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Author: Jean du Toit, Attorney at Tax Consulting SA
When is a SARS Tax Court case win a loss for the fiscus? After the recent SARS court case, dealing with the taxable income of foreigners working in South Africa, it is hard to argue that no-one is working harder than SARS to create tax loopholes for expatriate employees. If SARS disagrees, it may consider appealing their own win to reset the well-established principles and balance of international and South African tax law applicable to foreigners working in South Africa. On 9 March 2018, the Tax Court, Western Cape Division, delivered judgment in the matter of Mr X v the Commissioner for the South African Revenue Service. This dispute turned on the source of Mr X’s employment income, which he contended was where he physically rendered his employment services. SARS argued that it was located where Mr X had concluded his employment agreement and sought to tax him on his entire employment income on this basis. In a bewildering judgment, the court went against the well-established legal principle embodied by Mr X’s argument and ruled that the source of employment income is where the employment agreement is implemented. Therefore, Mr X’s entire employment income was regarded as being fully taxable. This decision, however, has a delightful upshot for inbound expatriates with foreign employers, which is that they will be fully exempt from tax on income earned from services rendered in South Africa. Of great concern, however, is the fact that SARS presented an argument in court that defies a principle that SARS has accepted and confirmed by to be correct in its Guide on the Taxation of Foreigners Working in South Africa. This raises some pressing questions –
Considering that Tax Court judgments are of persuasive value only, and do not constitute precedent, expatriates are advised to proceed with caution until SARS clarifies its position. For full analysis of the case, read the extended article here (http://www.taxconsulting.co.za/sars-creates-tax-loopholes). ENDS MEDIA CONTACT: Idéle Prinsloo, 082 573 9219, idele@thatpoint.co.za, www.atthatpoint.co.za ABOUT Tax Consulting SA: Tax Consulting SA offers a streamlined service in the calculation and filing of individual income tax returns, provisional income tax returns or any other more complex individual tax relate matters. Our highly qualified team of Tax practitioners are registered with SARS under controlling body of the South African Institute of Tax Practitioners (SAIT). As tax specialists, we remove the burden from clients to keep their tax affairs in good order, achieving optimal tax savings while ensuring full compliance. For more information on Tax Consulting please visit: Website: http://www.taxconsulting.co.za/ LinkedIn: Tax Consulting South Africa Facebook: Tax Consulting South Africa
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Author: Jean du Toit, Attorney at Tax Consulting SA
The South African Revenue Service (SARS) has created some nervousness in the South African tax base by embarking on an initiative to criminally prosecute taxpayers who fail to submit their tax returns. Whilst the threat of a criminal record and a fine ought to serve as sufficient incentive to submit one’s return, it is perhaps worth pointing out that submission of returns also gives taxpayers access to the Voluntary Disclosure Programme (VDP), which affords acquittal from far more serious criminal sanctions. Criminal sanctions under the TAA South African taxpayers are not unfamiliar with SARS’ aggressive implementation of the authority afforded to it under the Tax Administration Act No. 28 of 2011 (TAA) insofar as the collection taxes and the imposition of penalties. With SARS’ new initiative, taxpayers have now seen that SARS’ powers go beyond imposing monetary penalties. Generally, failure to comply with the prescripts of the TAA amounts to a criminal offence, which is subject to a fine or to imprisonment for a period not exceeding two years. These offences, as we have now seen, may result in a fine and a criminal record, but rarely ends with the taxpayer behind bars. A criminal record is certainly not something to brush aside, but the TAA also makes provision for more serious sanctions where there is intent to evade tax, which can result in actual jail time for the taxpayer. Reprieve under the TAA - VDP The TAA is, arguably, partisan to SARS’ cause, but it does offer non-compliant taxpayers some solace if they wish to come clean. SARS allows taxpayers to avoid criminal prosecution and regularise their tax affairs by making a disclosure under the VDP, of which the benefits include:
Taking into consideration the potential ramifications non-compliant taxpayers might face, the VDP represents an appealing olive branch. The VDP, however, comes with an important caveat, which is that taxpayers only have access if they do not have any outstanding returns. VDP applications will be discarded without further notice if the taxpayer in question has outstanding returns. Take Away It is worth noting that the new initiative, to close more criminal cases, does not represent a widening of SARS’ powers, as it has always had the discretion to do so. What the initiative illustrates is SARS’ no tolerance policy on outstanding returns. Taxpayers who are not deterred by the sanctions for not submitting returns must keep in mind that they cannot regularize other instances of non-compliance under the VDP, instances which carry far more severe sanctions. ENDS MEDIA CONTACT: Idéle Prinsloo, 082 573 9219, idele@thatpoint.co.za, www.atthatpoint.co.za ABOUT Tax Consulting SA: Tax Consulting SA offers a streamlined service in the calculation and filing of individual income tax returns, provisional income tax returns or any other more complex individual tax relate matters. Our highly qualified team of Tax practitioners are registered with SARS under controlling body of the South African Institute of Tax Practitioners (SAIT). As tax specialists, we remove the burden from clients to keep their tax affairs in good order, achieving optimal tax savings while ensuring full compliance. For more information on Tax Consulting please visit: Website: http://www.taxconsulting.co.za/ LinkedIn: Tax Consulting South Africa Facebook: Tax Consulting South Africa Author: Jean du Toit, Attorney at Tax Consulting SA
