Authors: Jessica Osmond and Louis Botha. In terms of South African tax law, where a taxpayer wishes to object or appeal against an assessment issued by or decision made by the South African Revenue Service (SARS), it must do so in the manner prescribed in the Tax Administration Act, No 28 of 2011 (TAA). Where a dispute is not resolved pursuant to an objection lodged by a taxpayer, the taxpayer can appeal the decision to the Tax Court.
Category: Objections & Appeals
Its just a question of time
The concept of reasonable period within the ambit of the tax legislation seems to be topical one day and then the next loses impetus for whatever reason without ever settling the issue. This question of time is exceptionally important and relevant for the sections in the tax legislation which deal with the situation where SARS has requested a taxpayer to render to it relevant material as part of SARS powers of information gathering.
Notification of commencement of audit
By Yashika Govind, Senior Associate and Nirvasha Singh, Partner at Webber Wentzel. The obligation of SARS to collect tax and taxpayers’ rights are often at odds with each other. In an attempt to address this issue, the Budget 2018 (Budget) proposes to reconcile the taxpayers’ constitutional rights with SARS’ constitutional obligations by including a provision in the Tax Administration Act 28 of 2011 (TAA) stipulating that SARS must inform the taxpayer at commencement of the audit when the information submitted in a tax return will be audited. The provision is intended to cover desk audits which involve inspection or enquiries, without necessarily meeting with the taxpayer or third parties in person.
Status of SARS interpretation notes
Ben Strauss (Director at Cliffe Dekker Hofmeyr). From time to time, the South African Revenue Service (SARS) issues interpretation notes. According to the SARS website (www.sars.gov.za), interpretation notes are intended to provide guidelines to stakeholders (both internal and external) on the interpretation and application of the provisions of the legislation administered by the Commissioner.
Procedure is everything: A win for the taxpayer and the importance of the right to just administrative action
Author: Louis Botha (Associate at Cliffe Dekker Hofmeyr). In recent times, taxpayers have often been unsuccessful in their disputes with the South African Revenue Service (SARS), especially where the dispute involved the interpretation or application of the substantive provisions of tax legislation. However, where disputes have involved compliance with the procedural requirements of tax legislation, taxpayers have generally had greater success. The judgment in Mr A v The Commissioner for the South African Revenue Service (Case No. IT13726) (as yet unreported), falls into the second category and is the subject of this article.
Did the punishment fit the crime? The Tax Court reduces an understatement penalty imposed by SARS
Author: Louis Botha (Associate at Cliffe Dekker Hofmeyr). The imposition of understatement penalties in terms of Chapter 16 of the Tax Administration Act, No 28 of 2011 (TA Act) and the factors to consider when imposing such a penalty: An issue that our courts have not dealt with much. In this regard, the judgment of the Tax Court in XYZ CC v The Commissioner for the South African Revenue Service (Case No. 14055) (as yet unreported), handed down on 20 November 2017, sets out some helpful principles.
A win against SARS: late delivery of SARSs rule 31 Statement
Author: Mareli Treurnicht (Director at Cliffe Dekker Hofmeyr). On 17 October 2017 the Tax Court (Western Cape Division: Cape Town) delivered judgment in the matter between S Company v The Commissioner for the South African Revenue Service (SARS) under case number IT0122/2017. The judgment was handed down by Judge Cloete. This judgment is of great interest to any taxpayers currently involved in prolonged disputes with SARS, in particular where there are delays on the part of SARS.
No trade, no deduction a judgment about s11(a) of the Income Tax Act
Author: Louis Botha Tax (Cliffe Dekker Hofmeyr). On 20 April 2017, the Tax Court handed down its decision in X Group (Pty) Ltd v The Commissioner for the South African Revenue Service (Case No: 13671) (as yet unreported). The case dealt with an amount of R90 million that X Group (Pty) Ltd (Taxpayer) had claimed as an expense or loss during the 2007 year of assessment, which deduction was disallowed by the South African Revenue Service (SARS).
SARS says pay up, but the court says no: An important case on taxpayers rights
Author: Louis Botha. In Nondabula v Commissioner: SARS and Another (4062/2016) [2017] ZAECMHC 21 (27 June 2017), heard by the Mthatha High Court, Nondabula (Taxpayer), brought an application to interdict the South African Revenue Service (SARS) from invoking the provisions of s179 of the Tax Administration Act, No 28 of 2011 (TAA) pending the final determination of the Taxpayers objection to an additional assessment of his income tax. Furthermore, the Taxpayer sought an order that SARS withdraw its third party notice, in terms of which SARS instructed Absa to withhold and pay over monies held in the Taxpayers bank account.
The lawfulness of retrospective amendments in tax law
Author: Beric Croome. On 29 May 2017, Judge Fabricius delivered judgment in the Gauteng High Court in the case of Pienaar Brothers (Pty) Ltd vs Commissioner for the South African Revenue Service and the Minister of Finance, in a case dealing with the Taxation Laws Amendment Act, 2007 (the Amending Act) which inserted section 44(9A) into the Income Tax Act, 1962 (the Act). The taxpayer sought an order declaring that section 34(2) of the Amending Act is inconsistent with the Constitution, and invalid to the extent that it provides that section 44 (9A) of the Act shall be deemed to have come into operation on 21 February 2007 and to be applicable to any reduction or redemption of the share capital or share premium of a resultant in company, including the acquisition by that company of its shares in terms of section 85 of the Companies Act, on or after Read More …