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Ochberg v CIR: No “Benefit” to the Benefactor

Southern African Business Review

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Title Ochberg v CIR: No “Benefit” to the Benefactor
 
Creator Coetzee, K
van der Zwan, P
Schutte, D
van Dyk, H
Stack, EM
 
Subject Amount, Benefit, Capital, Corporate Persona, Economic Reality, Equity, Haig-Simons, Income, Income Tax Act, Intention of the Legislature, Ochberg, Objective, Purposive, Receive, Receipt, Subjective, Substance v Form
 
Description This article analyses the South African case of Ochberg v CIR, which dealt with the question whether shares issued by a company to Ochberg, who was, for all intents and purposes, the sole shareholder, in consideration for services rendered and an asset provided to the company, constituted “income” in terms of the definition of “gross income” in section 7(1) of the Income Tax Act No. 40 of 1925 (as it then applied). Ochberg’s contention was that he had received no benefit from the additional shares issued as the value of all the shares issued had been the same both before and after the issue of the shares. Accordingly, there had been no increase in his wealth and thus no income had been received. The majority decision (two of the five judges dissenting) of the Appellate Division of the Supreme Court held that the shares were “income” and had to be valued at their nominal value. The article first provides a glimpse into the life of Isaac Ochberg, who was a substantial benefactor to charitable causes. It then presents a thematic analysis of the four separate judgments set down in the case, and finally, discusses certain tax principles arising from the judgments. In conclusion, the article considers to what extent Ochberg benefited from the transaction in terms of the Haig-Simons model of taxation and the economic reality of the transaction. The lasting value of the decision is demonstrated with reference to citations of Ochberg v CIR in a number of more recent landmark cases.Keywords: Amount, Benefit, Capital, Corporate Persona, Economic Reality, Equity, Haig-Simons, Income, Income Tax Act, Intention of the Legislature, Ochberg, Objective, Purposive, Receive, Receipt, Subjective, Substance v Form
 
Publisher College of Economic and Management Sciences (UNISA)
 
Contributor —
 
Date 2015-08-26
 
Type info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer-reviewed Article
 
Format application/pdf
 
Identifier http://www.ajol.info/index.php/sabr/article/view/121265
 
Source Southern African Business Review; Vol 19, No 1 (2015): Special Edition; 25-46
1998-8125
1561-896X
 
Language eng
 
Relation http://www.ajol.info/index.php/sabr/article/view/121265/110694
 
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