The utilisation of assessed losses by mining companies : critical analysis of the armgold/harmony freegold judgment

Abstract

The method of taking into account assessed losses in calculating the taxable income of mining companies is of significant importance following the Armgold/Harmony Freegold case. In this case, the court had to determine the method of calculating a mining company’s taxable income where at least one of its mines incurred a loss and where nonmining income was also derived. What constitutes an assessed loss, and the order in which it should be applied in calculating a mining company’s taxable income, was central to this case. In this study, the different approaches adopted by the parties to the case in order to determine whether there is an assessed loss, and the order in which it should be utilised in calculating taxable income, was analysed and compared to an analysis of the provisions of the Income Tax Act. In terms of this comparison, the judgment was found to be in accordance with the current legislation in the Income Tax Act. There is, however, a lack of updated guidance on matters relating to mining tax as is evident from the different interpretations of the provisions of the Income Tax Act by the parties to the case. Further research is therefore recommended in order to provide updated guidance to mining companies.