A comparative analysis of the new behaviours and terms introduced in the understatement penalty table in section 223 of the Tax Administration Act
- Authors: Doolan, Kim
- Date: 2017
- Subjects: South Africa. Tax Administration Act, 2011 , Taxation -- South Africa , Taxation -- Law and legislation -- South Africa , Tax administration and procedure -- Law and legislation -- South Africa , Tax penalties -- Law and legislation -- South Africa , Taxpayer compliance -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/5802 , vital:20977
- Description: The Tax Administration Act became effective on the 1 October 2012 and in Chapter 16 introduced the understatement penalty regime which replaced section 76 of the Income Tax Act. The understatement penalty is calculated by applying a percentage in terms of the table included in section 223 of the Tax Administration Act to the shortfall in tax giving rise to the imposition of the penalty. There are five behaviours reflected in the understatement penalty table in section 223, namely, “substantial understatement”, “reasonable care not taken in completing return”, “no reasonable grounds for tax position taken”, “gross negligence” and “intentional tax evasion”. “Substantial understatement” is the only behaviour defined in the Tax Administration Act. Section 222(1) of the Tax Administration Act requires SARS to impose the penalty reflected in the table in the event of an “understatement”, unless the “understatement” results from a “bona fide inadvertent error”. The term “bona fide inadvertent error” is not defined in the Tax Administration Act; neither is the term “obstructive”. The Memorandum on the Objects of the Tax Administration Laws Amendment Bill confirmed that guidance would be developed in this regard for the use of taxpayers and SARS officials. This guidance has not yet been released. Media reports express the view that the lack of definition of the behaviours is problematic for both SARS and taxpayers as the table is new and there is still room for interpretation and understanding of the meaning of each of the behaviours. The primary goal of this study was is to obtain a better understanding of the meaning of the new behaviours and terms introduced in the understatement penalty table. In addressing this main goal, the penalty tables and behaviours in legislation in New Zealand were compared to South Africa’s understatement penalty. The similarities and differences between the understatement penalty imposed in terms of Chapter 16 of the Tax Administration Act and the additional tax previously imposed in terms of section 76 of the Income Tax Act were also discussed to determine whether this would be of assistance in enabling a better understanding of the meaning of the behaviours and terms in section 223. Guidance on the interpretation of the various behaviours and terms was developed and a definition was proposed for the meaning of “bona fide inadvertent error” and “obstructive” to assist in the objective and consistent application of the understatement penalty table in relation to each shortfall identified. The proposed definition for “bona fide inadvertent error” is as follows: “An honest mistake made or simple oversight, which the taxpayer was not aware of, despite taking reasonable care and displaying a prudent attitude while making a genuine attempt to comply with all applicable tax obligations.” The definition for “obstructive” is proposed as: “Deliberately interfering with, causing difficulties (impeding) or delays in, or preventing the progress of a SARS audit or review.”
- Full Text:
- Date Issued: 2017
- Authors: Doolan, Kim
- Date: 2017
- Subjects: South Africa. Tax Administration Act, 2011 , Taxation -- South Africa , Taxation -- Law and legislation -- South Africa , Tax administration and procedure -- Law and legislation -- South Africa , Tax penalties -- Law and legislation -- South Africa , Taxpayer compliance -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/5802 , vital:20977
- Description: The Tax Administration Act became effective on the 1 October 2012 and in Chapter 16 introduced the understatement penalty regime which replaced section 76 of the Income Tax Act. The understatement penalty is calculated by applying a percentage in terms of the table included in section 223 of the Tax Administration Act to the shortfall in tax giving rise to the imposition of the penalty. There are five behaviours reflected in the understatement penalty table in section 223, namely, “substantial understatement”, “reasonable care not taken in completing return”, “no reasonable grounds for tax position taken”, “gross negligence” and “intentional tax evasion”. “Substantial understatement” is the only behaviour defined in the Tax Administration Act. Section 222(1) of the Tax Administration Act requires SARS to impose the penalty reflected in the table in the event of an “understatement”, unless the “understatement” results from a “bona fide inadvertent error”. The term “bona fide inadvertent error” is not defined in the Tax Administration Act; neither is the term “obstructive”. The Memorandum on the Objects of the Tax Administration Laws Amendment Bill confirmed that guidance would be developed in this regard for the use of taxpayers and SARS officials. This guidance has not yet been released. Media reports express the view that the lack of definition of the behaviours is problematic for both SARS and taxpayers as the table is new and there is still room for interpretation and understanding of the meaning of each of the behaviours. The primary goal of this study was is to obtain a better understanding of the meaning of the new behaviours and terms introduced in the understatement penalty table. In addressing this main goal, the penalty tables and behaviours in legislation in New Zealand were compared to South Africa’s understatement penalty. The similarities and differences between the understatement penalty imposed in terms of Chapter 16 of the Tax Administration Act and the additional tax previously imposed in terms of section 76 of the Income Tax Act were also discussed to determine whether this would be of assistance in enabling a better understanding of the meaning of the behaviours and terms in section 223. Guidance on the interpretation of the various behaviours and terms was developed and a definition was proposed for the meaning of “bona fide inadvertent error” and “obstructive” to assist in the objective and consistent application of the understatement penalty table in relation to each shortfall identified. The proposed definition for “bona fide inadvertent error” is as follows: “An honest mistake made or simple oversight, which the taxpayer was not aware of, despite taking reasonable care and displaying a prudent attitude while making a genuine attempt to comply with all applicable tax obligations.” The definition for “obstructive” is proposed as: “Deliberately interfering with, causing difficulties (impeding) or delays in, or preventing the progress of a SARS audit or review.”
