Authors Davin Olën Henk Kloppers

Affiliation North-West University South Africa

Email Davin.Olen@dentons.com Henk.Kloppers@nwu.ac.za

Date Submitted 13 June 2022

Date Revised 25 August 2023

Date Accepted 25 August 2023

Date Published 3 October 2023

Editor Prof A Gildenhuys

How to cite this article

Olën D & Kloppers HJ "A Comparative Analysis of the Treatment of Inflation in South African Capital Gains Tax and the Accrual Systems" PER / PELJ 2023(26) DOI http://dx.doi.org/10.17159/17273781/2023/v26i0a14118

Copyright

Abstract

Inflation is often defined as a continuous and considerable rise in prices in general. Recently it has become a focal point due to globally elevated levels of inflation. Considering its treatment in the South African legal system, this article unpacks the contrary approaches of the Matrimonial Property Act 88 of 1984 (MPA) and the Income Tax Act 58 of 1962 (ITA) regarding inflation. These two Acts are considered as they provide different approaches to inflation, therefore different outcomes. While the MPA makes provision for inflation in determining the growth of each of the estates of spouses married out of community with the accrual system, the ITA does not recognise inflation insofar as it relates to capital gains tax. Comparing the approaches of the MPA and the ITA reveals disparities in the law and justifies the investigation conducted in this article.

Accordingly, this article compares the effect of inflation and capital gains tax and why inflation is not considered when determining the base cost of an asset for capital gains tax purposes. To explain the inconsistency between the MPA and the ITA, this article firstly unpacks the characteristics of the South African matrimonial property regime insofar as it relates to inflation. Thereafter, the article characterises the South African application of the capital gains tax and articulates the shortcomings of existing capital gains tax provisions and the resulting challenges in the application of both Acts.

In comparing the ways in which the MPA and the ITA deal with inflation, a clear distinction becomes evident. This article finds that, while the initial inclusion rate for capital gains tax inflation is largely accommodated, subsequent increases in the inclusion rate have erased this provision. Given these findings, this article suggests that the current South African capital gains tax regime's inclusion rate be further investigated to determine whether a wider set of exclusions could be developed to better accommodate inflation.

Keywords

Capital gains taxation; marital property regimes; Zugewinngemeinschaft; inflation; capital gains tax inclusion rate; Matrimonial Property Act 88 of 1984; Income Tax Act 58 of 1962.

……………………………………………………….

DOI

http://dx.doi.org/10.17159/17273781/2023/v26i0a14118

1 Introduction

Inflation is simply defined as "a continuous and considerable rise in prices in general".1 There are several possible causes of it and this definition does not weigh in favour of any specific one. Despite its various possible causes, inflation impacts many aspects of individuals' economic lives. The South African Reserve Bank, for example, acknowledges its impact in calculating Gross Domestic Product (GDP), which measures the growth of the South African economy.2 By adjusting the GDP the South African Reserve Bank ensures that it does not artificially inflate the purported rate at which the economy grows since inflation may increase the price of a product without increasing its value.3 To reveal the real economic growth of South Africa, the nominal GDP (calculated at the price of products as they are at the time of calculation)4 is converted to the real GDP (calculated as if prices remained constant).5

When viewed in this light, inflation can be a real concern for citizens, particularly for taxpayers.6 Mohr et al7 recognise its impact on taxpayers as:

When there is inflation, taxpayers' nominal incomes (e.g. wages and salaries) rise even when their real incomes remain unchanged. Taxes, however, are levied on nominal income and not on real income.

Accordingly, inflation increases the quantum of taxes paid by consumers when salaries increase, but tax brackets remain constant. This principle also stands regarding capital gains tax (CGT) as inflation increases the real price of an asset without increasing its value. This occurrence is defined as "bracket creep" in economics.8

	Davin Olën. BCom BPhil LLB (NWU) MPhil MMFI (WITS). Associate, Dentons, South
	Africa. Email: Davin.Olen@dentons.com. ORCID: 0000-0002-6979-6057. A version of
	this paper was submitted as a dissertation in partial fulfilment of an LLB degree.
	Henk Kloppers. BCom LLB LLM (PUCHE) LLD (NWU) PG Dip Financial Planning.
	Professor	of	Law,	North-West	University,	South	Africa.	Email:
	Henk.Kloppers@nwu.ac.za. ORCID: 0000-0003-0512-7986.
1	Mohr et al Economics for South African Students 382; alternatively, inflation can be
	defined as "a persistent tendency for prices and money wages to increase" (Black
	Dictionary of Economics 235).
2	Mohr et al Economics for South African Students 235.
3	Mohr et al Economics for South African Students 384.
4	Mohr et al Economics for South African Students 384.
5	Mohr et al Economics for South African Students 384.
6	Sadka 1991 SPIMF 150.
7	Mohr et al Economics for South African Students 384.
8	Mohr et al Economics for South African Students 385.

In comparing the treatment of inflation,9 this article unpacks the different approaches of the Matrimonial Property Act10 and the Income Tax Act.11 These two Acts are considered as their different approaches have different outcomes.

As will become evident in the paragraphs to follow, the Matrimonial Property Act makes provision for inflation in determining the growth of each of the estates of spouses married out of community of property, with the accrual system. Accordingly, a spouse's initial estate must be multiplied by the Consumer Price Index (CPI) to determine an adjusted value.12 This initial estate value can then be subtracted from the adjusted estate value to determine each of the spouses' net estates.13 Should the growth of the spouses' estates differ, then the spouse with the smaller estate is entitled to "half of the difference between the accrual of the respective estates of the spouses".14

When compared to the Matrimonial Property Act, the Income Tax Act does not recognise inflation insofar as it relates to CGT. Rather, realised gains are calculated using the base and market values of a taxpayer's assets.15 In this approach the nominal income of a capital gain consists of an inflationary component and a real income component, leading to the taxation of inflationary growth.16 Hockley17 illustrates this challenge from a British CGT background:

Consider the man who in 1968 buys an investment for £10,000 which produces an income of 10 per cent. Let us assume that by 1971 the investment has increased in real value by 10 per cent but that money values have depreciated by 10 per cent. So he sells the asset for £12,100 (in 1971 money) when it is producing £1,210 per annum on which he pays income tax. Under our present law he will pay capital gains tax on a gain of £2,100, although his real gain in 1971 money is only £1,100.

Thus, Hockley18 considers the fact that in terms of real gains an asset has grown by £2,100, but in nominal terms the growth amounted to only £1,100. When this asset is then sold and becomes subject to CGT, a fictional increase of £1,000 is taxed. Therefore, the additional inflationary gain of £1,000 is included in the CGT calculation as a real gain although it does not add to the increase in the value of the asset.19

9	As considered above, for the purposes of this piece, inflation is defined	as	the
	"continuous and considerable rise in prices in general" over a period of time (Mohr et
	al Economics for South African Students 382).
10	Matrimonial Property Act 88 of 1984 (the Matrimonial Property Act).
11	Income Tax Act 58 of 1962 (the Income Tax Act).
12	Section 4(1)(b)(iii) of the Matrimonial Property Act.
13	Section 4(1)(a) of the Matrimonial Property Act.
14	Section 3(1) of the Matrimonial Property Act.
15	Tax	Policy	Chief	Directorate,	National	Treasury	2001	http://www.ftomasek.com/
	NationalTreasury.pdf.
16	Sadka 1991 SPIMF 138.
17	Hockley 1968 BTR 8.
18	Hockley 1968 BTR 8.

