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[2019] ZASCA 187
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Commissioner for the South African Revenue Service v Clicks Retailers (Pty) Ltd (58/2019) [2019] ZASCA 187; 2020 (2) SA 72 (SCA); 82 SATC 167 (3 December 2019)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 58/2019
In
the matter between:
THE
COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE
SERVICE
APPELLANT
and
CLICKS RETAILERS (PTY)
LTD
RESPONDENT
Neutral
citation:
The Commissioner for the
South African Revenue Service v Clicks Retailers (Pty) Ltd
(58/2019)
[2019] ZASCA 187
(3 December 2019)
Coram:
Wallis, Swain, Mbha and Dlodlo JJA and
Hughes AJA
Heard:
22 November 2019
Delivered:
3 December 2019
Summary
:
Income Tax Act 58 of 1962 – s 24C – claim for allowance
in respect of cost of complying with terms of loyalty card
programme
– customer applying for issue of card – award of points
on value of purchases – vouchers issued based
on number of
points accumulated –vouchers presentable as part payment for
future purchases of goods – whether amount
received from
earlier sales used to finance future expenditure on same contract
ORDER
On
appeal from:
The Tax Court, Cape Town
(Nuku J):
1 The appeal is upheld with costs
including the costs of two counsel.
2 The order of the Tax Court is set
aside and replaced with the following:
‘
The
appeal is dismissed.’
JUDGMENT
Dlodlo
JA (Wallis, Swain and Mbah JJA and Hughes AJA concurring):
[1]
Clicks Retailers (Pty) Ltd, the respondent, owns and operates the
well-known Clicks retail business at stores nationwide. Some
years
ago it instituted a Loyalty Programme in terms of which it awards
points to members on presentation of a Clicks ClubCard
when making
purchases. The accounting and tax treatment of purchases made using a
ClubCard and the benefits accruing to members
as a result attracted
the attention of the appellant, the Commissioner: South African
Revenue Services (the Commissioner or SARS
as may be appropriate).
After conducting an audit the Commissioner disallowed Clicks’
claim to an allowance in terms of s 24C(2)
of the Income Tax Act
58 of 1962 (the Act). An appeal to the Tax Court, Cape Town (Nuku J)
succeeded. The appeal by the
Commissioner is with his leave.
[2]
The loyalty programme does not apply automatically to all Clicks
customers. A customer has to apply either in writing, online
or
telephonically in order to become a member of the loyalty programme.
Upon acceptance of the customer’s application, Clicks
issues a
ClubCard to a customer. A temporary card is issued to a customer who
applies in-store. The terms and conditions of the
ClubCard contract
regulate the relationship between Clicks and the customer under the
loyalty programme. It does not cost anything
to join the loyalty
programme, nor do any financial benefits accrue to either party as a
result. Customers in possession of a ClubCard
are under no obligation
to shop at Clicks. In order to become entitled to points under the
loyalty programme a customer must purchase
goods and present his or
her ClubCard at the checkout point in respect of that transaction.
Every R5.00 spent earns one loyalty
point. In order to qualify for
vouchers customers must accumulate at least 100 club card points by a
qualification date. There
are four qualification periods during which
the minimum points have to be earned (6 October-5 January; 6 January
– 5 April;
6 April – 5 July; 6 July – 5 October).
These periods are referred to as reward cycles.
[3]
At the end of each reward cycle, Clicks issues vouchers to all
ClubCard members who have earned 100 or more points during the
cycle.
Every 100 points earned by a customer will entitle that customer to a
voucher to the value of R10.00 that can be used in
payment or part
payment for his or her future purchase. Vouchers may be redeemed by
the customer when he or she makes a subsequent
purchase and presents
his or her club card and voucher at the checkout point. The voucher
cannot be redeemed for cash. In practice
the vouchers will in almost
all instances be used in part payment of a basket of goods, so that
the customer acquires those goods
at a discounted price.
[4]
During the 2009 financial year, Clicks claimed an allowance of
R44 275 965
to
be deducted from its gross income based on s 24C of the Income Tax
Act. The allowance was calculated on the basis of the cost
of sales
to Clicks, in honouring vouchers that Clicks expected members to
redeem in the following tax year. The Commissioner disallowed
the
claim to the allowance and Clicks objected to the disallowance. On
29 April 2015 it lodged an appeal against the disallowance
of
its objection against the assessment for the 2009 tax year.
