Monday, 12 June 2017

Tax Ombud To Investigate Alleged Delays In Payment Of Refunds By Sars

On 27 March this year the Tax Ombud, namely, Judge B. M. Ngoepe, confirmed that he had requested and secured the approval of the Minister of Finance to review the alleged delays in the payment of refunds by the South African Revenue Service (“SARS”) to taxpayers.

The Office of the Tax Ombud was created by Part F of chapter 2 of the Tax Administration Act (“TAA”) which took effect on 1 October 2012. The Tax Ombud was created to deal with taxpayers’ complaints of an administrative nature and is an office independent of SARS which reports directly to the Minister of Finance.

The TAA was recently amended conferring greater autonomy on the Office of the Tax Ombud and specifically to enhance the mandate of the Tax Ombud and the power to request that the Minister of Finance approves a request made by the Tax Ombud to investigate any systemic and emerging issue relating to a service matter or the application of the provisions of the TAA or procedural or administrative provisions of the a tax Act. 

The approval granted to investigate the alleged delays in the payment of refunds to taxpayers is the first review to be conducted under section 16(1)(b) of the TAA which came into operation on 18 January 2017.

Image from www.taxombud.gov.za
The Tax Ombud’s review will encompass all categories of tax refunds.

The Tax Ombud approached the Minister for approval to investigate the apparent delay in the payment of refunds to taxpayers because of the volume of complaints received by the office of the Tax Ombud from taxpayers regarding the delay in refunds.

The Office of the Tax Ombud has accordingly advised both SARS and external stakeholders, comprising professional bodies representing tax practitioners and others of the investigation into the delays in refunds. SARS indicated that it will cooperate with the office of the Tax Ombud during the course of the investigation. 

The Office of the Tax Ombud has confirmed that it will engage both SARS and concerned taxpayers regarding the delays in payment of refunds to taxpayers.

The Office of the Tax Ombud will investigate the question of refunds due to taxpayers and make recommendations to the extent necessary.

In my capacity as chairman of the TAA sub-committee of the South African Instituted of Chartered Accountants (“SAICA”), we have received various representations from members of SAICA regarding the delay in refunds being paid to taxpayers.

Many delays are experienced by taxpayers claiming VAT refunds and whilst it is accepted that SARS must ensure that refunds are in order and prevent payment of fraudulent claims, taxpayers have experienced unnecessary delays in the payment of refunds. 

In many cases taxpayers have submitted VAT returns reflecting a refund payable and then suddenly SARS takes a decision reversing all input credits claimed by the taxpayer eliminating the refund without due process being followed which requires that SARS informs the taxpayer of reasons for adjustments made in assessments issued to the taxpayer. 

There have been a number of complaints that VAT vendors have submitted VAT refund claims only to discover that the refund has been eliminated on the basis that SARS requests the documents which it has not apparently received. Unfortunately, taxpayers often submit documents to SARS which are not property receipted and despite having submitted documents on more than one occasion encounter problems in dealing with SARS such that the refunds are eliminated without proper notice being given relating thereto.

In the case of income tax SARS will often summarily disallow all expenses claimed by a taxpayer despite the fact that the taxpayer’s expenses had been allowed in the past and will not properly consider the documents submitted by a taxpayer on multiple occasions. In some cases the documents submitted by taxpayers are voluminous and difficulties are encountered by taxpayers in filing the documents through the e-filling system because of constraints on the SARS system.

Taxpayers have also encountered difficulties in securing refunds from SARS after the successful conclusion of alternative dispute resolution procedures or after successfully prosecuting a tax appeal in the tax court. Once the tax court has delivered a judgment and SARS has decided not to appeal it and the taxpayer has paid the tax in dispute, the taxpayer is entitled to a tax refund together with interest thereon. In some cases taxpayers may secure the payment of their tax previously paid under protest but encounter further difficulties in securing the payment of the interest to which they are entitled under the provisions of the TAA.


