the economy depends upon the policies, regulations, and taxes imposed on this new medium. The fact that the existing tax laws were developed to deal with the trading of physical goods or the provision of services to clearly identifiable persons, and not with the border less, faceless nature of electronic commerce, tax authorities must reach an international consensus and clarity on which taxing jurisdiction may collect taxes, when businesses and individuals are transacting online. Characterisation of income is important because national and international income tax rules assign different categories of income to different jurisdictions. The concept of 'permanent establishment' is based on a physical presence, which may be more difficult to apply with the modern communication systems. Due to the increasing rate at which multinationals share central services and business development activities, the transfer pricing issue is one of determining an appropriate price or value of transactions undertaken between related parties. These issues need to be examined by, among others, the OECD. It has yet to reach definite conclusions, but drafts of its working papers, made pUblic, suggest a chief focus of the GEeD work will be to clarify transactions in cyberspace. This thesis critically examines the ability of the existing tax legislation, within the context of the Income Tax Act 58 of 1962, to the challenges posed by trading on the Internet. An examination of the impact of tax principles on e-commerce is prefaced by an analysis of international response to this subject. The basic structure of the Internet, e-commerce and its functioning is examined. These daunting challenges and the controversial sets of issues are powerfully documented in this thesis, up to and including the enactment of the Taxation Laws Amendment Act 30 of 2002, which took effect on 13 December 2002.
A discussion of the concept of the 'place of effective management' in the context of South African law, using internationally established principles of corporate residency from the United Kingdom, Europe and Australia as guidelines to formulating this concept in South African law.
(2002) Maharaj, Reshika.; Mitchell, Lindsay David.
The aim of this dissertation is to carry out the following: • Discuss the concept of residency in South Africa and the evolution to the residence basis of taxation in South Africa. • Examine the Organisation for Economic Co-operation and Development's (OECD) stance on the concept of 'effective management'. • Examine the laws of the United Kingdom, certain European countries and Australia with regard to the concepts of 'management and control', 'management or control', ' place of effective management' and 'effective management'. • Formulate a definition of the term 'place of effective management' in South Africa using these guidelines obtained from the various countries discussed.
The interface between capital gains tax and estate duty and the double tax implications thereof.
(2014) Ramson, Varshani.; Schembri, Christopher Carmelo.
This study, called, “The Interface between Capital Gains Tax (CGT) and Estate Duty and the Double Tax Implications thereof” examined the interface between CGT and Estate Duty in South Africa, the double tax implications thereof, and whether these were mitigated by legislation in any manner, and, where it had not been addressed by legislation, to suggest ways in which it could be mitigated. The study emerged from a concern that the current legislation does not function optimally to provide sufficient relief or remedies to a taxpayer affected by double taxation, or where one asset is subject to tax twice. CGT, which is governed by the Eighth Schedule of the Income Tax Act, forms part of Income tax and is levied on all capital losses and capital gains by individuals, trusts and companies unless specifically exempt. Estate Duty is a separate tax governed by the Estate Duty Act and is levied and collected from the estate of every person who dies after the date of enactment. It is submitted that the operation of CGT has a similar purpose to that of the operation of Estate Duty or Donations Tax, and thus there is an avenue for double taxation. The interface between these taxes appears to occur at death of an individual. This is because death constitutes a disposal for CGT purposes, and estate duty is also levied on the deceased estate. The death of a person triggers a deemed disposal for capital gains tax purposes and therefore it impacts the liquidity of the deceased estate, together with the estate duty. Therefore, this dissertation undertakes an exploration of the effect of levying both taxes on death. The following key question is asked: Are there any double tax implications in the interface between CGT and estate duty; and if so, how does legislation mitigate these implications? The following sub-questions emanating from the key question are: How does CGT operate? How does Estate Duty operate? Are there any overlaps in the operation of these two taxes? Are these overlaps in the legislation cause for double tax? Does the legislation mitigate these overlaps? If not, how can these implications be mitigated? Alternate taxation models of the United Kingdom and Australia are examined for their viability for South Africa. It is suggested that the phenomenon of double taxation in South Africa remains a fundamental unfairness to the taxpayer. It is proposed that Estate Duty should be abolished and other possible tax collection alternatives, like increasing the CGT rate, should be adopted, with continued reformation of the CGT system thereafter. While the necessity of greater planning and more time is acknowledged, it is submitted that the challenges South Africa may face in attaining an equitable system in the short term, will be outweighed by the benefits to both the fiscus and taxpayers alike, in the long run.
The taxation of trusts in South Africa with emphasis on the capital gains tax and estate planning implications of various transactions concluded by a trust.
