Tax Evaders Find it Difficult to Hide Across Borders

South Africa and the United Kingdom concluded a convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains, which was gazetted in Government Gazette 24335 of 31 January 2003.  That agreement was subsequently amended by Government Notice 52 in Government Gazette 34971 on 2 February 2012 with effect from 13 October 2011.

The amendments to the treaty concluded by South Africa and the United Kingdom dealt with, inter alia, the exchange of information regulated by article 25 and article 25A dealing with assistance in the collection of taxes.

SARS  and  UK  revenue   can assist in targeting 

tax debtors in each other's countries

Article 25A of the treaty provides that the South African Revenue Service (‘SARS’) and Her Majesty’s Revenue and Customs (‘HMRC’) shall assist each other in the collection of taxes.

Article 25A refers to any amount owed in respect of taxes of every kind and description imposed on behalf of South Africa and the United Kingdom or of their political subdivisions or local authorities, so long as the taxation in question is not contrary to the tax treaty or any other instrument to which the two countries are parties, as well as interest, administrative penalties and the cost of collection or conversancy related to such tax.

The treaty provides that, where a tax debt is enforceable under the laws of South Africa, and is owed by a person who cannot under the laws of South Africa prevent its collection, that tax debt shall, at the request of the Commissioner: South African Revenue Service be accepted for purposes of collection by the competent authority of the United Kingdom.  Article 25A(3) provides that the tax debt shall be collected by the United Kingdom in accordance with the provisions of its laws applicable to the enforcement and collection of its own taxes, as if that debt were an amount due to the United Kingdom.  The treaty also requires South Africa to assist the United Kingdom in collecting tax debts due by United Kingdom taxpayers from assets they may have in South Africa.

Before the insertion of article 25A into the tax treaty, SARS was unable to assist HMRC in the collection of taxes due to it from assets of United Kingdom taxpayers located in South Africa  and, similarly, HMRC was unable to assist SARS in recovering taxes due to SARS from assets located in the United Kingdom belonging to South African taxpayers.  The question that did arise at the time that the article was inserted into the treaty, was whether the assistance in the collection of taxes could apply to taxes which arose prior to the insertion of the article into the tax treaty.

This question was considered in the United Kingdom’s Court of Appeal in the case of Ben Nevis (Holdings) Ltd and Anor v Commissioner for HM Revenue and Customs [2013] EWCA Civ 578.  Ben Nevis is a company incorporated in the British Virgin Islands, which was owned and controlled by a Mr David King and/or his trustees.  The judgment indicates that Ben Nevis is liable to the Commissioner: SARS for taxes from the 1998 to the 2000 years of assessment amounting to approximately R2,6 billion following the final determination of a tax appeal in October 2010.  Subsequently, judgment was taken against Ben Nevis in proceedings in the courts in South Africa.

SARS took the view that, when Mr King became aware that SARS was investigating Ben Nevis’ tax affairs, he transferred Ben Nevis’ assets to another company incorporated in British Virgin Islands, and that, as a result thereof, funds of approximately £7,8 million had been credited to a bank account in London in the name of Metlika Trading Limited.

As a result of the protocol amending the tax treaty between South Africa and the United Kingdom taking effect on 13 October 2011, which now, for the first time, allowed for mutual assistance in the collection of taxes, a request was made by SARS to HMRC that it assist SARS in the collection of the tax debt due.

The High Court in the United Kingdom had previously dismissed Ben Nevis’ application to set aside the order granting judgment against Ben Nevis in respect of the tax due to SARS.

Historically, the courts in the United Kingdom have declined the request to entertain claims for the enforcement of revenue or other public laws of a foreign state.  This flows from the well-established principle that the courts of one country will not enforce the revenue laws of another country.  However, this principle has been watered down as a result of international agreements concluded by various governments, and, particularly, the Joint Convention on Mutual Administrative Assistance in Tax Matters, which include a provision for assistance in the recovery of taxes.

Originally, as pointed out above, the tax treaty concluded by South Africa and the United Kingdom did not contain any provision for mutual assistance in the collection of taxes.  Article 25A was inserted by virtue of the protocol conclude by the two governments, with effect from 13^th October 2011.

Ben Nevis sought to argue that article 25A of the tax treaty could not apply  as a result of the fact that the tax debts were due in respect of years of assessment commencing prior to the coming into force of the 2002 convention concluded by South Africa and the United Kingdom.  Thus, Ben Nevis sought to argue that the effect of article 25A and article 27 of the 2002 convention limited the scope of article 25A to tax debts on or after 1 January 2003.  The tax owed by Ben Nevis related to the 1998 to 2000 assessments, that is, prior to the 2002 convention and most certainly prior to the date on which article 25A was inserted into the tax treaty concluded between South Africa and the United Kingdom.

