Determining the residency of companies: Difficulties in interpreting ‘place of effective management’

Abstract

Even South Africa’s Income Tax Act No. 58 of 1962 uses the terminology ‘place of effective management’ when determining the residency of companies. This term is not, however, defined in the said legislation and there is no South African case law specifically dealing with this matter. In contrast, the United Kingdom (UK) uses the term ‘central management and control’, and its courts have been called upon to hear numerous cases on the interpretation of this phrase. Given the increasing pressure on South Africa to align its tax treatment with international trends as well as increased levels of trade with the United Kingdom, this study examined the interpretation of ‘place of effective management’ in a South African context and juxtaposed this with the conclusions reached in seven cases in the United Kingdom dealing with the interpretation of ‘centre of management and control’. The findings show that ‘place of effective management’ from a South African perspective may depend heavily on where decisions are implemented and day-to-day operations occur. ‘Central management and control’, however, appears to vest almost exclusively in where primary decisions are made or strategic directions emanate from.