Rules for deals across borders

Published Jul 15, 2000

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This is the last week that we deal with part 14 of the tax return. We will

cover part 14.8, which is not likely to affect an ordinary taxpayer such as

you and me.

It is intended for sophisticated taxpayers who have dealings with

international partners affecting commercial transactions.

When goods and services are supplied or acquired in terms of an

international agreement and the buyer is somehow connected to the supplier

and the price of those goods/services is not reasonable (ie too low or too

high in the circumstances), the Receiver has power to adjust those prices

in determining your tax exposure.

Let`s look at an example. You have a business manufacturing clothes. It

costs you R500 to produce a certain type of a suit which you sell for R800

but you export it to your brother`s business in Kenya for R600.

This is

clearly not an arm`s length transaction because your special relationship

with your ``partner`` (in this case your brother), influences the price that

you have set for that partner.

The effect is that the profit that you declare to the Receiver here is R100

but would have been R300 if you sold those clothes to someone unconnected

to you. The Receiver will simply adjust the profit to R300 and tax that

R300 accordingly.

Another anti-avoidance section deals with situations where your foreign

partner gives you a loan which the Receiver feels is too excessive in

relation to the capital that has been invested in your business. The

problem for the Receiver is that the interest expense that you incur will

be too high and will reduce your tax burden.

Let`s say you have invested R100 000 in your business and you arrange a

loan with your foreign partner of R600 000. The Receiver will take a view

that a portion of this R600 000 loan is not actually a loan but capital

(equity) just like the R100 000. So, a portion of the interest you pay your

foreign partner on the R600 000 will not be allowed as a tax deductible

expense but will be considered as a dividend.

The issues mentioned here include indirect situations where your foreign

partner provides guarantees to South African banks for giving you a loan.

For both these anti-avoidance sections of the Tax Act, you have the right

to object and appeal against the Receiver`s decision if you feel that you

have been prejudiced. I have covered these principles in broad terms just

to highlight the issues involved.

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