A critical analysis of the interpretation of the term "associated enterprise" in provisions in South African double taxation agreement based on Article 9 of the Organisation for Economic Cooperation and Development's Model Tax Convention on Income and on Capital
Date
2020-12
Authors
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Journal ISSN
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Publisher
Stellenbosch : Stellenbosch University
Abstract
ENGLISH ABSTRACT: To the extent that a contracting state has no applicable double taxation agreement (“DTA”) in place, that contracting state will rely solely on its domestic law to regulate transfer pricing related matters. Many states, however, enter into DTAs that are intended to inter alia reduce the risk of economic double taxation. Most of these DTAs are based on the Organization for Economic Cooperation and Development’s Model Tax Convention (the “OECD’s MTC”). Article 9 of the OECD’s MTC aims to prevent transfer pricing manipulation by associated enterprises, as well as to provide associated enterprises with relief from economic double taxation. However, Article 9 is only applicable if
“an enterprise of a contracting state participates … in the management, control or capital of an enterprise of the other contracting state, or the same persons participate … in the management, control or capital of an enterprise of a contracting state and an enterprise of the other contracting state.”1
DTAs, however, generally do not define the terms contained in the phrase “participates in the management, control or capital.” This may result in uncertainty regarding the applicability of a DTA provision identical to Article 9 of the OECD MTC. This dissertation illustrates the possibility of economic double taxation arising as a result of a corresponding contracting state disallowing a requesting for a corresponding transfer pricing adjustment in terms of a DTA provision identical to Article 9(2) of the OECD MTC due to such state disagreeing with the initial primary adjustment. Such disagreement may arise due to differing interpretation of the term “associated enterprise.”
It appears that there are at least two possible solutions to eliminating economic double taxation from arising as a result of a primary transfer pricing adjustment. The first being for contracting states to agree to an autonomous or universal definition of an associated enterprise (which would arguably require consensus amongst all contracting states that the context of Article 9 requires otherwise than to interpret the terms therein in accordance with the domestic law of a particular contracting state). The alternative would be for contracting states to apply the modified “new approach” (that is, the DTA is to be interpreted in accordance with the contracting state applying the DTA), which would arguably require contracting states to ignore the existing paragraph 6 of the Commentary on Article 9 of the OECD MTC.2
Considering the historical context of Article 9, together with the purpose thereof, it is concluded that “participation in management or capital” ought to be interpreted as meaning that a person requires a dominant level of participation in management or capital in order to be associated.
Regarding “control,” it is concluded that the context of Article 9 (in the form of the Commentary to Article 93 and the OECD Transfer Pricing Guidelines (“”TPG”)4)requires “control” to be interpreted as de facto control in the narrow sense.
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Description
Thesis (LLM)--Stellenbosch University, 2020.
Keywords
South Africa -- OECD Model Tax Convention, Article 9, South Africa -- Income Tax Act, Taxation, double -- South Africa, Taxation -- Law and legislation -- South Africa, UCTD