RESIDENT – PLACE OF EFFECTIVE MANAGEMENT

– INCOME TAX ACT 58 OF 1962 SECTION 1(1)

A “place of effective management”, in determining the tax residence of a company, is only one of the considerations under the tie-breaker rule in a tax treaty that adheres to Article 4 of the OECD Model Tax Convention and its accompanying Commentary. A company’s place of effective management is the place where key management and commercial decisions that are necessary for the conduct of its business as a whole are in substance made. This approach is consistent with the OECD’s commentary on the term “place of effective management”.

A company may have only one place of effective management at any one time. There are normally multiple facts that need to be taken into account, often involving multiple locations, and from those facts and locations, it is necessary to determine a single dominant place where effective management is located.

References:

“OECD Model Tax Convention” means the Model Tax Convention on Income and on Capital of the Organisation for Economic Co-operation and Development, Condensed Version, 21 November 2017
Income Tax Act No 58 of 1962, Section 1(1)
Tax Administration Act 28 of 2011
SARS Interpretation Note 6 (Edition 3) – RESIDENT – PLACE OF EFFECTIVE MANAGEMENT

Background

The concept of residency is critical in determining a person’s South African tax obligations. Generally, a resident is liable to income tax on gross income derived within and outside South Africa, while a non-resident is liable to income tax only on gross income from a source within South Africa.

A person other than a natural person is a “resident” as defined in section 1(1) if such a person:

  • is incorporated, established, or formed in South Africa; or
  • has its place of effective management in South Africa.

The definition excludes any person that is deemed to be exclusively a resident of another country for purposes of the application of any tax treaty. In addition, special considerations apply to a “foreign investment entity” as defined in section 1(1). A company incorporated in South Africa is a “resident” as defined before considering the implications of an applicable tax treaty. Accordingly, from a domestic law perspective, when determining tax residency, the place of effective management is relevant to companies not incorporated, established, or formed in South Africa.

The term “place of effective management” is not defined in the Act and must be ascribed to its ordinary meaning, taking into account international precedent and interpretation. It does, however, not have a universally accepted meaning, and various countries, including members of the OECD, continue to attach different meanings to it.

An amendment to Article 4 in the 2017 version of the OECD Model Tax Convention provides that the place of effective management is no longer the only criterion in determining the residency of a person other than an individual if it was a resident of both contracting states. The issue of dual residency of persons other than individuals is now determined on a case-by-case basis and through mutual agreement by the contracting states having regard to the person’s place of effective management, the place where it is incorporated or otherwise constituted, and any other relevant factors.

In the absence of a mutual agreement, the person will not be entitled to any relief or exemption from tax purely based on the place of effective management, but in a manner as agreed upon by the competent authorities4 of the states concerned. This article deals with the place of effective management in the context of companies and the underlying principles will generally apply to other entities and bodies of persons that are not natural persons. For example, with a trust the structures involved, and terminology used, may require some adaptation. The determination of the place of effective management would, however, take into account the same considerations as those discussed in this Note. Depending on the applicable facts, there may be additional considerations that need to be taken into account.

The place of effective management must be supported by the facts. Under section 102 of the Tax Administration Act 28 of 2011 a company bears the onus of proving its place of effective management and must, under section 29 of that Act, retain the necessary evidence to support the view taken.

The South African law

Section 1(1) of the Income Tax Act – Resident

“resident” means any—
(a) …
(b) person (other than a natural person) which is incorporated, established, or formed in the Republic or which has its place of effective management in the Republic, but does not include any person who is deemed to be exclusively a resident of another country for purposes of the application of any agreement entered into between the governments of the Republic and that other country for the avoidance of double taxation. Provided that where any person that is a resident ceases to be a resident during a year of assessment, that person must be regarded as not being a resident from the day on which that person ceases to be a resident, provided further that in determining whether a person that is a foreign investment entity has its place of effective management in the Republic, no regard must be had to any activity that:

(a) constitutes—
(i) a financial service as defined in section 1 of the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002); or
(ii) any service that is incidental to a financial service contemplated in subparagraph (i) where the incidental service is in respect of a financial product that is exempted from the provisions of that Act, as contemplated in section 1(2) of that Act; and
(b) is carried on by a financial service provider as defined in section 1 of the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002), in terms of a license issued to that financial service provider under section 8 of that Act;

Application of the law

General principle – the meaning of place of effective management

A company’s place of effective management is the place where key management and commercial decisions necessary for the conduct of its business as a whole are in substance made. This approach is consistent with the OECD’s commentary on the “place of effective management”.