Taxpayers who have encountered unreasonable delays in the payment of any tax refund from SARS should inform the Office of the Tax Ombud so that their case can be considered as part of the general review being conducted by the Office of the Tax Ombud into the alleged delay of refunds payable by SARS to taxpayers. 

Professional bodies have also made submissions to the Office of the Tax Ombud to assist it in its investigation into the delays faced by taxpayers in securing refunds from SARS.

It is hoped that the investigation into the delays in refunds will result in substantive proposals being made by the Office of the Tax Ombud to ensure that the undue delay in payment of refunds does not occur in future which adversely affects taxpayers’ business operations in South Africa. 

Dr Beric Croome is a Tax Executive  at ENSafrica. This article first appeared in Business Day, Business Law and Tax Review, June 2017.

Friday, 19 May 2017

South Africa Provides Guidance on Withholding Tax on Royalties

Below article reproduced with permission from BNAI European Tax Service Monthly Digest, Bloomberg BNA, 05/31/2017. Copyright _ 2017 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
 



Monday, 10 April 2017

Increase in the rate of Dividends Tax

The Minister of Finance introduced his budget to parliament on 22 February 2017. During the course of the budget it was announced that the dividends tax would be increased from 15% to 20%.

In the case of foreign dividends the rate of tax will increase to 20% with effect from 1 March 2017. 

This is by virtue of the fact that foreign dividends are not subject to withholding tax and it is only possible for taxpayers to report foreign dividends in the tax return to be filed by them which will, in most cases, cover the period 1 March 2017 to 28 February 2018. Thus, the new tax rate will apply in respect of foreign dividends received by affected taxpayers on or after 1 March 2017.

However, in the case of dividends from which dividends tax must be withheld, the adjusted rate will apply in respect of dividends paid on or after 22 February 2017.

The Draft Rates and Monetary Amounts and Amendment of Revenue Laws Bill, 2017 was released on 22 February 2017 and that legislation contains amendments giving effect to the various adjustments in tax rates announced in the National Budget. Clause 11 of the draft Bill makes it clear that the adjustment in the dividend withholding tax is deemed to have come into operation 22 February 2017 and applies in respect of any dividend paid on or after 22 February 2017.

Section 64E of the Income Tax Act 58 of 1962, as amended, provides that in the a case of a dividend, other than an award of an asset in specie, declared by a company that is a listed company, is deemed to be paid on the date on which the dividend is paid. In the case of a company which is not listed it is deemed to be paid on the earlier of the date on which the dividend is paid or becomes due and payable.

It is therefore important to consider what is meant by the date on which a dividend can be said to have been paid in the case of an unlisted company.

In ITC1688 [1999],62 SATC 478 the Tax Court was required to determine whether the dividends declared by a company were liable to the erstwhile secondary tax on companies (STC). In ITC 1688 the company declared a dividend on 2 March 1992 and a further dividend on 5 March 1993, that is prior to 17 March 1993, the date on which STC took effect. In neither case was the payment of the dividend made in cash or by cheque.

Mr A left the money on loan with the company and his loan account in the company’s was simply credited. In the case of both dividends the actual crediting of the loan account was only effected on 31 July 1993 which was after the introduction of STC. The Commissioner: SARS contended that payment took place on the date on which Mr A’ s loan account was in fact credited. That is to say on 31 July 1993, that is after the introduction of STC and thus issued STC’s assessments to the company reflecting tax payable.

Galgut J reached the conclusion that based on the wording of the company’s two resolutions and based on a proper construction of all the facts that it had been intended to record that the dividends concerned would not be paid in cash or by cheque but would be retained by the company as a loan. The court therefore reached the conclusion that the dividend was paid as required even though it was not in cash or by cheque, before the introduction of STC.

Subsequently, in the Supreme Court of Appeal case of Commissioner: SARS v Scribante Construction (Pty) Ltd ([2002], 64 SATC 379) in which judgment was delivered on 14 May 2002  Heher AJA delivering judgment for the unanimous court stated as follows:

“ I have already referred to the uncontested practice of the shareholders in using the company as a banker. In that context the crediting of the loan accounts constituted an actual payment as if the dividends had been deposited into an account held by a shareholder at a banking institution”.

