Substance over form in the context of general anti-avoidance provisions in the income tax act

The provisions of GAAR are contained in sections 80A to 80L of the Income Tax Act 58 of 1962. The main objective of the GAAR is to prohibit impermissible tax avoidance. One of the main purposes of the GAAR is to identify the true nature of a transaction and therefore the provisions of the GAAR focus on the substance of the transaction rather than its form. There can be however difficulty in determining the true substance of a transaction and the intention of the taxpayer when applying the substance over form principle. The substance over form principle is not defined in the GAAR, therefore it is critical that an understanding of this principle is obtained. The purpose of the research was to critically analyse the principle of substance over form in the context of the GAAR. This analysis assessed whether the GAAR is able to effectively identify substance over form in complex tax avoidance arrangements that have been formulated by the taxpayer. The GAAR has provided the Commissioner which tests to apply in order to identify the substance of the transaction over its form and its seeks to remove the façade that is created by tax avoidance schemes however it was submitted that there were areas of the GAAR that require improvement in order to ensure transparency and consistent application of the GAAR. The research also analysed the tests applied by the courts in determining substance over form in different instances. It was determined that the courts apply the abnormality test and the lack of commercial purpose test when determining the substance of a transaction. A contrast of the principles applied the GAAR and the courts was also performed in order to ascertain whether there are any similarities and/or differences when determining the substance of a transaction. It was determined that the principles of the GAAR are not vastly different to the principles applied by the case law when determining substance of a transaction. In order to for the GAAR to be effective in determining substance of a transaction, it will have to be used with reference to case law