If a company’s key management and commercial decisions affecting its business as a whole are made at a single location, that location will be its place of effective management. However, if those decisions are made at more than one location, the company’s place of effective management will be the location where those decisions are primarily or predominantly made.

There are normally multiple facts that need to be taken into account, often involving multiple locations, and from those facts and locations, it is necessary, as noted above, to determine a single dominant place where the place of effective management is located. The determination looks at where the key management and commercial decisions are regularly and predominantly made. It is not a snapshot requiring an assessment at a particular moment in time. Although the determination of the place of effective management is not based on a snapshot at a particular moment in time, when a company changes its place of effective management, the change in residence occurs on a particular date and is not in relation to a year of assessment.

Definitive rules cannot be laid down in determining the place of effective management, and all relevant facts and circumstances must be examined on a case-by-case basis.

Although it is not possible to provide a detailed list of all the factors that must be considered, some of the key facts and circumstances must be examined in determining a company’s place of effective management.

A company’s place of effective management must be determined by ascertaining what are and who makes the key management and commercial decisions for the conduct of the company’s business as a whole. Once this has been determined, it is necessary to determine where those decisions are in substance actually made.

Head office

The location of a company’s head office, being the place where a company’s senior management and their support staff are predominantly located, is generally a major factor in the determination of a company’s place of effective management because it often represents the place where key company decisions are made. For example, it is likely that key management and commercial decisions of an operating company whose board meets only once a year will be made more frequently than once a year and that the place of effective management will not be where the board meeting is held.

Conversely, board meetings could be held more frequently but key management and commercial decisions may nevertheless be made outside those board meetings. All the facts and circumstances must be considered.

Board

The location where a company’s board regularly meets and makes decisions may often be the company’s place of effective management provided the board retains and exercises its authority to govern the company. Furthermore, it must, in substance, make the key management and commercial decisions necessary for the conduct of the company’s business as a whole. This situation often prevails when the board meetings are held in the same country as the country where the company’s head office is located, and all the directors participating in the board meetings are physically present at the meetings. The impact on the place of effective management arising from the holding of board meetings in different locations is another aspect that requires consideration. The location of the board meetings, assuming for the moment it is the place where the key management and commercial decisions are made, may or may not be the same as the place where the relevant directors are tax residents.

Modernisation and global travel

Changes in telecommunications, information technology, global travel, and modern business practices can impact the place of effective management. These factors have meant that physical meetings of the board are often no longer required or implemented. Further that even when physical board meetings are held in a particular location some, possibly a majority, of the directors or the key directors with overriding decision-making powers, are not in the same location as the physical meeting. Consequently, what initially appears to be the location where the decisions are made, that is, the physical location of the board meeting, may not be where the key management and commercial decisions are in the substance being made.

Other guidelines as provided by the OECD include, but are not limited to the following:

If senior managers adopt conferencing through the Internet, for example, as a key medium for making management and commercial decisions, and those managers are located throughout the world, it may be difficult to determine a place of effective management. In such cases, a place of management might be regarded as existing in each jurisdiction where a manager is located at the time of making decisions, but it may be difficult (if not impossible) to point to any particular location as being the one place of effective management.

  • German case law suggests that, in cases where the place of management cannot be determined, the residence of a company may be determined by the residence of the top manager. It may be that this approach could be extended to companies managed by a board of directors or senior executives. However, it is likely that situations will increasingly arise where those people are not all residents of one country.
  • A board of directors may arrange to meet in different places throughout the year. For example, the board of a multinational enterprise may agree to meet at the offices of the enterprise around the globe on a rotational basis. This can also lead to an enterprise having a mobile place of effective management.

It is important not to place an undue focus on the location where board meetings take place without considering the surrounding facts and circumstances of a particular case.

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