Saturday, 25 September 2010

Voluntary Disclosure Relief

The South African Minister of Finance announced in the 2010 Budget that legislation would be introduced to encourage taxpayers to regularise prior transgressions of the tax statutes in South Africa and the Exchange Control Regulations. The 2010 Budget Review indicated that voluntary disclosure relief would encourage individuals, with unreported foreign bank accounts, to disclose fully those accounts to the South African Revenue Service. South Africa has concluded a large number of agreements for the avoidance of double taxation with various countries and those agreements allow for the exchange of information between SARS and foreign revenue authorities.

In addition, SARS is in the process of concluding various tax information exchange agreements with a number of other countries traditionally regarded as tax havens. The voluntary disclosure programme is, therefore, being introduced to encourage taxpayers to regularise prior violations of the various tax statutes.

Details of the voluntary disclosure relief were first contained in the Draft Taxation Laws Second Amendment Bill, released by National Treasury for public comment on May 10 2010. The final version of the legislation, now known as the Voluntary Disclosure Programme and Taxation Laws Second Amendment Bill (29 of 2010), (VDPTLSAB) was introduced in the National Assembly on Tuesday August 25. It must be pointed out that the voluntary disclosure relief does not constitute an amnesty in that any tax that should have been paid and was not paid over to SARS, will always remain payable.

Qualifying persons

The voluntary disclosure relief is available to any taxpayer liable to pay any tax to SARS. The VDPTLSAB defines "tax" as including any tax, duty, levy, penalty and additional tax imposed in terms of any legislation administered by the Commissioner. Therefore, any taxpayer, be it a natural person, company, trust or close corporation, or other taxpayer is entitled to apply for the relief so long as they comply with the requirements contained in the legislation.

In order to qualify for the relief, the taxpayer must be in default insofar as the tax affairs are concerned and this means that inaccurate or incomplete information must have been submitted to SARS, with the result that the assessment was not for the correct amount of tax due or, alternatively, that an incorrect tax refund was made by SARS to the taxpayer.

It must be noted that persons facing a tax audit or investigation do not, generally, qualify, for relief under the programme. SARS may, in certain circumstances, allow for a person who is under audit or investigation to apply for the relief. Under the legislation, the Commissioner is empowered to direct that a person, who is under audit or investigation, may apply for voluntary disclosure relief where the Commissioner is of the opinion that the default in respect of which the person wishes to apply for the relief, would not otherwise have been detected during the audit or investigation and, furthermore, that the application would be in the interest of good management of the tax system and the best use of the Commissioner's resources.

The VDPTLSAB indicates that a person is deemed to be aware of a pending tax audit or investigation or that the tax audit or investigation has commenced where a representative of the taxpayer, an officer or shareholder or member of the person, where that person is a company, a partner in partnership with that person, a trustee or beneficiary of the taxpayer, if the person is a trust, or a person acting for or on behalf of or as an agent or fiduciary of the taxpayer, has become aware of the pending audit or investigation, or that tax audit or investigation has commenced.

Requirements for a valid voluntary disclosure

For a taxpayer to qualify successfully for the relief available under the programme, it is necessary that the disclosure is voluntary and must involve a default of the taxpayer's obligations to SARS. It is essential that the taxpayer makes full and proper disclosure of the default and that the default involves the potential application of a penalty or additional tax. The taxpayer is required to apply for the relief in the prescribed form. At this stage, SARS has not yet released the documentation required and will probably do so only once the legislation has been enacted.

A taxpayer may not apply for the relief where the disclosure will result in a refund due by SARS.

The Memorandum on the objects of the VDPTLSAB indicates that the application for the relief must be submitted during the period November 1 2010 to October 31 2011.

It is important to note that, in terms of the VDPTLSAB, the default or violation of the taxing statutes must have occurred prior to February 17 2010.The cut-off date is intended to prevent taxpayers from committing violations on an ongoing basis and just prior to the period for the submission of applications commencing.

Advantages of applying for the relief

Where a taxpayer successfully applies for the relief, they are assured of no criminal prosecution for the violation of the taxing statutes of the country.

In addition, the taxpayer will receive 100% relief for penalties and additional tax, other than the administrative penalties leviable under s75B of the Income Tax Act, Act 58 of 1962, as amended.

Further, qualifying taxpayers will receive 100% relief in respect of interest that would otherwise have been payable to SARS. Where, however, the taxpayer is subject to an audit or investigation and it has been decided by SARS that the person may still apply for the relief only 50% of the interest, that would otherwise have been leviable, will be imposed.

