South Africa Case Law

X v Commissioner For The South African Revenue Service (14218)

X v Commissioner For The South African Revenue Service (14218) [2018] ZATC 9; 80 SATC 472 (9 March 2018)

Court

Tax Court

Case number

14218

Judge

Allie

The court held that the source of the disputed income was the employment contract entered into and exercised in South Africa. Although the appellant rendered services outside South Africa for 62 days, he did so as an employee of the South African branch of ABC Incorporated, which is legally recognized for tax purposes. The remuneration was paid by the South African employer, and the contract was governed by South African law. The Double Taxation Agreement does not override the domestic determination of the source of income, and the employment was exercised in substance in South Africa. The ap…

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• Double Taxation Agreement
• Source Of Income
• Employment Exercised
• Resident Definition
• Tax Exemption

Krok v CSARS (20230/2014, 20232/2014)

Krok v CSARS (20230/2014, 20232/2014) [2015] ZASCA 107; 2015 (6) SA 317 (SCA); [2015] 4 All SA 131 (SCA); 78 SATC 1 (20 August 2015)

Court

Supreme Court of Appeal

Case number

20230/2014, 20232/2014

Judges

Maya, Mhlantla, Wallis, Dambuza, Meyer

The Supreme Court of Appeal held that the Protocol amending the Double Taxation Agreement between South Africa and Australia, and specifically article 25A, applies to taxes of every kind and description for the purposes of mutual assistance in tax collection, without temporal limitation. The court found that the reference to 'taxes referred to in article 2' includes article 2.4, which expressly covers taxes of every kind and description for the purposes of articles 25 and 25A. The court rejected the appellants' argument that article 13(2)(a)(ii) imposed a temporal limitation, finding that art…

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• Double Taxation Agreement
• Preservation Order
• Tax Collection Assistance
• Exchange Control Regulations
• Beneficial Ownership
• International Tax Enforcement

AB LLC and BD Holdings LLC v Commissioner of the South African Revenue Services (13276)

AB LLC and BD Holdings LLC v Commissioner of the South African Revenue Services (13276) [2015] ZATC 2; 77 SATC 349 (15 May 2015)

Court

Tax Court

Case number

13276

Judges

Vally, Peter Vundla, Gavin Beckwith

The court held that Article 5(2)(k) of the DTA between South Africa and the USA is an integral part of the definition of 'permanent establishment' and, once its requirements are met, there is no need for a separate enquiry under Article 5(1). The appellant provided consultancy services in South Africa through its employees for a period exceeding 183 days, satisfying Article 5(2)(k). Even if Article 5(1) were to be considered separately, the appellant had a fixed place of business at X's boardroom, meeting the requirements for a permanent establishment. The court further found that the computa…

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• Double Taxation Agreement
• Permanent Establishment
• Income Tax Act
• Interpretation Of International Treaties
• Additional Tax Penalty
• Interest On Tax Default

Commissioner for the South African Revenue Service v Van Kets (13446/2011)

Commissioner for the South African Revenue Service v Van Kets (13446/2011) [2011] ZAWCHC 435; 2012 (3) SA 399 (WCC); [2012] 2 All SA 413 (WCC); 74 SATC 9 (22 November 2011)

Court

Western Cape High Court, Cape Town

Case number

13446/2011

Judge

D M Davis

The High Court held that South Africa’s Australia tax treaty allows SARS to compel information from a South African resident for treaty-based exchange of information.

• Double Taxation Agreement
• Exchange Of Information
• Income Tax Act Interpretation
• Treaty Domestication
• Statutory Interpretation
• Double-taxation-agreement

Grundlingh v Commissioner for the South African Revenue Services (A33/2008)

Grundlingh v Commissioner for the South African Revenue Services (A33/2008) [2009] ZAFSHC 88; 72 SATC 1 (17 September 2009)

Court

Free State High Court, Bloemfontein

Case number

A33/2008

Judges

J Y Claasen, S Ebrahim, A F Jordaan

The court held that a Lesotho partnership was not a taxable entity for DTA purposes, so the appellant’s share of profits remained taxable in South Africa.

• Double Taxation Agreement
• Taxation Of Partnerships
• Residence Based Taxation
• Income Tax Act
• Foreign Income
• Tax Credit Mechanism

Volkswagen of South Africa (Pty) Ltd v Commissioner South African Revenue Service (24201/2007)

Volkswagen of South Africa (Pty) Ltd v Commissioner South African Revenue Service (24201/2007) [2008] ZAGPHC 112; 70 SATC 195 (25 April 2008)

Court

High Courts - Gauteng

Case number

24201/2007

Judge

W L Seriti

The High Court held that South Africa’s secondary tax on companies was not a tax on dividends under the South Africa-Germany DTA, so the refund claim failed.

• Secondary Tax On Companies
• Double Taxation Agreement
• Refund Of Overpaid Tax
• Unjustified Enrichment
• Interpretation Of Tax Statutes
• Secondary-tax-on-companies

Cohen Brothers Furniture (Pty) Ltd. and Another v Minister of Finance and Others (615/95)

Cohen Brothers Furniture (Pty) Ltd. and Another v Minister of Finance and Others (615/95) [1998] ZASCA 15; 1998 (2) SA 1128 (SCA); [1998] 2 All SA 163 (A) (23 March 1998)

Court

Supreme Court of Appeal

Case number

615/95

Judges

L T C Harms, Mahomed, Eksteen, Scott, Zulman

The Supreme Court of Appeal held that retrospective Ciskei tax amendments validly applied withholding tax to dividends paid to an external-management company, so no refund was due.

• Withholding Tax
• Retrospective Legislation
• Double Taxation Agreement
• Statutory Interpretation
• Withholding-tax
• Retrospective-legislation