A critical examination of the income tax provisions relating to the taxation of foreign income of residents as defined

摘要

The Budget speech of 23 February 2000 by the Minister of Finance marked the introduction of significant changes to the income tax system of the Republic of South Africa (Republic). A residence-based system of taxation (RBT) was adopted for years of assessment commencing on or after 1 January 2001 and Capital Gains Tax (CGT) was introduced with effect from 1 October 2001. According to the 2000 Budget Review a move to a residence-based system would significantly broaden the tax base, limit opportunities for tax arbitrage and bring the tax system in line with generally accepted international practice. The relaxation of exchange controls for South African residents with effect from 1 July 1997 made it possible for residents to invest limited funds offshore. The Fifth Interim Report of the Katz Commission suggested that if exchange controls were relaxed, the taxation of active income should remain on a source basis, but that passive income should be taxed on a residence basis. As a result deemed source rules in the form of section 9C and 9D were introduced into the Act with effect from 1 July 1997 and applied to “investment income” as defined. Section 9C taxed investment income of both residents and non-residents (from activities carried on by a permanent establishment in the Republic). Section 9D taxed investment income of controlled foreign entities and investment income arising from donations, settlements or other dispositions in the hands of residents. The taxation of foreign dividends with effect from 23 February 2000 as a first phase in the move to a residence based system, lead to the introduction of s 9E. Foreign Dividends were taxed in the hands of residents subject to certain exemptions. The basic interest exemption was extended to foreign dividends. Section 6quat was revised to extend the rebate to foreign dividends and profits of a company from which dividends were declared. Section 9D was amended to cater for foreign dividends received by or accrued to controlled foreign entities. The implementation of a full residence-based system of taxation with effect from years of assessment commencing on or after 1 January 2001 required amendments to various sections of the Income Tax Act as well as the introduction of new sections. A residence minus system was adopted which means that residents as defined are now taxed on their world- wide income with certain exemptions. Non-residents are taxed on their income from sources within or deemed to be within the Republic. The provisions relating to the taxation of foreign income of residents is complex; adding to the complexity is the fact that several changes have already been made to these provisions since the inception of the world-wide basis of taxation. The provisions must also be interpreted against the background of any double taxation agreement (DTA) between the Republic and the relevant foreign country as the applicable DTA may override the Republic domestic legislation. For purposes of this treatise the amending Acts enacted up to the end of December 2003 are taken into account. Hardly five years after the Katz commission of inquiry into the tax structure concluded that RBT and CGT were too complicated to be administered by SARS, the implementation of RBT and CGT were announced in the 2000 Budget. A detailed examination of the provisions relating to foreign income of residents as defined was undertaken. Interpretational issues to be clarified by legislation and certain planning issues are highlighted. It is essential to understand and carefully consider the Republic tax laws and the relevant double taxation agreements, for the successful application of the provisions. Careful planning before concluding transactions is of vital importance in order to avoid or minimize any unwanted tax consequences resulting from the RBT and CGT provisions.