The South African general anti-avoidance rule and historical case law

In the absence of case law where the current GAAR has been subject to interpretation and application by the courts (in the context provided by the judgment in the ABSA SCA case), hindsight cannot be used to determine whether the current GAAR represents an improvement over the previous GAAR. To determine whether the weaknesses of the previous GAAR were addressed by the 2006 amendments, further research of the efficacy of the current GAAR was necessary.

The method employed for court case selection, termed purposeful maximal sampling, chooses cases aligning with the research objectives. Another rationale for selecting a case is if it represents a critical case of the study. The selection process incorporated both purposeful maximal sampling as well as cases that were considered to be critical cases.
The population of case law, serving as the foundation for selecting relevant cases, was sourced from the LexisNexis database of South African Tax Cases Reports (LNTC Reports) as of 14 February 2024. The population of case law was derived by combining the results of two different searches on the LNTC Reports and eliminating duplicate cases from the search results as follows:

The search term “103(1)” was applied to the LNTC Reports, after filtering for: “Cases”, “South African Tax Case Reports” and “Tax cases” to identify cases where the provisions of the previous GAAR were considered in the courts. This search yielded a total of 71 cases.
The search term “tax avoidance” was applied to the LNTC Reports, after filtering for: “Tax cases”; “Avoidance of tax” and “Tax avoidance”. This search yielded a total of 51 cases.

After combining the results and removing the duplicates, the population of cases for the purposes of this study totalled 94 cases.
In refining the selection of cases pertaining to tax avoidance through the application of critical case law principles, the following qualitative criteria were employed to select cases aligning with the study's objectives:
1. Only those cases included in the LNTC Reports that had come before the South African courts were selected. Consequently, cases from other jurisdictions such as the Rhodesian High Court, the Zimbabwean Special Court and the Zimbabwean High Court were excluded from the selection process to maintain the study's focus and scope.
2. Cases not considering or applying the previous GAAR were excluded. Therefore, cases relating to anti-avoidance rules in the form of assessed losses (such as those outlined in Section 103(2) of the Income Tax Act) were excluded from the selection. These cases were eliminated in order to maintain the scope of the study and limit the study to that of the South African GAAR. In addition, cases where the current GAAR was considered were removed from the population to limit the study to that of the previous GAAR.
3. Cases that did not involve the avoidance of normal tax (for example, Secondary Tax on Companies and Value-Added Tax) were excluded. This exclusion is necessary due to the fact that the Commissioner is only able to apply Section 80B of the South African GAAR to normal tax matters. Consequently, any cases concerning the avoidance of taxes other than normal tax are excluded for the purposes of this study.
4. In applying the principles of purposeful maximal sampling, the scope and focus of the study was refined by excluding all cases presented in the Tax Court, as they do not create judicial precedent. Consequently, these rulings are only legally binding on the parties involved in the specific cases (van Coller, 2023). Therefore, cases brought before the Tax Court have been excluded for the purposes of this study.
Applying the above qualitative elimination criteria assisted in the unbiased selection of cases from the population. the file reflects the total population of cases and the analysis of those that met the elimination criteria described above.
NOTE: This data is not yet linked to an academic article but forms part of a large masters project where students will have this figshare data linked to the mini-dissertations (after the examination process is completed) that will be uploaded to figshare.

在当前一般反避税规则（GAAR）尚未被法院在ABSA SCA案件所提供的背景下进行解释和适用的案例法中，回顾过去无法用来判断当前GAAR是否相较于前一个GAAR有所改进。为了确定前一个GAAR的缺陷是否被2006年的修订所解决，有必要进一步研究当前GAAR的有效性。

用于案例选择的手段，称为有目的的最大抽样法，旨在选择与研究目标相一致的案例。选择案例的另一个理由是，如果该案例代表了研究的关键案例。选择过程结合了有目的的最大抽样以及被认为是关键案例的案例。

作为选择相关案例的基础的案例法群体，来源于截至2024年2月14日的LexisNexis南非税务案例报告（LNTC报告）数据库。案例法群体的形成是通过结合对LNTC报告的两次不同搜索结果，并从搜索结果中剔除重复案例而得如下所示：

将搜索词“103(1)”应用于LNTC报告，经过筛选“案例”、“南非税务案例报告”和“税务案例”，以识别法院考虑前一个GAAR规定的案例。此搜索共产生了71个案例。
将搜索词“避税”应用于LNTC报告，经过筛选“税务案例”、“避税”和“避税”，此搜索共产生了51个案例。

将结果合并并去除重复项后，本研究的案例总数为94个。

通过应用关键案例法原则，对涉及避税的案例选择进行细化时，采用了以下定性标准来选择与研究目标相一致的案例：
1. 仅选择在LNTC报告中出现且由南非法院审理的案例。因此，排除来自其他司法管辖区，如罗得西亚高等法院、津巴布韦特别法院和津巴布韦高等法院的案例，以保持研究焦点和范围。
2. 排除未考虑或适用前一个GAAR的案例。因此，排除与评估损失形式的反避税规则相关的案例（例如，所得税法第103(2)节中概述的），这些案例被排除在外，以保持研究的范围并限制研究仅限于南非GAAR。
3. 排除不涉及正常税收避税（例如，公司第二次税和增值税）的案例。这一排除是必要的，因为专员只能将南非GAAR的第80B节适用于正常税收事务。因此，排除涉及除正常税收以外的税收避税的任何案例。
4. 在应用有目的的最大抽样原则时，通过排除所有在税务法院提出的案例，精炼了研究的范围和焦点，因为这些案例不构成司法先例。因此，这些裁决仅对特定案件的当事人具有法律约束力（van Coller，2023）。因此，排除在税务法院提出的案例，以本研究的范围。

应用上述定性排除标准有助于从群体中选择案例时保持无偏见。文件反映了案例的总群体以及上述排除标准所满足的分析。

注：这些数据尚未与学术论文关联，而是构成一个大型硕士项目的一部分，其中学生将在figshare数据与微型论文（考试过程完成后）关联。