The Supreme Court of Appeal has therefore decided that dividends will be regarded as paid when those amounts are credited to a shareholder’s loan account making it clear that it is not necessary to pay a dividend in cash.

Clearly, with the dividends tax rate being increased from 15% - 20% SARS has a concern that unscrupulous taxpayers may seek to backdate dividends to escape the increased rate of tax. Where taxpayers seek to fabricate resolutions purportedly  giving effect to decisions which were not actually made prior to 22 February 2017, such conduct constitutes tax evasion and will face the full might of the law and the imposition of penalties.
Image purchased www.iStock.com ©iStock.com
SARS has indicated that it will audit all dividends paid shortly before the increase in rate to ensure the lawfulness thereof. Where, however, the shareholders of a company passed a proper resolution declaring a dividend, having satisfied themselves as to the solvency and liquidity of the company as required under the Companies Act, the shareholders have a claim against the company for such dividend and will be entitled, based on the case law, to pay the dividends tax at the rate of 15% where such resolution was properly adopted prior to 22 February 2017. 

Based on ITC 1688 it does not appear that the dividend must have been recorded in the books of account prior to 22 February 2017. The courts require that the resolution must have been properly passed giving the shareholder an unconditional right to claim the dividend against the company which would confirm that the dividend has been paid as required under section 64E of the Act.

National Treasury indicated at the Standing Committee on Finance hearings on the National Budget that it may seek to amend section 64E such that it will be required that the dividend must in fact be paid in cash and not only credited to a shareholder’s loan account. Such an amendment would be retrospective and should be resisted on the basis that it violates the rule of law and the certainty required under the Constitution of the Republic of South Africa. 

Taxpayers need to consider their position and seek appropriate advice knowing that SARS will no doubt audit and investigate dividends declared particularly in February and credited to loan accounts before 22 February 2017 in light of the substantial increase in the rate of dividends tax from 15% – 20 %.

Dr Beric Croome is a Tax Executive  at ENSafrica. This article first appeared in Business Day, Business Law and Tax Review, April 2017. Image purchased www.iStock.com ©iStock.com/ 

Monday, 13 March 2017

Interest-free Loans made available to trusts

In the 2016 National Budget, the Minister of Finance indicated that legislation would be introduced to deal with interest-free loans made available by natural persons to trusts. Legislation was subsequently drafted and was promulgated on 19 January 2017 as section 7C of the Income Tax Act, No. 58 of 1962, as amended (‘the Act”) by way of section 12 of the Taxation Laws of Amendment Act No. 15 of 2016.

It must be noted that the new section will apply in respect of any loan or advance made by a natural person or at the behest of such person by a company in relation to which a natural person is a connected person under the definition of connected person contained in section 1 of the Act to a trust. 

It must be noted that the new section applies in respect of all loans made on, after, or before 1 March 2017 and therefore applies in respect of pre-existing loans on which no interest is charged.

The legislation provides that where a natural person makes an interest-free loan to a trust, the non-charging of interest will be regarded as a donation subject to donations tax at the rate of 20%.

The benchmark to be used for purposes of ascertaining whether the section applies is the so-called official rate of interest as defined in paragraph 1 of the Seventh Schedule to the Act which currently amounts to 8% per annum. Thus, where a natural person makes an advance or loan available to a trust to acquire assets and no interest is charged, that person will be liable to donations tax on an amount of 8 % of the loan advanced to the trust for each year during which the loan is in existence.

Should interest be charged at a rate lower than the official rate, the difference will attract donations tax in the hands of the natural person.

Thus, where a natural person advanced funds to a trust in an amount of R10 000 000.00 and chooses not to charge interest thereon from 1 March 2017, that will constitute a donation of R 800 000.00 for the 2018 tax year which will result in a liability of donations tax amounting to R 160 000.00 per annum, ignoring for the moment the fact that the first R100 000.00 of donations are exempt from donations tax. Where a loan advanced to a trust does not exceed an amount of R1 250 000.00, 8% thereof amounts to R 100 000.00 and the taxpayer would be entitled to rely on the exemption of donations tax,  which exempts the first R100 000.00 from donations tax.

