Sleep is perverse as human nature, Sleep is perverse as a legislature, Sleep is as forward as hives or goiters, And where it is least desired, it loiters.
And if tonight my soul may find her peace in sleep, and sink in good oblivion, and in the morning wake like a new opened flower then I have been dipped again in God, and new created.
Many things: such as loving, going to sleep, or behaving unaffectedly- are done worst when we try hardest to do them.
Sleep that knits up the ravelled sleave of care, the death of each day's life sore labour's bath balm of hurt minds, great nature's second course chief nourisher in life's feast.
There is more refreshment and stimulation in a nap, even of the briefest, than in all the alcohol ever distilled.
May sleep envelop you as a bed sheet floating gently down, tickling your skin and removing every worry. Reminding you to consider only this moment.
A flock of sheep that leisurely pass by one after one; the sound of rain, and bees murmuring; the fall of rivers, winds and seas, smooth fields, white sheets of water, and pure sky - I've thought of all by turns, and still I lie sleepless...
Now, blessings light on him that first invented sleep! It covers a man all over, thoughts and all, like a cloak; it is meat for the hungry, drink for the thirsty, heat for the cold, and cold for the hot. It is the current coin that purchases all the pleasures of the world cheap, and the balance that sets the king and the shepherd, the fool and the wise man, even.
Then, the cool kindliness of sheets, that soon smooth away trouble; and the rough male kiss of blankets....
It's at night, when perhaps we should be dreaming, that the mind is most clear, that we are most able to hold all our life in the palm of our skull. I don't know if anyone has ever pointed out that great attraction of insomnia before, but it is so; the night seems to release a little more of our vast backward inheritance of instincts and feelings; as with the dawn, a little honey is allowed to ooze between the lips of the sandwich, a little of the stuff of dreams to drip into the waking mind. I wish I believed, as J. B. Priestley did, that consciousness continues after disembodiment or death, not forever, but for a long while. Three score years and ten is such a stingy ration of time, when there is so much time around. Perhaps that's why some of us are insomniacs; night is so precious that it would be pusillanimous to sleep all through it! A "bad night" is not always a bad thing.
Cut if you will with sleep's dull knife, the years from off your life, my friend! the years that death takes off my life, he'll take from off the other end!
I feel like there is always something trying to pull us back into sleep, that there is this sort of seductive quality in all the hedonistic pleasures that pull on us.
A photographer gets people to pose for him. A yoga instructor gets people to pose for themselves. T. Guillemets
In March the Davis tax committee released its closing report on the work completed over almost five years and at a cost of approximately ZAR12.4 million.
The committee was appointed by the finance minister in 2013 to “inquire into the role of the tax system in the promotion of inclusive economic growth, employment creation, development and fiscal sustainability”.
It operated on the basis of various subcommittees which considered small business, macro analysis, mining, VAT, estate duty, carbon tax, public benefit organisations, funding the National Health Insurance and tertiary education, and tax incentives.
The committee delivered 25 reports to the finance minister. It was advisory in nature and has only made recommendations.
As stated in its terms of reference, “the minister will take into account the report and recommendations and will make any appropriate announcements as part of the normal budget and legislative processes. As with all tax policy proposals, these will be subject to the normal consultative processes and parliamentary oversight once announced by the minister.”
Having regard to the advisory nature and that any recommendations will require legislative amendments, it is possible to evaluate the extent to which any changes to the tax system have been implemented or are likely to be implemented.
One of the first topics that were considered related to base erosion and profit shifting (BEPS). To address international concerns relating to BEPS, the committee considered the international action plans in the context of South Africa's legislation and position within the global economy.
The topics considered in addressing concerns relating to BEPS covered by the committee are extensive and often complex. Potentially tax treaties will be renegotiated to address some of the issued identified by the committee, but this will inevitably take time to implement.
The committee stated that the "costs and challenges of re-negotiating … treaties will be alleviated by signing the multilateral instrument that is recommended under Action 15 which will act as a simultaneous renegotiation of all tax treaties".
As at 20 December 2017, 72 jurisdictions (including South Africa) had signed the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting, which is the product of OECD BEPS Project Action 15.
