An evaluation of how the new Headquarter Company tax provisions in South Africa should be amended to result in a direct benefit to the fiscus

Abstract

During the past few years, South Africa established a competitive headquarter tax regime, which was implemented with the primary goal of encouraging foreign direct investment in South Africa. An important secondary goal was for South Africa to be used as a Holding Company location through which multinational entities can invest into sub-Saharan Africa. Although the Headquarter Company regime was developed to prevent any direct losses to the fiscus, it did not create any direct benefits or advantages. Internationally, substance requirements have a two-fold purpose: to encourage resident tax entities to engage in active economic activities, and to prohibit income losses due to tax avoidance or evasion. Some of the most important substance requirements are set out in a country’s policies on permanent establishment, beneficial ownership and transfer pricing. Another effective manner to encourage economic activity is to offer tax incentives to activities usually associated with Headquarter Companies. These activities include, but are not limited to active management, granting loans, leasing, and the provision of intellectual property. This research concludes that the inclusion of substance requirements in headquarter tax legislation will not only directly benefit the fiscus, but it will indirectly benefit the economy as a whole.