Lord Justice Lloyd Jones reviewed various cases dealing with the interpretation of international agreements and also the relevant articles of the Vienna Convention on Treaties and considered the retrospective effect of article 25A.

The Court also referred to a memorandum of understanding that was agreed to by South Africa and the United Kingdom and criticised the fact such memorandum could only be obtained by taxpayers by making a Freedom of Information Act request.  The Court, therefore, expressed the view that it is in the interest of fairness to taxpayers that memoranda of understanding agreed by contracting states should be readily available to the public.

The Court reached the conclusion that the application of article 25A to a request for assistance in the enforcement of tax debts arising before the protocol came into effect did not amount to retrospective application, nor was it unfair that the protocol should apply to such pre-existing tax liabilities.  The Court also considered the effect of the Finance Act of 2006, and whether that Act permitted HMRC to conclude an agreement with another country such that mutual assistance in the collection of tax debt should apply retrospectively.

At the end of the day, the Court decided that the presumption against retrospective effect did not apply to Ben Nevis, because the application of article 25A in respect of taxes arising before 19 July 2006, that is, the date on which the relevant provisions of the Finance Act took effect, or 1 January 2003, did not involve any objectionable retrospective effect.  The Court accordingly decided that article 25A could be utilised by HMRC in assisting SARS in recovering tax liabilities which arose prior to the insertion of article 25A into the tax treaty concluded by South Africa and the United Kingdom.

It is interesting to note that the tax treaty concluded by South Africa and Australia contains a similar provision dealing with the assistance in the collection of taxes at article 25A which appeared in Government Gazette 31721 of 23 December 2008.  The press has reported that Mr Tannenbaum, the alleged mastermind of a Ponzi scheme, is indebted to SARS in the amount of R747,990,921.00.  Mr Tannenbaum would appear to currently reside in Australia, and, when reference is made to the decision in the Ben Nevis case, it is more than likely that SARS will seek assistance from the Australian Tax Office to recover the taxes due as a result of the alleged Ponzi by relying on article 25A of the treaty concluded by South Africa and Australia.

Previously, tax treaties did not envisage countries assisting each other in the collection of tax debts, but this has changed, and the OECD’s Model Convention now contains such provisions. Furthermore, the Joint Convention on Mutual Administrative Assistance in Tax Matters includes a provision for the assistance in recovery of taxes.  

Thus, governments will assist each other in recovering taxes due by taxpayers of other countries from assets that those taxpayers may have in the other country.

■ Dr Beric Croome is a tax executive at ENS. This article first appeared in Business Day, Business Law and Tax Review, July 2013. 

The Future Taxation of Trusts

In the National Budget, tabled in Parliament on 27th February 2013, the Minister of Finance indicated that government was proposing several legislative measures during 2013/14 regarding trusts to curtail perceived tax avoidance associated with trusts.  The Treasury also indicated its concern regarding the use of trusts to avoid estate duty, which it intended to review.

It was pointed out that the proposals in the Budget would not apply to those trusts established to cater for the needs of minor children and people with disabilities, that is, so-called special trusts.

Originally, Treasury indicated that discretionary trusts should no longer act as flow-through vehicles, with the result that a trust should be taxed as a separate and distinct entity.  It was expected that legislation would be introduced whereby trusts would be liable to pay tax in its' own right without the possibility of passing income and capital gains through to beneficiaries.  

However, the Budget documentation was somewhat unclear in that it indicated that, to the extent that a trust derives taxable income and distributes that to a beneficiary, such amount would be deductible for the trust, and the beneficiary would then be taxed thereon as having received ordinary revenue.

The Minister of Finance indicated that trading trusts would similarly be taxable at the entity level, with distributions being treated as deductible payments to the extent of the trust’s taxable income.  It was pointed out that trusts would be regarded as trading trusts where they either conducted a trade or where the beneficial ownership interests in the trust were freely transferrable.  Some years ago, government attempted to define trading trusts in order to regulate the manner in which such trusts should be taxed, but eventually abandoned the idea because it was unable to comprehensively define what should constitute a trading trust.

Finally, the budget indicated that distributions received from offshore foundations will always be treated as ordinary revenue in the future.

To date, no draft legislation has been released setting out the manner in which government intends to deal with the taxation of trusts in the future.

On 14th June 2013, a meeting was held by representatives of the National Treasury and the Commissioner: South African Revenue Service with representatives of the Fiduciary Institute of Southern Africa, Financial Planning Institute, Law Society of South Africa, South African Institute of Chartered Accountants, South African Institute of Tax Practitioners and the Society of Trust and Estate Practitioners, to discuss the taxation of trusts in the future.

