A critical analysis of a taxpayer’s rights relating to a request by sars for relevant material in respect of an audit
- Authors: Luff, Stephen Gary
- Date: 2022-04
- Subjects: Taxpayers , Value-Added Tax , Tax administration and procedure -- South Africa
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/57711 , vital:58223
- Description: This treatise aimed to critically analyse a taxpayer’s rights relating to a request by SARS for relevant material, in respect of an audit (including information requested for the audit of prescribed tax periods). The study also considers whether such a request for relevant material infringes or threatens a taxpayer’s constitutional rights to privacy, information and just administrative action that is lawful, reasonable and procedurally fair. The research considered the information-gathering powers awarded to SARS in terms sections 3(2), 40 and 46 of the TAA versus a taxpayer’s rights to privacy, information and just administrative action in terms of the Constitution. The reasonable and justifiable limitation of taxpayers’ rights, in terms of the general limitation clause contained in section 36(1) of the Constitution, was also considered. The research method consisted of a literature review of various articles, journals, publications, books, statutes and related commentary, judicial decisions and comments of experts. The study revealed the following: • The definition of ‘relevant material’ allows SARS alone to subjectively determine what information is ‘foreseeably relevant’ for the ‘administration of a tax Act’, in respect of an audit. The threshold of what documentation is ‘foreseeably relevant’, is low, and the application of what is foreseeably relevant follows very broad grounds. • SARS’s discretion cannot be easily challenged as the provisions of section 46 of the TAA are peremptory and give rise to mandatory obligations, unless the taxpayer has ‘just cause’ for not providing the relevant material to SARS. • SARS must meet all the jurisdictional requirements of section 3(2) of the TAA to justify that the selection of a taxpayer for an audit or the request for relevant material is necessary for the purposes of the ‘administration of a tax Act’ and is not related to a ‘fishing expedition’ or some other ‘ulterior purpose’. • A taxpayer should evaluate the scope of the information requested to determine if it is ‘frivolous, over-zealous or patently irrelevant’ and falls outside the provisions of section 3(2). It is submitted that a taxpayer could resist such requests to information, to which SARS is not lawfully entitled, to ensure that its constitutional rights are not violated. • A taxpayer is not entitled to the information that SARS used to select it for an audit or SARS’s internal guidelines or policy manuals that are used by its assessors. The risk x indicators and red flags used by SARS to select a taxpayer for an audit constitute ‘SARS confidential information’ and a taxpayer does not have any legal right to specific reasons as to why his tax return has been selected for an audit. • SARS’s decision to request relevant material (or to conduct an audit) is a preliminary or initial step of a process and does not constitute ‘administrative action’ in terms of the PAJA, as it does not adversely affect a taxpayer’s rights nor have a direct external legal effect. A taxpayer therefore cannot rely on the PAJA to refuse such a request. • Even non-administrative action is subject to the broad constitutional ‘principle of legality’, which is an aspect of the rule of law implicit in the Constitution and provides a safety net when the PAJA does not apply. SARS must act within the scope of section 46 and the information requested must constitute ‘relevant material’ and must be ‘foreseeably relevant’ for the purposes of ‘administration of a tax Act’. SARS may not exercise its discretionary investigative powers in an arbitrary or irrational manner and its requests for information must be based on sound, rational decision-making. , Thesis (MA) -- Faculty of Business and Economic science, 2022
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- Date Issued: 2022-04
An analysis of ways in which the South African tax system could be simplified
- Authors: Young, Gail Jeni
- Date: 2021-04
- Subjects: Taxation -- Law and legislation -- South Africa , Income tax -- Law and legislation -- South Africa , South African Revenue Service , Tax administration and procedure -- South Africa , Tax accounting -- South Africa
- Language: English
- Type: thesis , text , Masters , MCom
- Identifier: http://hdl.handle.net/10962/178235 , vital:42923
