Judgment in the case of Mariana Bosch and Ian McClelland v Commissioner for the South African Revenue Service (Case no A94/2012) was handed down on 20 November 2012 by a full bench of the Western Cape High Court. The main judgment was written by Davis J (Baartman J concurring) and a separate judgment was written by Waglay J. The matter was on appeal from the Tax Court.
Category: Court Cases
SARS: 15 years in jail a warning to rogue staff
SARS hopes a long jail sentence handed down to a former employee convicted of racketeering will deter staff from committing fraud. Yesterday (23 May 2013), the Cape Town High Court sentenced Edmund Fredericks and Aaron Carelse to 15 years in jail. Judge Daniel Dlodlo found that Fredericks, a former SARS employee, had been the key figure in several VAT and income tax scams. The two men were found guilty of fraud, forgery and “participating in an enterprise through a pattern of racketeering”.
Courts reel in SARS ‘fishing expeditions’ against taxpayers
Source: Evan Pickworth (BusinessDay live) OPEN-ended fishing expeditions by the South African Revenue Service (SARS) could come under attack as court actions begin to mushroom against tax assessments in South Africa, a tax conference heard on Wednesday.
The Trustees of the Insolvent Estate of Grahame Whitehead v Dumas (323/12) [2013] ZASCA 19
The Supreme Court of Appeal (SCA) heard the matter between The Trustees of the Insolvent Estate of Grahame Whitehead and Dr Leon Dumas on 1 March 2013. The judgment was delivered on 20 March 2013 by Cachalia JA (with Lewis, Ponnan, Theron and Petse JJA concurring).
Recent case on judicial review of SARS’ actions in terms of PAJA
By Hanneke Farrand and Esther Geldenhuys, ENS – Edward Nathan Sonnenbergs The South African Revenue Service (“SARS”) increased their audit activity and focus on the collection of tax. Taxpayers often rely on protection in terms of administrative law and in particular, the Promotion of Administrative Justice Act, No. 3 of 2000 (“PAJA”). An important rule under PAJA is that judicial review can only be used as a last resort after all other internal remedies have been exhausted and taxpayers therefore first have to make use of the objection and appeal procedures provided for in the Tax Administration Act, No. 28 of 2011. The case outlined below highlights the nature of some of SARS’ actions that may be brought under judicial review in terms of section 6 of PAJA and the circumstances under which such a review application might be dismissed.
When can SARS re-characterise contractual arrangements for taxation purposes?
Tax planning structures normally involve multiple parties. Sometimes the individuals and/or legal entities involved are inter-connected. The tax benefits generated through such structures, almost without exception, annoy revenue authorities.
Do your objections and appeals to Sars correctly
Do your objections and appeals to Sars correctly ..… or else it could become very costly. The taxpayer in H R Computek (Pty) Ltd v CSars (830/2011) [2012] ZASCA 178 learnt a painful and expensive lesson about the importance of adhering to the rules and provisions relating to objection and appeal. In particular, this judgement reminds taxpayers, not for the first time, that the grounds of your objection are extremely important because you are stuck with them all the way through the judicial process.
MTN International (Mauritius) v CSARS – HC23203/11
JUDICIAL REVIEW AND RAISING ASSESSMENTS By Heinrich Louw, Cliffe Dikker Hofmeyr On 31 January 2013, judgment was handed down in the North Gauteng High Court in the case of MTN International (Mauritius) Limited v Commissioner for the South African Revenue Service (as yet unreported, case no 23203/11). The facts were briefly as follows. The taxpayer was a Mauritian company, registered as a taxpayer with the South African Revenue Service (SARS), and a subsidiary of a South African holding company. The taxpayer acquired various interests, notably in Nigeria and the Middle East, through loans obtained from its South African holding company.
Cross issue of shares
DLA Cliffe Dekker HofmeyrAndrew LewisSouth Africa Section 24B of the Act was initially introduced to deal with the acquisition of assets through the issue of shares. Pursuant to the judgment of CIR v Labat Africa Limited 72 SATC 75 a company would ordinarily not incur expenditure in connection with the issue of its own shares and thus the need for s24B. Section 24B of the Income Tax Act was recently amended to only deal with the issue of shares in exchange to the issue of shares (ie the cross-issue of shares), being an “anti-avoidance” provision. Section 24B(2) of the Income Tax Act provides that if a company acquires shares that are issued to that company “directly or indirectly in exchange for shares issued by that company“, that company incurs no expenditure for the acquisition of the shares issued to it. As a result, the subsequent disposal of the shares by Read More …
SARS and your bank account
On 29 February 2012, the South African Revenue Service (SARS) issued a notice in Government Gazette No 35090 (Notice No 173) relating to the liability of certain institutions, most notably banks, to furnish SARS with financial information about taxpayers. The notice was issued in terms of s69 of the Income Tax Act, No 58 of 1962, which section has been superseded by s26 of the Tax Administration Act, No 28 of 2011 (TAA).