It would appear that National Treasury is concerned that trusts are being used for tax avoidance purposes, and it appears that National Treasury wishes to understand the position better.

The delegates of the meeting were also asked how frequently foundations are used and the reasons therefore.  It was indicated that foundations are not widely used, and this aspect will probably be investigated further.

In addition, the meeting discussed interaction between the Master’s Office and the Commissioner: SARS.  It is more than likely that the tax returns submitted by trusts will become more onerous so that greater disclosure regarding the activities conducted by trusts are fully disclosed to SARS.

The National Budget estimated that estate duty would contribute some R900 million in the 2013/14 fiscal year, which represents a small part of budgeted state revenue.  It remains unclear why estate duty continues to exist.  Ideally, the taxation of trusts, capital gains tax and estate duty should be reviewed holistically to formulate a sound fiscal policy.  The Minister of Finance announced on 27th February 2013 that Judge D Davis of the High Court would chair a commission of enquiry into the tax structure of South Africa.  It is hoped that that commission will review the taxation of trusts in South Africa, taking account of the capital gains tax and estate duty implications relating thereto.

National Treasury indicated in the meeting held on 14th June 2013 that no tax changes regarding trusts have been finalised, and that any amendments proposed to the taxation of trusts will be discussed in depth and a discussion paper released for comment, but this is not likely to happen in the short term.

The 2013 Taxation laws Amendment Bill is due to be released shortly, which will contain most of the amendments required to give effect to the tax policy decisions contained in the 2013 Budget.

Taking account of the meeting held on 14th June 2013, it would appear that no amendments to the taxation of trusts will be contained in the 2013 Taxation Laws Amendment Bill, but that the matter will be properly reviewed and considered before amendments are made.  This move should be supported, as it is far better that the taxation of trusts is reviewed holistically as opposed to introducing ad-hoc amendments to address perceived tax avoidance.

• This article by Dr Beric Croome first appeared in tax ENSight, June 2013 Image from South African Consulate General - New York City

Receiver Throws Information Net Wider

On 5^th April 2013, the Commissioner: South African Revenue Service issued Government Notice number 260, which appeared in Government Gazette number 36346 on 5^th April 2013, setting out returns of information which must be submitted by third parties in terms of section 26 of the Tax Administration Act, No 28 of 2011. 

It is appropriate to point out that, on 29^th February 2012, the Commissioner: South African Revenue Service published a Government Notice requiring reporting institutions to furnish bi-annual returns of investment and interest with effect from the 2013 year of assessment.  That government notice required certain financial institutions to supply extensive information to the Commissioner: SARS.  As a result of the Tax Administration Act taking effect, it was necessary for a new notice to be published specifying information to be supplied by various third parties to Commissioner: SARS.

Hackles may rise as this move could be seen as a violation of the taxpayer’s right to privacy

At the time that the Tax Administration Act was being finalised, it was indicated that the legislation was being enhanced to improve the gathering of information from third parties by the Commissioner: South African Revenue Service, so as to increase the levels of tax compliance in South Africa and to assist in the further pre-population of tax returns to be submitted by individuals.

The latest notice requires financial institutions to supply details of retirement annuity contributions paid by taxpayers and for medical aid schemes to supply details of contributions made by persons in respect of the medical scheme, as well as all expenses paid for a person by a medical scheme.  

These two particular requirements will assist SARS in pre-populating tax returns to be lodged by individuals.  In addition, financial institutions in receipt of premiums paid for income protection policies must disclose that to the Commissioner, which should assist taxpayers in satisfying the Commissioner: SARS as to the deductibility of premiums paid on income protection policies.

The notice issued on 5^th April 2013 requires the following persons to submit a return in the manner prescribed in the notice:

•          banks regulated by the registrar of banks in terms of the Banks Act or the Mutual Banks Act;
•          co-operative banks regulated by the Co-operative Banks Development Agency in terms of the Co-operatives Banks Act;
• 
  
•          the South African Post Bank Limited, regulated in terms of the South African Post Bank Limited Act;
•          financial institutions regulated by the executive officer, deputy executive officer or board, as defined in the Financial Services Board Act, whether in terms of that Act or any other act;
• 
  
•          companies listed on the JSE and connected persons in relation to the companies that issue bonds, debentures or similar financial instruments;
• 
  
•          state-owned companies, as defined in section 1 of the Companies Act that issue bonds, debentures or similar financial instruments;
• 
  
