Curbing transfer pricing manipulation in South Africa : lessons from selected jurisdictions

Abstract

Transfer pricing manipulation is a worldwide problem which results in a massive loss of revenue which is meant to finance government socio-economic programmes. South Africa is not immune to this problem. South Africa is losing billions of Rands in tax revenue due to this scourge. This research is an attempt to find ways and means which can be employed to combat or control the problem. In order to find the envisaged solutions, this research investigates the causes of the problem by analysing the weaknesses and the strong points of the arm’s length principle which is the basis of transfer pricing practice in South Africa and elsewhere. The research also investigates and analyses the corporate reasons for Multinational Enterprises (MNEs) to engage in transfer pricing with a view to demonstrating that transfer pricing is a neutral tax avoidance concept if it is applied for genuine business considerations. The investigation also entails analysing the legal framework of transfer pricing in South Africa which is embodied in section 31 of the Income Tax Act 58 of 1962. The research analyses the efficacy of section 31 in dealing with the sophisticated transfer pricing manipulation schemes. In addition, an extensive reference to the Organisation for Economic Co-operation and Development (OECD) Transfer Pricing Guidelines is made as South Africa relies heavily on the guidelines. A comparative analysis of selected topics is also conducted with the United States (US) and India with a view to drawing lessons from those jurisdictions. Based on the outcome of the analysis and the lessons drawn from the comparative analysis, findings are presented followed by legislative proposals or recommendations which will help to eradicate the problem. It is hoped that implementation of the recommendations taking into account the socio-economic conditions of South Africa will help to deal with the problem.