[5]
The Tax Court upheld the appeal and directed the Commissioner to
partially allow Clicks’ claim in terms of s 24C and revise
the
allowance, for the following reasons;
(a) It was artificial and factually
incorrect, to regard the expenditure Clicks would incur when a
customer redeemed a voucher,
as arising under a ‘different
contract’ to the first purchase and sale contract concluded
with the same customer and
pursuant to which the points concerned,
were generated.
(b)The first purchase and sale
agreement incorporated the terms of the ClubCard contract, but
despite this the first purchase and
sale contract remained the
contract that triggered both the earning of income by Clicks as well
as an obligation by Clicks to incur
future expenditure.
(c) The obligation
to incur future expenditure was therefore incurred under the same
contract from which the income was earned and
the expenditure would
be incurred in the performance of that contract. Consequently
the claim of Clicks in terms of s 24C,
met the requirements of
this section.
[6]
Section 24C was amended in 2016. This was subsequent to the relevant
year of assessment. The wording of the Act as it was in
2009 needs to
be applied. The section then read:
‘
(1)
For the purposes of this section, “future expenditure” in
relation to any year of assessment means an amount of
expenditure
which the Commissioner is satisfied
will
be incurred
after the end of such year -
(a)
in such manner that such amount will be allowed as a deduction from
income in a subsequent year of assessment; or
(b)
in respect of the acquisition of any asset in respect of which any
deduction will be admissible under the provisions of this
Act.
(2)
If the income of any taxpayer in any year of assessment includes or
consists of
an amount received by or accrued to him in terms of
any contract
and the Commissioner is satisfied that such amount
will be utilised in whole or in part to finance future expenditure
which will
be incurred by the taxpayer
in the performance of his
obligations under such contract
,
there shall be deducted
in the determination of the taxpayer’s taxable income for such
year such allowance (not exceeding
the said amount) as the
Commissioner may determine, in respect of so much of such expenditure
as in his opinion relates to the
said amount.
(3)
The amount of any allowance deducted under subsection (2) in any year
of assessment shall be deemed to be income received by
or accrued to
the taxpayer in the following year of assessment.’ [My
emphasis].
[7]
In
CSARS v Big G Restaurants (Pty) Ltd
[2018] ZASCA 179
,
2019 (3) SA 90
(SCA) this court held that in order
to qualify for the allowance the income received and the future
expense to be incurred, must
arise from the same contract. It said
that s 24C had two basic requirements: first, there must be income
received or accrued in
terms of a contract and second, the
Commissioner must be satisfied that such amount, i.e. the income
received from the contract,
will be used wholly or partially to
finance future expenditure that a taxpayer will incur in performing
its obligations under that
same contract. The section therefore
envisages income, future expenditure and a single contract that links
the two. This court
expressly rejected the notion that the section
applies where the different contracts are ‘inextricably
linked.’ The
legislature did not use the term ‘scheme’
or ‘transaction’. The operative concept was ‘contract.’
[8]
An application for leave to appeal to the Constitutional Court
against the judgment in
Big G
was
argued shortly before the appeal in this case. Counsel were agreed
that the issues before the Constitutional Court were not
the same as
the issues in the present case. The relevant principles are dealt
with and explained in the concurring judgment by
my brother Wallis
JA, which I have read and with which I agree. I continue to deal with
the present case in accordance with those
principles.
[9]
The Commissioner submitted that the deduction was correctly
disallowed, for the following reasons;
(a) The contract of purchase and sale,
whereby a customer purchased merchandise at a Clicks store, in terms
of which income was
received, was separate from the ClubCard
contract;
(b) The ClubCard contract itself did
not give rise to any income in the hands of Clicks, because it was
issued free of charge and
there were no hidden charges to members;
(c) The obligation of Clicks to award
the member points, based on qualifying sales and to issue vouchers,
when the specified number
of points had been earned, arose under the
ClubCard contract;
(d) Clicks was
likely to incur future expenditure, when a member redeemed a voucher
and Clicks supplied the member with goods equal
to the value of the
voucher, at no cost to the member. This obligation would arise under
the ClubCard contract, which was a different
contract from the
contract of purchase and sale, under which the income was received.
