Author: Beric Croome (Tax ENSight)
On 7th March 2014 the Supreme Court of Appeal delivered judgment in the as yet unreported case of Commissioner for the South African Revenue Service v Mobile Telephone Networks Holdings (Pty) Ltd, (966/2012)  ZASCA 4 (7 March 2014) which dealt with the deductibility of audit fees incurred for a dual or mixed purpose and the apportionment thereof for tax purposes in the light of section 11(a) of the Income Tax Act 58 of 1962, as amended (‘the Act’) read with sections 23(f) and 23(g) of the Act.
Mobile Telephone Networks Holdings (Pty) Ltd (‘MTN’) is the holding company of five directly held and a number of indirectly held subsidiaries and joint ventures. MTN in turn is a subsidiary of MTN Group Limited and the collective business of the operating companies within the group is the operation of mobile telecommunication networks and the provision of related services to customers in South Africa and other African states.
MTN derived its income primarily in the form of dividends from its subsidiaries but also loaned funds to its various subsidiaries to finance working capital in the other working countries on an interest-free basis. In addition, MTN borrowed funds by issuing debentures and on loaning those funds to group companies at a higher rate of interest. Thus, MTN had two sources of income, namely dividends received from subsidiaries and interest received from subsidiaries.
MTN employed auditors as it was required to do to undertake the statutory audit of its annual financial statements for each of the 2001, 2002, 2003 and 2004 tax years. The audit fees incurred by MTN for each of those years was R365,505, R647,770, R427,871, and R233,786 respectively. Furthermore, during the course of the 2004 tax year MTN paid an amount of R878,142 to KPMG, its auditors, in relation to what was described as the ‘Hyperion’ computer system. In the tax returns submitted by MTN to the Commissioner: SARS the company claimed as a deduction the audit fees incurred by it as well as the fee paid to KPMG regarding the computer system.
The Commissioner disallowed the deduction of the KPMG fee in full and apportioned the annual audit fees by only allowing a deduction of between 2% and 6% of the audit fees incurred.
The apportionment ratio adopted by the Commissioner was based on the ratio of MTN’s interest income as a proportion of its total revenue, that is the revenue derived in the form of dividends and interest.
MTN lodged an objection against the disallowance of the audit fees and the KPMG fee and appealed against the Commissioner’s decision to disallow the objection. MTN’s appeal was heard by the South Gauteng Tax Court and was reported as ITC 1842  72 SATC 118.
The Tax Court decided that a 50/50 apportionment of the audit fees was just and equitable and therefore allowed the company to claim 50% of the audit fees against the income derived by it in each of the four years of assessment. Furthermore, the Tax Court reached the decision that the KPMG fee of R878,142 constituted an expense of a capital nature and was therefore not deductible for tax purposes.
MTN was dissatisfied with the decision of the Tax Court and appealed to the South Gauteng High Court where Victor J in Mobile Telephone Networks Holdings (Pty) Ltd v Commissioner for South African Revenue Service  73 SATC 315 allowed MTN’s appeal regarding the KPMG fee in allowing the expenditure in full. Furthermore, the High Court overturned the 50/50 apportionment of the audit fees decided on by the Tax Court and directed that the Commissioner allow 94% of the audit fees as a deduction for tax purposes.
The Commissioner was dissatisfied with the decision of the High Court and therefore appealed to the Supreme Court of Appeal with the leave of that Court.
The Commissioner contended that the audit fees should be apportioned and only that part relating to the generation of taxable income, which in the instant case constituted interest, should be allowed for tax purposes with the balance of the expenditure not being allowed.
The Commissioner also contended that no deduction regarding the KPMG fee should be allowed or alternatively that the fee should be subject to apportionment on the same basis as the audit fees.
The Court reviewed various leading cases regarding the deductibility of expenditure such as Commissioner for Inland Revenue v Nemojim (Pty) Ltd, Commissioner for Inland Revenue v Standard Bank of SA Ltd and Joffe & Co Ltd v Commissioner for Inland Revenue.
The Court recognised that the audit fees were laid out for a dual or mixed purpose in that it related to the receipt of dividends and interest and was of the opinion that the audit fees should therefore be apportioned. The Court indicated that apportionment of expenditure is essentially a question of fact depending upon the particular circumstances of each case and the Court therefore referred to the summary of MTN’s trading for the various tax years which set out the quantum of dividends received and interest received and the audit fees as a proportion of its income.
The Court indicated that the audit function involved the auditing of MTN’s affairs as a whole, the greater part of which related to the consolidation of the subsidiaries results into MTN’s results. The Supreme Court of Appeal therefore expressed the view that any apportionment of the fees must be heavily weighted in favour of the disallowance of the deduction taking account of the primary role played by MTN’s equity and dividend operations compared to its more limited income earning operations. The Supreme Court of Appeal therefore reached the conclusion that a 50/50 apportionment was too generous to MTN and decided that only 10% of the audit fees claimed by MTN for each of the tax years in question should be allowed.
The Court reviewed the nature of the KPMG fee and referred to the evidence heard by the Tax Court regarding the rationale for the services rendered by KPMG to MTN relating to the ‘Hyperion’ system. The Court indicated that it was difficult to establish whether the KPMG fee could legitimately be deducted by MTN. Thus, the Supreme Court of Appeal reached the conclusion that the deduction of the KPMG fee must be disallowed in full.
It is accepted that MTN was required to undertake an audit of its affairs to comply with its statutory obligations. However, the courts will take account of the income derived by a taxpayer to determine what portion of the audit fees should be deductible and in MTN’s case it was decided that only 10% of the audit fees could be justified as relating to the production of the interest income which was taxable and that the remaining 90% of the audit fees was related to the receipt of dividends which are exempt from income tax. The principles adhered to by the court will apply not only to audit fees but to those costs typically incurred by listed companies as well.
On 31 march 2014 MTN applied for leave for the case to be reviewed by the Constitutional Court. Subsequently, in June the Constitutional Court dismissed MTN’s application to review the matter. Thus, all legal avenues to challenge the deductibility of the audit fees have been exhausted.
It is also important that taxpayers establish the nature of expenditure reflected by the particular entity so that it can be shown that the expense relates to that specific entity and not to any other entity in the group. The Court experienced difficulty in establishing the true nature of the KPMG fee and whether that related to MTN itself or other entities in the group and for that reason decided that the fee was not deductible by MTN.