Enelia Jansen van Rensburg obtains LLD degree

Enelia Jansen van Rensburg (Department of Mercantile Law) recently successfully defended her LLD dissertation at the University of Pretoria. The title of her dissertation is as follow: “A South African perspective on the meaning of ‘beneficial ownership’ in Article 10 of the OECD Model Tax Convention on Income and Capital in the context of conduit company treaty shopping”. Enelia completed her research under supervision of Prof Riël Franzsen.

In her dissertation she examines aspects of the field of international taxation concerning the use of conduit company treaty shopping structures. The use of these structures is often regarded as an impermissible erosion of a country’s tax base.

Arguably, one way of combatting conduit company treaty shopping structures is by including in a country’s double taxation agreements the beneficial ownership requirement set out in Article 10(2) of the Organisation for Economic Cooperation and Development’s Model Tax Convention on Income and Capita (“OECD MTC”)l. The study examines how a South African court would interpret this requirement in provisions in South African double taxation agreements in the context of conduit company treaty shopping involving conduit companies receiving dividends.

The study considers whether the beneficial ownership requirement can be regarded as an anti-avoidance rule aimed at combatting conduit company treaty shopping falling outside agents and nominee scenarios. It further considers whether the term “beneficial owner” should have a legal or economic meaning. It explores the meanings given to this term by scholars and foreign courts and the OECD in its Commentaries to the OECD MTC. The study also considers the application of the rules of interpretation found in the Vienna Convention on the Law of Treaties when giving meaning to this term. Lastly, the study considers whether the term should have the meaning assigned to it under the domestic law of a treaty country, or under international tax law. As part of this enquiry, the meanings of the expression “beneficial owner” in South African case law and legislation are explored.

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