(2014) Moodley, Devakalyani.; Schembri, Christopher Carmelo.
For years trusts have been at the fore front of speculation and scandal. As an effective tool in estate planning, trusts have allowed many to structure their estates in a way which is the most beneficial for themselves and also saves on taxation. In light of the continuous use of trust in estate planning, the taxation of trust have recently come under fire as a tool used by many to avoid tax and to hide assets. In the 2013 budget speech Treasury announced a desired to tighten the reins on the taxation of trust so as to weed out abuse and misuse. One proposed way to achieve this is the doing away of the conduit principle. This has both normal tax and capital gains tax implications. The aim of this dissertation is to investigate how trusts are taxed in South Africa, more specifically the capital gains tax implications of transactions concluded by a trust, when a trust is used as an estate planning tool. This will enable us to identify the most viable way to structure one’s estate and to hold assets, from both a normal tax and capital gains tax perspective. In conducting my research the relevant sections of the Income Tax Act 58 of 1962 will be examined. The implications of those sections on transactions concluded by a trust will also be discussed. On account of the fact that South Africa has developed its capital gains tax legislation based on the legislation used in Australia, an analysis of the recent development of the taxation of trusts in Australia will be looked. This will be done in order to identify any possible lessons South Africa may take away from these developments in Australia. What the research has shown is that despite Treasury’s push to impose stricter legislation in respect of the taxation of trusts, trusts will still have a place in estate planning. The advantages which the use of trusts offer seem to out way the consequences which come with Treasury’s proposed change. As far as the lessons to be learnt from Australia. South Africa has currently followed in Australia’s shoes with the implementation of the new detailed tax return for trusts. Alternatives to the doing away with estate duty and the conduit principle should also be looked at, for instance a more refined conduit principle which applies to specific tax types as Australia has done. May be what needs to be looked at are the problems experienced by Australia and ways in which South Africa can avoid experiencing the same problems.
The new Tax Administration Act ("TAA").
(2014) Nadas, Laurell L.; Schembri, Christopher Carmelo.
This dissertation examines the new Tax Administration Act (TAA), which came into effect on I October 2012 and the constitutionality of the right to just administrative action. The intention of the TAA is to simplify and provide greater consistency in South Afiican tax administration law. The Constitution of the Republic of South Africa (1996 Constitution) affords sufficient protection for taxpayers against certain practices and procedures utilised by the South African Revenue Service (SARS) to collect taxes. Explicit authority has been granted to SARS to carry out its functions. The media has noted concerns regarding the relationship between the taxpayer and SARS. This dissertation investigates the equilibrium between SARS's duty to collect taxes and the right of every taxpayer to the just administration of the collection of taxes in terms of the TAA. The right to fair and just administrative action indicates the manner in which disputes can be resolved between SARS and the taxpayer.6 This right takes into account the legitimate expectations in terms of which SARS should act in compliance with its own notes and rulings enacted by tax legislation. An effective, just, and equitable tax system requires adherence to certain vital principles in order to achieve a balance between the interests of taxpayers and the interests of government. The 1996 Constitution mandates government with the authority to tax. However, the 1996 Constitution also imposes certain procedural and substantive limitations and challenges to government's power to tax. The Bill of Rights contained in the 1996 Constitution affords taxpayers' various rights that impose limitations on SARS. One of the most important taxpayers' rights is the right to just administrative action, which is the focus of this dissertation. As an organ of state, SARS has the executive power to make and implement decisions whereas legislation grants SARS the power to use its discretion when exercising its authority. The question that one needs consideration is taxpayers' rights against unlawful, unreasonable, or unfair practices on the part of SARS despite recent amendments to tax legislation. The aim and purpose of this dissertation is to: • Outline the onus of proof provisions contained in the fucome Tax Act 58 of 1962 (ITA) and the TAA relating to just administrative action; • Focus on the right of taxpayers to just administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 ( PAJA) and the procedural and substantive requirements for enforceability of such rights; • Discussion on taxpayers' rights to privacy and whether or not SARS protects or invades such privacy; • Discussion on the 'pay now, argue later' principle pnor to and following the promulgation of the TAA; and • Examination of the protection offered to taxpayers' in the 1996 Constitution. The method employed by the study, involved an analysis of the Constitution, legislation, case law, books and published journal articles relevant to the issues set out above. This method is appropriate as it sets out the legal position pertaining to the significant issues identified. It must be borne in mind that the chapters overlap and, while some information seems repetitive, this was necessary in order to link the information to the research question and address the research topic adequately.
Piercing the corporate veil of the close corporation with the Tax Administration Act.
