A critical analysis of the implications of commissioner South African Revenue Service v Brummeria Renaissance (Pty) Ltd on the taxation of the benefits of interest-free shareholders' loans

Abstract

The ruling by the Supreme Court of Appeal in Commissioner South African Revenue Service v Brummeria Renaissance (Pty) Ltd on 13 September 2007 added to and amended South African case law regarding the critical definition of ‘gross income’ in the Income Tax Act 58 of 1962. The court diverged from the existing precedent – set in Stander v Commissioner for Inland Revenue – that receipts that “could not be converted into cash and could not be transferred to anyone else” are not taxable. In Commissioner South African Revenue Service v Brummeria Renaissance (Pty) Ltd the court ruled that what is key is that the benefit has an ascertainable monetary value. Accordingly, the benefits of interest-free loans can be valued – using the weighted prime overdraft interest rate – and can be taxed. This decision has been the subject of much debate, centring on the aptness of the amended view of ‘gross income’, the quid pro quo principle discussed in the judgement, the valuation method, and the implications of these for taxpayers. The purpose of this study is to present arguments and additional information to this continued debate, looking particularly at the impact of Commissioner South African Revenue Service v Brummeria Renaissance (Pty) Ltd on interest-free shareholders’ loans, without attempting to provide a definitive answer to this debate. This non-empirical study explores the topic through a review of literature, with the sources cited being mainly published public articles, tax text books and conference papers retrieved from the internet. Copyright