An analysis of the South African Revenue Services' recognition of unmarried partners as spouses.
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Date
2002
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Abstract
The focus of this study is on the criteria and processes used by the South African
Revenue Services (SARS) in recognising spouses in permanent, unmarried
unions. In theoretically positioning this focus, four possible areas of tax benefits
were reviewed . These include: (i) donations tax, (ii) capital gains tax, (iii) estate
duty tax and (iv) transfer duty. Also , the focus of this study was positioned
relative to South African taxation acts. Specifically, three Acts were selected for
review, viz.: (i) the Income Tax Act, No. 58 of 1962, the Estate Duty Act, No. 45
of 1955, and the Transfer Duty Act, No. 40 of 1949. These Acts may be
understood relative to the South African Constitution's framing of notions like
equality - given that these Acts signal the legislation's intention to honour the
constitutional rights of its tax-paying citizenry. Furthermore, a theoretical
framework that highlights official and espoused perspectives of practice is
reviewed as it provides a theoretical frame for this study. Given this legislative
and theoretical background the following aims were focussed: (1) To identify the
official and espoused criteria used by the South African Revenue Services to
recognise unmarried partners as spouses, and (2) To identify the official and
espoused processes used b~ the South African Revenue Services to recognise
unmarried partners as spouses. The chosen methodology is an explorative descriptive
methodology, as situated within a qualitative framework. Data
sources are described as constituting the three tax Acts, a senior SARS official,
and SARS helpdesk personnel. Data selection criteria are described , and
convenience and purposive sampling are the stated data selection techniques.
Document analysis and interview schedules were used to collect data. Data was
managed and analysed via the use of several data analysis techniques. Results
are presented and discussed. Significantly, SARS has non-specific criteria that
are nebulous, and open to interpretation. Furthermore, processes are poorly
stated and provide insufficient guidance to the taxpayer. Given these outcomes,
this study also offers two South African legal cases that cogently illustrate criteria
and processes for recognising a spouse. Each of these cases are analysed
regarding the criteria and processes used to determine the definition of 'spouse'.
These cases, while dealing with issues of same-sex adoption and same-sex
partner's rights to remuneration benefits serve to highlight factors that may be of
use to SARS. Furthermore, international case exemplars are also discussed.
Specifically, Canada's taxation laws were focussed. Canada's criteria and
processes used to define common-law partners (read as spouse for purposes of
this study) serves as an informative case exemplar, relative to other countries
also investigated in this study, viz .: the United States of America , Belgium and
other European countries. Finally, several recommendations are stated , and an
evaluation of the study is provided.
Description
Thesis (M.A.)-- University of Durban-Westville, 2002
Keywords
Unmarried couples--Legal status, Laws, Etc.--South Africa., Common Law Marriage--South Africa., Theses--Accounting.