For some time, multinational enterprises have been bracing for the impending enforcement by the South African Revenue Service (SARS) of transfer pricing rules. This has resulted in these enterprises going to great lengths to ensure that they have thorough transfer pricing policies in place to survive any level of scrutiny from SARS, often at great cost. Yet, in the case of Crookes Brothers Ltd vs Commissioner for the South African Revenue Service, the first South African case dealing with transfer pricing provisions, it was an unpolished contract that handed victory to the Commissioner. The Facts Agricultural group Crookes Brothers Ltd advanced loans to its Mozambican subsidiary (MML) and pursuant to the terms of the loan, as well as in its return for the 2015 year of assessment, the group made transfer pricing adjustments to its taxable income. Thereafter Crookes Brothers Ltd requested SARS to issue reduced assessments, claiming that the adjustments were made in error. The basis for their claim being that the terms of the loan were aligned with the requirements of section 31(7) of the Income Tax Act No. 58 of 1962 (the Act), which would exempt the loan from the application of transfer pricing rules. To support its claim, they also furnished SARS with the loan agreements. Upon SARS’ interpretation of the loan agreements, it concluded that the terms are in contravention of section 31(7) of the Act and decided to reject the request for reduced assessments. This resulted in Crookes Brothers making an application to the High Court to review and set aside SARS’ decision. Outcome The nub of the dispute revolved around one clause. The terms of the loan agreements were completely aligned with the exemption, but for the inclusion of what was effectively a boilerplate acceleration clause. The author of the contract, perhaps inadvertently, inserted a clause in the loan agreement that accelerated the debt in the event of bankruptcy, liquidation, business rescue or judgment against MML. The inclusion of this clause foiled the application of the exemption, the Crookes Brothers Ltd’s application was dismissed with costs and the transfer pricing adjustments had to endure. The court gave effect to the wording of the agreements, irrespective of what the parties may have intended and, ultimately, Crookes Brothers Ltd paid a heavy price for what was a poorly drafted agreement. The takeaway This case shows that these efforts will be in vain if a company has a weak underbelly. It illustrates that robust, conscientiously drafted agreements outrank opulent transfer pricing policies. If the underlying agreements that orchestrate the dealings between connected entities are not up to spec, such entities stand to be snared by the transfer pricing provisions. ENDS MEDIA CONTACT: Idéle Prinsloo, 082 573 9219, idele@thatpoint.co.za, www.atthatpoint.co.za ABOUT Tax Consulting SA: Tax Consulting SA offers a streamlined service in the calculation and filing of individual income tax returns, provisional income tax returns or any other more complex individual tax relate matters. Our highly qualified team of Tax practitioners are registered with SARS under controlling body of the South African Institute of Tax Practitioners (SAIT). As tax specialists, we remove the burden from clients to keep their tax affairs in good order, achieving optimal tax savings while ensuring full compliance. For more information on Tax Consulting please visit: Website: http://www.taxconsulting.co.za/ LinkedIn: Tax Consulting South Africa Facebook: Tax Consulting South Africa Author: Jean du Toit, Attorney at Tax Consulting SA
Taxpayers should be aware that if you have outstanding tax debt, SARS has the power to reach into your bank account and take the outstanding funds by instructing your bank, as its agent, sometimes even without notifying you. Chances of this happening increase especially where the end of the tax year is approaching and where SARS is below budget. In fact, the Tax Administration Act (“TAA”) provides that SARS may notify any third party to pay any money it holds on your behalf to SARS. Failure to comply makes the bank (or even your employer) personally liable for your debt. SARS is kind compared to the French The French Revenue Authority is particularly known for having piloted this tactic. In France, even if the Revenue Authority had no basis to collect, you will be held liable for the legal fees if there is some fault on your part, such as not responding to notices or not having kept your taxpayer particulars up to date. Taxpayers are especially annoyed if SARS acted on a false tax debt or if proper procedure was not observed. SARS is required to adhere to the procedure prescribed by the TAA, which imposes procedural requirements onto them; for example, to send final demand ten business days before it proceeds with collection. Alarmingly, however, there are cases where SARS have withdrawn funds from taxpayers’ accounts without them being notified. Whether this is a result of deficient communication from SARS or a flagrant disregard for the prescribed tax procedure, is not relevant, as the withdrawal can be reversed either way. No head in the sand Taxpayers must be alert when it comes to any attempts from SARS to communicate with them, as ignorance of the legal process will be to your detriment. Almost always the biggest mistake taxpayers make is ignoring their tax status, perhaps hoping the problem will go away. Here are some useful tips:
