Domestic deeming provisions and double tax treaties: lessons from Tradehold and Fowler
type: CreativeWork
description: This thesis examines the complex interaction between domestic deeming provisions in South African domestic tax law and double tax treaties (‘DTTs'), focusing on the legal and interpretative challenges that arise when statutory fictions are applied within an international tax framework. Using a comparative analysis of Commissioner for the South African Revenue Service v Tradehold Ltd (‘Tradehold') and Fowler v HMRC (‘Fowler'), the research investigates whether South African courts' reasoning in Tradehold could have been influenced by the approach taken in Fowler. The thesis explores whether key judicial principles or other factors justify the different outcomes in the cases or if the uncertainties in interpretation highlight the need for more explicit guidance. By assessing the principles governing the application of DTTs where domestic tax law incorporates statutory fictions, this research aims to contribute to a more structured and predictable approach to resolving cross-border tax disputes. Research Methodology: A doctrinal legal research approach is employed, drawing on legislative analysis, case law, and academic commentary. The thesis applies comparative legal analysis to examine the South African and United Kingdom (‘UK') courts' reasoning in Tradehold and Fowler, evaluating how statutory deeming provisions interact with DTT principles. Particular attention is paid to purposive interpretation as applied by the courts, assessing whether South Africa's approach aligns with international best practices. The research also explores broader interpretative frameworks, including the role of the Vienna Convention on the Law of Treaties and Organisation for Economic Co-operation and Development (‘OECD') Model Tax Convention principles, to assess their impact on the resolution of tax treaty disputes. Results and Conclusions The findings illustrate the South African courts in Tradehold adopted an approach that sought to retain the domestic statutory fiction within the DTT…
abstract: This thesis examines the complex interaction between domestic deeming provisions in South African domestic tax law and double tax treaties (‘DTTs'), focusing on the legal and interpretative challenges that arise when statutory fictions are applied within an international tax framework. Using a comparative analysis of Commissioner for the South African Revenue Service v Tradehold Ltd (‘Tradehold') and Fowler v HMRC (‘Fowler'), the research investigates whether South African courts' reasoning in Tradehold could have been influenced by the approach taken in Fowler. The thesis explores whether key judicial principles or other factors justify the different outcomes in the cases or if the uncertainties in interpretation highlight the need for more explicit guidance. By assessing the principles governing the application of DTTs where domestic tax law incorporates statutory fictions, this research aims to contribute to a more structured and predictable approach to resolving cross-border tax disputes. Research Methodology: A doctrinal legal research approach is employed, drawing on legislative analysis, case law, and academic commentary. The thesis applies comparative legal analysis to examine the South African and United Kingdom (‘UK') courts' reasoning in Tradehold and Fowler, evaluating how statutory deeming provisions interact with DTT principles. Particular attention is paid to purposive interpretation as applied by the courts, assessing whether South Africa's approach aligns with international best practices. The research also explores broader interpretative frameworks, including the role of the Vienna Convention on the Law of Treaties and Organisation for Economic Co-operation and Development (‘OECD') Model Tax Convention principles, to assess their impact on the resolution of tax treaty disputes. Results and Conclusions The findings illustrate the South African courts in Tradehold adopted an approach that sought to retain the domestic statutory fiction within the DTT…
author: Davidson, Bronwyn
language: en
keywords: South Africa, Tax, Double tax treaties
date published: 2025
date modified: 2026-07-22T22:23:22Z
provider: University of Cape Town
publisher: Networked Digital Library of Theses and Dissertations
type: WebPage
source organization: Department of Finance and Tax

PropertyValue
property ID: Handle
value: http://hdl.handle.net/11427/42178