Comparing the approaches of the Matrimonial Property Act and Income Tax Act reveals disparities and concretises the intention of this article. In what follows the reasoning for the inclusion of inflation in the accrual system will be explored and the lack of its application in CGT will be evaluated. These two objectives will serve to critique the way CGT is calculated and provide a set of suggestions and observations to review the present position.

2 Problem statement and outline of the article

Based on the above, this article addresses the following: which comparatives can be drawn between the effect of inflation and CGT, and why is inflation not provided for when determining the base cost of an asset for CGT purposes?20

The ensuing discussion will first consider the approach of the Matrimonial Property Act and then the Income Tax Act to explain the inconsistency between the Matrimonial Property Act and the Income Tax Act. Therefore, section 3 investigates the origins and nature of the Matrimonial Property Act insofar as it considers inflation.

The fourth section focusses on the Income Tax Act and sets out the characteristics of the CGT, its application in South Africa and a few notable alternatives. Given the reasoning behind the South African CGT system, the fifth section provides a calculation of capital gains taxation in South Africa. Through calculation the fifth section highlights the shortcomings of the existing CGT provisions and the challenges posed by the failure to acknowledge inflation therein. Critique and suggestions are then offered on the basis of these findings.

3 The accrual system and the Matrimonial Property Act

The accrual system was first considered after an investigation by the South African Law Commission (SALC), which had uncovered the "unsatisfactory results" of various aspects of the Matrimonial Affairs Act 37 of 1953,21 including financial exclusion and matrimonial power.22 Upon the recommendation of the Law Commission in 1975 the Minister approved the initiation of SALC Project 15, titled the Review of the Matrimonial Property Law, with Specific Reference to the Matrimonial Affairs Act, the Status of the Married Woman, and the Law of Succession in so far as it Affects the Spouses.23 This project culminated in a report of the same name which included a draft Matrimonial Property Bill.24 The report solidified the need for change and mandated the establishment of a special parliamentary committee to further investigate the SALC's report.25 Upon recommendation by this special parliamentary committee, the Minister of Justice declared that the Bill be enacted into law on 28 October 1983.26

19	Hockley 1968 BTR 8.
20	Section 4(1)(b)(iii) of the Matrimonial Property Act.
21	Matrimonial Affairs Act 37 of 1953.
22	Item 1.1 in SALC Report Pertaining to the Matrimonial Property Law.

In formulating a recommendation for the then status quo, the SALC surveyed the matrimonial property systems of West Germany, the Netherlands, France, Sweden and England.27 Following deliberations the SALC recommended a system based on the West German zugewinngemeinschaft, which the SALC named the “accrual system” in its draft Matrimonial Property Bill.28 The zugewinngemeinschaft is the default matrimonial property system of Germany.29 It is based on legal and financial independence during the marriage and, upon divorce, gains to each estate are pooled and shared equally between spouses.30 Accordingly, the system allows for the benefits of a "community of accrued gains" but at no stage are the estates of the spouses communal.31

The division is achieved by subtracting the "endvermrgen" (the value of both spouses' separate estates at the time when the divorce action is pending) from the value of each of the spouses' separate estates at the time of their marriage.32 Unless an asset is proven to be part of an estate prior to the marriage, it forms part of the endvermrgen.33 When the total values of each of the German spouses' estates are established, the increases in each of the estates are collectively halved.34 Consequently, the collective gains of each of the spouses' estates during their marriage are divided and shared equally. Should one of the estates have grown more, the spouse with the smaller estate would be entitled to half of the growth of the larger estate.35

23	Item 1.1 in SALC Report Pertaining to the Matrimonial Property Law.
24	Item 1.1 in SALC Report Pertaining to the Matrimonial Property Law; Sinclair 1983
	ICLQ 797.
25	Sinclair 1983 ICLQ. 797; Van Wyk 1983 Acta Juridica 53.
26	Van Wyk 1983 Acta Juridica 53.
27	Item 7-11 in SALC Report Pertaining to the Matrimonial Property Law.
28	Item 17.4 in SALC Report Pertaining to the Matrimonial Property Law; Sinclair 1983
	ICLQ 797, Van Wyk 1983 Acta Juridica 53.
29	Scherpe 2013 CFLQ 63.
30	Hahlo 1975 McGill LJ 589; Leyser 1958 Am J Comp L 279.
31	Scherpe 2013 CFLQ 63; Leyser 1958 Am J Comp L 279.
32	Scherpe 2013 CFLQ 63; Leyser 1958 Am J Comp L 279.
33	Scherpe 2013 CFLQ 63; Leyser 1958 Am J Comp L 281.
34	Scherpe 2013 CFLQ 64.

Following this approach, the zugewinngemeinschaft attempts to promote "equality of the sexes".36 Nevertheless, the zugewinngemeinschaft could not escape criticism when first introduced.37 One such criticism was regarding the effect of inflation on the value of the spouses' estates.38 Hahlo39 explains that the general understanding in the German legal context at the time was that gains in the value of an estate due to inflation did not qualify as real gains. Similarly, Sherpe40 and Van Wyk41 argue that the zugewinngemeinschaft is intended to be a mathematical exercise concerned with the nature of the gain only if it is genuine. Sherpe42 calls such gains which are not genuine, "Scheingewinn" or fictitious gains while Thiele43 labels such cases "paper gains".

German legislators also identify the concern and highlight that a significant amount of gains in a spouse's estate can be due to inflation, especially in long marriages.44 Furthermore, when the growth of an estate is calculated upon divorce, the inclusion of inflation may leave a spouse with fewer assets than the spouse had prior to the marriage.45 Concerning the challenge of inflation, no single solution was clear.46 To some no solution existed at all; Coester47 is of the view that a general inflation allocation could never reflect the actual impact of inflation on assets. Hahlo48 similarly argues that in instances of long marriages it may be "virtually impossible" to ascertain the growth of an estate at all.

Rising to the task, the German Federal Court of Justice resolved the matter by embracing the use of the "Lebenshaltungskostenindex",49 otherwise

35 Scherpe 2013 CFLQ 64; Leyser 1958 Am J Comp L 279. 36 Leyser 1958 Am J Comp L 276; Van Wyk 1983 Acta Juridica 53, 65. 37 Thiele 1960 JZ 394; Knur Probleme der Zugewinngemeinschaft 5-65; Lorenz 1959 JZ

105. 38 Hahlo 1975 McGill LJ 591. 39 Hahlo 1975 McGill LJ 591. This view is also followed by Leyser 1958 Am J Comp L

283.
40	Scherpe 2013 CFLQ 65.
41	Van Wyk 1983 Acta Juridica 64.
42	Scherpe 2013 CFLQ 64.
43	Thiele 1982 Cal W Int'l LJ 87-88.
44	Scherpe 2013 CFLQ 64;	a	concern	also recognised by South African courts,	as
	identified by Sinclair 1989 SALJ 253.
45	Scherpe 2013 CFLQ 64;	a	concern	also recognised by South African courts,	as
	identified by Sinclair 1989 SALJ 253.
46	Scherpe 2013 CFLQ 64.
47	Coester "Die vermgensrechtlichen Wirkungen" 67.
48	Hahlo 1975 McGill LJ 591.
49	Coester "Die vermgensrechtlichen Wirkungen" 67.

known as the German national cost of living index as determined annually by the German Federal Statistical Office.50 The index acknowledges the impact of inflation on an asset by multiplying the index by the nominal value of the asset.51 This approach provides the spouse with an adjusted initial asset value which more accurately reflects the total growth in each of the spouses' estates.52 In providing this principle, Mohr et al53 and Bryan and Cecchetti54 suggest that the CPI is the most common method to measure inflation. Utilising the CPI, inflation is calculated by considering the general increase in the price of a range of goods over a period of one or more than

55

one year.