[10]
On this basis the Commissioner contended that at least three
different contracts were discernible;
(a) The ClubCard contract, from which
no income was derived, as it was concluded free of charge and imposed
the obligation on Clicks
to issue and honour vouchers and thereby
incur future expenditure;
(b) The first contract of sale, which
earned income for Clicks, but from which no obligation to honour
vouchers and thereby incur
future expenditure was imposed upon
Clicks; and
(c) The second contract of sale, which
earned income for Clicks and against which the customer was entitled
to redeem his or her
voucher.
The
Commissioner therefore submitted that Clicks had not succeeded in
discharging the onus resting upon it, to satisfy the court,
that the
first contract of sale, from which the income was derived, was the
same contract that imposed the obligation on Clicks
to incur future
expense by redeeming a customer’s vouchers.
[11]
Clicks, however, submitted that the only issue for determination was
whether or not the qualifying purchase i.e. the first
contract of
sale, was also obligation-imposing, as found by the Tax Court. Clicks
submitted that it plainly was and moreover that
there was a ‘direct
and immediate connection’ between each qualifying contract of
sale, on the one hand, and the obligation
on Clicks to issue rewards
to the customer pursuant to that contract of sale, on the other. The
Tax Court found for Clicks on the
basis that ‘the income is
earned on the same contract that gives rise to the obligation to
incur future expenditure.’
The ‘same contract’ here
being a qualifying purchase – referred to in the judgment as
the ‘first purchase
and sale contract.’
[12]
According to Clicks the Tax Court correctly found that its obligation
to incur future expenditure, did not arise from the ClubCard
contract, itself. This was because, as the Tax Court found, the
ClubCard contract did not itself create or impose on Clicks any
exigible obligation to grant any form of rewards to a customer. On
the contrary, in terms of the express provisions of the ClubCard
contract itself, that obligation only arose when a qualifying
contract of sale was made.
[13]
Clicks argued that the ClubCard agreement did not give rise to any
exigible obligations, or at least none that were relevant
for the
purposes of the section. That agreement, as the Tax Court found,
merely ‘records the terms upon which Clicks is to
reward the
ClubCard holders in respect of their future purchases’ and
those terms made it clear that the customer had no
right to rewards,
and Clicks was under no duty to grant them, unless a qualifying
purchase was concluded. In addition, the conclusion
of a qualifying
purchase not only brought into existence an exigible obligation on
the part of Clicks to issue rewards, but also
determined the content
of that obligation, since the rewards to be granted were determined
by the value of the qualifying purchase.
[14]
Clicks summarised its submissions as follows;
(a) The ClubCard agreement did not
itself give rise to any exigible obligation on Clicks to issue
rewards.
(b) No such obligation was ‘created’
by the ClubCard agreement, and no such obligation existed unless and
until a qualifying
purchase was concluded.
(c) Each qualifying purchase not only
brought into existence, but also determined the content of, an
exigible obligation on Clicks,
to issue rewards.
(d) Accordingly, on each occasion that
Clicks issued rewards, there was a ‘direct and immediate
connection’ between
Clicks’ obligation to do so and the
qualifying purchase concerned. Put differently, each qualifying
purchase was both ‘income-earning
and obligation-imposing’
as found by the Court a quo.
(e) It followed
that the ‘same contract’ requirement of the section was
met.
[15]
In my view, the ClubCard contract between the customer and Clicks,
establishes the right of the customer to receive points
and
thereafter vouchers as well as the obligation on Clicks to award
points and thereafter vouchers to the customer, redeemable
against
subsequent purchases. This is how Clicks itself described the
position on 29 July 2012, when it replied to SARS’
query
sheet. It said that to earn points that could be converted into a
Rewards voucher the customer had to make purchases and
present their
ClubCard at the checkout. Clicks explained that under these purchases
income accrued to it as the taxpayer. Contrary
to its present
submissions it then said that this revenue was ‘a direct result
of the contract entered into when the ClubCard
member joins the
loyalty programme’. In line with that it continued:
‘
The
specific performance required by Clicks as a result of the contract
entered into with the ClubCard member is defined in the
terms and
conditions of the loyalty programme. Based on the terms and
conditions the taxpayer is obligated to provide the member
with a
rewards voucher to the extent that it has earned points that are
redeemable into a voucher as determined in accordance with
the rules.
The terms and conditions indicate that the rewards voucher can be
used to purchase goods in a Clicks store to the value
of the rewards
voucher. The taxpayer therefore has an obligation to deliver goods to
the member to the value of the rewards voucher
at no cost to the
member. In order to acquire such goods the taxpayer incurs
expenditure, which at the time of earning the income
was still future
expenditure.’
