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Page 1 of 188 Page 1 TAXATION IMPLICATIONS ARISING FROM Page 1 of 188 TAXATION IMPLICATIONS ARISING FROM SOUTH AFRICAN RESIDENTS OWNING OR HAVING A TAX INTEREST IN FIXED PROPERTY IN GREECE by ROYDEN BRYAN WHITFIELD Submitted in fulfilment of the requirements for the degree of MAGISTER TECHNOLOGIAE in the subject of TAXATION at the UNIVERSITY OF SOUTH AFRICA Supervisors: Prof B de Clercq and Prof JS Wilcocks JANUARY 2008 Royden B Whitfield Student Number 06635989 Page 1 Page 2 of 188 ABSTRACT __________________________________________________________ South African residents who own or have financed fixed property in Greece have to comply with the Income Tax and Estate Duty Acts in South Africa, as well as the relevant taxation laws in Greece. An amnesty in terms of the Exchange Control and Amendment of Taxation Laws Act gave South Africans with fixed property in Greece an opportunity to voluntarily declare their fixed properties and to regularise their foreign assets and tax affairs without the fear of criminal or civil prosecution. These residents are subject to the formalities of the various forms of taxation in both South Africa and Greece. The practical application of the various taxation provisions is extremely complex and difficult to identify and understand, and all too often affected residents are not even aware that they apply to them. The consequences of non- compliance can be extremely severe for resident taxpayers. A detailed case study, being a flexible research strategy, has been combined with an extended literary review to formalise the research design of this study. The case study used was not randomly selected but was identified from a sample of 20 Greek families (78 respondents) resident in South Africa and involved a typical “extended” family of Greek descent resident in South Africa who owned or had a tax interest in fixed property in Greece. Royden B Whitfield Student Number 06635989 Page 2 Page 3 of 188 There are three crucial factors that are the cornerstone of this study and are the initial determining factors that must be considered when identifying the taxation and estate duty implications of owning or having a “tax interest” in fixed property in Greece. They also have a significant impact on the future planning opportunities that may exist and are as follows: ¾ The problem starts and finishes with the definition of “resident” and it is imperative to firstly determine whether a taxpayer is in fact “resident” for the purposes of taxation and estate duty in South Africa. ¾ Once it has been determined that a person is resident for taxation one needs to ascertain whether the taxpayer owns fixed property directly or has a “tax interest” in fixed property situated in Greece. ¾ Finally, it is essential to determine how the fixed property or interest in the fixed property was acquired. South African resident taxpayers (being non-residents in Greece) are heavily taxed on their gross rental proceeds in Greece owing to the non-deductibility of expenses. The limitation of credits in South Africa on income tax paid in Greece on rentals from Greek fixed property leads to the effective tax rate in South Africa being substantially higher than the maximum marginal rate of taxation. There is also a risk of double taxation on donations and the risk of paying as much as double the estate duty rate in South Africa on Greek fixed property. The limitation of Royden B Whitfield Student Number 06635989 Page 3 Page 4 of 188 credits in South Africa on estate duty paid in Greece on Greek fixed property leads to an effective estate duty rate in South Africa that is substantially higher than 20%. However, there are exemptions and deductions for donations tax and estate duty that apply to fixed property in Greece and there are planning opportunities for reducing taxation and estate duty in both South Africa and Greece. Non-disclosure of fixed property held in Greece can have far-reaching implications for South African residents, with SARS having extremely effective sections allowing them to raise estimated assessments on non-conforming or ignorant taxpayers. The aim of this study is to investigate and identify the various forms of taxation that affect fixed-property ownership by a South African resident in South Africa and to a lesser extent Greece, and then provide a focused and detailed analysis of the relevant legislation in both countries. It will present flowchart summaries of all the relevant aspects set out in a simple and precise format with links back to the relevant paragraphs in the body of the document. This study also provides suggestions for the application of this research to affected residents in order to avoid double taxation. Royden B Whitfield Student Number 06635989 Page 4 Page 5 of 188 ACKNOWLEDGEMENTS __________________________________________________________ I wish to express my sincere gratitude to all those who have assisted me in the completion of this study and dissertation. In particular I would like to thank the following: ¾ Professor B de Clercq and Professor JS Wilcocks, my supervisors, for their guidance, encouragement, advice and motivation. ¾ My entire family, especially my wife Kathy and our sons, for their patience, encouragement, unforgettable support and assistance they provided throughout the process of this study. ¾ All my friends, but especially Chris Adendorff, for their continued motivation and support. Royden B Whitfield Student Number 06635989 Page 5 Page 6 of 188 TABLE OF CONTENTS __________________________________________________________ Table of Contents ABSTRACT................................................................................................................................... 2 ACKNOWLEDGEMENTS .......................................................................................................... 5 TABLE OF CONTENTS ............................................................................................................. 6 CHAPTER 1................................................................................................................................11 INTRODUCTION, BACKGROUND AND DEMARCATION OF THE STUDY................. 11 1.1 INTRODUCTION ............................................................................................................. 11 1.2 AIMS OF THE RESEARCH........................................................................................... 18 1.3 DELINEATION AND LIMITATIONS ............................................................................. 19 1.4 RESEARCH METHOD ................................................................................................... 21 Procedure – South Africa.................................................................................................. 21 Procedure – Greece .......................................................................................................... 22 Case study........................................................................................................................... 23 Data collection procedures ............................................................................................... 25 Using interviews for data collection................................................................................. 25 Conducting interviews ....................................................................................................... 27 Reliability and validity ........................................................................................................ 28 1.5 THE ACADEMIC VALUE AND PRACTICAL RELEVANCE..................................... 30 Academic value .................................................................................................................. 30 Practical relevance............................................................................................................. 30 1.6 CHAPTER OVERVIEW .................................................................................................. 31 1.7 CONCLUSION ................................................................................................................ 33 Royden B Whitfield Student Number 06635989 Page 6 Page 7 of 188 CHAPTER 2................................................................................................................................34 SPECIFICS OF THE CASE STUDY....................................................................................... 34 2.1 BACKGROUND ............................................................................................................... 34 2.2 DETAILS OF THE FAMILY............................................................................................ 35 2.3 PROCEDURE .................................................................................................................. 37 2.4 IMPLICATIONS IN SOUTH AFRICA............................................................................ 39 2.5 IMPLICATIONS IN GREECE......................................................................................... 40 2.6 INTERESTING FACTS THAT EMERGED WHEN IDENTIFYING THE CASE STUDY..................................................................................................................................... 42 2.7 CONCLUSION ................................................................................................................. 43 CHAPTER 3................................................................................................................................44 TAXATION AND ESTATE DUTY IMPLICATIONS IN
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