The donation will be regarded as having been made to the trust by the natural person on the last day of the year of assessment of the trust and donations tax will be payable by the end of the month following the month during which the donation takes effect. Thus the donations tax will be payable by 31 March 2018. The new rules also apply where, for example, a natural person makes a loan to a company to which the natural person is connected and that company in turn, directly or indirectly provides those funds to a trust.

Section 7C(5) provides that no donations tax will arise in respect of loans or advances where:

the trust is a public benefit organisation approved by the Commissioner under section 30(3) of the Act or a small business funding entity approved by the Commissioner under section 30C;
the trust is a special trust as defined in paragraph (a) of the definition of special trust;
the trust used the loan wholly or partly for purposes of funding the acquisition of an asset and the natural person or their spouse used that asset as a primary residence as envisaged in the definition of primary residence in the Eighth Schedule to the Act and the amount owed relates to the part of that loan that funded the acquisition of that residence;
that loan or advance was provided to that trust in terms of an arrangement that would have been regarded as asharia compliant financing arrangement as referred to in section 24JA of the Act.
that loan or advance is subject to the provisions of section 64 E(4) relating to deemed dividends under the dividends tax rules;
that loan or advance comprises an affected transaction as referred to in section 31(1) which is subject to the provisions of that section;
that loan or advance was provided to that trust by a person as a result of the vested interest held by that person in the receipts and accruals of the assets of that trust and the conditions specified in section 7C (5)(b) of the Act are complied with.

Where the natural person makes a loan to a foreign trust and does not charge interest thereon, that loan is subject to the provisions of section 31 and on that basis section 7C should not apply. It is important that where a loan is made available by a South African tax resident to a foreign trust that interest is charged at a rate that would have been charged by person’s dealing at arms’ length thereby complying with the provisions of section 31 of the Act.
Should interest be charged at a rate lower than the official rate,
the difference will attract donations tax in the hands of the natural person.
Unfortunately, the legislature decided not to provide any relief to taxpayers wishing to unwind their trust structures in order to do away with loans advanced by natural persons a trust as was the case when a concession was introduced allowing natural persons to remove primary residences from trust structures when capital gains tax was introduced. Taxpayers were allowed to transfer their homes from a trust for a limited period without paying capital gains tax and transfer duty.

Thus, where a natural person has advanced funds to a trust, it is necessary to review the annual financial statements of the trust to decide what to do and where the trust owns an asset producing income, it may make financial sense to charge interest on the loan which would then ensure that the trust receives a deduction for interest payable to the natural person but remembering that the interest paid will be taxable in the hands of the natural person. It is not possible to generalise and state what course of action a person should follow where they have made an advance available to a trust as it does depend on the totality of the circumstances and it will be necessary to review the taxpayer’s personal situation as well as that of the trust to determine what should be done to alleviate the donations tax that would otherwise become payable if no interest is charged on the loan due by the trust to the natural person.

The question often that arises is whether an amount payable to a beneficiary as a result of an award or distribution made by a trust but not actually paid in cash to the beneficiary will also be subjected to the rules  contained in section 7C. 

The Explanatory Memorandum on the Taxation Laws Amendment Bill published by Natural Treasury on 15 December 2016 indicates that an amount which is vested irrevocably by a trustee in a trust beneficiary, which is used or administered for their benefit will not qualify as a loan or credit provided by that beneficiary to the trust where the vested amount may, in accordance with the trust deed, not be distributed to that beneficiary for example before the beneficiary reaches a specific age, or that the trustee has the sole discretion in terms of the trust deed regarding the timing of and extent of any distributions to that beneficiary of such vested amount.

