Promoting South Africa as an investment gateway : the influence of tax legislation

Abstract

The South African government announced in 2008 that it intends to promote South Africa as a suitable company headquarter jurisdiction for investment in Africa in general and the sub-Sahara region in particular. The 2010 Taxation Laws Amendment Bill introduced a number of tax changes to lure headquarter companies to South Africa. The new South African headquarter company regime attempts to attract foreign direct investment through these changes. The government plans to make South Africa a gateway for African investments. In order to achieve this goal the regulatory, economic and legal frameworks need to be suitable for international investment. This study analyses the tax characteristics of an ideal holding company regime and investigate the importance that is placed on tax considerations compared to non-tax considerations by companies when faced with investment decision making and whether tax is a primary driver of such decisions.

A single source ethnographic case study is used to analyse the process followed by an organisation, and the considerations used by the key decision makers within this organisation, for setting up a holding company in South Africa to drive an investment and business expansion.

The case study consists of an investigation into the process followed, the strategy formulated and the structuring of the business for making the investment in selected African countries. It further investigates where the ultimate holding company will be located as a headquarter company for all further Africa business expansion.

It was found that the tax considerations are mainly a favourable capital gains tax regime, low income taxes, no or low tax on dividends, a favourable tax treaty network, the absence of controlled foreign company legislation and a liberal thin capitalisation and transfer pricing regime. Non-tax factors also play a significant role in decision making when considering the investment destination. These factors include: economic and political stability; adequate physical, business, accounting and legal infrastructure; the absence (or limited presence) of bureaucratic obstacles; adequate communication channels; the ability to repatriate profits freely; an effective banking system; and the availability of an adequate dispute resolution mechanism.

There is a definite distinction between tax specific strategies where enterprises are set up to take advantage of tax incentives provided by certain jurisdictions and where an investment decision is taken and aligned with business decisions to align these strategies to take advantage of a favourable tax regime

Jurisdictions that only concentrate on tax incentives will find it difficult to attract foreign direct investment. Decision makers that are held responsible for investors’ capital will take tax as well as non-tax aspects into account when deciding to invest in a country and to set up holding company in that jurisdictions. It is therefore important for a jurisdiction to provide an environment that is conducive to do business in order to attract foreign direct investment.