The interpretation of the term “beneficial ownership” in South Africa for international tax purposes

M.Com. (South African and International Taxation)The term “beneficial ownership” was first included in Articles 10, 11 and 12 of the OECD’s Model Tax Convention in 1977 but it is not defined in the OECD’s Model Tax Convention and most countries do not have a definition in their domestic tax laws. There is a need for South African revenue authorities to consider how the concept of beneficial ownership will be applied in an international tax context especially with the introduction of withholding tax on dividends and the pending implementation of withholding tax on interest. A review and analysis of interpretation principles from the Vienna Convention, the OECD, selected countries and experts revealed that there are common interpretation principles which are being applied consistently when determining beneficial ownership for international tax purposes. When applied against relevant, recent international tax case law, it was interesting to note that these common interpretation principles did not consistently yield results which were in line with the courts’ judgements. The common interpretation principles represent attributes which can be used to determine beneficial ownership in international tax and could prove useful to South African revenue authorities in constructing a domestic definition for “beneficial ownership.