- Description: It has been said that the fundamental paradox of tax simplification is that, despite consensus, almost every year tax rules become more complex. This thesis considers tax simplification measures which have been implemented internationally, in order to provide a basis for an analysis of ways in which the South African tax system could be simplified. A doctrinal methodology is applied, and an analysis is carried out of possible tax simplification measures, based on the commentary of experts in the field of tax law. Simplification measures adopted in the United Kingdom, Australia, the United States of America, Egypt, and certain European countries are discussed, together with their possible adoption in South Africa. Tax simplification has a broad scope. This research identifies four areas in which the South African tax system could simplified: the simplification of tax legislation, addressing the role of accounting in the simplification process, reducing the number of taxes currently levied, and finally addressing the complexities evident in the SARS e-filing system. This thesis illustrates several measures which could be used to address the current areas of complexity. Re-writing tax legislation to assist the understanding of taxpayers is suggested. An increase in the inclusion rate for individuals of capital gains in taxable income from 40% to 60% is suggested, to compensate for the loss of revenue due to the recommended repeal of donations tax and estate duty. Aligning tax legislation with accounting standards is identified as a possible area for simplification, as there are many similarities between the two systems. To address the usability of SARS’ e-filing platform, suggestions are made regarding the further pre-population of returns, introducing e-invoicing and providing a “sandbox” function that taxpayers could use to familiarise themselves with how e-filing works. This research highlights tax simplification as a process that needs to be prioritized in order to achieve the associated benefits. , Thesis (MCom) -- Faculty of Commerce, Accounting, 2021
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- Date Issued: 2021-04
Timing of the incidence of tax in suspensive sale agreements and agreements with suspensive conditions
- Authors: Zondi, Bonginkosi
- Date: 2019
- Subjects: Tax administration and procedure -- South Africa , Taxation -- Law and legislation -- South Africa Taxation -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10948/44269 , vital:37144
- Description: This study critically examines suspensive sale agreements and agreements subject to suspensive conditions in the South African taxation system. It examines challenges associated with the application of the disposal rules in the context of the Income Tax Act No. 58 of 1962, which includes capital gains tax, and Value-Added Tax Act No. 89 of 1991 relating to these types of agreements. The study also looks at those aspects in which these agreements generally differ and concur. As one of its areas of focus, the study inter alia makes a comparison of the South African approach to the timing of the tax incidence under these agreements, to the approaches adopted by other countries, namely Canada, Zimbabwe and the United States of America (USA).
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- Date Issued: 2019
An analysis, from a South African case law perspective, of the deductibility of losses due to embezzlement, fraud, theft, damages and compensation
- Authors: Jachi, Adelaide Gamuchirai
- Date: 2018
- Subjects: South Africa. Income Tax Act, 1962 , Tax deductions -- South Africa , Taxation -- Law and legislation -- South Africa , Tax courts -- South Africa , Tax administration and procedure -- South Africa , Tax accounting -- South Africa , Income tax deductions for losses -- South Africa
- Language: English
- Type: text , Thesis , Masters , MCom
- Identifier: http://hdl.handle.net/10962/60855 , vital:27846
- Description: When calculating the income tax payable for a year of assessment, a taxpayer deducts from his or her or its income, allowable deductions in terms of the preamble to section 11 and section 11(a) as read with section 23(g) of the Income Tax Act, 58 of 1962. Amongst the expenditure and losses incurred by a taxpayer during a year of assessment, a claim may be sought for the deduction of losses incurred due to embezzlement, fraud and theft as well as damages and compensation. The requirements of the preamble and section 11(a) include the requirement that expenditure and losses must be incurred “in the production of the income”. Losses incurred due to defalcations, as well as expenditure on damages and compensation must satisfy this requirement to be allowed as deductions. The objective of the research was to analyse the judicial decisions dealing with “in the production of the income” in granting a deduction for income tax purposes in cases dealing with embezzlement, fraud and theft, and damages and compensation, to establish why the courts grant or disallow the deduction of expenditure and losses. A doctrinal research methodology was applied to the research. The provisions of the Income Tax Act, relevant case law relating to embezzlement, fraud and theft, and damages and compensation, and the contributions of the revenue authority and tax experts in articles of accredited journals, textbooks and other writings were analysed. The major conclusions drawn from the research were that losses due to defalcations are regarded as having been incurred “in the production of the income” if the taxpayer discharges the onus of proof that the risk of the act leading to misappropriation is an incidental risk of the business. Expenditure on damages and compensation is deductible provided the expense is attached to the performance of a business operation bona fide performed for the purpose of earning income and the expense is so closely connected with the business operation as to be regarded as part of the cost of performing it. Where negligence is attached to an expense or loss, the South African courts have held that negligence does not increase the likelihood of disallowing an expense or loss as not having been incurred “in the production of the income”.
