| Summary: | South Africa has a residence based system of taxation in which South African tax residents are taxed on their worldwide income. A company or other artificial person is regarded as a South African resident for tax purposes if it is incorporated, established or formed in South Africa or if its ‗effective management‘ is located in South Africa. Where a tax treaty determines in terms of its tie breaker rule that an artificial person is not resident in South Africa for treaty purposes, the company will also not be regarded as a tax resident in terms of South African domestic law. Treaties to which South Africa is party will often use the effective management‘ as the tie-breaker where a person other than an individual is resident in both Contracting states in terms of the respective states‘ domestic laws. The tests of ‗incorporation, established and formed‘ provide simplicity and certainty to governments but are easily open to manipulation by taxpayers. Therefore, the legislature found it necessary to incorporate effective management‘ as a test for residency into the Act. Effective management‘ is a substance over form concept which be described as a function which embodies the periodic, most senior executive management functions, which are required for the management of the affairs of the entity as whole. The test of effective management‘ by its very nature is concerned with where the crucial decisions are made in order to make a business function. To identify the location of effective management‘ it is necessary to enquire who calls the shots‘ in the context of the management of the company as opposed to who controls the company notwithstanding that there may in certain instances be overlap between the two functions. It is submitted that any person who, on the face of it seems unconnected to a company, could effectively manage‘ a company if that person is, in substance, responsible for the most senior executive management functions of the company. The discussion paper issued by SARS recognises the principal difficulties experienced with its current interpretation of the concept and makes valuable points, concessions and recommendations. It also recognised that the 'calling of shots' by the most senior executive is a critical marker of effective management‘ and that control of a company is irrelevant in determining effective management‘. To determine who effectively manages‘ a company each situation would have to be analysed on its own as it is not possible to create a definitive rule on the concept. In many cases the nature of the entity and its modus operandi would have to be taken into account to determine effective management.
|
|---|