Acknowledging the benefits of the zugewinngemeinschaft, the SALC included many of its traits in section 4 of the Matrimonial Property Act. The SALC further proposed the "accrual system" in its suggested Matrimonial Property Bill.56 Like the German zugewinngemeinschaft, the accrual system would never join the two estates of spouses but would rather entitle a spouse to half of the growth between the two estates upon divorce.57 The SALC further proposed a system identical to the zugewinngemeinschaft58 to calculate the value of an estate whereby the initial value of each spouse's estate is to be subtracted from the end value of the estate.59 The remaining total would then be considered as the estate's value.60

Another parallel between the SALC's recommendation and the zugewinngemeinschaft is the inclusion of a clause dealing with inflation.61 The SALC held that in order to uphold the principle that spouses share equally in the growth of each other's estates, a clause should be included to ensure that the principle is not counteracted by inflation.62 Consequently, in the Draft Bill of the SALC Report clause 4(1)(c) allows for the initial value of an estate to be adjusted to reflect the real value of the estate more accurately.63 The adjustment was made by multiplying the initial value of the estate by the weighted average of the CPI.64 This clause would ensure that the matrimonial property system provides for the natural "fluctuation in the value of money".65

50	Scherpe 2013 CFLQ 64.
51	Scherpe 2013 CFLQ 64; Thiele 1982 Cal W Int'l LJ 88.
52	Scherpe 2013 CFLQ 64; Thiele 1982 Cal W Int'l LJ 88.
53	Mohr et al Economics for South African Students 382.
54	Bryan and Cecchetti Consumer Price Index 3.
55	Mohr et al Economics for South African Students 382.
56	Sinclair 1983 ICLQ 797; Item 17.1 in SALC Report Pertaining to the Matrimonial
	Property Law.
57	Van Wyk 1983 Acta Juridica 64; Sinclair 1983 ICLQ 797; Item 17.4 in SALC Report
	Pertaining to the Matrimonial Property Law.
58	Sinclair 1983 ICLQ 797; Item 17.6.1 in SALC Report Pertaining to the Matrimonial
	Property Law.
59	Sinclair 1983 ICLQ 797; Item 17.6.1 in SALC Report Pertaining to the Matrimonial
	Property Law.
60	Item 17.6.1 in SALC Report Pertaining to the Matrimonial Property Law.
61	Van Wyk 1983 Acta Juridica 64, 72; Item 17.6.2 in SALC Report Pertaining to the
	Matrimonial Property Law.
62	Item 17.6.2 in SALC Report Pertaining to the Matrimonial Property Law.

The SALC further believed that such a provision allowed for the fluctuation variance of the items in the estate,66 arguing that although the value of individual items may be different, all "goods, in the long term change at more or less the same rate".67 In short, the SALC addressed criticism regarding variable inflation in an estate by arguing that most estates include a fair balance of items which are affected by inflation and those which hold their value or grow in value.68 However, the SALC was aware that this finding did not imply that balanced inflation exists in all estates and subsequently suggested the addition of clause 4(1)(b), which allowed spouses to specifically exclude assets from the accrual calculation.69

The above considerations culminated in sections 3 and 4 of the Matrimonial Property Act. Section 3(1) of the Matrimonial Property Act establishes a spouse's right to claim "half of the difference between the accrual of the respective estates of the spouses" based on the accrual system.70 Section 4(1)(a) of the Matrimonial Property Act details that the accrual of an estate is the amount by which an estate has grown subsequent to the marriage, supported by section 6(1) of the Matrimonial Property Act, which allows a spouse to declare his/her estate's value in the antenuptial contract.71 Section 4(1)(b)(iii) of the Matrimonial Property Act explicitly recognises the impact of inflation:72

the net value of that estate at the commencement of his marriage is calculated with due allowance for any difference which may exist in the value of money at the commencement and dissolution of his marriage, and for that purpose the weighted average of the consumer price index as published from time to time in the Gazette serves as prima facie proof of any change in the value of money.73

63	Van Wyk 1983 Acta Juridica 72; Item 17.6.2 in SALC Report Pertaining	to	the
	Matrimonial Property Law.
64	Van Wyk 1983 Acta Juridica 72; Item 17.6.2 in SALC Report Pertaining	to	the
	Matrimonial Property Law.
65	Item 17.6.2 in SALC Report Pertaining to the Matrimonial Property Law.
66	Item 17.6.2 in SALC Report Pertaining to the Matrimonial Property Law.
67	Item 17.6.2 in SALC Report Pertaining to the Matrimonial Property Law.
68	Item 17.6.2 in SALC Report Pertaining to the Matrimonial Property Law.
69	Item 17.6.3 in SALC Report Pertaining to the Matrimonial Property Law.
70	De Jong and Pintens 2005 TSAR 557.
71	De Jong and Pintens 2005 TSAR 557.
72	De Jong and Pintens 2005 TSAR 557.

Note that this clause does make provision for inflation; the CPI serves only as prima facie proof of the rate of inflation. Spouses can also institute a measure other than the CPI – e.g., market value – in their antenuptial contract.74

Considering the above, one finds that the principle that spouses share equally in the growth of each other's estates reflects in both the Draft Bill and the Matrimonial Property Act.75 By the same token, the clauses regarding the accrual system in the Draft Bill of the SALC report and the Matrimonial Property Act include inflation.76 Given the fact that the principles of the zugewinngemeinschaft accounted for inflation, the resulting South African legislation based on this principle followed suit.77 The Income Tax Act, on the other hand, does not account for inflation when determining the total value of assets (in the context of CGT). This will be discussed in the following section, whereafter the positions of the two Acts are juxtaposed.

4 Capital Gains Tax

4.1 The principles of the Capital Gains Tax

Evans78 explains that various forms of CGT have existed since the inception of the tax in Norway in 1911. Of 161 countries surveyed, 112 had a CGT system in place in 2002, including South Africa.79 Of the countries that form part of the Organisation for Economic Co-operation and Development (OECD), only two do not make provision for CGT, specifically New Zealand and the Netherlands.80 The South African CGT position is explained In this section. Thereafter, a consideration of foreign CGT systems is provided. The comparative develops from the "nearly universal"81 practice of CGT, with a few notable exceptions. The provisions of New Zealand, the Netherlands and other jurisdictions which account for inflation are discussed and compared to the South African CGT system.

73	Section 4(1)(b)(iii) of the Matrimonial Property Act.
74	De Jong and Pintens 2005 TSAR 557.
75	Leyser 1958 Am J Comp L 276; Van Wyk 1983 Acta Juridica 53, 65.
76	Section 4(1)(C) of the Draft Bill (Item	17.6.2 in	SALC Report Pertaining	to	the
	Matrimonial Property Law) and s 4(1)(a)(iii) of the Matrimonial Property Act.
77	Item 17.6.1 in SALC Report Pertaining to the Matrimonial Property Law.
78	Evans 2002 Journal of Australian Taxation 116.
79	Evans 2002 Journal of Australian Taxation 117.