(2015) Glazer, Suellen Ramona.; Schembri, Christopher Carmelo.
The topic of piercing the corporate veil has long been a debated phenomenon globally. In the United Kingdom, the landmark case of Salomon v Salomon and Co Ltd1 provided much needed clarity in the application and acknowledgment of the independence of the juristic entity from its key players. The courts have been mindful of this fundamental rule and have also declared that this separate identity is not absolute as in certain instances the corporate veil will be set aside. Various statutes have been introduced to provide the courts with guidelines as in what instances veil piercing will be acceptable. The most notable statute is the introduction of the Companies Act 71 of 2008 (hereinafter referred to as the ―2008 Act‖). Worldwide, tax authorities in their role as tax administrators and collectors have been faced with the veil piercing dilemma. The aim of this dissertation is to determine if the South African Revenue Service (hereinafter referred to as SARS) could use the Tax Administration Act 29 of 2011 (hereinafter referred to as the ―Tax Admin Act‖) to attach the tax liability of an entity such as the close corporation to its members. To determine this, an investigation into the variety of sources available to SARS to pierce the corporate veil is required. The practical application by SARS, thus far, in their ability to attach the tax liability of a juristic entity to its key players is essential to determine how the SARS has been dealing with these types of matters. The enactment of the much needed Tax Admin Act has provided SARS with even further reaching powers when it comes to the collection of taxes. An evaluation of the definition of a taxpayer, as contained in Section 151 of the Tax Admin Act, will be considered. In particular, the concepts of the Representative taxpayer and the Responsible third person shall be discussed as both these terms empower SARS to attach the tax liability of a juristic entity to a natural person should the tax debt remain unpaid. The Tax Admin Act provides SARS with even further reaching powers to enforce the collection of the corporation‘s tax debts against another person. It appears as though the legislature has paved the way even further for SARS to target and hold responsible the key players of a corporation. From a global perspective, an investigation into how the tax authorities of foreign jurisdictions have been dealing with the concept of lifting the corporate veil will be conducted. In light of the findings, a determination of how South Africa compares globally in its approach to the veil piercing doctrine by the tax authorities shall be made. In my conclusion I will evaluate my findings.
Taxation in South Africa and the use of trusts as an effective estate planning and tax saving mechanism.
(2015) Hussain, Mohamed Raees.; Schembri, Christopher Carmelo.
The Income Tax Act, 58 of 1962 provides for the taxation of income, capital gains as well as donations which are received by, accrued to, or in favour of natural persons, companies as well as trusts however there are also other Acts which cater for the various other taxes and duties which include amongst others, the Estate Duty Act, 45 of 1955; the Transfer Duty Act, 40 of 1949 and the Value-Added Tax Act, 89 of 1991. The use of trusts in South Africa is still relatively young, so much so, that despite this tool being brought to South Africa by the 1820 English Settlers, the first South African case to deal with its validity occurred in 1915, in the case of Estate Kemp v Mc Donald’s Trustee, which case then led to the incorporation of trusts into South African Law. The taxation of trusts is an ever increasing concern for the Taxman as trusts have been used and are still to an extent being used as a vehicle for the avoidance of the various taxes and duties that exist in South Africa today. The avoidance of taxes and duties is not in itself unlawful save for where the Taxpayer seeks to achieve this avoidance through means explicitly forbidden by the Taxman; this phenomenon is referred to Tax evasion. The avoidance of taxes and duties, ultimately its evasion has led to the Taxman creating and enacting legislative provisions to counter and combat the attempts made at doing so, these are commonly known as the anti-avoidance measures of which exist both general and specific measures. These provisions have made it increasingly more difficult for the honest Taxpayer to lawfully minimise his taxes and duties, however the minimisation of some of these taxes and duties are not entirely unattainable. Estate planning and the use of a trust as a mechanism to achieve certain objectives, one of which is the minimisation of these taxes and duties has occurred and still continues to occur in today’s society. A well prepared estate plan wherein a trust is utilized by the Taxpayer (Estate planner), can still legally result in the minimisation of certain taxes and duties which ultimately is a major objective.
A comparative analysis of the taxation of dividends between South Africa and Mauritius.
(2015) Robb, Daniel Peter Derek.; Schembri, Christopher Carmelo.; Bosch, Shannon Joy.