The strong collection powers of SARS must be placed in perspective that the law must protect society to ensure that everyone pays its taxes, and defaulters must effectively be dealt with. Unfortunately, the innocent taxpayer may also get the treatment under these harsh provisions, but as tax is ultimately a function of law, in these instances there is always a legal recourse. ENDS MEDIA CONTACT: Idéle Prinsloo, 082 573 9219, idele@thatpoint.co.za, www.atthatpoint.co.za ABOUT Tax Consulting SA: Tax Consulting SA offers a streamlined service in the calculation and filing of individual income tax returns, provisional income tax returns or any other more complex individual tax relate matters. Our highly qualified team of Tax practitioners are registered with SARS under controlling body of the South African Institute of Tax Practitioners (SAIT). As tax specialists, we remove the burden from clients to keep their tax affairs in good order, achieving optimal tax savings while ensuring full compliance. For more information on Tax Consulting please visit: Website: http://www.taxconsulting.co.za/ LinkedIn: Tax Consulting South Africa Facebook: Tax Consulting South Africa Author: Jean du Toit, Attorney at Tax Consulting SA
With the November tax deadline looming, it is almost needless to warn taxpayers of the torrid tax season awaiting them. It is by no means a State secret that there is an increasing exigence for SARS to collect taxes and the grim picture painted by the mid-term budget is an omen of the coming assault. As things stand, a symptom of the current tax environment is an unprecedented surge in audits, which, on the account of our clients have become more arduous, as SARS seeks to make up the shortfall by using the powers afforded to it under the Tax Administration Act more aggressively. At the risk of leaving taxpayers utterly despondent, the storm clouds gathering in the form a Commission of Inquiry must also be pointed out. Whilst we can only speculate as to what the true motive behind the inquiry is, we can safely assume that this will intensify the already crushing pressure on SARS to collect taxes. This latest development in the SARS chronicles is the canary in the coal mine for taxpayers, to brace for the assertive manner in which SARS will extract every morsel of tax money it possibly can in the coming months. One can appreciate that South African taxpayers might feel that they have been dealt a rotten hand, especially since there are allegations of particular citizens of our country not paying their fair share. Although taxpayers cannot legally escape the proverbial mine in this instance, it cannot be expected of them to simply brave the storm and have SARS take the lead. The approach Taxpayers would do well to understand that the best way to negotiate the dreaded process of an audit, and to prevent the possible devastation of any assessments issued subsequently, is to avail themselves to the rights afforded to them by the law. SARS has wide, but not unshackled powers and the moment SARS issues an assessment against a taxpayer, it is bound by the Rules promulgated under the Tax Administration Act. Du Toit urges that Taxpayers must be alive to the fact that the process following an assessment is strictly regulated by these Rules, which affords them multiple mechanisms to ensure that the dispute process is conducted fairly. The Rules serve as the equalising factor in confrontations with SARS and can be an invaluable tool, if used appropriately. However, if not heeded properly, these Rules are a double-edged sword that can be a taxpayer’s downfall. Know the Law One’s acquaintance with tax law and the dispute resolution process, or lack thereof, has a direct bearing on the course of proceedings and the ultimate outcome of a tax dispute. Ignorance of the law and the Rules can result in calamity for the taxpayer, regardless of the fact that he/she had a valid claim. Du Toit advises taxpayers to not endeavor going down the tax dispute resolution road alone, but rather call in the help of an attorney who is knowledgeable on tax law and who knows how to traverse the obstacles of tax disputes. “Tax dispute resolution is just that, a legal process like any other. In saying that, it must be remembered that the substance of these disputes is tax law, which is well known for its fluidity and intricacies,” he says, while adding that tax dispute resolution is the territory of astute tax attorneys who task themselves with understanding the nuances of tax law and know which strategy to pursue to capatilise on the remedies afforded by the Rules to ensure favourable outcomes. Taxpayers who therefor decide to face the coming onslaught from SARS without the requisite proficiency in tax law and tax dispute resolution do so at their own peril, Du Toit warns. ENDS MEDIA CONTACT: Idéle Prinsloo, 082 573 9219, idele@thatpoint.co.za, www.atthatpoint.co.za ABOUT Tax Consulting SA: Tax Consulting SA offers a streamlined service in the calculation and filing of individual income tax returns, provisional income tax returns or any other more complex individual tax relate matters. Our highly qualified team of Tax practitioners are registered with SARS under controlling body of the South African Institute of Tax Practitioners (SAIT). As tax specialists, we remove the burden from clients to keep their tax affairs in good order, achieving optimal tax savings while ensuring full compliance. For more information on Tax Consulting please visit: Website: http://www.taxconsulting.co.za/ LinkedIn: Tax Consulting South Africa Facebook: Tax Consulting South Africa |
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