80 Jacomb 2014 Auckland U L Rev 125; Evans 2002 Journal of Australian Taxation 116. 81 Tanzi Taxation, Inflation and Interest Rates 4.

Firstly, Barker82 provides a general definition which will serve as the point of departure for this inquiry into CGT:

capital gains are non-recurring gains from the disposition of properties that do not form part of the normal stream of income from employment, business or investment. Are capital gains income? The answer is that our views on this question have changed over time.

For South Africa, the Commissioner for Inland Revenue v Visser83 case established the distinction of whether capital gains were income.84 The Visser case followed the principle established in the United States of America's Supreme Court case, Eisner v Macomber, 85 which introduced the distinction between income and capital.

In referencing one of Adam Smith's86 foundations of a fair tax – "the fruits of the taxpayer's efforts may be taxed but not the seed of those fruits" – it was held in Visser87 that, as a tree produces fruit, capital produces income.88 Recognising the appropriateness of Smith’s fruit and tree analogy, Visser89 is notably cautious in recognising that fruit in one case may be capital in another.90 An art collection, for example, amounts to a capital asset for a home owner while the same collection is an income asset for an art gallery when the pieces of art are disposed of in the production of income.91 This distinction may vary based on the specific facts of each case and not all cases are as simple as that of Visser.92 For that reason the development of a single universal test to distinguish assets in this manner seems futile.93 Instead multiple indicators to determine whether a receipt is income or capital in nature have been developed.94 This includes a number of

82 Barker 2005 Penn St L Rev 720. 83 Commissioner for Inland Revenue v Visser 1937 8 SATC 271 (the Visser case). 84 An in-depth evaluation of the distinction between capital and revenue is beyond the

scope of this article. For the current South African position see SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 1130.

85 Eisner v Macomber 1920 252 US 189. 86 As quoted by Maroun, Turner and Sartorius 2011 SAJEMS 436. 87 Visser case 271. 88 Visser case 276. See also SARS 2018 https://www.sars.gov.za/AllDocs/

OpsDocs/Guides/LAPD-CGT-G01%20%20Comprehensive%20Guide%20to%20

Capital%20Gains%20Tax.pdf 18. 89 Visser case 271. 90 Visser case 276. 91 Visser case 276. 92 Visser case 271. 93 SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGT-G01%

20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 13.

94 SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGT-G01% 20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 13-30; Coetzee et al Student's Approach to Income Tax 57.

subjective tests and objective factors to be considered and applied insofar as the individual matters relate to the specific case.95

For the purposes of this article, the test used in Visser is sufficient to illustrate this comparison at the heart of CGT, failing which, the lack of a CGT leads to:

many distortions in the economy, by encouraging taxpayers to convert otherwise taxable income into tax-free capital gains.96

Accordingly, CGT acts as a "backstop" to ensure that income cannot be misrepresented as capital gains and therefore not taxed.97 While this countermeasure does assist in ensuring adequate taxation, it is not without critique.98 When considering the distinction between income and capital gains, Jacomb99 argues that the CGT is an administrative burden that does not increase the tax base of a country meaningfully. However, Jacomb100 acknowledges that having no CGT fails to ensure horizontal equity in the tax base.101 Thereby, two taxpayers who each receive the same revenue could pay divergent tax rates due to the fact that one receives revenue of a capital nature while the other receives revenue of an income nature.102 Burman and White103 also reach this conclusion when examining the New Zealand tax system – which does not accommodate CGT.

95 Coetzee et al Student's Approach to Income Tax 57-66; SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 13

19. The most important test used to determine the distinction between capital and revenue receipts is intention (Commissioner for Inland Revenue v Stott 1928 3 SATC 253 254; Rabenowitz et al South African Financial Planning Handbook 694) but other factors like the length of the holding period, the realisation of an asset to the best advantage of the owner, the sale of surplus land, the realisation period etc. can also influence the nature of the revenue. Other tests which are used include the "filling a hole" test, the "once and for all" test, the "for keeps" test and the "enduring benefit" test (SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 1725).

96 SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGT-G01%20

%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 1. 97 Evans 2002 Journal of Australian Taxation 118. 98 Burman and White 2003 NZJTLP 356. 99 Jacomb 2014 Auckland U L Rev 125. 100 Jacomb 2014 Auckland U L Rev 125. 101 Which is a factor that is also emphasised by the SARS (SARS 2018

https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 12).

102 Jacomb 2014 Auckland U L Rev 125; Evans 2002 Journal of Australian Taxation 126; SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGT-G01% 20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 1.

103 Burman and White 2003 NZJTLP 357, 363.

Barker104 is of the opinion that the introduction of CGT to the South African context also assists in producing "more equity in the income tax by broadening the tax base". Barker105 further argues that CGT "promotes redistribution by taxing more effectively high-income individuals". This is specifically important in the context of the high levels of inequality in South African where "the biggest share of CGT revenues can be attributed to the wealthiest of individuals".106 This practice, in turn, promotes equity for the South African tax system107 as groups which are able to bear the tax burden are taxed in accordance with their ability.108 The South African interpretation of these principles is discussed in the following subsection, followed by an international perspective.

4.2 The application of the capital gains tax in South Africa and other jurisdictions

4.2.1 South Africa

The inclusion of the CGT in South African tax law was first announced by the Minister of Finance during the National Budget Review on 24 February 2000,109 with the specific conditions forming the Eighth Schedule of the Income Tax Act.110 This was authorised by the inclusion of section 26A of the Income Tax Act stipulating that a taxpayer's taxable income included "the taxable capital gain of that person for that year of assessment". This provision was formalised in the South African tax regime on 1 October 2001111 and only gains made after 1 October 2001 are taxed.112

104 Barker 2005 Penn St L Rev 720. 105 Barker 2005 Penn St L Rev 720. 106 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/

NationalTreasury.pdf 10-11. 107 Barker 2005 Penn St L Rev 720; Tax Policy Chief Directorate, National Treasury 2001

http://www.ftomasek.com/NationalTreasury.pdf 10. 108 Maroun, Turner and Sartorius 2011 SAJEMS 438. 109 Cassidy 2004 SA Merc LJ 164. On 23 February 2000 the SARS also published an

introductory guide to the proposed CGT and invited commentary thereon from stakeholders until 31 March 2000 (SARS 2018 https://www.sars.gov.za/ AllDocs/OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 1).

110 Coetzee et al Student's Approach to Income Tax 485; for the detailed reasoning behind the inclusion of the tax see the National Treasury briefing of 24 January 2001 (Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf).

111 Coetzee et al Student's Approach to Income Tax 485; Rabenowitz et al South African Financial Planning Handbook 691. 112 Rabenowitz et al South African Financial Planning Handbook 691; Cassidy 2004 SA Merc LJ 167; Rabenowitz et al South African Financial Planning Handbook 691.

CGT is calculated by adding all the capital gains and losses for the year and subtracting any capital losses brought forward.113 Should a gain exist which is above the annual exclusion threshold of R40 000 and no other exemptions apply,114 then it would be included at a rate of 40% for natural

115

persons.