[16]
The taxpayer’s grounds shifted somewhat when it came to its
objection to the assessment. It continued to say that the
expenditure
incurred by it was incurred ‘in performing its obligations
under the Loyalty Programme’, but started to
equivocate in
regard to the relationship between this and the contracts of purchase
and sale that generated the rewards under the
Loyalty Programme. It
said that under the Loyalty Programme members were rewarded with
points, but:
‘
There
is no separate contract of purchase and sale relating to the goods
purchased – the customer’s presentation of
the ClubCard
when paying at the till-point being inextricably interwoven with and
an integral part of each purchase and sale of
goods transaction
entered into by the ClubCard customer.’
[17]
The difficulty with this is that, as
pointed out above, this court in
Big G
expressly rejected the notion that the section applies where there
are different contracts but they are ‘inextricably linked.’
Consequently, the fact that the ClubCard contract may be inextricably
linked to the first contracts of sale concluded between a
customer
and Clicks for the purchase of merchandise, and that the loyalty
programme could not function without these sales, matters
not. In any
event, even if the court were minded to adopt Clicks’ approach
and hold that the ClubCard contract, together
with the first sale of
merchandise, gave rise to the income, this would not bring the case
within s 24C. The reason is that
this income would be used to
finance the acquisition of stock for future sales, so that the
expenditure would be incurred in performing
Clicks obligations under
the ClubCard contract and the second sale agreement. Even on a linked
basis the contract is not the same
contract.
[18]
The contract that creates the right to income by Clicks is the first
contract of sale. However, the contract that obliges
Clicks to
honour the vouchers and thereby incur expenditure, when a customer
concludes the second contract of sale with Clicks,
is neither that
contract, nor the second contract of sale, but the ClubCard
contract. Consequently, the expenditure incurred
by Clicks in
honouring the vouchers does not arise in terms of the same contract
i.e. the first contracts of sale, but in terms
of the separate and
distinct ClubCard contract.
[19]
The distinction that Clicks seeks to draw between the ClubCard
contract concluded between the customer and Clicks, in terms
of the
loyalty program on the one hand, and contracts of sale concluded for
the purchase of merchandise, on the other, is artificial.
Clicks seeks to minimize the obligations imposed upon Clicks in terms
of the ClubCard contract, to the extent that no exigible
obligations
are imposed upon Clicks at all, in terms of this contract. The basis
for this assertion is that each qualifying purchase
not only brings
into existence, but also determines the content of an exigible
obligation on Clicks, to issue vouchers. However,
as Clicks
itself said in the passage quoted in para 15, the obligation to award
points and thereafter vouchers, to a customer in
respect of a
qualifying contract of sale, arises from the ClubCard contract and
not the contract of sale concluded with the customer.
To borrow the
terminology of Clicks, when a qualifying contract of sale is
concluded, the obligation on Clicks either to issue
vouchers or to
honour them, as the case may be, in terms of the ClubCard contract,
becomes exigible. In the absence of the ClubCard
contract, a customer
acquires no right to acquire points and thereafter vouchers and
Clicks incurs no obligation, to do so.
[20]
The argument of Clicks has as its object the reduction of the
contractual relationship between a customer and Clicks, to a
single
qualifying contract of sale, which is ‘income-earning’
for Clicks and ‘obligation-imposing,’ because
Clicks is
obliged to award points to the customer. This argument however
ignores the reality of the arrangement, in which three
contracts are
operative, namely the first and second contracts of sale, as well as
the ClubCard contract. All of these contracts
are required in order
for the customer to acquire vouchers and for Clicks to receive income
and be obliged to award vouchers and
supply merchandise to the
customer in return, as submitted by the Commissioner. As a result,
the income received and the future
expense sought to be deducted, did
not arise from the same contract and the Commissioner correctly
refused to grant a s 24C
allowance.
[21]
In the circumstances, the following order is made:
1 The appeal is upheld with costs
including the costs of two counsel.
2 The order of the Tax Court is set
aside and replaced with the following:
‘
The
appeal is dismissed.’