- Full Text:
- Date Issued: 2017
An analysis on role of judges in interpreting tax legislation
- Authors: Chanhuwa, Mildred Kudzanai
- Date: 2017
- Subjects: Taxation -- Law and legislation -- South Africa , Law -- South Africa , Judicial discretion -- South Africa , Judicial opinion -- South Africa , Judges -- Attitudes -- South Africa , South Africa. Constitution of the Republic of South Africa, 1996
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/4289 , vital:20644
- Description: This thesis focusses on the role of judges as interpreters of tax legislation. It examines the role of judges by analysing how the perceptions of judges can impact on how they interpret legislation. It also analyses various other factors that play a role when judges interpret legislation, in an effort to answer the question to what extent do philosophical theories and interpretative approaches explain the role of judges as interpreters? Jurisprudential theories such as the natural law theory, positivist theories, and American realist theories are used to analyse how judges interpret and how theorists think judges should play their interpretational role. It is noted that in pre-constitutional South Africa the courts followed a positivist paradigm; as a result, the judges used a strict literal approach to interpretation. The new Constitution brought a change in the jurisprudential paradigm accepted in South Africa and has transformed how judges perceive and carry out their role as interpreters of legislation. Judges have now adopted the purposive value-laden approach as authoritative. As custodians of the Constitution, judges should interpret provisions against the values imposed by it. The purposive value-laden interpretational approach allows judges to take into account more considerations and to weigh a provision against the constitutional values. Other issues discussed pertain to how institutional guidelines such as the doctrine of precedent and separation of powers, to a lesser extent, play a role in how judges interpret the law. It is demonstrated that the doctrine of precedent does not limit the role of judges but rather contributes to maintaining certainty, predictability and coherence in the legal system. It is also noted that judicial discretion is the mechanism by which judges use extra-legal factors such as public policy and moral considerations to assist in interpreting legislation.
- Full Text:
- Date Issued: 2017
- Authors: Chanhuwa, Mildred Kudzanai
- Date: 2017
- Subjects: Taxation -- Law and legislation -- South Africa , Law -- South Africa , Judicial discretion -- South Africa , Judicial opinion -- South Africa , Judges -- Attitudes -- South Africa , South Africa. Constitution of the Republic of South Africa, 1996
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/4289 , vital:20644
- Description: This thesis focusses on the role of judges as interpreters of tax legislation. It examines the role of judges by analysing how the perceptions of judges can impact on how they interpret legislation. It also analyses various other factors that play a role when judges interpret legislation, in an effort to answer the question to what extent do philosophical theories and interpretative approaches explain the role of judges as interpreters? Jurisprudential theories such as the natural law theory, positivist theories, and American realist theories are used to analyse how judges interpret and how theorists think judges should play their interpretational role. It is noted that in pre-constitutional South Africa the courts followed a positivist paradigm; as a result, the judges used a strict literal approach to interpretation. The new Constitution brought a change in the jurisprudential paradigm accepted in South Africa and has transformed how judges perceive and carry out their role as interpreters of legislation. Judges have now adopted the purposive value-laden approach as authoritative. As custodians of the Constitution, judges should interpret provisions against the values imposed by it. The purposive value-laden interpretational approach allows judges to take into account more considerations and to weigh a provision against the constitutional values. Other issues discussed pertain to how institutional guidelines such as the doctrine of precedent and separation of powers, to a lesser extent, play a role in how judges interpret the law. It is demonstrated that the doctrine of precedent does not limit the role of judges but rather contributes to maintaining certainty, predictability and coherence in the legal system. It is also noted that judicial discretion is the mechanism by which judges use extra-legal factors such as public policy and moral considerations to assist in interpreting legislation.
- Full Text:
- Date Issued: 2017
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