To determine whether each disposal of an asset that is of a capital nature constitutes a capital gain (which is taxable) or loss (which is not taxed), an individual calculation is made.116 Notably, inflation is excluded from these calculations.117 A capital gain exists when the proceeds or the amount received by the taxpayer on the disposal of an asset118 "exceed(s) the base cost of an asset".119 Conversely, should the proceeds of the disposal not exceed the base cost of the asset, a capital loss exists and is not taxed.120

During the months prior to the implementation of the CGT system in South Africa, a briefing was held by the National Treasury's Tax Policy Chief Directorate to specifically deal with the impact of inflation on the CGT.121 While the report stated that an ideal tax system would not include inflationary gains, it acknowledged that all income types have "some inflationary element" for which the existing tax system provided no compromise. 122 The report also acknowledged that sales in capital assets could include "a significant inflationary element" but argued that inflation

113 Coetzee et al Student's Approach to Income Tax 489; SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 3335.

114 Paragraph 5 of the Eighth Schedule of the Income Tax Act. Also see SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 35.

115 Paragraph 10 of the Eighth Schedule of the Income Tax Act. Also see SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 7.

116 Capital gains and capital losses are defined in paras 3 and para 4 of the Eighth Schedule of the Income Tax Act. For an example hereof please see SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 34.

117 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 22-26.

118 Coetzee et al Student's Approach to Income Tax 490; SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 33; Rabenowitz et al South African Financial Planning Handbook 705.

119 Paragraph 3 of the Eighth Schedule of the Income Tax Act. 120 Paragraph 4 of the Eighth Schedule of the Income Tax Act. 121 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/

NationalTreasury.pdf. 122 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 13.

was generally provided for by the moderate inclusion rate of the suggested legislation.123 The National Treasury reasoned that the determination of the inclusion rates was informed in part by "partially adjusting for inflation".124 The validity of this argument in later years will be tested in the example below as the inclusion rate has increased from the initial 25%125 to 40%.126

Locally, only one instance exists where the South African CGT system acknowledges inflation, and it relates specifically to foreign inflation. The Income Tax Act acknowledges the impact of inflation on CGT when referring to controlled foreign companies,127 and the tax treatment of controlled foreign companies (CFC) is in itself a contentious matter.128 It is generally applied to prevent tax avoidance and ensure that the income of a CFC with domestic shareholders is taxed on a current basis.129 In defining the net income of a controlled foreign company130 – which includes CGT – section 9D(2A)(l)(i)(bb) of the Income Tax Act determines that if a CFC acquired an asset, and the foreign currency experienced an official inflation rate increase of 100% or higher in the tax year applicable, and the country subsequently abandoned its currency for a new currency, the asset would be assumed to have been acquired in the new currency rather than the abandoned currency. In comparison, other jurisdictions approach CGT in different manners. The following sub-section unpacks related examples of alternative approaches to CGT and the South African response thereto.

4.2.2 Alternatives and the South African response

As stated above, all OECD countries including South Africa employ some form of CGT with the exception of New Zealand.131 A number of OECD countries also allow for disregarding CGT after a specified period has passed.132 In New Zealand specifically, the OECD has recommended the introduction of a CGT twice, but a number of factors including New

123 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 13-15. 124 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 26. 125 SARS 2000 http://www.treasury.gov.za/documents/national%20budget/2000/cgt/cgt. pdf 1. 126 SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGT-G01%20

%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 37. 127 Section 9D of the Income Tax Act. 128 See for example Oguttu 2009 CILSA 73; Gutuza 2014 CILSA 189. 129 Oguttu 2009 CILSA 73. 130 Typically, a controlled foreign company exists where South African residents own

more than half of the total participation rights of a foreign company (s 9D of the Income

Tax Act). 131 Jacomb 2014 Auckland U L Rev 125; Evans 2002 Journal of Australian Taxation 116. 132 Harding Taxation of Dividend 33.

Zealand's "economic environment, global tax policy developments, the political will and sustainability"133 have prevented its government from passing a Bill including CGT.134

New Zealand has included a set of 25 assets and trades categorised as revenue and not as capital in an attempt to achieve a system with the same function as a CGT.135 Nevertheless, some argue that this inclusion does not adequately address concerns in the system.136 In 2001 a Tax Review Committee was established by the New Zealand Government in part to suggest a solution to these concerns.137 Surprisingly, the Committee did not suggest the implementation of a CGT and held firm that the inclusion of a CGT would not increase the fairness or benefit the administration of the tax system.138 As an alternative, the Committee proposed the "Risk Free Return Method" (RFRM),139 which the Committee believed could decrease the amount of "distortions generated by the absence of a comprehensive capital gains tax".140

In short, the RFRM would tax "designated investment vehicles and residential housing" by determining the asset's value at the start of each year multiplied by the "statutory risk-free rate of return" which naturally accounts for inflation.141 Thereby:

if an asset is worth $100,000 at the beginning of the year and the risk-free rate equals 4 percent, the risk-free return is $4,000. That amount would be included in the income of the taxpayer and taxed at the taxpayer's marginal tax rate.142

The RFRM model consequently proposes that the specific types of capital gains mentioned be taxed at the rate of return on the government bonds' increase beyond inflation.143 Hereby the RFRM attempts to account for New Zealand's general rate of inflation when determining the tax payable for the gains in the value of an asset. Although this may seem an effective alternative, it remains untested as the RFRM or any other CGT model has

133 Buckle 2010 NZEP 135. 134 Jacomb 2014 Auckland U L Rev 141. 135 Burman and White 2003 NZJTLP 356-357, 363. 136 Burman and White 2003 NZJTLP 357; Tiong 2010 Auckland U L Rev 295; Buckle

2010 NZEP 131. 137 McLeod et al Tax Review 2001 29. 138 McLeod et al Tax Review 2001 8. 139 McLeod et al Tax Review 2001 8. 140 McLeod et al Tax Review 2001 27. 141 McLeod et al Tax Review 2001 27. In this instance the risk-free rate of return refers to

the rate of return on New Zealand government bonds minus inflation (McLeod et al

Tax Review 2001 27). 142 Burman and White 2003 NZJTLP 371. 143 McLeod et al Tax Review 2001 27.

not received the necessary support to be enacted into law in New Zealand.144

Another alternative approach to CGT is that of the Netherlands, where a system similar to the proposed RFRM has been in operation since 2001.145 The Dutch system taxes capital income "on the basis of the expected (exante) investment return" correlating with the risk-free rate of return,146 meaning that an asset's CGT is determined by an anticipated return rather than an actual return.147

Like the Netherlands and New Zealand, four other OECD countries also acknowledge inflation in determining CGT.148 Portugal, Chile and Mexico account for inflation in the realisation of an asset by either multiplying the initial cost of the asset by the inflation rate149 or by correlating the realisation amount of the asset with the initial cost of the asset.150 To account for inflation the initial or sale value of an asset is adjusted to include or exclude inflation, a much simpler approach than that of the Netherlands.151

Considering the unconventional methods followed by the countries above, the South African National Treasury advanced three arguments to exclude inflation from the South African interpretation of CGT.152 Firstly, the taxation of CGT "on a real basis while other income and expenses are taxed on a nominal basis", it is argued, would lead to "inefficiency" in the determination of the value "as well as inequity" by distorting investment values.153 The National Treasury suggests that the tax system would be iniquitous as a consequence, as wealthy individuals would benefit the most from the

144 Jacomb 2014 Auckland U L Rev 141. 145 Cnossen and Bovenberg 2001 International Tax and Public Finance 471. 146 Cnossen and Bovenberg 2001 International Tax and Public Finance 474. 147 Harding Taxation of Dividend 24. 148 Harding Taxation of Dividend 24. 149 The South African Reserve Bank is tasked with ensuring that the South African

inflation rate remains between 3 and 6 per cent, which it influences by adjusting the

repurchase rate (Mohr et al Economics for South African Students 269). 150 Harding Taxation of Dividend 24, 32-33. 151 A comparison of the effective CGT rates as influenced by the recognition of inflation

therein is beyond the scope of this piece. For a detailed international comparative from a South African perspective see Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/NationalTreasury.pdf 5-9; In 4.3 below a comparison of the impact of the systems mentioned is made by way of an example.