_________________________
DV DLODLO
JUDGE OF APPEAL
Wallis
JA (Swain, Mbha and Dlodlo JJA and Hughes AJA concurring
)
[22]
I have read and concur in the judgment of my brother Dlodlo JA (the
main judgment). I write in order to deal with the decision
in
Big
G
and our reasons for taking the view
that the outcome of this case will not be affected by the outcome of
the application for leave
to appeal that was recently argued in the
Constitutional Court in that matter.
[23]
The taxpayer in
Big G
had entered into several franchise agreements entitling it to operate
steakhouses and pizza and pasta restaurants under two well-known
brand names in accordance with the
modus
operandi
stipulated in the franchise
agreements. Its source of revenue from operating the restaurants came
from contracts to supply food
to restaurant patrons. Under the
franchise agreements it was obliged from time to time to upgrade and
refurbish its restaurants
in accordance with the requirements of the
franchisor. This required it to incur expenditure in the future. The
first issue was
whether in accordance with the requirements of s 24C
the income it received accrued in terms of the franchise agreement.
If
it did, the second issue was whether the expenditure to be
incurred in refurbishing the restaurants was incurred in the
performance
of the taxpayer’s obligations ‘under such
contract’.
[24]
There was no dispute in
Big G
that in terms of s 24C the future expenditure in relation to
which the allowance was sought had to be incurred in the performance
of the same contract as that under which the taxpayer had earned the
income. The section commences with reference to an amount
being
received by or accruing to the taxpayer ‘in terms of a
contract’. It then provides that this amount will be utilised
in whole or in part to finance future expenditure. The expenditure in
question is that which the taxpayer will in future incur
in the
performance of its obligations ‘under such contract’.
[25]
There is a sound reason for this limitation. Most businesses
recognise that they will be required in the ordinary course of
their
operations to incur future expenditure. An obvious example would be
the need to make provision for the replacement of machinery
and
equipment in order to keep their operations up to date. In the case
of businesses, such as the restaurants operated by
Big
G
, sensible management would in any
event, dictate that the external appearance of the restaurant and its
interior décor be
subject to refurbishment on a regular basis.
This would occur irrespective of whether the business was being
operated under a franchise
agreement. The finance for such activities
would have to be found from the ordinary stream of income of the
business, or from borrowings.
To permit an allowance for such future
expenditure would result in future expenses being taken into account
before they were incurred
and afford taxpayers a means to manipulate
the timing of tax payments. That was not the purpose of s 24C.
[26]
The reason s 24C was introduced was not to afford a means
whereby the taxpayer could take account of expenses foreseen
but not
yet incurred, but to alleviate the tax burden that would otherwise
rest on builders and other taxpayers engaged in manufacturing
businesses, where it is the practice to obtain a deposit or other
payment in advance of work being undertaken. This is neither
here nor
there if the deposit is received and the work done in the same tax
year. The amounts received will be declared as income
and the
expenses incurred in performing the contract deducted as expenses
incurred in the production of income. A problem arises
where the
deposit is paid in one year and the expenses in performing the
contract are incurred in the following year. Absent s 24C
the
contractor would be obliged to declare and pay tax on the whole of
the amount received in the first year and be left to set
off against
other income the expenses incurred in fulfilling the contract in the
second year. In effect money paid to finance the
performance of the
contract would need to be diverted to the payment of tax, leaving the
contractor to finance the performance
of the contract from other
resources. Permitting the taxpayer to deduct an allowance in respect
of the cost of financing the performance
of the contract in the
second year restores the balance between income and expenditure.
[27]
The issue in
Big G
was
not whether, in order to claim an allowance, the expenditure has to
be incurred in performing the same contract as that in terms
of which
the income was earned. It was whether the income was earned under the
franchise contract, either alone or in conjunction
with the sale of
meals to restaurant patrons, so that it could be said that the
expenditure
Big G
would
incur under the franchise agreement in respect of refurbishment would
be incurred under the same contract as that under which
the income
was earned. This court said that it was not the same contract because
the income was derived from the sale of meals,
while the expenditure
would be incurred under the franchise agreement. For that reason the
income-earning and the expenditure-incurring
contracts were different
and the claim to the allowance failed.
