South Africa: Taxpayers cannot rely on ignorance of downstream steps in avoidance schemes (court decision)
Application of the domestic general anti-avoidance rule (GAAR) upheld
The South African Constitutional on April 22, 2026, upheld the application of the domestic general anti-avoidance rule (GAAR) in a case involving a complex preference share funding arrangement.
The plaintiff, a South African bank, had entered into a structure between 2011 and 2015 that routed funds through various entities to convert taxable interest into tax-exempt dividend income. While the bank argued it was a passive participant unaware of the specific downstream mechanics, the South African Revenue Service (SARS) recharacterized the dividends as taxable income, asserting the structure was an "impermissible avoidance arrangement" designed solely for tax benefits.
The court’s decision clarified that the GAAR does not require a taxpayer to have directly avoided tax through their own specific actions; rather, it is sufficient that the arrangement as a whole produced a tax benefit that accrued to them. The court rejected the bank's attempt to "compartmentalize" its involvement, ruling that taxpayers cannot isolate their participation in a single step of a wider scheme to escape liability. By emphasizing a substance-over-form inquiry, the court affirmed that complex structuring and the use of intermediaries do not shield beneficiaries from the GAAR, providing that the economic reality of tax-avoidance schemes remains subject to taxation.
Read a May 2026 report prepared by KPMG’s EU Tax Centre