Is the foreign business establishment lagging behind new business models? Commissioner for the South African Revenue Service v Coronation Investment Management SA (Pty) Ltd [2023] Zasca 10

Abstract

Controlled foreign company (CFC) rules are anti-avoidance rules to ensure the taxation of profits diverted offshore by South African residents (Van der Zwan, ‘Cross-border transactions’ in Stiglingh (ed), Silke: South African Income Tax (LexisNexis 2023) 889). The rules are concerned with avoidance schemes and are not meant to deter real cross-border transactions (Van der Zwan, ‘Cross-border transactions’ in Stiglingh (ed), Silke: South African Income Tax (LexisNexis 2022) 871–872). In terms of the rules, profits of a non-resident company may also be liable for tax in South Africa at the hands of its resident shareholder/s if the company is considered to be a CFC of such resident shareholder/s (s 9D of the Income Tax Act 58 of 1962 (Act)). A company will be considered to be a CFC if it is a foreign company where more than 50 per cent of the total participation rights or voting rights in that company are directly or indirectly held or exercisable by one or more residents (except headquarter companies) or the financial results of that foreign company are reflected in the consolidated financial statements (prepared in terms of International Financial Reporting Standards 10) of a resident company (s 9D of the Act).