School of Accountancy (ETDs)

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Browsing School of Accountancy (ETDs) by Author "De Koker, A.P"

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    Substance over Form – Fraus Legis - Simulated Transactions Is there a gap in South African tax law in circumstances where parties conceal or disguise a transaction but still give effect to the agreements in accordance with the tenor of their terms?
    (University of the Witwatersrand, Johannesburg, 2023) Hugo, Grant Anthony; De Koker, A.P
    The above is equally applicable in the context of taxation. The purpose of this research has been to understand the juxtaposition between the intention of the contracting parties and their performance in the context of the tenor of the respective agreements. The adoption into South African law of the doctrine of substance over form and its relationship with the principles of fraus legis and simulated transactions was discussed through the development of cases dealing with transactions in fraudem legis and simulated transactions. The research was undertaken in an endeavour to ascertain if there is a gap in South African tax law in circumstances where the parties disguise or conceal a transaction, but still give effect to the agreements in accordance with the tenor of their terms. In conclusion, there is no gap. More is required than that the parties give effect to their agreements in accordance with their tenor, the parties must in fact mean that the agreements shall have effect in accordance with their tenor. The concealment or disguise is sufficient in and of itself to infer simulation and giving effect to the agreements in accordance with their tenor will not deem the result to be tantamount to giving effect to the real agreement between the parties, or to shield the parties from the operation of the common law. Our courts will not be deceived by the form of a transaction, and in the event of a determination of simulation, they will strip off its ostensible form and give effect to what the transaction really is.