Double Taxation Treaty Interpretation: Lessons from a Case Down Under

Keywords: Double taxation treaty, interpretation, taxation, place of effective management, Australia, Baywater

Abstract

In the Australian case of Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation (the Bywater case) the Australian High Court dealt with the question of whether certain companies were resident in Australia for income tax purposes. The majority answered this question by applying Australian domestic law. In a separate but concurring judgement, Gordon J also discussed the interpretation and application of the relevant double taxation treaty. This contribution analyses Gordon J's judgment to extract guidance from it for the South African courts on their interpretation of double taxation treaties.

It is submitted that South African courts should also follow the "first step" proposed by Gordon J when interpreting double taxation treaties. South African courts may find Gordon J's judgment "instructive" when dealing with the interpretation of the "place of effective management" concept in both domestic law and double taxation treaties. In his judgment Gordon J favours the goal of common interpretation and it is argued that South African courts should follow this example and explicitly support this notion in applicable cases. From Gordon J's judgment and the judgement in Krok v Commissioner, South African Revenue Service, it is deduced that the positions in South Africa and Australia are similar in that the courts in both countries will be bound by the principles of Articles 31 and 32 of the Vienna Convention on the Law of Treaties when interpreting double taxation treaties. Moreover, Gordon J's judgment indicates that the domestic principles of interpretation should not be used in the interpretation of double taxation treaties. Recent South African cases have suggested that there are no differences between the South African domestic principles of interpretation and those contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. This contribution submits that there are many similarities between the two, but that the rules are not exactly the same. South African courts should be aware of these differences and rather apply the rules of public international law, including those contained in the Vienna Convention on the Law of Treaties, when they interpret double taxation treaties. Gordon J specifically identifies the category of the Vienna Convention on the Law of Treaties in which he places the Commentary on the OECD Model Tax Convention, to rely on it for his interpretation of the relevant double taxation treaty. South African courts may well learn from this approach, to create more certainty in the process of interpreting a double taxation treaty.

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References

Bibliography

Literature

Arnold BJ "The Interpretation of Tax Treaties: Myth and Reality" 2010 BIT 1-15

Avery Jones J "Treaty Interpretation" in Vann R (eds) Global Tax Treaty Commentaries (IBFD Amsterdam 2019) 1-93

Baker P Double Taxation Conventions: A Manual on the OECD Model Tax Convention on Income and on Capital 3rd ed (Sweet & Maxwell London 2002)

Broomberg EB "The Legacy of UK Tax Law in South Africa" 2008 BTR 291-303

Burt K "The OECD Commentaries: On what Legal Basis and to what Extent are they Relevant to Tax Treaty Interpretation?" 2017 BTCLQ 5-28

Davies J "Precedent and Law – Australia" 2019 BIT 402-407

Du Plessis LM "Statute Law and Interpretation" in Joubert WA (ed) Law of South Africa (Juta Cape Town 2001) 211 - 417

Edwardes-Ker M Tax Treaty Interpretation (PhD-thesis Queen Mary and Westfield College University of London 1994)

Garbarino C Judicial Interpretation of Tax Treaties: The Use of the OECD Commentary (Edward Elgar London 2016)

Gutuza T "Has Recent United Kingdom Case Law Affected the Interplay Between 'Place of Effective Management' and 'Controlled Foreign Companies'?" 2012 SA Merc LJ 424-437

Harris P "Importing and Exporting Income Tax Law: The International Origins of the South African Income Tax Act" in Hattingh J, Roeleveld JJ and West C (eds) Income Tax in South Africa: The First 100 Years, 1914-2014 (Juta Cape Town 2016) 2-24

Harris P and Oliver D International Commercial Tax (Cambridge University Press Cambridge 2010)

Hattingh PJ "South Africa" in Maisto G (eds) Residence of Companies under Tax Treaties and EC Tax Law (IBFD Amsterdam 2009) 603-752

Jansen van Rensburg E "The History of Income Taxation in the Cape Colony: A Story of Dangerous Beasts and Murderous Fathers" in Hattingh J, Roeleveld JJ and West C (eds) Income Tax in South Africa: The First 100 Years, 1914-2014 (Juta Cape Town 2016) 25-53

