The interplay between anti-avoidance measures and curbing tax evasion and impermissible tax-avoidance arrangements

Abstract

This mini-dissertation examines the interplay between anti-avoidance measures and the curbing of tax evasion and impermissible tax-avoidance arrangements within the South African tax framework. It critically analyses the nuanced distinctions and interactions between the substance over form doctrine, specific anti-avoidance provisions (SAAPs), and the General Anti-Avoidance Rules (GAAR). The research highlights how these measures function collectively to ensure the integrity of the tax system while safeguarding taxpayers’ legal entitlement to structure their affairs in a tax-efficient manner, as embodied by the choice principle.

Central to this study is the evaluation of the sole or main purpose requirement under the GAAR and its application within the South African context. This analysis extends to a comparative review of similar provisions in the tax systems of Australia and Canada, jurisdictions with comparable legal foundations. The study further delves into the constitutional implications of anti-avoidance measures, particularly the balance between enforcing tax compliance and upholding taxpayers’ constitutional rights, including property rights and freedom of trade.

Through a comprehensive review of legislation, case law, and scholarly commentary, this research clarifies the practical and conceptual ambiguities of anti-avoidance measures. It offers critical insights for legal practitioners, courts, and policymakers, addressing both theoretical and practical challenges in adjudicating tax disputes.

Ultimately, this mini-dissertation enhances the understanding of South Africa’s anti-avoidance framework and its broader implications, contributing to ongoing discourse on tax law reform and compliance. By shedding light on the constitutional underpinnings of the choice principle and its interaction with anti-avoidance measures, this study underscores the importance of balancing taxpayer rights with the need for a fair and effective tax system.