Author:(Senior Associate at Cliffe Dekker Hofmeyr).
Human beings crave certainty even when it limits them. Robin S. Sharma. In practice, circumstances or proposed transactions may arise in terms of which the value-added tax (VAT) implications flowing therefrom are not always clear. It is a persons very desire for certainty that underlies the provisions of the Value-Added Tax Act, No 89 of 1991 (VAT Act) and the Tax Administration Act, No 28 of 2011 (TAA) that enables the Commissioner of the South African Revenue Service (SARS) to issue rulings regarding the VAT treatment of supplies made to or by a vendor in the course or furtherance of his enterprise.
Furthermore, s72 of the VAT Act provides the Commissioner with discretion to make an arrangement or to give a direction to a vendor or class of vendors to overcome difficulties, anomalies or incongruities that have arisen or may arise in regard to the application of any of the provisions of the VAT Act, where this arrangement does not have the effect of substantially reducing or increasing the ultimate liability for tax levied under the VAT Act. Therefore, where a vendor finds that the application of the VAT Act gives rise to certain difficulties, anomalies or incongruities, such vendor may request that the Commissioner exercise his discretion in terms of s72 of the VAT Act by means of issuing a VAT ruling to such vendor.
In order to obtain a VAT ruling, applicants are required to submit a VAT ruling application letter together with a duly completed and signed VAT301 form. Where the services of a tax practitioner or legal representative are used, the application must also be accompanied by a signed power of attorney form. Although not specifically required, it is also recommended that a tax clearance certificate accompany an application for a VAT binding ruling. This is on the basis that SARS may refuse to process an application where the taxpayer has any outstanding tax issues with SARS. Submitting a tax clearance certificate, therefore, assists in expediting the acceptance of a VAT ruling application.
All VAT ruling applications must be submitted via email to VATRulings@sars.gov.za and once accepted, generally takes SARS approximately 20 to 60 business days to process, depending on the complexity thereof.
In terms of s79(4) of the TAA, an application must contain certain prescribed information, including, inter alia, a full and proper description of the transaction; the impact that the transaction may have upon the tax liability of the applicant; the reasons why the applicant believes the ruling should be granted and the relevant statutory provisions or issues and the applicants interpretation thereof. SARS may reject an application for a VAT binding ruling where the requirements of the TAA are not adhered to. SARS may also reject an application where the application deals with matters listed in s80 of the TAA, which include, for example, a proposed transaction that is hypothetical or not seriously contemplated at the time of the application; an application submitted for academic purposes or an application that contains a frivolous or vexatious issue. Public Notice 748, which was issued by the Commissioner for SARS and published in the Government Gazette on 24 June 2016 in terms of s80(2) of the TAA, includes the matters for which SARS will reject a VAT ruling application. These include, inter alia, the liability of a supplier or the entitlement to deduct input tax in respect of a party that is not an applicant to the application; applications that require the Commissioner to determine whether a person is acting in an agent or principal capacity; confirmation that a supply of accommodation constitutes commercial accommodation; or if an expense is directly attributable to a taxable supply.
During the ruling process, SARS may request additional information or a meeting with the applicant to clarify issues pertaining to the application, following which an applicant may be required to update the application with additional facts. SARS is required to inform an applicant of its intention to issue a negative ruling, in which case, the applicant may choose to withdraw his/her application. This prevents the situation where an applicant is prejudiced by a negative ruling issued by SARS. It is important to note that the Rulings division of SARS is a separate division and that they, therefore, do not inform other divisions within SARS, for example, the audit division, of the proposed transaction, or of any issues identified by the applicant in the ruling application. There is accordingly virtually no risk to a vendor seeking a VAT ruling or VAT class ruling from SARS.
A VAT class ruling, as well as a VAT ruling, is binding on the Commissioner for the duration of its validity unless the specific facts and circumstances underlying the ruling issued have substantially altered. A ruling, therefore, serves to provide guidance as to SARSs views on certain transactions before entering into them and therefore serves to mitigate the risks of proposed transactions. As there is virtually no risk in applying for a VAT ruling, it is advisable to apply for such a ruling in cases of uncertainty. Prior to the expiration of a ruling, a vendor may apply for the renewal or extension thereof, provided that there have been no material changes to the underlying facts.
To the extent that SARS refuses to issue a positive ruling on an interpretation of the law, provided that there is no dispute of fact, a vendor may consider applying to the High Court to obtain a declaratory order in respect of the interpretation and application of the specific provisions of the VAT Act.
The process of applying for a VAT ruling is a fairly efficient process and comes at no cost payable by the applicant to SARS, as opposed to an advance ruling application for which an application fee is payable. Given SARSs recent stringent approach to tax collections, and the penalties imposed in respect of non-compliance, there does not seem to be any reason as to why a vendor should not obtain a ruling where there is any uncertainty regarding the correct VAT treatment of any transactions entered into, or to be entered into by such vendor.