An analysis of the factors that influence the South African VAT treatment of corporate social responsibility expenditure

Abstract

Corporate Social Responsibility (“CSR”) as a business approach and corporate strategy has recently been added to the agenda of big and small businesses. The Johannesburg Stock Exchange Limited (“JSE”) requires of listed companies to disclose in their annual financial statements whether they have complied with King III (2009) or to explain as to why they have not. King III (2009) lays down the principle that a company is not only a profit making institution, but should also be a responsible citizen of the country. Companies are therefore moving toward becoming corporate citizens. Corporate citizenship is about integrating corporate responsibility into core business strategies, while at the same time adding value to shareholders and stakeholders. These corporate citizens are expending more and more money on their CSR objectives in the form of CSR expenditure. The purpose of this research study is to provide an analysis of the factors that influence the South African value-added tax (“VAT”) treatment of CSR expenditure. In general, the principles in the Warner Lambert (2003) case can be applied to such expenditure under the Value-Added Tax Act (89 of 1991) (“VAT Act”), in the sense that the expense being incurred for income tax purposes in the production of income will normally also be incurred “in the course or furtherance of an enterprise” for VAT purposes. The methodology used to meet the set objectives was that of legal interpretative research, specifically doctrinal. It was used to identify how the income tax and VAT legislation is applied on overhead expenditure, specifically CSR expenditure. The principles in the South African VAT legislation, specifically relating to the input tax deduction, were compared to the international VAT system to determine whether principles are similar and foreign judgements therefore reliable. A critical analysis was thereafter performed on South African and international case law, specifically European Court Judgements (“ECJ”) judgements, relating to the deductibility of input tax. The findings are that CSR expenditure may be seen as an overhead cost to a business and furthermore as a tool with which financial benefits can be created for a company if utilised correctly. It was determined that the factors that influence the South African VAT treatment of CSR expenditure were whether a supply made for no consideration, specifically CSR expenditure, was made in the course or furtherance of an enterprise and whether the CSR expenditure incurred could be proven to have a direct or immediate link to the making of taxable supplies in the course or furtherance of the vendor’s enterprise.