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The Contribution of Justice Mm Corbett to the Development of the Law of Taxation in South Africa

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The Contribution of Justice Mm Corbett to the Development of the Law of Taxation in South Africa THE CONTRIBUTION OF JUSTICE MM CORBETT TO THE DEVELOPMENT OF THE LAW OF TAXATION IN SOUTH AFRICA by WESSEL JOHANNES VAN DER WALT Submitted in fulfilment of the requirements for the degree of MASTER OF ACCOUNTING SCIENCES at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: PROFESSOR G K GOLDSWAIN September 2007 CONTENTS Page Summary of Conclusions i - iv Declaration v 1. The context, delineation, method and structure of the investigation 1.1 Tax legislation requires constant interpretation, revision and refinement 1 1.2 Delineation of the area of research 3 1.3 The purpose of this research project 3 1.4 Research method 5 1.5 The importance of this research 6 1.6 The structure of this research report 7 2. An overview of Justice Corbett’s life 2.1 Family history 10 2.2 Schooling and the Second World War 11 2.3 Studies at the Universities of Cape Town and Cambridge 14 2.4 Justice Corbett’s period at the Bar 15 2.5 Justice Corbett’s period on the Bench 17 2.6 Tributes to Justice Corbett 23 2.7 Conclusion 27 3. Jurisprudence in South African Tax Law 3.1 Introduction 29 3.2 Theories on Jurisprudence 30 3.2.1 Law-enforcement Theory 31 3.2.2 The Rule of Law as Procedural Justice 32 3.2.3 Dicey’s Approach: The Protection of Basic Rights 33 3.2.4 The Rule of Law as justice in the Substantive sense 33 3.2.5 Conclusion 34 4. Tax Avoidance 4.1 Introduction 36 4.2 Substance over form principle in tax law 37 4.2.1 Application of Substance over Form in the U.K. 37 4.2.2 Conclusion of Substance over Form Principle 41 4.3 General anti avoidance rule – avoidance of estate duty - SIR v Gallagher 42 4.3.1 Application of the principles derived from the Gallagher case 46 4.4 Section 103(1) applied to loans to shareholders From a company - CIR v Louw 50 4.4.1 Application of the “test of normality” in the Louw case 52 4.4.2 Conclusion regarding Louw 55 5. Gross income 5.1 Introduction 62 5.1.1 Receipts in a realisation company or trust are capital in nature - JM Malone Trust v SIR 64 5.1.2 A company is not independent from its shareholders when the nature of a transaction has to be determined - Elandsheuwel Farming (Edms ) Bpk v SIR 67 5.1.2.1 Application of the Elandsheuwel case 70 5.1.2.2 Lifting of the corporate veil as applied in the United Kingdom 76 5.1.2.3 Lifting of the corporate veil as applied in New Zealand 77 5.1.2.4 Conclusion on Elandsheuwel 80 5.1.3 Intention on the sale of land - SIR v Rile Investments (Pty) Ltd 86 5.1.3.1 Application of the principles of Rile Investments 87 5.1.3.2 Conclusion on Rile Investments 88 5.2 Apportionment between capital and revenue income Tuck v CIR 89 5.2.1 Application of the apportionment principle in Tuck 91 5.2.2 Conclusion on the principle of apportionment in Tuck 94 5.3 Source of Income Essential Sterolin Products (Pty) Ltd v CIR 95 5.3.1. Application of Essential Sterolin Products principle 98 5.3.2 Conclusion on Source of Income 100 5.4 Conclusion 100 6. General Deductions 6.1 Introduction 102 6.2 Apportionment of expenses 103 6.2.1 Background 103 6.2.2 Apportionment in the case of dividend stripping - CIR v Nemojim (Pty) Ltd 107 6.2.3 Application of the apportionment principle developed in Nemojim 108 6.2.4 Application of the general deduction formula as applied in Nemojim 109 6.3 The lack of a profit motive - De Beers Holdings (Pty) Ltd v CIR 112 6.3.1 References to the “profit motive” as discussed in the De Beers Holdings judgement 114 6.3.2 Application of the definition of stock in De Beers Holdings 119 6.3.3 Conclusion on De Beers Holdings 121 6.4 The close connection between expenses incurred and relevant income earning activities - CIR v Standard Bank of SA Ltd 122 6.4.1 Application of the Standard Bank case 124 6.5 When is apportionment appropriate – CIR v Pick ‘n Pay Wholesalers (Pty) Ltd 126 6.5.1 Conclusions 6.5.1.1 Conclusion on apportionment 130 6.5.1.2 Conclusion on the deductibility of losses 131 6.6 Incurral of costs 133 6.6.1 Expense determined after year end - Edgars Stores Ltd v CIR 133 6.6.2 Application of the Edgars Stores’ principle on incurral 135 6.6.3 Expense determined after year end - CIR v Golden Dumps (Pty) Ltd 137 6.6.4 Conclusion on incurrals 139 6.7 Conclusion 141 7. Special deductions – Capital allowances 7.1 Introduction 144 7.2 Definition of Process