Penalties for impermissible tax avoidance in South Africa

Abstract

Tax avoidance is a complex concept that creates uncertainty in the South African tax law system and results in revenue loss. Tax avoidance is a broad concept that constitutes permissible tax avoidance and impermissible tax avoidance. The main difference between impermissible tax avoidance and permissible tax avoidance is that the former is illegal and the latter is legal. To deal with, amongst other problems caused by impermissible tax avoidance, revenue loss, South Africa introduced the GAAR to curb impermissible tax avoidance. In doing so, the GAAR rejects tax avoidance arrangements that are found to be abusive and allows permissible tax avoidance. The South African GAAR is aimed at curbing impermissible tax avoidance arrangements that, inter alia, result in tax benefits with the sole or main purpose to obtain that tax benefit. The problem with this GAAR is that it does not clearly differentiate between permissible tax avoidance and impermissible tax avoidance. A taxpayer who gets caught by the GAAR is subjected to the provisions of section 80B of the ITA. The consequences in section 80B are corrective measures and do not result in any disincentive to the taxpayer except that the taxpayer only pays the amount of tax that would have been due in the absence of the avoidance arrangement. This research is aimed at investigating the effectiveness of the GAAR as a weapon against impermissible tax avoidance. In testing the effectiveness of the GAAR, the remedies available against taxpayers that enter into impermissible tax avoidance transactions are critically analysed. The South African GAAR is compared to three foreign GAAR?s and it is recommended that South Africa consider introducing penalties as is the case in other countries such as Australia and the UK. In investigating the effectiveness of the GAAR as a weapon against impermissible tax avoidance, foreign legislation and case law is compared to South African legislation and case law in order to determine whether South African GAAR needs penalties to deter impermissible tax avoidance more effectively.