The ATI is pleased to announce that Enelia Jansen van Rensburg, one of the South African Research Chair in Tax Policy and Governance (SARChI chair) doctoral students, graduated on 17 April 2018. She obtained the degree Doctor of Laws (LLD) with a thesis titled A  South  African  perspective  on  the  meaning  of "beneficial  ownership"  in Article 10 of the OECD Model Tax Convention on Income and Capital  in the context of conduit company treaty shopping. She completed her thesis under the supervision of Prof Riël Franzsen, Director of the ATI and holder of the SARChI chair.

The use of conduit company treaty shopping structures is often regarded as impermissible erosion of a country’s tax base. For a developing country, such as South Africa, the protection of its tax base is an important policy consideration. Arguably, one way of combatting conduit company treaty shopping structures is by including in a country’s double taxation agreements the beneficial ownership requirement set out in Article 10(2) of the OECD Model Tax Convention (MTC).

Enelia’s thesis examines how a South African court would interpret this requirement in provisions in South African double taxation agreements in the context of conduit company treaty shopping. First, she considers whether the beneficial ownership requirement can be regarded as an anti-avoidance rule aimed at combatting conduit company treaty shopping outside the scenarios of agents and nominee.

Second, she investigates whether the term “beneficial owner” should have a legal or economic meaning. The meanings given to this term by scholars and foreign courts and the OECD in its Commentaries to the OECD MTC are analysed thoroughly and exhaustively. She also reviews the application of the rules of interpretation contained in the Vienna Convention on the Law of Treaties when giving meaning to this term. Lastly, she considered whether the term should have the meaning assigned to it under the domestic law of a treaty country, or under international tax law. As part of this enquiry, the meanings of the expression “beneficial owner” in South African case law and legislation, other than tax legislation, are explored. She concludes her thesis with a meaning that South African courts are likely to give to the term “beneficial owner” in South African double taxation treaties.

Her thesis thus provides valuable insights, not only regarding the approach South African courts are likely to follow in interpreting the terms “beneficial owner”, but also in the case of other undefined terms in double tax treaties. As such, it constitutes a unique and important contribution to the field of international tax law – both locally and globally.