A further example of an international topic reviewed related to the digital economy and how South African direct and indirect tax legislation caters for electronic transactions where it is not always easy to detect the source of the transaction. In this regard, amendments and regulations have been made to the Value-Added Tax Act to cater for electronic services. The South African Revenue Service has also published its stance relating to the treatment of cryptocurrencies the use of which have become more prevalent since the inception of the committee.
Another international aspect that was considered by the committee in the context of BEPS is that of the controlled foreign company (CFC) regime. One of the issues raised in the report related to consideration of creating CFC where there is an off-shore trust that holds equity in an off-shore company. Interestingly, draft legislation was proposed in 2017 to extend the reach of the CFC regime to include off-shore trusts. This was, however, not implemented but in the 2018 budget speech, reference was again made to the use of off-shore trusts.
The committee’s recommendations for section 6quin of the Income Tax Act to be repealed, and for section 10(1)(o)(ii) of the said act to be reviewed have been implemented. Overall, changes have been made relating to some of the topics examined by the committee and it is likely that there will be future developments having regard to the heightened international imperatives to prevent tax abuse.
In part 2, two additional topics considered by the committee will be discussed – tax administration and corporate income tax.
On Tuesday, August 15, 2017, the U.S. Court of Appeals for the District of Columbia Circuit rejected Sierra Club’s petition for review of a U.S. Department of Energy (“DOE”) order authorizing long-term exports of liquefied natural gas (“LNG”) to Non-Free Trade Agreement (“non-FTA”) nations from the Freeport LNG terminal.1 This decision marks the first time the D.C. Circuit has addressed challenges to DOE’s review of long-term, non-FTA LNG export applications under the National Environmental Policy Act (“NEPA”). The court also addressed related arguments under the Natural Gas Act (“NGA”).
Last year, the D.C. Circuit rejected challenges that the Federal Energy Regulatory Commission (“FERC”) violated NEPA by, among other things, failing to adequately consider the indirect environmental effects of increased natural gas exports (e.g., induced domestic natural gas production and increased use of coal-fired electric generation) when approving applications to construct and operate LNG facilities.2 The D.C. Circuit held that, because DOE has the legal authority to approve natural gas exports, FERC is not required in its NEPA review to consider the possible environmental effects of increased natural gas exports.3 The court directed that such effects should be addressed instead in a proceeding challenging DOE’s authorization.4
In its August 15 decision, the court first considered Sierra Club’s challenges to DOE’s NEPA review. Sierra Club made three “indirect effects” arguments, each of which the court rejected.5
First, Sierra Club challenged DOE’s review of the indirect effects of induced domestic natural gas production that may result from increased exports. While the DOE has commissioned a generalized study of the potential effects of increased gas production,6 Sierra Club faulted DOE for declining to consider the indirect effects that the specific level of exports from the Freeport LNG facility will have on induced production and, in turn, on specific environmental resources. The D.C. Circuit upheld DOE’s determination that such indirect effects are not “reasonably foreseeable” for purposes of a NEPA analysis. The DOE noted as a preliminary matter that it is difficult to predict the quantity of natural gas that may be produced in response to an incremental increase in exports from the Freeport LNG terminal. Moreover, DOE argued, it could not determine where exactly gas production would occur, given the interconnected nature of the U.S. pipeline system. As a result, DOE concluded that the localized environmental effects of increased gas production are not reasonably foreseeable, and, therefore, analysis of specific levels of exports is not warranted under NEPA.7
Next, Sierra Club contended that DOE failed to consider the indirect effects that might arise if increased exports raise gas prices and ultimately cause the electric power sector to switch from gas-fired to coal-fired generation. The court rejected this argument, agreeing with DOE’s assessment that the causal chain between the authorized exports and the potential effects of increased coal usage was “even more attenuated” than the effects of induced gas production.