•          organs of state, as defined in section 239 of the Constitution of the Republic of South Africa that issue bonds, debentures or similar financial instruments;
• 
  
•          any person, including a co-operative, as defined in section 1 of the Income Tax Act, who purchases any livestock, produce, timber, ore, mineral or previous stones from a primary producer other than on a retail basis;
• 
  
•          any medical scheme registered under section 24 of the Medical Schemes Act;
• 
  
•          any person who, for their own account, carries on the business as an estate agent, as defined in the Estate Agency Affairs Act and who pays to or receives on behalf of a third party any amount in respect of any investment, interest or the rental of property; and
• 
  
•          any person who, for their own account, practices as an attorney, as defined in section 1 of the Attorneys Act, and who pays to or receives on behalf of a third party any amount in respect of any investment, interest or the rental of property.

The notice then describes the nature of the information to be provided by the categories of persons specified in the notice.  The Commissioner is seeking information regarding amounts paid or received in respect of or by way of any investment, rental of immovable property, interest or royalty, and transactions that are recorded in an account maintained for another person, that is, so-called transactional accounts like bank accounts.

Furthermore, those persons involved in the purchase and disposal of financial instruments for clients are required to disclose details of amounts paid in respect of the purchase and disposal of financial instruments.

Insurance companies are required to report the payment of amounts made upon the death of a person in terms of an insurance policy.

Monies paid in respect of the purchase, sale or shipment of livestock, timber, ore, mineral, precious stones or by way of a bonus, in the case of a co-operative, are required to be disclosed to the Commissioner by affected persons.

The affected third parties are required to submit the requisite IT3 form to the Commissioner, or, alternatively, a data file compiled in accordance with SARS’s business requirements specification for IT3 data submission.

The requirement to submit information to the Commissioner is onerous in that the returns specified in the notice containing all information required in respect of the period from 1 March to 31 August of each tax year must be submitted by 31 October and, in respect of the period from 1 March to the end of February, must be submitted by 31 May.  This increases the administrative burden on the affected persons, and will, no doubt, require amendments to computer systems to facilitate the transfer of data electronically to the Commissioner.

It is indicated that, where the third party return comprises twenty or less detailed records, the declaration portion of the return and detailed portion of the return must be submitted electronically using the SARS e-filing platform, or manually to the SARS office closest to the person’s place of business.

For those larger organisations, and where the third party return comprises twenty-one to fifty thousand detailed records, it is necessary to submit the declaration electronically using SARS’s e-filing platform, and the detailed portion of the return must be submitted electronically, using SARS’ hypertext transfer protocol secure (https) bulk data file platform. 

In the event that the third party return comprises more than fifty thousand detailed records, the declaration portion of the return must be submitted electronically using SARS’ e-filing platform, and the detailed portion of the return must be submitted electronically, using SARS’ managed data transfer platform.

The Government Notice provides that alternative arrangements may be made by affected persons as to how the information should be transferred or made available to SARS.

The Government Notice was issued so as to enable SARS to enhance third party information received by it, to ensure enhanced compliance with the tax laws of South Africa, and, also, to facilitate a greater degree of pre-populating of tax returns issued by SARS for completion by individuals.

Some commentators may seek to argue that the provision of the information called for violates the taxpayer’s right to privacy, but it must be remembered that any right contained in the Constitution is capable of limitation under section 36 of the Constitution of the Republic of South Africa, No 108 of 1996, as amended.  

The request of the information set out in the notice may be construed as a violation of the right to privacy, but it is necessary for SARS to call for such information in order to comply with its obligations in administering the tax laws of South Africa, and, on this basis, the limitation of rights provision contained in section 36 of the Constitution would assist SARS should the information called for be challenged by taxpayers or affected persons.  

■ Dr Beric Croome is a tax executive at ENS.This article first appeared in Business Day, Business Law & Tax Review, June 2013. Free Image from FreeDigitalImages

Forum On Tax Administration – Moscow Meeting

The Forum on Tax Administration (‘FTA’), comprising the heads of tax administrations from 45 economies, met in Moscow for the 8th meeting of the FTA.  The final communiqué issued pursuant to the Moscow meeting indicated that the FTA is dedicated to securing high levels of voluntary tax compliance by providing excellent service and effectively addressing tax evasion and aggressive tax avoidance in all its forms, including the underground economy.

The communiqué indicated that the participating tax administrations are committed to undertaking action jointly to improve the effectiveness of tax administrations, address trans-national tax fraud, tax evasion and aggressive tax avoidance.

