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Tax avoidance versus tax evasion – looking at the general anti-avoidance rules

Tax avoidance versus tax evasion – looking at the general anti-avoidance rules

May 22, 2024


Minimising your tax burden is a natural concern, but navigating the line between legal tax avoidance and illegal tax evasion can be tricky. With this in mind, we thought it would be helpful to explore the key differences between these two concepts, with a specific focus on South Africa’s General Anti-Avoidance Rules (GAAR). We’ll delve into what constitutes an “impermissible tax avoidance arrangement” and how GAAR empowers the South African Revenue Service (SARS) to address such schemes.

Tax offences – the rules in South Africa

South Africa’s General Anti-Avoidance Rules (GAAR) are a set of regulations within the Income Tax Act designed to combat impermissible tax avoidance arrangements. In simpler terms, GAAR helps prevent taxpayers from exploiting loopholes or setting up tax avoidance schemes that unfairly reduces their tax burden.

The key functions of South Africa’s General Anti-Avoidance Rules include:

  1. Identifying arrangements: GAAR helps identify transactions or agreements structured primarily to achieve a tax benefit, not genuine business purposes.
  2. Defining impermissible avoidance: It establishes criteria to determine when tax avoidance becomes impermissible. This includes elements such as lack of commercial substance, round-trip financing, and using accommodating parties.
  3. Powers for SARS: GAAR empowers the South African Revenue Service (SARS) to take action against impermissible arrangements. This could involve disregarding transactions, reassessing taxes, or denying claimed tax benefits.

The goal of GAAR is to ensure a fair tax system by preventing people from abusing loopholes and lessening the tax burden they should rightfully contribute.

Understanding tax avoidance and tax evasion

Many people look for ways to reduce their tax burden, which in itself is not a crime. There are two main approaches: tax avoidance and tax evasion. While both can lower your tax bill, they are very different. One is a crime, the other is not.

Tax avoidance is legal: It involves structuring your finances in a way that minimises your tax liability. This can include things like taking advantage of tax deductions and credits, or setting up a business structure that reduces your taxable income.

Tax evasion is illegal: It involves deliberately hiding income or assets from the tax authorities to avoid paying taxes you owe. This can include things like failing to report income, filing false tax returns, or creating fake documents.

Tax avoidance vs tax evasion – the difference between legal and illegal

Think of it this way: imagine tax laws are like a maze. Tax avoidance is finding clever routes within the maze to reach the exit (paying less tax) without breaking the rules. Tax evasion is knocking down the maze walls to get out quickly, which is illegal.

Tax avoidance vs. tax evasion: a South African court case example

Here’s a real-world example from a court case (NWK Ltd vs South African Revenue Service) that highlights the difference:

  • A company (NWK) made several agreements with a bank that seemed to increase the amount of money NWK borrowed.
  • This would allow NWK to claim a bigger tax deduction for interest payments.
  • NWK argued they intended to follow through with the agreements, and the deductions were valid.
  • The court ruled against NWK because the main purpose of the transactions seemed to be tax reduction, not genuine business reasons.

Key points to remember about tax avoidance in South Africa

  1. You can legally arrange your affairs to minimise taxes as long as you follow the tax laws.
  2. There are limits to tax avoidance. If your main goal is to avoid taxes through unusual or artificial arrangements, (tax avoidance schemes) you are likely to be flagged by the revenue authorities.
  3. The burden of proof is on you to show your tax-saving strategies are legitimate.

What constitutes an “impermissible tax avoidance arrangement”?

An impermissible tax avoidance scheme in South Africa, according to the General Anti-Avoidance Rules (GAAR), occurs when four key requirements are met:

1. Arrangement: There must be a structured transaction, agreement, or scheme in place. This can include anything from a single deal to a series of steps.

2. Tax benefit: The arrangement must result in a reduction of tax liability. This could be achieved through lower taxable income, increased deductions, or other tax advantages.

3. Abnormal or lacking commercial substance: The arrangement exhibits characteristics that raise red flags for SARS. This includes:

  • Lack of commercial substance: The arrangement has little to no impact on the business itself, aside from reducing taxes. It might involve unnecessary steps or artificial elements designed solely for tax benefits.
  • Round-trip financing: Funds appear to move between parties but ultimately return to their source, with the main purpose being tax reduction, not genuine business activity.
  • Accommodating parties: The arrangement involves a party (or parties) who benefit little to no tax advantage themselves, but their participation helps create the tax benefit for others.

4. Sole or main purpose: The primary goal of the arrangement must be to obtain a tax benefit. Legitimate business reasons cannot be a mere afterthought or secondary aim.
The burden of proof falls on the taxpayer to demonstrate that their arrangement is legitimate and doesn’t meet these criteria if challenged by SARS.

Tax avoidance vs tax evasion: penalties and consequences

In South Africa, tax avoidance itself isn’t necessarily penalised. The key distinction lies in whether your tax reduction methods comply with the law.

If SARS determines you’ve entered into an impermissible tax avoidance arrangement, there are consequences. Here’s what you might face:

  • Reassessment of taxes: SARS can recalculate your tax liability, potentially leading to a higher tax bill and additional interest, as well as possible administrative penalties.
  • Disregarding transactions: SARS has the power to ignore or restructure transactions deemed part of an impermissible tax avoidance scheme.
  • Loss of tax benefits: You are likely to lose the tax advantages you aimed to achieve through the arrangement.

Remember, the onus is on you to prove your tax-saving strategies are legitimate if SARS questions them. However, tax evasion is a different story. Because it involves deliberately hiding income or assets to avoid paying taxes altogether, tax evasion is a criminal offence in South Africa and can lead to serious penalties, including:

  • Fines: You could be fined a substantial amount of money.
  • Imprisonment: In severe cases, you might face jail time.
  • Reputational damage: A conviction for tax evasion can damage your personal and professional reputation.

There are many legitimate ways to reduce your tax burden. However, it is vital for you to understand the difference between tax avoidance and tax evasion in order to avoid crossing the line. Always consult with a tax professional if you’re unsure about the legality of your tax-saving strategies.

Read more: SARS Voluntary Disclosure Programme lifeline for non-compliant expats, tax experts say grab it while you can.

FinGlobal: cross-border financial specialists for South Africans

Whether you’re looking for help with your tax emigration from South Africa, or you want to invest in offshore accounts or need to transfer money overseas, FinGlobal is a name you can trust. We’re ready to help you ensure that all your cross-border transactions are all above board and on the right side of tax law, so tax compliance is one less thing for you to worry about.

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