The taxation of company distributions in respect of hybrid instruments in South Africa: Lessons from Australia and Canada

Liezel G. Tredoux, Kathleen E. Van Der Linde, G. Viljoen

Research output: Contribution to journalArticlepeer-review


Tax legislation traditionally distinguishes between returns on investment paid on equity and debt instruments. In the main, returns on debt instruments (interest payments) are deductible for the paying company, while distributions on equity instruments (dividends) are not. This difference in taxation can be exploited using hybrid instruments and often leads to a debt bias in investment patterns. South Africa, Australia and Canada have specific rules designed to prevent the circumvention of tax liability when company distributions are made in respect of hybrid instruments. In principle, Australia and Canada apply a more robust approach to prevent tax avoidance and also tend to include a wider range of transactions, as well as an unlimited time period in their regulation of the taxation of distributions on hybrid instruments. In addition to the anti-avoidance function, a strong incentive is created for taxpayers in Australia and Canada to invest in equity instruments as opposed to debt. This article suggests that South Africa should align certain principles in its specific rules regulating hybrid instruments with those in Australia and Canada to ensure optimal functionality of the South African tax legislation. The strengthening of domestic tax law will protect the South African tax base against base erosion and profit shifting through the use of hybrid instruments.

Original languageEnglish
Pages (from-to)1-36
Number of pages36
JournalPotchefstroom Electronic Law Journal
Publication statusPublished - 2021


  • Collateralised share
  • Debt bias
  • Dividend rental agreement
  • Economic double taxation
  • Guaranteed share
  • Hybrid debt instrument
  • Hybrid equity instrument
  • Hybrid instrument
  • Non-equity share
  • Nonshare equity
  • Tax avoidance
  • Taxable preferred share
  • Taxation of debt instruments
  • Taxation of equity investment
  • Term preferred share
  • Third-party backed share

ASJC Scopus subject areas

  • Sociology and Political Science
  • Law


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