152 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 22-26.

153 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 27. Please see the following part for a discussion on the difference between real and nominal rates.

introduction of inflation in CGT while inflation is not exclusive to them.154 Finally, the Treasury maintains that the introduction would also lead to significant administrative complexity as evidenced by the example of the Netherlands.155 In considering these drawbacks and the international trend away from inflation indexation,156 the National Treasury concludes that only in cases of sustained and significant inflation would inflationary adjustments be necessary.157

It becomes clear that plausible alternatives from the international perspective were considered prior to the suggested South African CGT regime's implementation.158 This section discusses how – although this mechanism is not exempt from critique159 -CGT contributes to the equity of a tax system by primarily functioning as a "backstop".160 In the following section the impacts of inflation on CGT are illustrated by way of an example, leading to critique and a set of considerations for the South African CGT regime.

5 Capital Gains Tax and inflation

Paragraph 3 showed that the South African matrimonial property system introduced the accrual system to further equality between spouses,161 by calculating and distributing the growth in the estates of the spouses equally.162 This process also accounted for the impact of inflation in the calculation of the growth of an estate.163 The reasoning behind this inclusion was founded in the German zugewinngemeinschaft on which the accrual system was largely based.164 When compared with the South African CGT

154 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 24. 155 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 24. 156 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 33.

157 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 27. Sustained and significant inflation is characterised by the National Treasury as beyond 20% for a period of more than one year (Tax Policy Chief Directorate of the National Treasury Capital Gains Tax 29).

158 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 4-10; SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/ Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 55.

159 Maroun, Turner and Sartorius 2011 SAJEMS 436. 160 Evans 2002 Journal of Australian Taxation 118; Tax Policy Chief Directorate, National

Treasury 2001 http://www.ftomasek.com/NationalTreasury.pdf 2. 161 Leyser 1958 Am J Comp L 276; Van Wyk 1983 Acta Juridica 53, 65. 162 Section 3(1) of the Matrimonial Property Act; De Jong 2012 Stell LR 225. 163 Section 4(1)(b)(iii) of the Matrimonial Property Act. 164 Item 17.6.2 in SALC Report Pertaining to the Matrimonial Property Law.

regime, it is found that the system does not account for inflation whereas some foreign jurisdictions do, recognising the possible impact thereof on taxation.165 Below, CGT is applied to an example to illustrate the impact of inflation and gauge the validity of the South African National Treasury's response to the challenges raised. Thereafter, concluding recommendations are made in the final section of this article.

Consider the following to illustrate166 the nature of the CGT regime. Assume that an individual purchases a townhouse in Potchefstroom for R500 000,00 on 2 October 2009.167 Shortly thereafter, that same individual buys a family home also for R500 000,00. As time passes, the value of both properties increases, in part due to inflation. Should the individual later sell the family home for R2 600 000 and the townhouse for R1 800 000, the capital gains would amount to R2 100 000 and R1 300 000 respectively for these two transactions.168 These amounts would be subject to CGT as depicted in Table 1 below.

Table 1

Family house		Townhouse
Proceeds	R2,6m	Proceeds	R1,8m
Base cost	R0,5m	Base cost	R0,5m
Gain	R2,1m	Gain	R1,3m

165 Harding Taxation of Dividend 24, 32-33. Accruals are also excluded from CGT (SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGT-G01%20%20 Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 187).

166 This is a refashioned example from the SARS 2018 https://www.sars.gov.za/AllDocs/ OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf

440. In the example, two properties are purchased for R500 000 and sold for R2,6m and R1,8m respectively.

167 In the example of SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/ Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 440 the above figures were used to represent the impact of a primary residence exclusion for an individual with two houses. For the current purpose, the example adequately represents the impact of the inclusion rate on inflation, as will be discussed further below.

168 This is a significantly simplified example. The sale of a house can be subject to several additions in its base cost and some exclusions see SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 437 in this regard.

Primary residence exclusion	R2,0m	Primary residence exclusion	R0
Balance for both transactions subject to CGT	R1,4m
Minus the annual exclusion	R40 000
Aggregate capital gain	R1,36m
Taxable capital gain (40% of aggregate capital gain)	R544 000
Tax payable (in accordance with the 2020/21 tax brackets)	R141 033

Should the individual have no other income during the period, the taxable capital gains income would amount to R544 000,00 and R141 033,00 would be payable to the South African Revenue Service.169 It is clear in this case that the full gain including inflation is taxed for the townhouse, while not for the family house. For the duration of the ownership (from 2009 to 2021) the annual national house price inflation rates are detailed in Table 2 in percentages.170

Table 2

2009	2010	2011	2012	2013	2014	2015	2016	2017	2018	2019	2020
2.6	4.1	2.7	4.1	5.1	5.5	5.6	4.6	4.1	2.5	3.0	4.6

Considering the accumulated inflation in the national housing market, an inflationary effect to the value of each of the properties purchased is implied. In this example the inflationary effect on the house price totals to the amount of R 803 865,79 for each house. This quantum is calculated by multiplying the purchase price of each house with the annual inflation rates for 2009 to 2020. Thus, although the market price increases, when inflation is added to the base cost, as undertaken in Portugal, Chile, and Mexico,171 the total

169 SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGT-G01%20

%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 38. 170 Lightstone 2021 https://lightstoneproperty.co.za/adminNews/news.aspx?cId=3. 171 Harding Taxation of Dividend 24, 32-33.

inflationary effect amounts to R 803 865,80 for each house. The impact of this approach is detailed in table 3 below.

Table 3

Family house	Townhouse
Proceeds	R2,6m	Proceeds	R1,8m
Base cost	R0,803m	Base cost	R0,803m
Gain	R1,796m	Gain	R0,996m
Primary residence exclusion	R2,0m	Primary residence exclusion	R0
Balance subject to CGT	R996 134,20
Minus the annual exclusion	R40 000
Aggregate capital gain	R956 134,20
Taxable capital gain (40% of aggregate capital gain)	R382 453,68
Tax payable (in accordance with the 2020/21 tax brackets)	R86 008,64

From Table 3 it is clear that, for the family home, this comparison has no significant impact as the primary residence exclusion allows for growth of up to R2 million to be deducted from the base cost, effectively neutralising the CGT of the family home and the impact of inflation.172 Markedly, the primary residence exclusion was created in part to combat the inflationary effect and the tables above indicate that the exclusion functions effectively for this purpose.173

However, this does not hold true for the townhouse. In this example, R 303 865,79 of the increase is a fictional gain created by inflation and is not considered in the calculation. Should the approach of Portugal, Chile, and Mexico174 be followed in this context, the total CGT would be reduced to R86 008,64.

172 SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGT-G01%20 %20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax.pdf 437. 173 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 26. 174 Harding Taxation of Dividend 24, 32-33.