of Manufacture - SIR v Safranmark (Pty) Ltd 145 7.2.1 Application of the Safranmark definition of a “Process of Manufacture” 147 7.2.2 Conclusion on Safranmark 151 7.3 Definition of “Plant” - Blue Circle Cement Ltd v CIR 152 7.3.1 Application of the definition of “plant” as espoused in Blue Circle 156 7.3.2 The definition of “plant” in the United Kingdom 158 7.3.3 The definition of “plant” in Australia 161 7.3.4 Conclusion on “plant” and “a process of manufacture” 163 7.4 Deductibility of Foreign Exchange Losses CIR v Felix Schuh SA (Pty) Ltd 165 7.4.1. Conclusion on the treatment of foreign exchange losses 166 7.5 Conclusion 167 8. Hierarchy of Double Tax agreements in relation to the Act. 8.1 Introduction 169 8.2 The DTA are part of the Income Tax Act - SIR v Downing 170 8.2.1 Application of the Downing case 172 8.3 Conclusion 173 9. The Principle of Legitimate Expectation 9.1 Introduction 175 9.2 The principle of legitimate expectation 176 9.3 The principle of legitimate expectation in English Law 177 9.4 Application of the principle of legitimate expectation in South African tax law 179 9.5 The Promotion of Administrative Justice Act 184 9.6 Conclusion 186 9.7 The New Constitution 186 9.7.1 The Bill of Rights and its influence on taxpayers’ rights 188 9.7.2 Section 74 (3) as it then was prior to amendment of the Income Tax Act 189 9.8 Conclusion on the new Constitution 191 10. Conclusion on Justice Corbett’s contribution to the South African Tax Law 10.1 Introduction 193 10.2 Brief evaluation of Justice Corbett’s contribution to South African law 194 10.3 Knowledge and experience to interpret law 195 10.4 Independence of the Court 200 10.5 Substance over form 203 10.6 International jurisprudence 205 10.7 The Constitution 207 10.8 Final words on Justice Corbett’s contribution to the development of law of taxation in South Africa 209 11. Bibliography 211 12 Appendix A : Tax Cases in which Justice Corbett was involved 214 13 Appendix B : Judgements of Justice Corbett cited 218 Declaration by Candidate I declare that the dissertation entitled “The Contribution of Justice MM Corbett to the Development of the Law of Taxation in South Africa” is my own work and that all the sources that I have used or quoted have been indicated and acknowledged by means of complete references. …………………………. ………………. W J van der Walt Date Student no: 0654 922 5 Declaration by Supervisor I hereby grant permission for Wessel Johannes van der Walt to submit his dissertation entitled “The Contribution of Justice Mm Corbett to the Development of the Law of Taxation in South Africa” for examination purposes. ……………………………………………….. ………………… Supervisor: Professor GK Goldswain Date Department Applied Accountancy University of South Africa SUMMARY OF CONCLUSIONS 1. Background Justice MM Corbett was appointed as a judge in 1963 and was appointed a judge of appeal in 1974. He became Chief Justice of South Africa in November 1988 and he retired in September 1993. During this thirty year career on the bench he has made a substantial contribution to the development of the law in South Africa. This was especially so in the field of the law of taxation. 2. Interpretation of the Act: Justice Corbett was well known for his formative style which suited the tax cases over which he presided. A typical example of a case in which the interpretation of a section of the Act is required, would be to establish whether a particular taxpayer could be classified as a “manufacturer” in order to qualify for certain tax incentives that are applicable to manufacturers. Such an interpretation was required in Safranmark1, in which Justice Corbett, in his dissenting minority judgement, gave an excellent interpretation of the meaning of the word “manufacturing”. His interpretation, it is submitted, gives an accurate definition of the normal meaning of the word “manufacture”. He was of the opinion that it was up to the legislature to amend the section to include a wider meaning to the section. They later did so. _____________________________________________________________________ 1SIR v Safranmark (Pty) Ltd, 43 SATC 235 Where sections are vague, outdated or incomplete, the judgements that are delivered may cause amendments to be made to the Act. A major change to a leading section of the Act was the amendment of section 23(g) to exclude the wording “wholly and exclusively”. This amendment occurred shortly after the judgement was delivered in the Solaglass case2, which concerned the strict application of section 23(g).
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