The Explanatory Memorandum points out that where an amount vested by a trust in a trust beneficiary, which is actually distributed to the beneficiary will qualify as a loan under section 7C where the non-distribution results from an election made by that beneficiary or request by the beneficiary that the amount not be distributed or paid over. It will therefore be necessary to review the trust deed to establish whether awards made, other than cash, to a beneficiary fall within the rules of section 7C or not.

It must be noted that section 7C will apply so long as the loan remains in place between the trust and the natural person which can become expensive when one considers that donations tax at the rate of, currently, 20% will be paid on the interest foregone on the loan made by the natural person to the trust for so long as the loan is in existence. Persons who have interest-free loans in place with a trust should review their position as a result of section 7C.

Dr Beric Croome is a Tax Executive  at ENSafrica. This article first appeared in Business Day, Business Law and Tax Review, March 2017. Image purchased www.iStock.com ©iStock.com/"Retirement Savings" by michellegibson 

Friday, 17 February 2017

SARS rules on the PAYE and VAT implications of non-executive directors’ remuneration

National Treasury indicated in the 2016 Budget Review that there are differing views as to whether the remuneration paid to a non-executive director (NED) is subject to employees’ tax, that is, pay-as-you-earn (PAYE) and whether a NED should register for value added tax (VAT).  

It was suggested that these issues be investigated to provide clarity.  In its final response document on the Taxation Laws Amendment Bill, 2016, National Treasury and the South African Revenue Service (SARS) proposed that SARS address the uncertainties relating to VAT and PAYE in relation to NED remuneration in an Interpretation Note.

On 10 February 2017 SARS issued Binding General Ruling (Income Tax) 40 (BGR 40) and Binding General Ruling (VAT) 41 (BGR 41) in which it sets out its interpretation of the Income Tax Act (the Act) and the Value Added Tax Act (the VAT Act) in relation to NED remuneration.  Unlike what has become common practice by SARS to publish binding general rulings in draft format for public comment first, BGR 40 and BGR 41 were issued as final documents without inviting public comment.

Binding General Ruling 40

This BGR sets out SARS‘s interpretation of the employees’ tax consequences of fees derived by non-executive directors as well as the impact of section 23(m) of the Act on non-executive directors claiming deductions against fees derived by them.

SARS points out that since the introduction of the so-called statutory test contained in paragraph (ii) of the exclusions to the definition of remuneration contained in the Fourth Schedule to the Act, there has been uncertainty over the nature of amounts paid to non-executive directors and whether they should be subject to employees’ tax.

The Act does not define the term non-executive director. The King III Report on Governance for South Africa 2009, commissioned by the Institute of Directors of Southern Africa stated that the crucial elements of a non-executive director’s role in a company are that a non-executive director:
·         must provide objective judgement independent of management of a company;
·         must not be involved in the management of the company; and
·         is independent of management on issues such as, amongst others, strategy, performance, resources, diversity, etc.

SARS points out that for the purposes of the BGR it is considered that a non-executive director is to be a director who is not involved in the daily management or operations of a company but attends and provides objective judgment on the company’s affairs and voted board meetings.

The BGR makes it clear that SARS accepts that the nature of the duties performed by a non-executive director mean that they are not regarded as common-law employees. Thus, the only basis on which a non-executive director could be subject to employees’ tax is if the so-called statutory tests apply. Those tests provide that, notwithstanding an amount is paid for services rendered to a person carrying on an independent trade, the recipient is regarded as an employee if two requirements are satisfied, namely, the ‘premises’ test and the ‘control or supervision’ test.

These tests comprise the following:

·         the ‘premises’ test requires that the services must be performed mainly at the premises of the client. Mainly is regarded as meaning a quantitative measure in excess of 50% based on the judgment of Sekretaris van Binnelandse Inkomste vs Lourens Erasmus (Eindoms) Bpk 1966(4) South African 434 (A).

