Tax Treaty Case Law around the Globe 2023

1. Introduction

This case concerns the application of the tiebreaker provision in Article 4(2) of the double taxation convention between the United Kingdom (UK) and the Republic of South Africa (RSA). This article is, in substance, the same as Article 4(2) of the OECD Model Tax Convention.

2. Facts of the case

The background facts are, at least in outline, straightforward. The taxpayer – Jonathan Oppenheimer (JO) – was a member of a well-known South African family. His great grandfather had been the founder of what became the De Beers diamond company. The family had a long association with the RSA. JO moved with his family to the United Kingdom in August 2007 for his children’s education. He and his family were then resident in the United Kingdom for a number of years. The tax years that were at issue in this case were 2011–2012 and 2012–2013 together with 2014–2015, 2015–2016, and 2016–2017. There were also some other years that were “suspended on appeal”. During those years, it was accepted that JO was a dual resident in both the United Kingdom and the Republic of South Africa in accordance with each country’s domestic laws. He had homes available in both countries (and in third cou...