The Moscow communiqué pointed out that, where the tax administrations are detecting offshore evasion, they will share information with their partner countries.  It was pointed out that tools have been developed to enhance the gathering of information and cross-border financial transfers, to understand banking transactions and to identify the beneficial owners of complex structures.  Furthermore, Australia, the United Kingdom and the United States of America have secured significant data revealing complex offshore structures, which will be utilised by the revenue authorities in those countries to identify participants in tax evasion and take action against those persons where necessary.  It would appear that the three countries concerned will share the information obtained by them to other members of the FTA in accordance with international agreements.

Over the last few years, the number of agreements allowing for the exchange of information between countries has increased, and this has facilitated the greater flow of tax information between states.  The FTA has indicated that it will rely more and more on the provisions of the increased network of agreements, allowing for the exchange of information and, also, by providing necessary training to tax auditors to ensure the effective and secure use of information received under the various international agreements.  It must be noted that the automatic exchange of information between states has increased, and that this will ultimately become the standard to which various countries will comply under international agreements.

The Moscow communiqué also referred to the OECD’s work on Base Erosion and Profit Shifting (‘BEPS’), which will initiate an action plan intended to modernise international tax instruments and standards to counter BEPS, particularly in the area of international taxation, transfer pricing and the digital economy, in an effective manner.  Governments around the world are concerned about the erosion of their tax base and shifting of profits to lower tax jurisdictions, particularly in the current economic climate, which has created difficulties for tax authorities collecting sufficient tax for the various governments around the world.

In addition, the communiqué indicates that tax administrations must enhance their efficiency and offer their citizens and business quality service and support for voluntary compliance.  It was pointed out that the effective management of tax debts, including tax debts that arise cross-border, is a key priority, and will be a particular focus of attention in the future.

When reference is made to the various initiatives underway, such as the OECD’s BEPS initiative, the work of the FTA and other organisations, it is important that businesses review the manner in which they conduct their tax affairs to ensure that they comply with their fiscal obligations in the various countries within which they operate.

All revenue administrations need also to take account of the rights which taxpayers have in their dealings with the revenue authority, and South African taxpayers can seek reliance on the Constitution of the Republic of South Africa, Act 108 of 1996, in ensuring that their rights are not violated by SARS.  Various organisations have undertaken research into the design of a model taxpayers’ charter to prescribe levels of taxpayers’ rights to protect taxpayers in their dealings with tax administrations around the world.

It is important, taking account of the pressures facing revenue authorities to raise revenue in difficult economic times, that taxpayers’ rights are protected, and are not disregarded when collecting tax that the revenue authorities believe may be due.

This article by Dr Beric Croome first appeared in the May 2013 edition of tax ENSight newsletter.  Free image from ClipArt

Report Back on SAIT's 4th National Tax Conference

Starting with a Gala Dinner on Tuesday 14th May and running until Friday afternoon 17th May 2013, the 4th National Tax Conference was abuzz with tax talk.

At the Gala dinner South African tax icons, Aubrey Silke and Dave Meyerowitz, were honoured with posthumous fellowship awards. In addition, Judge Dennis Davis, Professor Michael Katz and Professor Duncan Bentley were awarded honorary fellowships for their contribution to South African and international tax jurisprudence.

I accepted the Honorary Fellowship award on behalf of Professor Duncan Bentley
at the SAIT 4th National Tax  Conference in Sandton, Johannesburg.
Photograph via SAIT

The three days of the conference covered topics such as how to survive a tax audit, the new Tax Administration Act (TAA), SARS powers of recovery and my favourite topic, Taxpayers' Rights under the new TAA.

My mentor and colleague Professor Michael Katz accepting his Honorary Fellowship award
at the SAIT 4th National Tax  Conference in Sandton, JohannesburgPhotograph via SAIT

I also sat on a panel which included Judge Dennis Davies, Graham Walker (Altron) and Patrick Mawire (General Electric) - we discussed how to achieve a proper balance between Taxpayers' Rights and SARS' power.

The most important impression I was left with was that as the world's economies face more austerity measures, the more difficult it will become for revenue authorities, including SARS, to collect taxes. Thus, the importance of adequate tax administration procedures, the correct implementation of them and a concern for the rights of the taxpayer become ever more important.

Thank you to Stiaan Klue and the SAIT for an excellent and informative conference.

Customs Search-and-Seize Move Struck Down

ON APRIL 8 2013 Judge Rogers delivered judgment in the as yet unreported case of PLM Gaertner & 2 Others v Minister of Finance, Commissioner: SARS & 9 Others in the Western Cape High Court which decided that parts of section 4 of the Customs and Excise Act, No 91 of 1964, were invalid under the Constitution. 