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- Date Issued: 2018
The praxis of reasonability and onus of proof in tax administration in South Africa
- Authors: Mostert, Tarita
- Date: 2018
- Subjects: Tax administration and procedure -- South Africa , Taxation -- Law and legislation -- South Africa Internal revenue law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/22802 , vital:30091
- Description: The legal principles of reasonableness and the burden of proof date back to ancient times. The first codification of these principles occurred in Roman Law. The Tax Administration Act incorporates these principles in various sections. The purpose of this treatise as formulated in Chapter 1 was to determine whether there is a close connection (in practice) between tax administration (within the context of the Tax Administration Act) and the principles of reasonableness and the burden of proof. SARS acknowledges that the principles of best international practice in tax administration must be taken into account1. These principles include equity, fairness, certainty, simplicity, efficiency and effectiveness. Effective tax administration entails that a balance must be struck between the rights and obligations of the taxpayers and those of SARS2. It is important that the taxpayers and SARS strive to communicate with one another in an efficient and effective manner in order to resolve disputes between them. The treatise followed a logical approach. This entailed that the general interpretation of aspects had to be followed by the tax specific interpretation of the aspects. The general interpretation included an analysis of case law as well as research into the origins of the principles of reasonableness and the burden of proof. Reasonableness and the burden of proof do not require perfection. It is important, however, that assertions must be accompanied by evidence. The quality and quantity of evidence submitted is dependent upon the relevant facts and circumstances of a matter. The facts and circumstances of a matter also constitute determining factors in 1 Draft Explanatory Memorandum on the Draft Tax Administration Bill, 2009 at 1 in 2.5. 2 Ibid in 2.1.evaluating whether the principles of reasonableness and the burden of proof have been applied. The treatise concludes that increased efforts are necessary in order to ensure that the principles of reasonableness and the burden of proof are adhered to in tax administration. This obligation is not limited to SARS but also includes taxpayers and tax practitioners. This is closely linked to effective and efficient communication.
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- Date Issued: 2018
Voluntary disclosure programmes and tax amnesties: an international appraisal
- Authors: Jaramba, Toddy
- Date: 2014
- Subjects: Tax amnesty -- South Africa , Tax evasion -- South Africa , Investments, Foreign -- Taxation -- South Africa , Tax collection -- South Africa , Tax administration and procedure -- South Africa
- Language: English
- Type: Thesis , Masters , MCom
- Identifier: vital:911 , http://hdl.handle.net/10962/d1015666
- Description: Tax amnesties are government programs that typically allow a short period of time for tax evaders to voluntarily repay previously evaded taxes without being subject to penalties and prosecution that discovery of such tax evasion normally brings. Tax amnesties differ widely in terms of coverage, tax types, and incentives offered. A state’s Voluntary Disclosure Programme is another avenue available to taxpayers to assist them in resolving their state tax delinquencies. This programme is an on-going programme as compared to a tax amnesty, which is there for a limited time period only. The main goal of the research was to describe the tax amnesty and the voluntary disclosure programmes in South Africa and to assess their advantages and disadvantages. This thesis also discussed another form of voluntary disclosure programme, referred to as an Offshore Voluntary Disclosure Programme, which allows taxpayers with unreported foreign bank accounts, and presumably unreported foreign income, to voluntarily disclose their affairs. The study found that, due to tax amnesties, Government raises more tax revenue not only in the short run from collecting overdue taxes but also by bringing former non-filers back into the tax system for the long run. It was also found that, initially short-run revenue brought in from overdue taxes will be positive for the first amnesty and then decline each time the amnesty is offered repeatedly. The reason for the decline in revenue might be that tax amnesties provide incentives for otherwise honest taxpayers to start evading taxes because they will anticipate the offering of future amnesties, thereby weakening tax compliance. The costs associated with amnesty programmes include negative long run revenue impact and also that amnesty programmes reduce compliance by taxpayers in the long-run. In South Africa tax amnesties, especially the voluntary disclosure programme, are likely to be successful since they will increase the revenue yield and also bring non-filers back on the tax rolls.
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- Date Issued: 2014