·         the ‘control or supervision’ test envisages either control or supervision which must be exercised over one of the following:

1.1.         the manner in which the duties are required to be performed, or
1.2.         the hours of work

It is required that both of the above tests must be met, that is both the ‘premises test’ and the ‘control or supervision’ test must be fulfilled before the recipient will be regarded as not carrying on an independent trade and therefore receiving remuneration subject to employees’ tax. However, if only one of the above mentioned tests is fulfilled, or neither, the deeming rules cannot apply.

Where the non-executive director is not deemed to be an employee and also is not a common law employee the amounts payable to the non-executive directors will not constitute remuneration.

The BGR makes reference to the fact that it has been suggested that payment made by a company to a non-executive director for time spent preparing for board meetings, for example, which result in payment of an hourly rate for a specified number of hours before each meeting creates some form of control or supervision of the hours of work performed by the non-executive director. SARS indicates that this is not the correct manner in which to apply the ‘control or supervision’ test. 

The fact that there may be a contractual relationship regulating the number of hours for which preparation time may be billed does not result in ‘control or supervision’ being exercised over the hours during which a non-executive director’s duties are performed. Thus, such payments will not satisfy the test in question. It must be noted though that this rule does not apply to non-resident independent contractors.

Section 23(m) prohibits employees and office holders from claiming the deduction of certain expenses. The section requires that expenditure must relate to an office held by the taxpayer and, furthermore, that the taxpayer must derive remuneration from that office.

SARS accepts that directors are holders of an office and thus if they do receive remuneration, section 23(m) will result in the prohibition from claiming deductions applying to that director. Where, however, the non-executive director does not receive remuneration, SARS accepts that section 23(m) cannot apply and the ordinary rules for deductibility of expenditure set out in the Act will apply.

For purposes of the ruling published by SARS, SARS accepts that the non-executive director does not constitute a common law employee. SARS further accepts that no control or supervision is exercised over the manner in which a non-executive director performs his or her duties or their hours of work.

As a result, the director’s fees received by a non-executive director for services rendered in that capacity on a company’s board do not  constitute remuneration  and are not subject to the deduction of employees’ tax. The non-executive director must reflect the income received for services rendered as a non-executive director for tax purposes and pay tax thereon via the provisional tax system.

In addition, SARS accepts that because the amounts received by a non-executive director do not constitute remuneration, the prohibition of claiming expenses under section 23(m) will not apply in relation to the fees received by such persons. The ruling does not apply in respect of fees received by non-resident non-executive directors, in which case the company paying the fees will be required to withhold and deduct employees’ tax. The ruling is published as a BGR in accordance with section 89 of the Tax Administration Act which means that taxpayers are entitled to rely thereon. It must be noted that the ruling has been published such that it will apply from 1 June 2017 until it is withdrawn, amended or the relevant legislation is amended. The terms of the ruling further provide that any ruling and decision issued by the Commissioner which is contrary to BGR 40 is withdrawn with effect from 1 June 2017.

When reference is made to the BGR referred to, the question arises as to what companies should do from the date of publication of the ruling until the date of application thereof, that is, 1 June 2017.

Where, based on an analysis of the law the company is satisfied that it does not exercise supervision or control over the non-executive director and the director is resident, there is a basis in law for the company not to deduct employees’ tax from the fees paid to that director from 10 February 2017 until 31 May 2017. 

Clearly, this does not mean that the amount is not taxable. The ruling and the law merely regulates the manner in which the tax is to be paid by the non-executive director. Where employees’ tax is not withheld by the company, the director has an obligation to include that income for provisional tax purposes and comply with the provisions of the Fourth Schedule, failing which penalties will be imposed for either the late payment or under- payment of provisional tax. Where employees’ tax has been deducted historically in the past, non-executive directors should ensure, if not yet registered for provisional tax purposes that are so registered with effect from 1 June 2017 so that they can adhere to the BGR published by SARS

Binding General Ruling 41

In BGR 41 SARS refers to its conclusion in BGR 40 that an NED is not considered to be a common law employee and that the remuneration paid to an NED is therefore not subject to PAYE.  SARS ruled that for VAT purposes an NED is treated as an independent contractor as contemplated in proviso (iii)(bb) to the definition of “enterprise” in section 1(1) of the VAT Act, in respect of the NED’s activities.

