Part 4 – THE NICHES OF TAX PROCEDURAL LAW: A BIOPSY OF L’AVENIR WINE ESTATE (PTY) LTD V C:SARS
PART 4 OF 4: THE HIGH COURT APPLICATION As evident from part 1 of this series of articles, the history of the dispute between the taxpayer and SARS in the case of L’Avenir Wine Estate (Pty) Ltd v C:SARS (16112/2021) [2022] ZAWCHC 28 (11 March 2022) shows that several procedures were unsuccessfully followed by the […]
THE IMPORTANCE OF AN OBJECTION
Most taxpayers are aware that they can object to an assessment raised by SARS. Sometimes, however, it seems not all taxpayers appreciate the importance of getting the objection right the first time around. Get it wrong and you can inadvertently render the tax liability you actually wanted to challenge final and unchallengeable or end up […]
TAX COURT: APPLICATION FOR DEFAULT JUDGMENT VS APPLICATION TO HAVE AN OBJECTION DECLARED VALID
In recent case[1], the taxpayer launched a default judgment application in terms of rule 56 of the tax court rules in consequence of SARS’ apparent failure to request documents in terms of rule 8 of the rules that govern tax objections and appeals (for a detailed exposition of these rules, see: Practical Guide to Handling […]
GET THE BASICS RIGHT: A FAILED DEFAULT JUDGMENT APPLICATION IN THE TAX COURT
The very basics of a tax dispute are making sure that (a) you file the right forms and (b) at the right time. Get this wrong and you can be as fancy as you like with legal applications in the tax court, at the end of the day you will almost certainly fail. An example […]
A CURIOUS TAX COURT JUDGMENT – APPLICATION TO AMEND AN OBJECTION
In a recent tax court case[1], the taxpayer brought an application to amend an objection. Whilst the facts appear to be not fully ventilated in the judgment, it seems rather a curious scenario that leaves one with more questions than answers. The facts of the case, as far as can be established from the judgment, […]
TAX DISPUTES – MORE THAN ONE WAY TO SKIN A CAT
Taxpayers who are aggrieved by an assessment or decision by SARS have various remedies at their disposal to challenge such assessment or decision. One of those remedies, and perhaps to most well-known remedy, is the remedy of objection and appeal. It often happens though that this remedy is not available for many reasons – too […]
TAX DISPUTES: ONUS OF PROOF
Taxpayers carry the burden of proof in most tax disputes[1]. Most taxpayers know this. Few, however, seem to truly understand it. What does it really mean? How do you go about discharging the onus? Can SARS simply raise an assessment out of thin air and leave the taxpayer to prove them wrong given that taxpayers […]
TAX DISPUTES: THE RELEVANCE OF SARS’ PRE-ASSESSMENT OBLIGATIONS
The Tax Administration Act imposes several obligations on SARS, aimed in part and insofar relevant here, at ensuring that SARS treat taxpayers in a procedurally fair manner as is also required by the Constitution. These obligations, subject to a few exceptions, include: The obligation to notify taxpayers that it has been selected for audit; The […]
UNDERSTATEMENT PENALTIES: SARS’ BURDEN OF PROOF IS IRRELEVANT?
In a recent case[1] the Tax Court had to adjudicate on the imposition by SARS of understatement penalties on a taxpayer in consequence of a taxpayer’s failure to timeously declare a capital gain. SARS imposed a penalty of 25%, which is a penalty for failure by the taxpayer to take reasonable care when completing a […]
ABUSING TAX COURT PROCESSES WORK?
[Durban, 03 March 2021] The full bench of the Western Cape High court recently delivered judgment¹ (Cloete J dissenting) in a favour of a taxpayer who, according to the Tax Court, was simply abusing process. When studying the judgment of the Tax Court, it is difficult to see how the taxpayer’s approach was anything more […]