[28]
There is no doubt that the income-earning contracts in this case are
the initial sale contracts. The ClubCard contract is not
a source of
income and Clicks no longer contends that it is. Yet, as the main
judgment says, the initial sale contracts on their
own do not result
in Clicks incurring any obligation to the customer. Absent a ClubCard
contract and the presentation of a ClubCard
at the point of sale, the
sale agreements are complete when the customer leaves the store
having paid for the goods. Clicks has
no further obligation to fulfil
under the sale contract. If the customer has concluded a ClubCard
contract and presents the card
at the point of sale, Clicks incurs an
obligation under the ClubCard contract to award them points. Even
then it does not incur
any expenditure, because it is only if the
customer accrues 100 points during a qualification period that they
get anything at
all. If the customer changes allegiance and shops at
one of Clicks’ competitors, or changes address and now resides
in an
area not served by Clicks, their accumulated points will not be
used and after a year any vouchers issued will lapse.
[29]
It is appropriate at this point to say something about the concept of
expenditure in relation to Clicks’ claim to the
allowance. The
‘expenditure’ on which Clicks relied was nothing more
than its conventional purchases of stock in the
ordinary course of
its business. It does not purchase any item of stock specifically for
the purpose of satisfying its obligations
under the loyalty
programme. Instead it acquires stock for the purpose of its ordinary
trading activities. When customers purchase
items and present a
rewards voucher in payment for the goods, the value of the voucher is
deducted from the overall price and the
customer pays the balance. In
other words the goods are sold at a discount represented by the
amount of the voucher. No expense
item is shown in the taxpayer’s
accounts. Its purchases of stock are accounted for in the usual way
by adding purchases to
stock on hand at the beginning of the tax year
and deducting the stock on hand at the close of the year. In
simplified terms that
is the primary cost of sales. The discount is
reflected in the fact that sales are less than they would otherwise
be by the amount
of the discount. But that is no different from the
effects of a pensioners’ discount on one day of every week, a
stock clearance
sale or the recently popular ‘Black Friday’
sale.
[30]
I appreciate that in the stated case on which the appeal was argued
it was said that Clicks was likely to incur expenditure
in that, when
a member redeems a reward the appellant supplies goods equal to the
value of the reward at no cost to the member.
(As noted above, the
reality is in almost all cases that the customer receives a discount
but still has to pay something for their
purchases.) The concession
is ambivalently worded and I doubt that it reflects the kind of
expenditure contemplated by s 24C.
In the paradigm case of a
building or manufacturing contract, where a deposit is paid at the
commencement of the contract, the
amount paid to the builder or
manufacturer is needed ‘to finance future expenditure in the
performance of the contract’
such as the purchase of materials
needed to perform the contract or the payment of staff. There is, in
other words, a direct connection
between the amount received and the
performance of the contract and the latter will require actual
expenditure that, but for the
need to perform the contract, would not
be incurred. I have considerable difficulty in seeing how perfectly
conventional stock
purchases – which do involve expenditure –
are directly financed by earlier sales, as opposed to being financed
out
of general revenue. There is no direct connection between the
two. If, when the first sale was made, one were to ask what goods
were to be purchased with the price paid by the customer in order to
satisfy Clicks’ obligations under the loyalty programme,
the
only answer would be that Clicks had no idea and would only know when
a later purchase was made and a rewards voucher presented
in payment.
[31]
If one views the matter from the perspective that the loyalty
programme is no more than an undertaking in certain circumstances
to
afford to customers who present a rewards voucher a discount on the
goods they happen to have purchased, this can hardly count
as
expenditure as contemplated by s 24C. However, in view of the
concession in the stated case and the fact that as a result
this was
not fully argued it is undesirable that I go further than expressing
these reservations.
[32]
The interpretation of s 24C is straightforward. First, it
requires the conclusion of a contract under which revenue is
received
by the taxpayer. Second, it requires the taxpayer to undertake
obligations under that contract to be performed in the
following tax
year. Third, the performance of those obligations must oblige the
taxpayer to incur expenditure in the future. Fourth,
the revenue
received from the contract must be used to finance the performance of
the taxpayer’s obligations under the contract.
Whether in
certain circumstances the requirement of the same contract may be
satisfied by two or more connected contracts is not
a question that
needs to be resolved in this case.
__________________________
M J D WALLIS
JUDGE OF APPEAL
APPEARANCES:
For
the Appellant: P Ellis SC (with him) RM Molea
Instructed
by: The State Attorney, Pretoria
The
State Attorney, Bloemfontein
For
the Respondent: M Blumberg SC
Instructed
by: Edward Nathan Sonnenberg, Cape Town
Friedland
Hart Solomon & Nicolson, Pretoria