The aim of this dissertation was to determine whether there was any benefit to shareholders (corporate or individuals) in utilising offshore structures in Mauritius to minimise their ultimate dividends tax liability. Due to multiple factors, including the lack of prolific secondary sources in Mauritius, the dissertation was written, for the most part, from a South African perspective. In undertaking this study, a comprehensive review of dividends tax was undertaken (excluding dividends in specie and dividends from listed companies) under South African law, Mauritian law and the tax treaty that is effective between the two jurisdictions. A brief analysis of the Agreement between the Government of the Republic of South Africa and the Government of the Republic of Mauritius for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, which is set to become effective on 1 January 2016 was also undertaken. In each chapter, a review was performed, analysis was made and practical examples were given in order to give the reader a better understanding of the practical application of the analysis. Comparisons were made using different commonly used entities such as companies (including Global Business License 1 and 2 companies) trusts, foreign trusts and also individuals. The dissertation provided examples of each of these types of entities in order to show the effectiveness of utilising Mauritius’ low tax rates and generous provisions in the tax treaty between South Africa and Mauritius. The study revealed that, without making any comments on the cost of setting up offshore structures, offshore structures could in certain circumstances, if properly structured, substantially reduce a shareholders dividends tax liability. The study did however also reveal that such structures would have to be legitimate foreign business enterprises to avoid the complex anti-avoidance provisions provided in the South African Income Tax Act No 58 of 1962 such as the controlled foreign company provisions which, in certain circumstances, attribute the net income of the offshore company to the shareholder(s). The dissertation described certain important principles which would need to be complied with by the shareholder and the foreign entity concerned, in order to avoid the pitfalls associated with such structures, including the very important place of effective management tests. The dissertation therefore had a positive result and could benefit any high net worth individual or company seeking to minimise its dividends tax burden.
A critical analysis of the personal liability of representative taxpayers.
(2015) Francis, Natasha.; Schembri, Christopher Carmelo.
Abstract not available.
The effectiveness of a trust as a tax planning tool in light of our current legislation and proposed ammendments.
(2016) Harriparsad, Rajeev.; Schembri, Christopher Carmelo.
Due to length and time constraints, this dissertation will briefly examine and provide an overview of how recent proposed amendments may effect the use of a Trust as a tax avoidance tool. Trusts have recently been a source of debate following the proposals made by in our Budget Speeches and the proposals by the Davis Tax Committee. The abolition of the “Conduit Pipe Principle,” together with a stricter approach on income distributed and retained by a trust have been recommended. This dissertation will provide a historical overview on the increased taxation of trust income as evidenced by our legislation. The continuous amendments of our legislation has attempted to curb any avoidance by those adopting the use of a trust. The radical proposals made by the Davis Tax Committee in their First Interim Report seem to disregard our current economy and the need for incentives investment. The continued echo’s of reform in our annual Budget Speeches have fuelled concern that our government will eventually consider tightening the taxation of trusts. This discussion provides a historical background of the development of the legislation which currently governs the normal taxation of trusts. Tax practitioners have adopted the use of a trust to further tax avoidance. A brief discussion on our legislation commencing from the Act of 1941 to our current legislation will show that our government has taken steps to close every loophole as adopted in tax avoidance. An explanation on the deeming provisions and Section 25B of the Income Tax Act 58 of 1962 is required to understand the impact of the proposals by the Davis Tax Committee. An understanding of Practice Note 23 needed to comprehend the “Conduit Pipe Principle.” The repealing of Section 25B can only be understood after a detailed explanation of the principles as currently practised. A critique on the relevance of the current proposal will conclude the dissertation. This will be done in light of our current financial climate and based on the need to solidify our tax base as opposed to the need to reform.
The challenges arising from the application of the ‘gross income definition to illegal income.’
(2017) Maboko, Kulani.; Schembri, Christopher Carmelo.
Abstract available in PDF file.
Taxing economic “bads”: the case for a carbon tax in South Africa.
(2016) Ndebele, Zandile.; Schembri, Christopher Carmelo.
Master of Law in Taxation Law. University of KwaZulu-Natal, Durban 2016.
A critical and comparative analysis of the expression "ordinarily resident" as a criterion for determining the place of residence of an individual in the context of income tax legislation in South Africa and certain other juristictions.
(2016) Hardie, John Andrew.; Williams, Robert Charles.
The nexus between a natural person’s income and their liability to tax in South Africa on their income, regardless of the location of its source, subject to statutory relief and international agreements, is the individual’s status as an income tax resident in South Africa. The criterion for determining the place of residence of an individual in the context of income tax can be uncertain and difficult to determine due to the case law approach imposed by the definition of the term ‘resident’ in the Income Tax Act. Through an analysis of the legislation, case law and guidelines, primarily in South Africa and the United Kingdom, the dissertation queries whether the current legislation and case law in South Africa is adequate to deal with the determination of the place of residence of an individual in the context of income tax legislation in South Africa and if a new statutory definition of residence should be considered.

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