| Summary: | This dissertation analyses the nature (capital or revenue) of the proceeds arising from the use of short positions in South African hedge fund fundamental paired trades. Hedge funds, which typically avail themselves of an array of alternative investment strategies such as short selling in addition to the traditional asset classes, were recently brought into the South African investment regulatory net. This was achieved by classifying regulated hedge funds as a separate category of collective investment scheme in terms of the CISCA. This categorisation brought regulated hedge funds into the ambit of section 25BA of the Income Tax Act which carries an important distinction between amounts of a capital nature and amounts of a revenue nature. Given that hedge funds may use short positions for both profit-seeking and risk-mitigation purposes, the resulting proceeds from short sales could be capital or revenue in nature from a tax perspective based on the surrounding facts of the trade. The onus of discharging the proof that the proceeds resulting from a short sale are capital in nature is significant. The South African case law emphasises the importance of applying the various principles to the specific facts of the case. The importance of the dominant intention of the trade is highlighted, given the potentially competing purposes of profit-seeking and risk-mitigation present. Factors that should be analysed in such a scenario include the overall portfolio positioning, the size of the long and short positions relative to each other, the degree of specificity of the risk that the short position purports to hedge against, the manner of re-investment of the short sale proceeds, the level of trading activity in the hedge fund, the level of short positions in the hedge fund, the absolute sizes of the long and short positions in the context of the overall portfolio, the exposure of the hedge fund to the long position after the close out of the short position, the manner of close out of the short position and the holding period of the short position. While the analysis reveals factors that may be indicative of capital treatment, the classification of short sale proceeds as capital or revenue in nature remains a challenging task to undertake due to the potentially wide variety of facts and circumstances and the potential for undesirable consequences should an incorrect classification be made. Consequently, improved clarity through the provision of de jure guidance as to the nature of short sale proceeds would be welcome.
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