Question NW2767 to the Minister of Finance

Reply:

Illicit financial flows (IFFs) take a variety of forms and are addressed by several bodies, including SARS. SARS takes action with respect to IFFs that have a tax or customs aspect in terms of the Income Tax Act, 1962, Customs and Excise Act, 1964, and other legislation it administers.

A General Anti-Avoidance Rule (GAAR) is included in the Income Tax Act, 1962, as Part IIA of Chapter III of the Act. The GAAR permits SARS to counter impermissible tax avoidance arrangements that would not be addressed by the other provisions of the Act. While impermissible tax avoidance arrangements may involve IFFs, they may also be restricted to purely domestic arrangements or involve cross-border flows that would otherwise be considered legitimate. Another GAAR is provided for in section 73 of the Value-Added Tax Act, 1991, which deals with schemes for obtaining undue tax benefits in that context. SARS may also make use of common law doctrines, such as “substance over form”, in challenging abusive arrangements.

In addition, a reportable arrangements system is included in the Tax Administration Act, 2011, as Part B of Chapter 4 of the Act. The reportable arrangements system provides for the reporting of arrangements that present a heightened risk of undue tax benefits by their participants or promotors to SARS.

Supplementing the GAAR, South Africa also has tax legislation dealing with more specific avoidance concerns. These include interest limitation rules (recently amended), thin capitalisation rules, controlled foreign company (CFC) rules, as well as transfer pricing rules.

Where SARS identifies IFFs with a tax or customs impact, either through its own efforts or in cooperation with other government entities, SARS applies the legislation and legal tools at its disposal to address the IFFs.

Addressing IFFs remains a consistent and key focus for SARS, the South African Reserve Bank, the Financial Sector Conduct Authority, the Financial Intelligence Centre, the National Prosecuting Authority, the Special Investigating Unit, the Hawks, South African Police Service, and the National Treasury. In this regard, South Africa is actively involved in international efforts aimed at mitigating the problem. Key steps taken in recent times include:

• Becoming a member of the Global Forum of transparency and exchange of information for tax purposes in 2009
• Signing the Multilateral Convention in 2011
• Introducing a Voluntary Disclosure Programme (VDP) in 2012
• Signature of the FATCA Intergovernmental Agreement in 2014
• Introduction of the temporary Special VDP in 2016
• First tax information exchange under the Common Reporting Standard (CRS) in 2017
• Agreeing to the proposal for a minimum global tax rate (Pillar 2) to minimise global financial flows to tax havens (2021)