Case summary written by Denis Pokani Mitole and checked by Ayanda D Katjitae.
The Applicant, Vuyisile Zamindlela Nondabula (“the Applicant”) brought an application interdicting the First Respondent, the Commissioner of South African Revenue Service (“the First Respondent”) from invoking section 179 of the Tax Administration Act No. 28 of 2011 (‘the Act”) pending the final determination of the Applicant’s objection to an additional assessment of his income tax.
The Applicant owned a fuel service station for which he was initially issued with yearly assessments for periods of 2013/2014 and 2014/2015 which he duly paid timeously. Subsequently, the First Respondent issued an additional assessment in the sum of R1,422,637.83 and demanded that the Applicant settle the same within 10 days (“the Additional Assessment”). Accordingly, the Applicant lodged various objections to the Additional Assessment which were all rejected by the First Respondent. Moreover, the Frist Respondent merely raised technical objections to the Applicant’s objections and further failed to provide reasons or a breakdown of the Additional Assessment.
In addition, the First Respondent in terms of section 179 of the Act issued a third-party notice to a third party to withhold an amount owed to the First Respondent by the Applicant and pay it over to the First Respondent (“Third-Party Notice”). In this regard, should the third party issued with the Third-Party Notice fail to withhold the amount, they would be held liable for the Applicant’s tax debt.
The First Respondent is empowered by section 92 of the Act to issue an additional assessment if it is satisfied that an assessment does not reflect the true state of a taxpayer’s tax affairs. However, before proceeding with section 92 of the Act the Frist Respondent would be required to do an estimation of the assessment and provide a statement of grounds as contemplated in section 95 and 96(2) of the Act.
The court held that the First Respondent was found to have acted in an arbitrary manner contrary not only to the Act but also to the Constitution and the values enshrined therein. The First Respondent was obliged to give sufficient reasons and/or a breakdown of the Additional Assessment as contemplated in section 96 of the Act.
The court also held the First Respondent’s failure to comply with section 96 and invoking section 179(1) of the Act to proceed with a Third Party Notice which resulted in the closure of the Applicant’s business and was done in complete disregard of the doctrine of legality.
This case illustrates that the First Respondent (i.e. SARS) is not entitled to enforce payment by a taxpayer for an assessment that does not meet the formal requirements of section 96 of the Act in that such an assessment would be unlawful.