The court decided that subparagraphs (i) and (ii) of section 4(4)(a) of the Customs and Excise Act, and sections 4(4)(b), 4(5) and 4(6), are inconsistent with the Constitution and are invalid.

Section 4(4)(a) of the Customs and Excise Act empowers a customs officer to enter any premises at any time whatsoever and make such examination and inquiry as he deems necessary without providing the taxpayer prior notice. The section also allows the officer to request the immediate production of any book, document or thing that is required to be kept under the Customs and Excise Act and which has been on the premises or in the possession or custody or under the control of that person or their employee.

The section also permitted the customs officer to take with him an assistant or member of the police force for purposes of the section.

Section 4(5) of the Customs and Excise Act required that any person shall furnish those facilities as may be required by the customs officer for entering the premises and for exercising the powers under section 4 of the Act. Section 4(6) of the Act conferred on the customs officer the power to break open any door, window or break through any wall on the premises for purposes of entry and search after having demanded admission to those premises and not being immediately allowed to enter those premises. 

In addition, this section allowed the customs officer or any person assisting that officer to break up any ground or flooring on any premises for the purpose of search, and, if any room, place or safe is locked and the keys thereof are not produced on demand, the officer may open such item in any manner. It is clear, therefore, that the Customs and Excise Act contains draconian powers authorising the commissioner’s officers to search premises and to remove documents without judicial intervention.

Gaertner and Klemp are directors of OCS, which conducts business as an importer and distributor of bulk frozen foodstuffs. During May 2012 officials of SARS conducted a search at OCS’s premises in Muizenberg. On June 1 2012 SARS officials also conducted a search at Gaertner’s home at Silverhurst Estate in Constantia. The SARS officials acted in terms of section 4(4) of the Customs and Excise Act, which did not require a warrant to be obtained for the searches.

Subsequently, Gaertner launched proceedings seeking orders that the relevant parts of section 4 of the Customs and Excise Act are unconstitutional to the extent that it permitted targeted non-routine searches to be conducted without judicial warrant. About 10 to 15 SARS officials arrived at the Muizenberg premises and a similar sized group at OCS’s business premises in Wynberg. At OCS they informed the receptionist that they were there to conduct a bond inspection, that is, an inspection of OCS’s licensed customs warehouse

that formed part of the business premises. It appeared as if this was a routine inspection, and, once SARS had sealed the entrance to the premises, Gaertner was then informed that SARS was investigating the under-declaration of customs values of certain imported goods.

SARS did not provide further detail to the taxpayer, nor did it present a warrant authorising the search. SARS sought copies of various documents, which were subsequently taken away. SARS failed to supply the taxpayer with an inventory of the copies made and the documents removed.

 

Judge rules some provisions of the law are invalid 

as they impinge on the constitutional rights of taxpayers

In his judgment, Rogers J reviewed the provisions of the Customs Act and the procedures relating thereto.

At paragraph 14 of the judgment it is indicated that SARS conceded in its heads of argument that sections 4(4) to (6) of the Customs and Excise Act were constitutionally invalid.

Rogers J reached the conclusion that the provisions of the Customs and Excise Act under consideration did not draw the distinction necessary between routine and non-routine searches and between designated and non-designated premises, nor did they provide adequate guidance as to the manner in which warrantless searches should be conducted. As a result, it was decided that subparagraphs 1(i) and (ii) of section 4(4) and sections 4(4)(b), 4(5) and 4(6) must be declared invalid in light of the Bill of Rights contained in the Constitution.

In reaching that conclusion the Court examined the taxpayer’s right to privacy and indicated that when a person enters the business arena and falls within the jurisdiction of the Customs and Excise Act, routine inspections are part and parcel of doing business and no warrant should be required for so-called routine inspections. 

However, where the Commissioner chooses to conduct non-routine searches, the Court decided that a warrant should be obtained from a judicial officer prior to the Commissioner conducting a search-and-seizure operation. The court had to weigh up the manner in which the suspension of the impugned provisions should take place; that is, whether the suspension should be retrospective or only apply to future conduct undertaken by the Commissioner’s officials.

The Court decided that the suspension of the provisions referred to in the Customs and Excise Act should be suspended for eighteen months to allow for the legislature to amend the offending provisions so as to comply with the Constitution. In addition, during the period of suspension, or until such sooner date as amendments may be made to the legislation, the Court directed that certain words should be read into the provisions of the Customs and Excise Act to ensure that the search and seizure provisions contained in section 4 do not violate the taxpayer’s right to privacy.

Thus the commissioner’s officials must obtain a warrant when they wish to conduct a non-routine search of designated premises.

