An analysis of the South African GAAR: exploring Australian judicial experience

Abstract

In general, taxpayers do not like to pay taxes and will try to find and utilise loopholes in tax legislation in order to avoid or reduce the liability of paying taxes. Tax authorities’ response to this is to design anti-avoidance measures. One of these anti-avoidance measures includes the general anti-avoidance rules. The South African legislature introduced the general anti-avoidance rules in the form of section 90 in 1941 for the first time, which was subsequently amended to section 103 and later amended with effect from 2 November 2006 to the current section 80A to 80L. The current general anti-avoidance rules have been in existence for more than a decade, but have not been tested before the courts as yet. The current general anti-avoidance regime was reproached for containing weaknesses and uncertainties as it is a complex piece of legislation. In many ways, the South African and Australian general anti-avoidance rules found in section 80A to 80L in Part IIA of the Income Tax Act and found in Part IVA of the Income Tax Assessment Act respectively are similar. The decisions of recent Australian case law relating to the general anti-avoidance regime was cause for concern among the Australian tax community, as the Assistant Treasurer proclaimed that the Australian Government will protect the integrity of the Australian tax system by making amendments to the general anti-avoidance regime as a direct response to the loss of recent Part IVA court cases. Since the South African general anti-avoidance rules have uncertainties regarding the interpretation and application and have not yet been applied on a practical basis in the courts, this research analyses the South African general anti-avoidance rules with reference to the facts of selected Australian case law which spurred on the legislative changes. This analysis demonstrates that the current South African general anti-avoidance rules have weaknesses and uncertainties and are not an effective deterrent to curb tax avoidance.