The South African, Portuguese, Chilean, and Mexican approaches could be taxed at the same effective rate to remove the impact of the tax brackets on the outcome. Dividing the tax payable by the taxable capital gain of the South African example yields an effective tax rate of 25,9% for this example. To compare the findings, this flat rate could be utilised in the other example: with the flat rate of 25,9% the tax payable for the Portuguese, Chilean and Mexican approach would amount to R99 055.

Another consideration is the increase in the inclusion rate. Should the inclusion rate have remained at the initial 25%, the total taxable capital gains would be only R340 000,00 in comparison with R544 000,00 for the current South African system.175 When applying the 25% inclusion rate amount to an effective tax rate of 25,9%, the tax payable would amount to R88 060,00.

In comparing the calculations based on the 25,9% effective tax rate, there are some noteworthy findings. Firstly, it is noteworthy that the 25% inclusion rate provides very similar outcomes for the South African approach and the approach of Portugal, Chile and Mexico. Utilising the 25% inclusion rate yields a total tax payable of R88 060,00 for the South African example and R99 055,00 for the approach of Portugal, Chile and Mexico. This comparison substantiates the argument of the National Treasury's Tax Policy Chief Directorate that a moderate inclusion rate can balance the effect of inflation.176

Yet when comparing the 25% inclusion rate to the current inclusion rate, the tax payable increases from R88 060,00 to R141 033. This difference amounts to an increase of 60,16% in tax payable. While viable at lower rates, this example suggests that at an inclusion rate of 40% the argument of the South African National Treasury is invalid. This article considers several recommendations in the following, final section to address this matter.

6 Recommendations and conclusion

In comparing the ways in which the Matrimonial Property Act and the Income Tax Act deal with inflation, a clear distinction becomes evident. In the accrual system, the increase in the value of an estate is determined by the initial value of the estate prior to the marriage in comparison with the CPI adjusted value of the estate upon the dissolution of the marriage.177 The

175 SARS 2000 http://www.treasury.gov.za/documents/national%20budget/2000/cgt/

cgt.pdf 1. 176 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/

NationalTreasury.pdf 13-15. 177 Section 4(1)(b)(iii) of the Matrimonial Property Act.

CGT system, on the other hand, determines a capital gain by deducting the amount received on the sale of an asset from the base cost of the asset without accounting for inflation.178

This comparison has revealed that the concerns raised by the German Federal Court of Justice regarding the adjustment of the zugewinngemeinschaft were considered in the establishment of the South African CGT regime. This is evidenced by the initial 25% inclusion rate and the comparative findings of section 5. Nonetheless, this does not imply that the concerns raised by the Court are not applicable in instances where no CGT exclusions exist. In the zugewinngemeinschaft179 and the South African accrual system,180 fictional gains are accommodated by including the CPI in calculating the growth of spouses' estates. This position is also true for the CGT regimes of the Netherlands, Portugal, Mexico and Chile,181 whose CGT regimes all account for inflation in their CGT calculations.

Fundamentally these CGT regimes address the concerns of the German Federal Court of Justice and allow for the taxation of real capital gains but not of scheingewinn. In contrast, when applying a 40% inclusion rate the South African CGT regime does not recognise the impact of scheingewinn. Accordingly, the South African CGT regime currently requires that taxpayers be taxed on fictional gains to the value of their assets upon disposal, should no exemption apply. This has not always been the case. Based on the initial 25% inclusion rate proposed, inflation is largely accommodated; however, subsequent increases in the inclusion rate have effectively nullified this provision.

In the zugewinngemeinschaft this concern was identified and addressed by including the "Lebenshaltungskostenindex" in the calculation of a spouse's estate.182 In South Africa the recognition of inflation in the CGT system was rejected by the National Treasury.183 In short, the National Treasury held that regardless of the nature of the income, inflationary effects are experienced across all assets. Providing for the effect of inflation would lead to unfairness as well as additional administrative encumbrances to make an exception for CGT.184 However, this does not detract from the fact that –

178 Paragraph 3 of the Eighth Schedule of the Income Tax Act. 179 Scherpe 2013 CFLQ 64. 180 Section 4(1)(b)(iii) of the Matrimonial Property Act. 181 Harding Taxation of Dividend 24, 32-33. 182 Coester "Die vermgensrechtlichen Wirkungen" 67. 183 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/

NationalTreasury.pdf 24-27. 184 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/

NationalTreasury.pdf 27.

especially for assets held for lengthy periods – "a significant inflationary element" can be present.185

At first this concern was accommodated partially through exemptions and a moderate inclusion rate,186 but the subsequent increases in the inclusion rate have weakened this argument as illustrated in the example above.187 Instances where no exemptions apply essentially lead the CGT system to be contrary to Smith's188 widely accepted fair tax system, which requires that "the fruits of the taxpayer's efforts may be taxed but not the seed of those fruits."

Given the inequalities in the treatment of inflation in the accrual system and the CGT regime, this article therefore suggests that the current CGT regime be further investigated and the inclusion rate revisited. For example, a wider set of CGT exclusions might be developed to better accommodate inflation for particularly susceptible assets. Contributions could potentially minimise instances where taxpayers need to account to and recompense the government for fictional gains in their CGT. This proposed approach would limit ordinary taxpayers from recompensing government for fictional gains, "Scheingewinn"189 or "paper gains".190

Bibliography

Literature

Barker 2005 Penn St L Rev Barker B "Expanding the Study of Comparative Tax Law to Promote Democratic Policy: The Example of the Move to Capital Gains Taxation in Post-Apartheid South Africa" 2005 Penn St L Rev 703-728

Black Dictionary of Economics Black J A Dictionary of Economics (Oxford University Press New York 1997)

Bryan and Cecchetti Consumer Price Index Bryan MF and Cecchetti SG The Consumer Price Index as a Measure of Inflation (National Bureau of Economic Research Cambridge 1993)

185 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 13-15. 186 Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/ NationalTreasury.pdf 13-15.

187 See 4.3 above; SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPD-CGT-G01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20Tax. pdf 38.

188 As quoted by Maroun, Turner and Sartorius 2011 SAJEMS 436. 189 Scherpe 2013 CFLQ 64. 190 Thiele 1982 Cal W Int'l LJ 87-88.

Buckle 2010 NZEP Buckle RA "Introduction: Tax Policy Reform New Zealand Style" 2010 NZEP 129-136

Burman and White 2003 NZJTLP Burman L and White D "Taxing Capital Gains in New Zealand" 2003 NZJTLP 355-386

Cassidy 2004 SA Merc LJ Cassidy J "Capital Gains Tax in South Africa: Lessons from Australia?" 2004 SA Merc LJ 164-195

Cnossen and Bovenberg 2001 International Tax and Public Finance Cnossen S and Bovenberg L "Fundamental Tax Reform in The Netherlands" 2001 International Tax and Public Finance 471-484

Coester "Die vermgensrechtlichen Wirkungen" Coester M "Die vermgensrechtlichen Wirkungen der Ehe in der Bundesrepublik Deutschland" in Referate des deutsch-schwedischen Juristentreffens (13-17 September 1988 Heidelberg) 61-82

Coetzee et al Student's Approach to Income Tax Coetzee K et al (eds) A Student's Approach to Income Tax: Natural Persons 2018 (LexisNexis Durban 2017)

De Jong 2012 Stell LR De Jong M "The Need for New Legislation and/or Divorce Mediation to Counter Some Commonly Experienced Problems with the Division of Assets upon Divorce" 2012 Stell LR 225-240