Furthermore, a customs officer may enter and search premises without a warrant when the person in charge of the premises consents to the entry, and search those premises after being informed that he is not obliged to admit the officer in the absence of a warrant, or, where the officer on reasonable grounds believes that a warrant would be issued, if the officer applied for such warrant, and if the delay in obtaining the warrant is likely to defeat the object of the search.

It must be noted that under the provisions of the Tax Administration Act the commissioner may only conduct a search and seizure operation once a warrant has been issued by a judicial officer.

It remains to be seen how the commissioner will respond to the judgment, in that the case must, as a matter of course, be referred to the Constitutional Court to confirm the findings of the Western Cape High court that the impugned provisions are invalid under the constitution.

■ Dr Beric Croome is a tax executive at ENS.This article first appeared in Business Day, Business Law & Tax Review, May2013. Free Image from ClipArt

One-Way Traffic with SARS

TAXPAYERS face various obligations imposed on them as a result of the provisions of the Tax Administration Act, No 28 of 2011. 

Where, for example, a taxpayer fails to submit a tax return timeously, the Commissioner: South African Revenue Service is compelled to impose the penalty provided for in section 211 of the Tax Administration Act. 

Where a taxpayer receives an assessment and fails to pay the tax reflected thereon within the time period allowed, the Commissioner is empowered to file a statement at the court, which has the effect of a civil judgment against the taxpayer, and once such judgment has been obtained, SARS can seek to execute on the strength of that judgment.

Alternatively, the Commissioner may direct any third party holding funds on behalf of the taxpayer to pay these over to the Commissioner and not to the taxpayer.

The tough provisions of the Tax Administration Act against taxpayers is not balanced by available remedies against SARS officials who fail in their obligations

These are but a few examples of the draconian powers which the Commissioner has in addressing the failure on the part of the taxpayer to comply with their obligations imposed under this act. But what remedy does a taxpayer have where the Commissioner and his officials fail to adhere to the obligations imposed on them under the Tax Administration Act?

Section 42 of the act requires that a SARS official involved in, or responsible for, an audit under the provisions of the act must, in the form and in the manner as may be prescribed by the Commissioner by Public Notice, provide the taxpayer with a report indicating the stage of completion of the audit. The Commissioner published the required Public Notice on 1 October last year, setting out the timing of submission of the report to the taxpayer under audit, as well as the details to be contained in that report.

In summary, those taxpayers who were subjected to an audit prior to the commencement of the Tax Administration Act on 1 October 2012 were entitled to receive a report advising as to the stage of completion of the audit no later than 31 December 2012. We did receive a number of reports advising as to the stage of completion of the audit, but in a large number of cases, such reports were not submitted to taxpayers as required.

Where the audit on the taxpayer’s affairs commenced after October 1 2012, the Commissioner is required to submit a report to the taxpayer advising as to the status of the audit within 90 days of the date of the audit’s commencement. Such reports are not being issued as required, and the question therefore arises what a taxpayer is entitled to do where the Commissioner’s officials fail to comply with their statutory obligations.

Unfortunately, the Tax Administration Act itself does not contain any remedy for the taxpayer, and the taxpayer would only have recourse to the courts, on grounds that the Commissioner has failed to comply with the taxpayer’s right to administrative justice enshrined in the Constitution and as fleshed out in the Promotion of Administrative Justice Act, No 3 of 2000.

Where a taxpayer fails to pay tax when payable, the Commissioner is empowered to seek a civil judgment for the recovery of the tax in terms of section 172 of the Tax Administration Act. Previously, under the provisions contained in section 91 of the Income Tax Act, No 58 of 1962, as amended, the Commissioner was not required to inform the taxpayer that it was intended to seek a judgment against the taxpayer. 

The Tax Administration Act now requires at section 172(1) that SARS is required to give the taxpayer at least 10 business days’ notice of the intention to file a statement at the Court which would have the effect of a judgment against a taxpayer. The only basis on which SARS is not required to give the taxpayer prior notice of taking judgment against the taxpayer, is where SARS is satisfied that giving notice would prejudice the collection of the tax. 

Unfortunately, we are seeing too many cases where the Commissioner has proceeded to take judgments against the taxpayer after 1 October 2012 without affording the taxpayer the 10-day notice period. Once a judgment has been taken against the taxpayer, the only recourse available would be to seek SARS’s assistance in withdrawing the certified statement filed at the Court under section 176 of the Tax Administration Act, or, alternatively, to launch proceedings in the High Court for an order rescinding the judgment.

