An analysis of the South African Revenue Services' recognition of unmarried partners as spouses.

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.