Monday, 12 March 2012

South Africa Gives Personal Tax Details to Other States

The first agreement for the exchange of information relating to tax matters concluded by South Africa with San Marino took effect on 28 January 2012.

South Africa has concluded a large number of double taxation agreements with its trading partners that usually contain an article that authorises the exchange of information between South Africa and the treaty partner. 

Furthermore, exchange of information agreements are being negotiated between South Africa and Bahamas, Argentina, Barbados, British Virgin Island, Brunei Darussalam, Costa Rica, Dominica, Georgia, Gibraltar, Jamaica, Liberia, Lichtenstein, Monaco, Saint Kitts and Nevis, Samoa and the Turks and Caicos Islands.  The agreement with Bermuda, Cayman Islands, Guernsey and Jersey recently took effect.

In addition, on 3 November 2011, South Africa signed, but has not yet ratified, the Multilateral Convention on Mutual Administrative Assistance on Tax Matters as amended by the protocol, which facilitates the exchange of information between parties who have adopted the Convention. 

South Africa is a member of the Organisation for Economic Co-operation and Development (OECD)’s Global Forum on Transparency and Exchange of Information for Tax Purposes.  At the Global Forum’s meeting held in Mexico during 2009 it was decided to put a peer review mechanism in place for all members of the Global Forum, based on its standards of transparency and information exchange for tax purposes. 

The Global Forum established a Peer Review Group to create the methodology and detailed terms of reference for the peer review process and decided that there would be two phases of that process.  Phase 1 will examine the legal and regulatory framework in each jurisdiction and phase 2 will evaluate the implementation of the standards in practice.  According to the schedule of reviews published by the Global Forum, South Africa was due to have been reviewed during the second half of 2011. 

Under Phase 1 of the peer review process, the Global Forum was mandated to evaluate the legal framework in South Africa regarding the exchange of information for tax purposes, and phase 2 would have required the Global Forum to establish from the Commissioner: South African Revenue Service the extent to which South Africa has implemented the Global Forum’s standards in practice. 

South Africa has therefore undertaken an obligation to ensure that it complies with the standards prescribed by the Global Forum and is therefore required to conclude exchange of information agreements with various countries so that it complies with those standards.  It is for the above reason that the South African government has concluded an exchange of information agreement with San Marino. 

Double taxation agreements authorise exchange of
information between signatory countries.
The revenue authority of one country may enter the
other country to interview individuals & examine records.
The purpose of the agreement is described as being to promote international efforts in the fight against financial and other crimes, including the targeting of terrorist financing.  The scope of the agreement is described as providing assistance via the exchange of information that is foreseeably relevant to the administration and enforcement of the domestic laws of the contracting countries relating to the taxes covered by the agreement.

Article 2 of the agreement deals with the taxes covered by the agreement and in the case of South Africa relates to normal tax, secondary tax on companies, withholding tax and royalties, the tax on foreign entertainers and sports persons and value-added tax.  The agreement does not directly refer to the new dividends tax that will take effect from 1 April 2012. 

Article 4 of the agreement provides that where the information in possession of the respective authority of the country from which the information is requested is insufficient to enable it to comply with the request for information, that country shall use the information-gathering powers it considers relevant to provide the requesting country with the information requested.  The article provides that each country will ensure that it has the authority to obtain and provide, through the competent authority as defined and on request, information held by banks and similar financial institutions, information regarding legal and beneficial ownership of companies and similar businesses and, in the case of trusts, information on settlors, trustees and beneficiaries.

The agreement also envisages the conducting of tax examinations abroad whereby the revenue authority of one country may enter the other country to interview individuals and examine records with the prior consent of the individuals or other persons concerned. 

Article 5 also allows for the competent authority of the requesting party to permit representatives of the competent authority of the requesting party to attend a tax examination in the territory of the requested party.

It is possible that a request for information may be declined where the request does not comply with the agreement or where the requesting country has not exhausted all means available in its own country to obtain the information. The agreement recognises information subject to legal privilege and also seeks to protect trade, business, industrial, commercial or professional secrets or trade processes, and in such cases the request for information in this regard may be declined.  The fact that a taxpayer is disputing an amount of tax does not prevent the tax authority requesting information from the other country.

Article 7 of the agreement seeks to preserve the confidentiality of the information disclosed by one country to the other and it is provided that the information may be used only for purposes set out in the agreement. 

Article 8 of the agreement provides that generally, indirect costs incurred in providing assistance shall be borne by the country from which the information is requested and direct costs incurred in providing assistance shall be carried by the country requesting assistance.

The agreement concluded by South Africa and San Marino is based on the OECD’s model agreement for tax information exchange agreements.  Clearly, the conclusion of the exchange of information agreements for tax purposes increases the reach the Commissioner: South African Revenue Service to obtain information from abroad regarding taxpayers residing in South Africa.  It also imposes an obligation on South Africa to provide information to another country where the other contracting state requires information regarding its taxpayers who may have business dealings in South Africa.

It will be interesting to see the report published pursuant to the peer review conducted on South Africa and to see the extent to which South Africa has complied with the standards prescribed by Global Forum. 

Dr Beric Croome is a tax executive at Edward Nathan Sonnenberg Inc. This article first appeared in Business Day’s Business Law & Tax Review March 2012. Free image from ClipArt

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