case law

  • High Court of South Africa (Gauteng Division, Pretoria) | Absa Bank Limited and Another v CSARS (21825/19)
    • SARS officials issued a section 80J of the Income Tax Act, 1962 ("ITA") notice to each of the applicants.

    • Each of the applicants addressed a request to the Commissioner in terms of section 9 of the Tax Administration Act, 2011 (the "TAA"), requesting that the relevant 80J Notice be withdrawn on various grounds, which section 9 requests were refused by SARS.

    • The applicants launched the main application seeking to review and set aside this decision.

    • However, after the replying affidavits had been filed and while the main application was still pending, SARS delivered letters and notices of assessment to the applicants.

    • The applicants delivered a further supplementary affidavit dealing with the letters and notices of assessment. In the further supplementary affidavit, the applicants contended that the decision by SARS to issue the letters and notices of assessment fall to be reviewed and set aside in terms of the Promotion of Administrative Justice Act, 2000 ("PAJA"), alternatively the principle of legality.

    • Together with the further supplementary affidavit, the applicants delivered a Rule 28 Notice.

    • SARS objected to the Rule 28 Notice which necessitated the present application for leave to be amended.

    • The court considered:
      • whether it was appropriate to grant leave to the applicant to amend its notice of motion.
      • rule 28 of the Uniform Rules of Court, considered.
      • section 80J of the ITA, considered.
      • section 9 of the TAA, considered.
      • section 105 of the TAA, considered.

    • Find a copy of this judgment here.

  • High Court of South Africa (Gauteng Division, Pretoria) | BP Southern Africa (Pty) Ltd v CSARS (22772/2020)
    • In Part A, the applicant sought interim relief in the form of an interdict, in essence prohibiting the respondent on executing on a debt management certified statement obtained in terms of section 114(1)(a)(ii) of the Customs and Excise Act, 1964 ("Customs Act").

    • In Part B, the applicant sought to have the decision of the Commissioner to file the debt management certified statement to be reviewed and set aside in terms of PAJA.

    • The nub of the dispute between the applicant and the respondent in relation to the civil judgment was a consequential failure by the applicant to produce valid acquittals relating to some of the consignments stated in the letters of demand and the subject of the civil judgment.

    • The respondent demanded payment or returns of the amounts credited to the applicant which were not supported by proof that the export of fuel in fact occurred.

    • The applicant wanted to keep the amount of the export refund it received by credit, pending either the completion of its internal investigation to uncover the documents or mounting a court challenge to the letters of demand and the civil judgment.

    • The court considered, inter alia:
      • the requirements of an interim interdict.
      • whether the applicant will suffer any prejudice should the urgent application not be granted.
      • directives applicable to the court of urgent applications in the Gauteng Division, Pretoria.
      • rule 6(12) of the Uniform Rules of Court.

    • find a copy of this judgment here.

  • High Court of South Africa (Gauteng Division, Pretoria) | Purveyors South Africa Mine Services (Pty) Ltd v CSARS (61689/2019)
    • Relief was sought by the applicant in the High Court, that the respondent's decision in terms of which it held that the applicant's voluntary disclosure application submitted in terms of the provisions of Part B to Chapter 16 of the TAA be reviewed and set aside.

    • The applicant imported an aircraft into South Africa in 2015 which it then used to transport goods and personnel to other countries in Africa. The applicant failed to pay import value-added tax ("VAT") to SARS in respect of the importation of the aircraft.

    • During the latter part of 2016, the applicant manifested reservations about its failure to have paid the import VAT and accordingly engaged with SARS to obtain a view on its liability for such tax. Following the engagements, the applicant was informally advised (ie, no notice of audit or criminal investigation) that the applicant was liable for the import VAT and more importantly, that penalties were applicable as a result of the failure to have paid the import VAT.

    • The applicant subsequently applied to SARS for voluntary disclosure relief in terms of section 226 of the TAA. SARS declined to grant relief on the basis that the applicant had not met the requirements of section 227 of the TAA.

    • The court considered, inter alia:
      • the requirements of section 226 of the TAA.
      • the requirements of section 227 of the TAA.
      • the meaning of the word "voluntary".
      • whether a disclosure is made voluntary if SARS already has knowledge thereof.

    • find a copy of this judgment here.

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