Once a taxpayer has been subjected to an audit, SARS, invariably, will issue an additional assessment to the taxpayer, and the taxpayer will then have to decide whether to dispute the adjustments made and to lodge a formal objection against that assessment. The Constitutional Court, in the Metcash case, ruled that the so-called “pay now argue later” rule was valid, and did not violate the rights contained in the Constitution. 

However, a taxpayer is entitled, under section 164 of the Tax Administration Act, to request that SARS postpones the payment of the tax pending the finalisation of the objection or appeal.  The taxpayer is required to submit a well motivated application requesting postponement of payment of tax pending an objection or appeal, and must remember that, should the dispute finally go against the taxpayer, that interest will remain payable from the date on which the assessments were issued to the taxpayer. This can cause a significant burden on a taxpayer where the dispute takes years to resolve.

It must be remembered that, under section 164(6) of the Tax Administration Act, SARS may not take recovery steps against the taxpayer while the taxpayer’s request for postponement of payment of tax in dispute is being considered. 

In practice, it has happened too often that a taxpayer has filed an objection and simultaneously requested a postponement of payment of tax, under either section 88 of the Income Tax Act or section 164 of the Tax Administration Act, and does not receive a response from the Commissioner whether their request for postponement of payment has succeeded. In some cases, SARS has taken steps to recover the tax in dispute despite the fact that they have requested postponement of payment of tax in dispute.

Where a taxpayer receives an additional assessment from SARS, it is necessary that the taxpayer be advised as to the reasons for the adjustments made in the calculation of taxable income or any other adjustments made in assessments issued to the taxpayer for other taxes. 

In many cases, the SARS officials will comply with their statutory obligations and supply taxpayers with reasons for adjustments made in the calculation of taxable income, but, unfortunately, this is not always the case.

Taxpayers are entitled to call for reasons for adjustments made to assessments in terms of rule 3(1)(a) of the Rules Governing Objections and Appeals and, should the Commissioner fail to supply the reasons requested, it would be necessary to launch an application to the Tax Court under rule 26 of the Rules Governing Objections and Appeals.

Where a taxpayer disputes an assessment issued by the Commissioner, not all disputes proceed to the Tax Court, as many disputes are now resolved via the Alternative Dispute Resolution procedure. Once the matter has been settled, the taxpayer and SARS conclude a settlement agreement, and the taxpayer is deemed to have withdrawn their objection and appeal against the assessments issued by SARS, and SARS is then required to issue amended assessments to give effect to the settlement agreement.  

Again, we are currently seeing many instances of settlement agreements being concluded without adjustments being made to the affected assessments. As a result, taxpayers conclude a settlement agreement, pay what is required under that agreement and then receive demands for the full amount which was originally in dispute. A taxpayer can compel SARS to adhere to the settlement agreement only by launching an application to the High Court, which should not be necessary if SARS dealt with the matter timeously and properly.

SARS has extensive powers to gather information from taxpayers and should a taxpayer fail to comply SARS can take various steps against the taxpayer. 

Many taxpayers applied for relief under the Voluntary Disclosure Programme and Taxation Laws Second Amendment Act 6, No 8 of 2010 which came to an end on 31 October 2011. SARS took a long time to evaluate the thousands of applications received and it was common for SARS to advise a taxpayer that their application had been considered and that the taxpayer must return the signed VDP agreement within five working days despite the fact that SARS has had the application for a period of almost 17 months. 

Once the VDP agreement was signed the taxpayer had to complete the VDP returns which were not dealt with in the law and invariably taxpayers were given a very limited period of time to attend to the completion of those returns. The imposing of undue pressure on taxpayers and their advisers in this manner is inequitable.

The fact that officials do not adhere to their obligations under the Tax Administration Act results in an increase in costs incurred by taxpayers, which currently cannot be recovered from SARS unless an action is instituted in the High Court and the court awards costs against SARS on a punitive basis.

The Tax Administration Act creates a legal framework to create the office of Tax Ombud, and it is hoped that the creation of that office will alleviate some of the issues identified above. SARS also requires under the Tax Administration Act that all tax practitioners are registered with SARS, and a controlling body which may take disciplinary action against tax practitioners who do not adhere to the provisions of the law and the rules regulating tax practitioners. 

Procedures are set down whereby complaints against tax practitioners will be dealt with, but the process whereby a taxpayer can lodge a formal complaint against the misconduct of a SARS official is not well-known or publicised, and it is questioned whether this procedure exists. 

It is unfortunate that the Tax Administration Act does not contain a specific remedy to taxpayers where SARS officials fail to adhere to their obligations imposed on them under the Tax Administration Act.

■ Dr Beric Croome is a tax executive at ENS. This article first appeared in Business Day, Business Law and Tax Review, 8 April 2013. Free image from ClipArt