De Jong and Pintens 2005 TSAR De Jong M and Pintens W "Default Matrimonial Property Regimes and the Principles of European Family Law – A European-South African Comparison (Part 2)" 2005 TSAR 551-566

Evans 2002 Journal of Australian Taxation Evans C "Taxing Capital Gains: One Step Forwards or Two Steps Back" 2002 Journal of Australian Taxation 114-135

Gutuza 2014 CILSA Gutuza T "The Headquarter Company Structure in the Southern African Context: A South African Tax Law Perspective" 2014 CILSA 187-205

Hahlo 1975 McGill LJ Halho A "A Note on Deferred Community of Gains: The Theory and the Practice" 1975 McGill LJ 589-595 Harding Taxation of Dividend Harding M Taxation of Dividend, Interest, and Capital Gain Income (Organisation for Economic Co-operation and Development Paris 2013)

Hockley 1968 BTR Hockley GC "Capital Gains and Inflation" 1968 BTR 3-8

Jacomb 2014 Auckland U L Rev Jacomb M "A History of Taxing Capital Gains in New Zealand: Why Don't We" 2014 Auckland U L Rev 124-149

Knur Probleme der Zugewinngemeinschaft Knur A Probleme der Zugewinngemeinschaft (Publishing House for the Social Sciences Wiesbaden 1959)

Leyser 1958 Am J Comp L Leyser J "'Equality of the Spouses' under the New German Law" 1958 Am J Comp L 276-287

Lorenz 1959 JZ Lorenz W "Die Verfgungsbeschränkungen im Rahmen der Zugewinngemeinschaft" 1959 JZ 105-109

Maroun, Turner and Sartorius 2011 SAJEMS Maroun W, Turner M and Sartorius K "Does Capital Gains Tax Add or Detract from the Fairness of the South African Tax System?" 2011 SAJEMS 436-448

McLeod et al Tax Review 2001 McLeod R et al Tax Review 2001: Final Report October 2001 (Tax Review Committee Wellington 2001)

Mohr et al Economics for South African Students Mohr P et al Economics for South African Students 5th ed (Van Schaik Pretoria 2015)

Oguttu 2009 CILSA Oguttu AW "Resolving the Conflict between Controlled Foreign Company Legislation and Tax Treaties: A South African Perspective" 2009 CILSA 73

Rabenowitz et al South African Financial Planning Handbook Rabenowitz P et al (eds) The South African Financial Planning Handbook 2016 (LexisNexis Durban 2016)

Sadka 1991 SPIMF Sadka E "An Inflation-Proof Tax System? Some Lessons from Israel" 1991 SPIMF 135-155

SALC Report Pertaining to the Matrimonial Property Law South African Law Commission Report Pertaining to the Matrimonial Property Law with Special Reference to the Matrimonial Affairs Act, 1953, the Status of the Married Woman, and the Law of Succession in so far as it Affects the Spouses. RP26/1982 (SALC Pretoria 1982)

Scherpe 2013 CFLQ Scherpe JM "A Comparative Overview of the Treatment of Non-Matrimonial Assets, Indexation and Value Increases" 2013 CFLQ 61-81

Sinclair 1983 ICLQ Sinclair JD "The Financial Consequences of Divorce in South Africa: Judicial Determination or Private Ordering" 1983 ICLQ 785-811

Sinclair 1989 SALJ Sinclair JD "Divorce and the Judicial Discretion – In Search of the Middle Ground" 1989 SALJ 249-259

Tanzi Taxation, Inflation and Interest Rates Tanzi V Taxation, Inflation and Interest Rates (International Monetary Fund Washington DC 1984)

Thiele 1960 JZ Thiele W "Die grobe Unbilligkeit des Zugewinnausgleichs: § 1381 BGB im Bereich der Anwendungsmaximen des § 242 BGB" 1960 JZ 394-398

Thiele 1982 Cal W Int'l LJ Thiele LK "The German Marital Property System: Conflict of Laws in a Dual-Nationality Marriage" 1982 Cal W Int'l LJ 78-127

Tiong 2010 Auckland U L Rev Tiong A "The New Zealand Tax Reforms of 2010" 2010 Auckland U L Rev 294-304

Van Wyk 1983 Acta Juridica Van Wyk AH "Matrimonial Property System in Comparative Perspective" 1983 Acta Juridica 53-74

Case law

Commissioner for Inland Revenue v Stott 1928 3 SATC 253

Commissioner for Inland Revenue v Visser 1937 8 SATC 271

Eisner v Macomber 1920 252 US 189

Legislation

Matrimonial Property Act 88 of 1984

Matrimonial Affairs Act 37 of 1953

Income Tax Act 58 of 1962

Internet sources

Lightstone 2021 https://lightstoneproperty.co.za/adminNews/news.aspx? cId=3 Lightstone 2021 House Price Indices https://lightstoneproperty.co.za/ adminNews/news.aspx?cId=3 accessed 18 November 2021

SARS 2000 http://www.treasury.gov.za/documents/national%20budget/ 2000/cgt/cgt.pdf South African Revenue Service 2000 Guide to Capital Gains Tax http://www.treasury.gov.za/documents/national%20budget/2000/cgt/cgt.pd f accessed 17 July 2019

SARS 2018 https://www.sars.gov.za/AllDocs/OpsDocs/Guides/LAPDCGT-G01%20%20Comprehensive%20Guide%20to%20Capital%20Gains %20Tax.pdf South African Revenue Service 2018 Comprehensive Guide to Capital Gains Tax (Issue 7) https://www.sars.gov.za/AllDocs/OpsDocs/ Guides/LAPD-CGTG01%20%20Comprehensive%20Guide%20to%20Capital%20Gains%20T ax.pdf accessed 17 July 2019

Tax Policy Chief Directorate, National Treasury 2001 http://www.ftomasek.com/NationalTreasury.pdf Tax Policy Chief Directorate, National Treasury Capital Gains Tax http://www.ftomasek.com/NationalTreasury.pdf accessed 17 July 2019

List of Abbreviations

Am J Comp L	American Journal of Comparative Law
Auckland U L Rev	Auckland University Law Review
BTR	British Tax Review
Cal W Int'l LJ	California Western International Law Journal
CFC	controlled foreign company
CFLQ	Child and Family Law Quarterly
CGT	Capital gains tax
D OLËN & HJ KLOPPERS	PER / PELJ 2023(26) 28
CILSA	Comparative and International Law Journal of
	Southern Africa
CPI	Consumer Price Index
GDP	Gross Domestic Product
ICLQ	International and Comparative Law Quarterly
ITA	Income Tax Act 58 of 1962
JZ	JuristenZeitung
McGill LJ	McGill Law Journal
MPA	Matrimonial Property Act 88 of 1984
NZEP	New Zealand Economic Papers
NZJTLP	New Zealand Journal of Taxation Law and
	Policy
OECD	Organisation for Economic Co-operation and
	Development
Penn St L Rev	Penn State Law Review
RFRM	Risk Free Return Method
SAJEMS	South African Journal of Economic and
	Management Sciences
SA Merc LJ	South African Mercantile Law Journal
SALC	South African Law Commission
SALJ	South African Law Journal
SATC	South African Tax Court
SARS	South African Revenue Service
SPIMF	Staff Papers of the International Monetary Fund
Stell LR	Stellenbosch Law Review
TSAR	Tydskrif vir die Suid-Afrikaanse Reg
U Chi L Rev	University of Chicago Law Review