In all cases, the underlying tax remains payable to SARS, regardless of the nature of the tax. It is for this reason that it cannot be said that the voluntary disclosure relief constitutes an amnesty.

Confirmation of eligibility

The legislation contains an innovative provision whereby the Commissioner is authorised to issue a non-binding private opinion as to whether a person qualifies for the relief, so long as the person provides sufficient information for SARS to reach a decision. This information need not include the identity of any party to the default. Thus, it would appear that tax practitioners may seek guidance from SARS as to whether a particular taxpayer qualifies for the relief or not.

Left: Taxpayers who chose to participate in Voluntary Disclosure Relief must disclose material facts and figures. SARS officials will then consider their proposal and an agreement will be concluded.

Agreement to be concluded by a taxpayer and SARS

The legislation requires that the Commissioner and the qualifying taxpayer must conclude an agreement regarding the voluntary disclosure. The agreement must disclose details of the material facts of the default on which the voluntary disclosure relief application is based. In addition, the agreement must reflect the amount payable by the taxpayer, which must separately reflect the tax and interest amount due by the taxpayer as well as the arrangement and dates of payment. The voluntary disclosure agreement is also required to deal with the treatment of the tax issue in future years or periods and must contain details of the undertakings by the parties to the agreement.

Withdrawal of relief

Where the taxpayer fails to disclose material information, the relief granted under the legislation may be withdrawn and any amount paid under the voluntary disclosure agreement, will be treated as part-payment in respect of any outstanding tax in respect of the relevant default. In addition, SARS may, in such cases, institute criminal proceedings against the taxpayer for any statutory offence under a taxing statute or related common law offence.

SARS to issue a tax assessment

The legislation requires that SARS must issue an assessment to the taxpayer reflecting the agreement concluded under the voluntary disclosure relief programme. Clearly, any such assessment issued is not subject to an objection or appeal in that the assessment will be based on disclosures made by the taxpayer to SARS under the voluntary disclosure programme.

Reporting of information

The Commissioner is required to submit certain information to the Auditor-General and to the Minister of Finance regarding all applications receiver for voluntary disclosure relief. It is important to note that such information must be disclosed in such a manner that the privacy of the taxpayer is assured and does not disclose the identity of any qualifying taxpayer. The Commissioner must disclose the number of voluntary disclosure agreements concluded by taxpayers and SARS, the amount of tax and interest assessed and the relief granted under the legislation.

Exchange control

The voluntary disclosure relief programme will not work unless defaulting taxpayers may also regularise their position with the Exchange Control Department of the South African Reserve Bank. As a result, SARB will allow for the regularisation of prior transgressions of the Exchange Control Regulations.

The draft guidelines published by the Reserve Bank indicate that persons applying for the voluntary disclosure relief will be required to pay a levy of 1O% on the value of unauthorised foreign assets held by them as at February 28 2010. The applicant will be required to introduce the levy from funds located abroad, or, where they choose to settle the levy due to SARB by utilising domestic funds or the foreign assets are illiquid, the levy will amount to 12%.

Thus, where a person holds foreign funds in contravention of the Exchange Control Regulations, they may regularise those funds with the Exchange Control Department by following the processes to be announced by the Reserve Bank and to pay the levies as indicated above. In addition, companies which have violated the exchange control regulations may regularise those violations under the voluntary disclosure programme and pay the levy set.

Conclusion

Those taxpayers who have failed to comply with the tax laws and/or Exchange Control Regulations should avail themselves of the voluntary disclosure relief to take effect on November 1 2010. It is clear that the relief is available to all taxpayers.

Thus, for example where a company has failed to comply with its employees' tax obligations or its VAT obligations, it is entitled to seek the relief under the provisions contained in the legislation. In addition, those taxpayers who have removed funds from South Africa in contravention of Exchange Control Regulations and did not apply for amnesty under the Exchange Control Amnesty and Amendment of Taxation Laws Act (12 of 20O3), may now seek the relief available under the provisions contained in the legislation. It must be noted that the relief will only be available in respect of applications lodged with the authorities from November 1 2010 to October 31 2011.

Taxpayers who qualify for relief will benefit under the programme in that no additional tax, penalties or interest will be imposed and, furthermore, SARS will not institute criminal prosecution.

Dr Beric Croome is a tax executive with Edward Nathan Sonnenbergs. This article first appeared in the September 2010 issue of the law magazine “Without Prejudice”

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