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Advanced Litigation Strategies in Transfer Pricing

Advanced Litigation Strategies in Transfer Pricing. Prof D N Erasmus Prof A Venter . Introduction Background Tax Administration Process - BEFORE the Audit - DURING the Audit - AFTER the Audit Litigation. Content. REASON for the seminar PURPOSE of the seminar. Background.

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Advanced Litigation Strategies in Transfer Pricing

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  1. Advanced Litigation Strategies in Transfer Pricing Prof D N Erasmus Prof A Venter

  2. Introduction Background Tax Administration Process - BEFORE the Audit - DURING the Audit - AFTER the Audit Litigation Content

  3. REASON for the seminar PURPOSE of the seminar Background

  4. BACKGROUND: REASON for the Seminar 19 July 2013 16 Feb 2013 30 July 2013 30 April 2013 RECENT PUBLICATIONS

  5. BEFORE the Audit DURING the Audit AFTER the Audit LITIGATION Tax Admin Process

  6. BEFORE the Audit: Key Indicators • Level of detail & sophistication to be pursued (p6) • Q?s to be answered in a TP Risk Assessment Process (p8) • Risk Factors (p11) • Evaluating TP risk (p13) • Risk Assessment Process (p30) • Sharing risk assessments with taxpayers (p33 par. 147)

  7. BEFORE the Audit: Documentation Requirements • Refer to the documentation WHITE PAPER pages 23 – 25 • Discharging the onus of proof • Efficient & Effective use resources • The Constitution s 232 and soft law • The Constitution ss 1(c), 2 and 195 • Shuttleworth case para’s[44]and [46] • SARS Act s 4(2)

  8. DURING the Audit • Ensuring compliance with the TAA sections on the status of the audit, and the letter of findings at the conclusion of the audit… • Relevant material • s 3(2) of TAA • s 41 of TAA • s 42 of TAA • s 46 of TAA • s 102 of TAA – onus of proof • s 105 – court forum

  9. BEFORE the Audit: Audit Engagement Letter • Refer to the suggested Audit Engagement Letter

  10. AFTER the Audit • Ensure a comprehensive response to the letter of findings • Ensure an objective review by SARS • Promotion of Administrative Justice Act • Consider any Review Application to the High Court for procedural defects • Invoke the MAP process • Draft a comprehensive request for reasons • Draft a comprehensive Letter of Objection • Other issues

  11. Litigation • Costs of proceeding directly to litigation • Guarding against the potential Loss of Evidence • Potential for settlement • Onus of proof • Discovery regarding expert witnesses • Foreign Law in TP cases • Other issues

  12. Prof Daniel N Erasmus • 083-458-8422 • +1 561-568-7115 • erasmud@tjsl.edu Contact

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