South Africa: Tax In Brief | Issue 79

Below, please find issue 79 of ENSafrica's tax in brief, a snapshot of the latest tax developments in South Africa.

case law

• High Court of South Africa (Western Cape Division, Cape Town) | L'Avenir Wine Estate (Pty) Ltd v Commissioner for the South African Revenue Service (16112/2021) [2022] ZAWCHC 28 (11 March 2022)
  • This is an application brought by L'Avenir Wine Estate (Pty) Ltd, a wine producer (the "Applicant"), on an urgent basis.
  • The application was for the court to grant the Applicant orders permitting it to submit an income tax return for the period 1 April 2009 to 31 December 2009 and for the South African Revenue Service ("SARS"; "the Respondent") to thereafter assess it for that period.
  • The relevant factual background is as follows:
    • The Applicant applied to the Registrar of Companies twice to change the end of its "current financial year", firstly in 2006 to March ("First Approval"), and secondly in 2010 ("Second Approval") to December. Both applications were approved in the respective years.
    • According to the Applicant, the Second Approval took effect retrospectively for its 2009 tax year. According to SARS, however, the Second Approval applied only to the Applicant's 2010 tax year ("Disputed Period").
    • The Applicant adopted the position that SARS is obliged to assess the Disputed Period in the 2009 tax year, and SARS maintained that the Disputed Period should have been included in the 2010 tax year.
    • SARS would not agree to the Applicant either submitting a separate return for 2009 or to issuing reduced assessments for the 2009 and/or 2010 years.
    • Given the "refusal" by SARS to assess it for the Disputed Period, the Applicant asked for what its counsel described as a two-fold mandamus, ie, it does not seek a finding on the merits of its return, only that it be received and assessed by SARS.
    • The Applicant approached this court on an urgent basis for orders permitting it to submit an income tax return for the period 1 April 2009 to 31 December 2009 and for SARS to thereafter assess it for that period.
    • SARS submitted that there are fatal defects in the procedure adopted by the Applicant in approaching the court for a final, mandatory interdict.
  • The court had to determine:
    • whether there are fatal defects in the procedure adopted by the Applicant in approaching the court for a final, mandatory interdict
  • The Tax Court considered, inter alia:
    • section 93(1)(a)(ii) of the Tax Administration Act, 2011 ("TAA");
    • section 93(1)(d)(i) of the TAA; and
    • section 105 of the TAA.
  • The Tax Court found in favour of SARS. In particular, the Tax Court supported SARS' assertion that the parties are obliged to define the nature of the dispute in their papers, and that the court is duty bound to determine that dispute alone. The Tax Court also accepted that the relief sought as well as the factual foundation laid by the applicant is substantially dissimilar to that of a review.
  • The application was dismissed with costs, including all reserved costs orders.

customs and excise

• Customs and Excise Act, 1964 | Tariff Amendment Notice R. 1888 published in Government Gazette No. 46054 of 17 March 2022
  • Amendment to Part 1 of Schedule No. 2, by the insertion of various antidumping items under item 204.04, in order to impose anti-dumping duties on pasta originating in or imported from Egypt, Latvia, Lithuania and Turkey classifiable under tariff heading 1902.11 1902.19 – ITAC Report 669
    • Find a copy of this notice here.

• Customs and Excise Act | Tariff Amendment Notice R.1894 published in Government Gazette No. 45056 of 18 March 2022
  • Imposition of provisional payment in relation to anti-dumping duties against the alleged dumping of laminated safety glass, classifiable under tariff subheading 7007.29, originating in or imported from the People's Republic of China – ITAC Report 687
    • Find a copy of this notice here.

• Customs and Excise Act | Tariff Amendment Notice R.1894 published in Government Gazette No. 45056 of 18 March 2022
  • Imposition of provisional payment in relation to anti-dumping duties against the alleged dumping of laminated safety glass, classifiable under tariff subheading 7007.29, originating in or imported from the People's Republic of China – ITAC Report 687
    • Find a copy of this notice here.

• Customs and Excise Act | Tariff Amendment Notice R.1893 published in Government Gazette No. 45056 of 18 March 2022
  • Amendment to Part 3 of Schedule No. 6, by the substitution of Note 6, to give effect to the review of the diesel refund system
    • Find a copy of this notice here.

• Customs and Excise Act, 1964 | Rule Amendment Notice
  • Amendment to rules under sections 7, 59A, 75 and 120 – Review of diesel fuel refund tax system (DAR230)
    • Find a copy of this notice here.

• Customs and Excise Act | Unentered Goods
  • SARS published the customs weekly list of unentered goods
    • Find a copy of the list here.

• Customs and Excise Act | Prohibited and Restricted Goods List
  • New tariffs were added to the existing list for Department of Mineral Resources and Energy.
    • Find the additional tariffs here.

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