Jansen van Rensburg E A South African Perspective on the Meaning of "Beneficial Ownership" in Article 10 of the OECD Model Tax Convention on Income and Capital in the Context of Conduit Company Treaty Shopping (LLD-thesis University of Pretoria 2017)

Mössner J "Klaus Vogel Lecture 2009 - Comments" 2010 BIT 16-19

Olivier L and Honiball M International Tax: A South African Perspective 5th ed (Siberink Cape Town 2011)

Strydom H "International Law Making as an Attribute of State Sovereignty" in Strydom H (ed) International Law (Oxford University Press Oxford 2014) 63 - 104

Van der Merwe B "Residence of a Company - The Meaning of 'Effective Management'" 2002 SA Merc LJ 79-92

Vogel K and Rust A "Introduction" in Reimer E and Rust A (eds) Klaus Vogel on Double Taxation Conventions (Wolters Kluwer Alphen aan den Rijn 2015) 1-72

Ward DA et al The Interpretation of Income Tax Treaties with Particular Reference to the Commentaries of the OECD Model (International Fiscal Association Kingston 2005)

Case law

ABC (Pty) Ltd v Commissioner for the South African Revenue Services (Tax Court of South Africa, Cape Town) (unreported) case number 14287 of 12 June 2019

Avenant v Commissioner for South African Revenue Service 2016 78 SATC 343 (SCA)

Bywater Investments Ltd v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation 2016 HCA 45

Commissioner for Inland Revenue v Cactus Investments (Pty) Ltd 1999 1 SA 264 (T)

Commissioner for the South African Revenue Service v Tradehold Ltd 2012 3 All SA 15 (SCA)

Commissioner for the South African Revenue Service v Van Kets 2012 3 SA 399 (WCC)

Commissioners for Her Majesty's Revenue and Customs v Smallwood 2010 EWCA Civ 778

Grundlingh v Commissioner for the South African Revenue Service 2009 72 SATC 1

ITC 1503 1990 53 SATC 342 (T)

ITC 1544 1992 54 SATC 456 (T)

ITC 1735 2002 64 SATC 455

ITC 1878 2015 77 SATC 349

ITC 1914 2018 80 SATC 472

Krok v Commissioner, South African Revenue Service 2015 6 SA 317 (SCA)

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA)

Ostime (Inspector of Taxes) v Australian Mutual Provident Society 1959 3 All ER 245

Richards Bay Iron & Titanium (Pty) Ltd v Commissioner for Inland Revenue 1996 1 SA 311 (A) 317

Secretary for Inland Revenue v Downing 1975 4 SA 518 (A)

Secretary for Inland Revenue v Rile Investments (Pty) Ltd 1978 3 SA 732 (A)

Sentra-oes Koöperatief Bpk v Commissioner for Inland Revenue 1995 3 SA 197 (A)

The Oceanic Trust Co Ltd v Commissioner for the South African Revenue Service 74 SATC 127

Thiel v Commissioner of Taxation 1990 HCA 37

Volkswagen of South Africa (Pty) Ltd v Commissioner for the South African Revenue Service 70 SATC 195

Legislation

Constitution of the Republic of South Africa, 1996

Income Tax Act 58 of 1962

Income Tax Assessment Act, 1936

International instruments

Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (2017)

Organization for Economic Cooperation and Development Model Tax Convention (last updated 2017)

Vienna Convention on the Law of Treaties (1969)

Internet sources

Commission of Inquiry into Certain Aspects of the Tax Structure of South Africa 1997 5th Interim Report of the Commission of Inquiry into Certain Aspects of the Tax Structure of South Africa: Basing the South African Income Tax System on the Source or Residence Principle - Options and Recommendations http://www.treasury.gov.za/publications/other/katz/5.pdf accessed 17 October 2020

United Nations Treaty Collection 2019 Chapter XXIII: Law of Treaties – Vienna Convention on the Law of Treaties https://treaties.

un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&

chapter=23&Temp=mtdsg3&clang=_en accessed 25 July 2019

Published
2020-12-08
How to Cite
du PlessisI. (2020). Double Taxation Treaty Interpretation: Lessons from a Case Down Under. Potchefstroom Electronic Law Journal, 23, 1-22. https://doi.org/10.17159/1727-3781/2020/v23i0a6840
Section
Articles