Title: Shifting the 'place of effective management' offshore: a comparison of the 'exit tax' provisions applicable to companies migrating from South Africa, Canada and EU member states
Authors: Liezel Gaynor Classen
Addresses: College of Law, University of South Africa, P.O. Box 392, Pretoria 0001, South Africa
Abstract: The emergence of global markets, e-commerce and cross-border corporate structures in recent times caused many government departments and tax authorities to rethink their strategies to protect the national tax base. Internationally the trend has emerged to condone the migration to and abuse of tax havens or low tax jurisdictions by large corporations that are involved in international trade. Exit tax serves as an anti-avoidance measure to protect the national tax base of the country from which the taxpayer emigrates. Recent court decisions in South Africa, the European Union and Canada found exit tax not to be payable in circumstances where a company shifted its 'place of effective management' and resultant tax residency offshore. This article will examine the exit tax provisions applicable to companies in terms of South African, Canadian and selected EU member states' tax legislation and suggest manners in which the taxpayer's right to freedom of establishment can be balanced with the right of the state to protect its national tax base against erosion.
Keywords: place of effective management; exit tax; capital gains tax; tax residence; company migration; tax jurisdiction; multinational corporations; MNCs; cross border trade; national tax base; freedom of establishment; South Africa; Canada; EU member states; European Union; tax avoidance; tax legislation.
International Journal of Public Law and Policy, 2013 Vol.3 No.4, pp.367 - 383
Received: 08 May 2021
Accepted: 12 May 2021
Published online: 21 Aug 2013 *