BGR 41 further stipulates that an NED that carries on an enterprise in South Africa is required to register and charge VAT where the value of the remuneration exceeds R1 million in any consecutive 12-month period, and that this applies to ordinary residents of South Africa and to non-resident NED’s.

BGR 41 is made effective from 1 June 2017.  SARS indicated in a media statement issued on 14 February 2017 that where the remuneration paid by the NED was subject to PAYE, the NED would not be required to register for VAT prior to 1 June 2017.  This would allow NED’s who are affected by BGR 41 then approximately three months to register for VAT with effect from 1 June 2017.

In terms of section 66(8) of the Companies Act, 2008, a company may pay remuneration to its directors for their services as directors.  However, such remuneration may be paid only in accordance with a special resolution approved by the shareholders within the previous two years.  In terms of section 64 of the VAT Act any price charged by any vendor for the taxable supply of goods or services is deemed to include VAT.  Therefore, where the NED’s remuneration is not increased by the VAT rate by a special resolution of the shareholders before 1 June 2017, the NED’s remuneration will be deemed to be inclusive of VAT.

 
The question arises as to whether SARS is correct in its interpretation of the VAT Act as set out in BGR 41.  SARS considers an NED to be an independent contractor “as contemplated in proviso (iii)(bb) to the definition of “enterprise” in section 1(1) of the VAT Act”.  However, proviso (iii)(bb) only applies to services rendered by employees or office holders as contemplated by proviso (iii)(aa) where the remuneration payable constitutes ‘remuneration” as defined in the Fourth Schedule to the Act.  SARS has ruled in BGR 40 that the remuneration paid to an NED does not comprise “remuneration” as defined in the Fourth Schedule, and therefore proviso (iii)(bb) is not applicable as contended by SARS.

The question that remains is whether an NED is carrying on an “enterprise” as contemplated by that definition.  BGR 40 stipulates that SARS considers an NED to be a director who is not involved in the daily management or operations of the company, but simply attends, provides objective judgment and votes at board meetings.  The question is whether such activities of attending and voting at board meetings comprise the supply of “services” as contemplated by the definition of that term as defined in the VAT Act, or whether they are merely the fulfilment of the statutory duties of the NED.  In addition, an NED is elected to that position in his or her personal capacity as contemplated by section 68 of the Companies Act to serve for a specified term, unlike an independent contractor who is appointed under a contract to provide specific services, and who is entitled to delegate the performance of the services. 

The independency of an NED from the management of a company should further not be confused with independency from the company itself.  The company, being a legal entity, cannot on its own make any decision or take any actions.  A company’s mind and soul has been considered by our courts to be that of its board of directors, which includes the NED’s.  It therefore seems that it could be argued that the activities of an NED do not fall within the ambit of the definition of “enterprise” as defined in the VAT Act as contended by SARS in BGR 41.  However, in the absence of a court ruling to the contrary, an NED may be held liable for the VAT, penalties and interest if he or she does not comply with BGR 41.

Gerhard Badenhorst                                                  Beric Croome 
Tax Executive                                                               Tax Executive

Monday, 13 February 2017

Penalties on Underpayment of Provisional Tax

Under paragraph 20(1) of the Fourth Schedule to the Income Tax Act 58 of 1962, amended (“the Act”), if the actual taxable income of a provisional taxpayer, as finally determined under the Act, exceeds R1 000 000 and the estimate made in the return for the payment of provisional tax, that is the so-called second provisional tax payment, is less than 80% of the amount of the actual taxable income, the Commissioner is obliged to levy a penalty, which is regarded as a percentage based penalty imposed under chapter 15 of the Tax Administration Act 28 of 2011 (“TAA”).

The penalty, in the case of a company, amounts to 20% of the difference between the amount of normal tax calculated using the corporate tax rate of 28% in respect of the taxable income amounting to 80% of the actual taxable income and the amount of provisional tax in respect of that year of assessment  paid by the end of the year of assessment.

