The impact of the Brummeria Renaissance case in determining whether the receipt of an interest-free loan results in gross income accruing to the borrower

[摘要] ENGLISH ABSTRACT: The September 2007 decision of the SCA in C: SARS v Brummeria Renaissance (Pty) Ltd and Others has proven to be one of the most contentious tax cases ever decided by a court in our jurisdiction. Questions surrounding the interpretation of the judgment and the likely scope of its application are some of the most widely debated matters in South African tax circles ever since the judgment was delivered. In this research paper a study is undertaken into the income tax treatment of an interest-free loan receipt. The position as it stood prior to the SCA decision is first analysed with particular reference to the legal nature of a contract for the loan of money and the tax court decision in ITC 1791. The discourse continues with a critical discussion of the Brummeria judgment in order to extract the ratio decidendi thereof. The ambit of application of the extracted binding principles to selected interest-free loans (encountered most often in practice) is considered, drawing on views expressed by numerous South African tax experts as well as the Revenue Authority's own stance in this regard, as enunciated in their Draft Interpretation Note dealing with the right to use loan capital interest-free. As a final application a study is undertaken into the possible arguments available to tax subjects to refute an assessment for income tax raised on them by SARS on the basis of the binding principles enunciated by the SCA in Brummeria. It is concluded that initial fears regarding the potential wide-ranging impact of the decision, though justified, may have been over-anticipated as strong grounds exist to argue that the scope of the judgment's application is not likely to extend wider than the type of legal construction found in the case itself, namely where an interest-free loan is received in consideration or as a quid pro quo for some or other revenue supply.

[发布机构] Stellenbosch University