Can a third party collect my taxes?

In SIP Project Managers (Pty) Ltd v CSARS (29 April 2020), the Gauteng Division of the High Court ruled against SARS on the appointment of a third-party (Standard Bank, in this case) to collect tax debts from taxpayers’ accounts. The matter was an application for declaratory relief against SARS for such an appointment to be set aside and declared null and void, and that SARS repays an amount of R1,261,007 which was paid over by Standard Bank as the third-party agent to SARS.

In its application, SIP contended that no letter of demand was received from SARS as is required in section 179 of the Tax Administration Act. SIP also submitted that if the Court found that the letters were delivered, then these were premature, and that no debt was yet due or payable at that time, and that the 10 business days (as is required in the Admin Act) had not expired before the delivery of the third-party notice.

The Tax Administration Act stipulates that a notice to a third party may only be issued after delivery of final demand for payment, which must be delivered at least 10 business days before the issue of the notice, as well as recovery steps that SARS may take and also further relief mechanisms available to the taxpayer. This is a peremptory step required to be taken before issuing a third-party notice for recovery of outstanding tax debt.

The Court stressed that it was not enough for the existence of final demand. However, that final demand should have actually been delivered in accordance with the Rules for Electronic Communication prescribed in terms of the Tax Administration Act, and if an acknowledgement is not received the communication is not regarded as having been delivered except for via eFiling.

As SARS had not furnished proof of the letter being sent via eFiling, and the there was no other proof of delivery, the Court held that SARS had not delivered a final demand to SIP before appointing Standard Bank as the third-party agent.

The notice issued is therefore unlawful and declared null and void by the Court, and SARS was required to repay the full amount, with costs, to SIP.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

Tax returns for the 2015 year of assessment

The Commissioner for SARS gave notice in the recent Government Gazette No. 38874 (dated 12 June 2015) of the persons required to file annual income tax returns for the 2015 year of assessment.  The 2015 year of assessment (for all persons other than companies) is the 12 month period which ended on 28 February 2015.  For companies, this refers to the financial period ending during the 2015 calendar year.

In terms of the notice, any person required to submit an annual tax return for the 2015 tax year must do so within the following prescribed time frames:

  • For a company, within 1 year of its year-end (for example, a company with a financial year-end of 31 March 2015 is required to submit its 2015 tax return by 31 March 2016);
  • For all other taxpayers (including natural persons and trusts), returns are to be submitted at the latest by:
    • 30 September 2015 for persons making use of manual hardcopy returns;
    • 27 November 2015 for persons (excluding taxpayers registered for provisional tax) making use of SARS’ eFiling system; and
    • 29 January 2016 for all provisional taxpayers making use of SARS’ eFiling system.

 As was the case in previous years, companies may only file returns using eFiling – manual returns are no longer allowed in terms of the SARS notice for these taxpayers.

Various criteria are listed in terms of which persons are obliged to submit returns to SARS.  For example, all companies, whether incorporated in South Africa or not, are obliged to submit returns if South Africa is the place from which the company is effectively managed.  Non-tax resident companies, but which were incorporated in South Africa, must also render returns, as well as non-tax resident companies incorporated outside of the Republic and earning income from a South African source.

Taxpayers (excluding companies) are required to submit returns if they carried on any trade in South Africa during the 2015 tax year.  This does not include the mere earning of a salary.  A variety of other factors are listed in terms of which non-company taxpayers are required to submit returns.  The primary exemption from the requirement to submit a return for tax resident natural persons though is if the person earned only a salary from one employer during the year and which did not exceed R350,000, and income from interest for that person was also less than R23,800 (or R34,500 if the person is older than 65).

Although it may in terms of the notice not be required to submit a tax return, or the person may be exempted from doing so in terms of the above, it may still be beneficial to do so – natural person taxpayers are often under the unfortunate impression that the completion of a return necessarily gives rise to the incidence of tax.  This is of course not so and many may have suffered tax consequences during the year already by having amounts deducted from salaries in the form of pay-as-you-earn.  This is of course a mere cash flow mechanism introduced to ensure a steady supply of cash to the fiscus and which contributions are set-off from the annual tax liability when the annual tax return submitted is assessed.  However, the opportunity to negate this is presented through the completion of a tax return and claiming deductible expenses in the form of e.g. medical aid or pension fund contributions.  The principle in this regard is that all income is taxable irrespective of whether a return is completed or not.  However deductions can only be claimed by completing a tax return and natural persons specifically should jump at the opportunity to do so.

This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. (E & OE)