Paragraph 20(2) of the Fourth Schedule to the Act confers a discretion on the Commissioner to remit the penalty or a part thereof where he is satisfied that the estimate of taxable income was seriously calculated with due regard to the factors as having a bearing thereon and was not deliberately or negligently understated.

The Port Elizabeth Tax Court was recently required to adjudicate a matter relating to the imposition of a penalty on the underpayment of provisional tax in Case No. IT14027, as yet unreported, where judgment was delivered on 7 December 2016.

The Tax Court had to consider whether the company could lawfully amend its grounds of objection even though the matter was already on appeal ©iStock.com/ "Alert Judge" by junial
ABC (Pty) Ltd was a provisional taxpayer which delivered its return for payment of provisional tax for the 2010 year of assessment on 30 June 2011. In its return of provisional tax it estimated the taxable income for the year of assessment and made payment in accordance with its estimate. Sometime later it appeared that the actual income received exceeded the estimate made by the company substantially. As a result the South African Revenue Service (“SARS”) imposed an underestimation penalty in terms of paragraph 20 of the Fourth Schedule to the Act.

The company lodged an objection which was rejected by SARS and resulted in an appeal which was decided in its favour by the Tax Board. SARS subsequently appealed the decision of the Tax Board to the Tax Court for a hearing de novo and subsequently filed a statement of grounds of assessment and opposing the appeal.

In reply, ABC (Pty) Ltd filed its statement of grounds of appeal according to the Tax Court rules. In its grounds of appeal the company abandoned all of the grounds raised in its original objection and in its notice of appeal and sought to rely only on the procedural ground raised for the first time by the chairperson of the Tax Board upon which he had found in favour of the company.

SARS subsequently filed a notice of exception arguing that the company could not rely on a new ground of objection not previously contained in its grounds of objection.

The company originally estimated its income for the 2011 year of assessment in an amount of R431 638,00 and made payment of provisional tax amounting to R64 905,54. Later, on 30 September 2011 the company made a further payment of R1 377 466,22. Subsequently, the company filed its income tax return reflecting a taxable income for the year of assessment amounting to R5 050 076,00.

By virtue of the large difference between the tax actually due per the final taxable income and the provisional tax paid, SARS imposed the underestimation penalty under the provisions of the Act. SARS considered the objection lodged by the company on the basis that the company did not seriously calculate its tax income as required.

The TAA had not yet come into force by the time that the company’s objection had been disallowed and its notice of appeal lodged. The Tax Board decided that the Commissioner was correct in rejecting the company’s objection and that the appeal should be dismissed on its merits. 

However, the chairperson of the Tax Board mero motu raised a procedural issue under the TAA which had since come into force and decided in favour of the company. The chairperson of the Tax Board reached the view that the manner in which SARS had dealt with the imposition of the penalty was in conflict with chapter 15 of the TAA, especially sections 214 and 215 thereof. 

The Tax Court had to consider whether the company could lawfully amend its grounds of objection even though the matter was already on appeal. Tax Court Rules do not provide for an amendment to the taxpayers’ grounds of objection and the Court therefor referred to the rules of the High Court.

The Tax Court considered the various provisions of the TAA and made the decision that SARS’s exception to the company’s application should be upheld and that the application for the amendment of the company’s grounds of objection should be dismissed. The Court therefore dismissed the company’s appeal and confirmed the penalty imposed on the understatement of provisional tax.

Based on the judgment it is concluded that taxpayers need to exercise extreme caution in calculating taxable income for purposes of provisional tax, failing which they will become liable to the 20% underpayment penalty. 

Furthermore, when a taxpayer disputes the imposition of a penalty, or in fact any assessment, it is important that the grounds of objection are properly formulated as it is not possible to subsequently amend the grounds of objection.

Dr Beric Croome is a Tax Executive  at ENSafrica. This article first appeared in Business Day, Business Law and Tax Review, February 2017. Image purchased www.iStock.com ©iStock.com/"Alert Judge" by junial