Finally, Sierra Club challenged DOE’s review of potential greenhouse gas emissions. With respect to upstream emissions, Sierra Club argued that DOE failed to discuss greenhouse gases that may result from export-induced gas production as part of the Environmental Impact Statement for the project. The court pointed out, however, that this information was, in fact, disclosed in DOE’s Life Cycle Report. Regarding downstream emissions, Sierra Club argued that DOE should have evaluated additional variables in its methodology, such as the potential for LNG to compete with renewable energy sources in certain markets. The court affirmed DOE’s determination that, for foreseeability and feasibility reasons, an analysis of the effects on each fuel source in every LNG-importing nation is not required under NEPA.
After upholding DOE’s NEPA analysis, the court turned to the adequacy of DOE’s “public interest” analysis under NGA section 3. Sierra Club’s only contention here was that DOE failed to conduct an adequately thorough analysis of environmental effects. Having already rejected Sierra Club’s environmental arguments with respect to NEPA, the court found no basis for reevaluating these issues under the NGA. Moreover, given the NGA’s presumption in favor of exports, the court found that DOE is well within its statutory discretion to conclude that the non-environmental benefits of the application outweigh the potential environmental harms:
. . . [E]ven if the Department determined the [environmental] impacts were significant, it could still find that the public interest weighs in favor of allowing the exports. “[I]t is . . . well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Thus, “[i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.”8
This decision is positive precedent for the LNG industry, but some additional challenges remain pending. Sierra Club has filed four other petitions for review of DOE LNG export authorization orders, all of which are currently pending before the D.C. Circuit.9 These petitions repeat similar NEPA-related arguments, which the court likely will decide consistently with its August 15 decision. However, they also include certain additional challenges to DOE’s public interest analysis, including that DOE ignored the disproportionate economic effects of increased exports, which will benefit a minority of Americans and leave a majority of the population worse off.10
UK Government Publishes Technical Notes, including relating to “Privileges and Immunities” - Lexology
On 28 August, in advance of the next round of EU-UK talks, the UK Government published three Technical Notes, one of which “provides further information to support the UK’s position published on 13 July in the UK’s position paper on Privileges and Immunities” (the Technical Note). The 13 July Position Paper is discussed in our blog post here. The Technical Note requests clarification from the EU on a number of issues, in particular as regards the EU’s position on the implications of the UK’s withdrawal from Protocol (No 7) on the privileges and immunities of the European Union of the Treaty on the Functioning of the EU (Protocol 7).
As a general premise, the Government asks whether the EU’s position on the extent of the privileges and immunities to be granted under the Withdrawal Agreement (the Agreement) should differ depending upon whether or not the Agreement confers, or continues to confer, upon the EU functions in, or in respect of, the UK.
In particular, the Technical Note seeks confirmation from the EU that it agrees that the privileges and immunities granted to EU institutions, agencies and officials in the UK should reduce after exit so as to be linked solely to any function that may be conferred, or continue to be conferred, by the Withdrawal Agreement. To the extent that any wider application of privileges and immunities of the EU in the UK is envisaged, the EU is asked to clarify why this is necessary. Specifically, the Government requests an indication from the EU as to the rationale for any continued protections in the UK for MEPs, and how such protections would operate.
The Technical Note foresees the continued presence of an EU delegation to the UK after the UK’s exit, and asks for clarification regarding how provision could be made to allow for this. It also asks for confirmation and assurances that the UK’s representation to the EU should continue to enjoy the same diplomatic privileges and immunities as a permanent mission of a Member State after Brexit. A reciprocal recognition is also acknowledged of ongoing privileges and immunities for representatives of Member States taking part in the work of institutions, agencies or bodies based in the UK, and of the UK taking part in the work of the EU within Member States’ territory, where such continued work is envisaged in the Agreement.
The questions posed in the Technical Note provide an interesting indication of the nature of the discussions taking place between the EU and the UK on the issue of ongoing privileges and immunities. This issue is fundamentally bound into the nature of the future relationship between the UK and the EU under the Agreement (and any further relationship agreements). As such, the Technical Note centres its requests on the continuing functions to be carried out by each side, and seeks clarification in respect of privileges and immunities that may be sought outside such functions. Central to these questions, therefore, will be the continuing role of the EU in the UK, and vice versa, under the Agreement.