DO ACTIONS SPEAK LOUDER THAN WORDS IN THE BUSINESS WORLD?April 8, 2022
ANALYSING TAX EXEMPTION FOR DIVIDENDSApril 8, 2022
On 11 March 2022, the Constitutional Court (CC) of South Africa granted leave to appeal and set aside an order from the High Court of South Africa (HC), Western Cape Division. The issue before the court in Barnard Labuschagne Incorporated v SARS was whether a certified statement filed by SARS that is treated as a civil judgment is susceptible to rescission.
On 15 December 2017, SARS filed a certified statement in terms of section 172(1) of the Tax Administration Act, No. 28 of 2001 (TAA) with the Registrar of the HC, in which it recorded that Barnard Labuschagne Incorporated (BLI) owed SARS R804 747. The certified statement in this regard followed from BLI’s self-assessments of its value-added tax, employees’ tax, unemployment insurance fund contributions, and skills development levies.
BLI’s complaint was not that its self-assessments were wrong but rather that the certified statement was wrong, as BLI made payments which SARS failed to appropriate to the relevant assessed taxes. In terms of section 174 of the TAA, a certified statement should lawfully be treated as a civil judgment given in the relevant court in favour of SARS (“tax judgement”). BLI, to this end, brought an application to rescind the tax judgment followed by SARS’s main ground of contention being that a tax judgment is not susceptible to rescission.
Throughout the judgment, reference was made to the Kruger judgments, in which the court confirmed the rescind ability of a tax judgment in terms of common law. In these cases, the courts found that a tax judgment is, in principle, susceptible for rescission. Despite the “conclusive evidence” section of the Income Tax Act, there is a wide field of defences available to a taxpayer in rescission proceedings. The court in Metcash also confirmed that a tax judgment is capable of rescission.
From the judgment, the court held:
“It follows that the High Court should have found that the tax judgment was susceptible to rescission, and should have considered whether BLI had made out a case for rescission in terms of common law.
This Court recently repeated the well-known requirements: first, the applicant must give a reasonable and satisfactory explanation for its default; and second, it must be shown that on the merits it has a bona fide defence which prima facie carries some prospect of success.
Because the procedure for taking a tax judgment does not call for a procedural response from the taxpayer, the focus inevitably falls on the second of these requirements.”
To this end, a tax judgment is indeed susceptible to recission.
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