13 October 2017 by Tax and Exchange Control Alert

Raft of tax court judgments published on the SARS website consider various interesting issues

Section 132 of the Tax Administration Act, No 28 of 2011 (TAA) states that a judgment of the tax court dealing with an appeal under the dispute resolution provisions contained in the TAA must be published for general information and, unless the sitting of the tax court was public under certain stipulated circumstances, in a form that does not reveal the taxpayer’s identity. This provision is premised on the right to equality set out in s9 of the Constitution of the Republic of South Africa, 1996 (Constitution) and specifically s9(1) which states that everyone is equal before the law and has the right to equal protection and benefit of the law. 

A number of issues thus arise to the extent that SARS does not publish certain tax court judgments which are in its possession. For instance, SARS may internally circulate all tax court judgments amongst its officials for their benefit, however, taxpayers and their advisers alike will not have possession of such judgments hence creating an imbalance in respect of equality before the law and especially equal protection and benefit of the law. 

Very few tax court judgments have been published on the SARS website during the course of this year, going against the norm since the advent of the TAA. However, on 5 October 2017, SARS published a raft of tax court judgments handed down during the course of this year, the first of which dates back to January. One can only speculate as to why the publication of these judgments were held back until last week, particularly in light of the fact that the tax court found in favour of SARS in seven out of the eleven judgments published.

Nevertheless, the publication of the 2017 tax court judgments handed down thus far will provide for interesting reading and cover a broad range of issues. Some of the procedural and administrative issues considered by the tax court in the most recent set of judgments include whether the taxpayer was entitled to condonation for the late filing of its appeal in terms of s107(2) of the TAA. 

The key issues considered by the tax court on the underlying merits include the usual suspects such as capital versus revenue and the tax deductibility of certain expenditure in terms of the general deduction formula in s11(a) of the Income Tax Act, No 58 of 1962 (Income Tax Act). In addition, some of the other interesting issues the tax court considered include: 

  • whether the taxpayer was entitled to claim a deduction for mining operations as a contract miner in terms of s15(1)(a) of the Income Tax Act;
  • whether the taxpayer became entitled to the proceeds from the sale of property in terms of s1 by way of accrual, alternatively, s24(1) of the Income Tax Act (we obtained this case on another online platform and reported on it in our Tax and Exchange Control Alert of 14 July 2017); and
  • whether amounts fell to be included in the taxpayer’s income for the purposes of s9D of the Income Tax Act (that is, the controlled foreign company provisions). 

It will be interesting to study each judgment and in particular to analyse the judgments which considered the imposition of understatement penalties in terms of s221 to s223 of the TAA which is a relatively new and developing area of tax jurisprudence in South Africa. It is interesting to note that Nkosi-Thomas AJ in Case No: IT14247, handed down on 18 August 2017 in the Tax Court, Johannesburg (as yet unreported) in fact increased the understatement penalties imposed by SARS in accordance with the exercise of the court’s discretionary powers provided for in s129(3) of the TAA.  

The link to the tax court judgments published on the SARS website can be found here: 

http://www.sars.gov.za/Legal/DR-Judgments/Tax-Court/Pages/2019-2017.aspx

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