Business rescue proceedings as a tax avoidance tool

Abstract

Taxes are an important stream of revenue for the South African fiscus. The taxes collected through the different streams are used by government departments for numerous projects and processes that promote the overall well-being of the country’s citizens. This is why the downward trend of CIT contributions from its peak in the 2008/2009 tax season (26.7%) is worrying. This decline in contributions can be attributed in part to an increasing number of companies using business rescue as a form of tax avoidance. By unpacking key sections of the Companies Act 71 of 2008, this dissertation explores how businesses use the Act and its embedded business rescue process for tax avoidance. The importance of SARS as the country’s tax collection instrument and its weight as a creditor in the business rescue process is also discussed. The various forms of indemnity given to role players within the business rescue process and to its practitioners are unpacked through a discussion about the shortcomings of the Companies Act 71 of 2008. With suggestions proposed on how to integrate current best practices into the Act, proposes revisions to the Act, recommending the integration of best practices to mitigate these loopholes, thereby safeguarding the fiscal integrity of the South African economy.