'n Ondersoek na die benadering vir die toetsing van die besigheidsdoelwittoets in die normaliteitsvereiste van artikel 103(1) van die Inkomstebelastingwet, no 58 van 1962, soos gewysig gedurende 1996

[摘要] ENGLISH ABSTRACT: The Katz Commission made recommendations in the Third Interim Report onthe general anti-avoidance legislation in section 103 of the Income Tax Act.The following recommendations were incorporated in section 103 of theIncome Tax Act with effect from 3 June 1996. Subsection (b)(i) of section103(1) was amended in order to distinguish between transactions in thecontext of business and other transactions, when the normality of the mannerin which a transaction was carried out, is determined. An additionalrequirement, the so-called business purpose test, is laid down for transactionsin the context of business. This business purpose test is contained insubsection (b)(i)(aa) of section 103(1) and requires that transactions in thecontext of business must be carried out in a manner normally employed forbona fide business purposes, other than the obtaining of a tax benefit.Subsection (6) was incorporated in section 103. This subsection prohibits theCommissioner from excercising his discretion in terms of section 89quat(3)and (3A) of the Income Tax Act, if section 103( 1) was applied to determine theliability for any tax imposed by the Income Tax Act.The purpose of this study was dual:• Firstly, it was to determine to what extent the previous approach laid downby South African case-law for the testing of normality in the case oppossible tax avoidance, was expanded for the new business purposerequirement in section 103(1) of the Income Tax Act.• Secondly, the fairness and constitutionality of subsection (6) wereexamined.The approach laid down by South African case-law for applying the normalitytest in section 103(1)(b) before the 1996 amendment, as well as theinterpretation of the business purpose test to the letter of the Act, was examined. This research was used to determine whether the previousapproach for the application of the previous normality requirement needed tobe expanded to accommodate the new business purpose test. The Englishapproach to control tax avoidance was investigated in order to identify anapproach which comprise the application of a business purpose test whichcan provide guidelines for the application of the new business purpose test.Recent case-law on tax avoidance was studied to determine whether theprevious approach for applying the normality test was expanded to include theapplication of English law principles in the application of the business purposetest.The conclusion arrived at in this study is that the previous approach toapplying the normality requirement was expanded. The business purpose testfor transactions in the context of business, eliminates the possibility oftransactions being regarded as normal, merely because it is frequentlyemployed in the business community to avoid tax.The judgement in ITC 1606 ((CAPE 1995) 58 SATC 328) materially expandedthe previous approach in applying the normality requirement. It is concludedthat the principle laid down in ITC 1606, leads to the application of the Englishcase, Furniss v Dawson, in the business purpose test of the normalityrequirement of section 103(1), in respect of a series of transactions.The Constitution of the Republic of South Africa (1996) and the opinions of theKatz Commission and tax specialists were studied to assess the fairness andconstitutionality of subsection (6). The author concluded that subsection (6) isunfair and in contravention of the Constitution.

[发布机构] Stellenbosch University