An analysis of the judicial approach to the interpretation of tax avoidance legislation in South Africa

Tax evasion and avoidance costs South Africa billions of rand each year. This treatise examines the judiciary’s view and/or attitude to the dividing line between legitimate and illegitimate tax avoidance. It seeks to find out how South African courts have ultimately dealt with the old GAAR section 103(1). The treatise seeks to establish the role that the judiciary plays in tax avoidance and whether it has been pro-fiscus or pro-taxpayer in its deliberations of tax avoidance cases. The treatise focuses specifically on the judicial responses to the General Anti-avoidance Rule Section 103 of the Income Tax Act No. 58 of 1962. In order to show the judicial approaches and/or responses to tax avoidance in South Africa, a selection of income tax cases have been used to illustrate how the judges have interpreted the GAAR and whether they have been sympathetic to the tax payer or to the fiscus. The cases used in this study stem from the old GAAR section 103. There have not been important cases dealing with the new GAAR section 80A to 80L of the Income Tax Act. In the final analysis of this research it would seem that the effectiveness and scope of the GAAR depends ultimately on its interpretation by the courts. Many of the cases that have been decided under section 103 (1) have provided disappointing outcomes for SARS. However it is noteworthy that the courts which were previously taking a restrictive approach and were pro-taxpayer in their deliberations are beginning to take a different approach and are gallant in their interpretation of the GAAR. Judges are slowly abandoning the long standing judicial approach which was that taxpayers are entitled to arrange their affairs in any legal way in order to minimize their tax and are going further and examining the real substance and purpose of the transactions entered into by taxpayers as opposed to the form of the transactions. The Supreme Court of Appeal has now set a precedent which goes deeper and examines the true intention of parties in entering into transactions and does not tie itself to labels that parties have attached to their transactions. This recent judicial attitude and zeal exhibited by the courts will without a doubt hinder tax avoidance activity and strengthen the effectiveness and scope of the new GAAR sections 80A to 80L