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[2015] ZAWCHC 8
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ABC (Pty) Ltd v Commission for the South African Revenue Service (A 129/2014) [2015] ZAWCHC 8 (6 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A 129/2014
Tax
Court Case No. VAT 872
DATE:
06 FEBRUARY 2015
In
the matter between:
ABC
(PTY)
LTD
.....................................................................................
Appellant
And
THE
COMMISSIONER FOR THE
SOUTH
AFRICAN REVENUE
SERVICE
.....................................
Respondent
Before:
The Hon. Mr Justice Hlophe (Judge President)
The
Hon. Mr Justice Binns-Ward
The
Hon. Mrs Justice Cloete
Date
of appeal hearing: 30 January 2015
Date
of judgment: 6 February 2015
JUDGMENT
BINNS-WARD J:
[1]
This
is an appeal against the judgment of the tax court
[1]
(see ITC 1871 (2014) and 76 SATC 109
[2]
)
dismissing the taxpayer’s appeal to that court brought in terms
of s 33 of the Value Added Tax Act 89 of 1991 (‘the
VAT
Act’) against certain assessments made by the Commissioner in
respect of its liability to pay value added tax in the
relevant 2006
and 2007 periods of assessment.
[3]
The appeal to this court is brought in terms of s 133(2)(a)
read with s 270(2)(d) of the Tax Administration Act
28 of 2011
(‘TAA’).
[2]
The taxpayer staged annual international
jazz festivals in Cape Town during the period in question. In
the course of that
enterprise it concluded sponsorship agreements
with South African Airways, the City of Cape Town, the South African
Broadcasting
Corporation and Telkom in terms of which the sponsors
paid money towards and provided goods and services for the festivals,
in
return for which the taxpayer provided goods and services to the
sponsors in the form of branding and marketing. The taxpayer
and each of the sponsors were registered as ‘vendors’ in
terms of the VAT Act.
[3]
The
appellant was liable to declare and pay output tax
[4]
on the goods and services provided to the sponsors in terms of the
aforementioned sponsorship agreements. Its failure to
have done
so was identified in the course of a tax audit. This resulted
in the assessments in issue.
[5]
The appellant does not dispute its liability for output tax on the
transactions. The matter in contestation is whether
it should
be entitled to offset that liability with a deduction in respect of
the input tax
[6]
in respect of
the ‘supplies’ made to it by the sponsors. The
Commissioner had declined to allow any deduction
of input tax in the
particular circumstances.
[4]
It
is common ground between the parties that, despite their part cash
components, the transactions in terms of the sponsorship agreements
may be regarded essentially as barter transactions. In
consequence, and accepting, as one may, that the transactions were
at
arms’ length, the value of the goods and services provided by
the appellant to the sponsors in each case falls to be taken
as the
same as that of the counter performance by the relevant sponsor. The
Commissioner was able to assess the sum of the
appellant’s
liability for output tax on the basis of the information contained in
the respective sponsorship contracts.
Thus, for example, in the
case of the transaction with South African Airways the value was
determined as the monetary equivalent
of the value of the
transportation benefits provided to the taxpayer by the sponsor
expressed in the contract in so-called ‘travel
rands’.
[7]
In an ordinary arms’ length barter transaction the value that
the parties to it have attributed to the goods or supplies
that are
exchanged seems to me, in the absence of any contrary indication, to
be a reliable indicator of their market value.
It is thus plain
that the value of the goods and services provided to the taxpayer by
the sponsors was equally determinable from
the sponsorship
contracts. (For reasons which are unexplained, and which do not
appear to bear scrutiny, the Commissioner
did not include the cash
payment components of the sponsorships in the calculation of the
value of the services provided to the
sponsors by the appellant.)
[5]
The
sponsors were required in terms of s 7(1)(a) of the VAT Act to
levy value added tax on the supply by them of the goods
and services
concerned to the appellant. In terms of s 20(1) of the Act
the sponsors were obliged within 21 days of
the supply of the goods
or services concerned to issue the appellant with a tax invoice in
respect of the supply. The tax
invoice was required to set out,
amongst other things, ‘
either
- (i) the value of the supply, the amount of tax charged and the
consideration for the supply; or (ii) where the
amount of tax
charged is calculated by applying the tax fraction to the
consideration, the consideration for the supply and either
the amount
of the tax charged, or a statement that it includes a charge in
respect of the tax and the rate at which the tax was
charged
’.
[8]
The appellant would, subject to the applicable provisions of the Act,
be entitled to deduct the tax thus levied on it by
the sponsors from
its liability to the South African Revenue Service in respect of
output tax.
[6]
Section 16(2) of the VAT Act provided in
relevant part as follows at the pertinent time:
No
deduction of input tax in respect of a supply of goods or services,
the importation of any goods into the Republic or any other
deduction
shall be made in terms of this Act, unless-
(a)
a tax invoice or debit note or credit note in relation to that supply
has been provided in accordance with section 20 or 21 and
is held by
the vendor making that deduction at the time that any return in
respect of that supply is furnished;
(b)
(i) a document as is acceptable to the Commissioner has been issued
in terms of section 20 (6); or
(ii)
a document issued by the supplier in compliance with section 20 (7)
or 21 (5); or
(c)
….
[7]
It
is common ground that, notwithstanding requests by the appellant that
they should do so, the sponsors had not provided the appellant
with
tax invoices and no documents of the nature described in s 16(2)(b)
of the VAT Act had been issued. It is also
common ground that
the Commissioner was aware of the sponsors’ failure to comply
with their obligation to issue tax invoices,
but, that
notwithstanding his responsibility in terms of s 4(1) of the VAT
Act ‘to carry out’ the provisions of
the Act, he had
taken no steps to procure compliance by the sponsors with their
obligation, or to have them prosecuted for their
failure to do
so.
[9]
The tax court held
that in those circumstances the appellant could not make deductions
in respect of the input tax.
[10]
[8]
The tax court judgment further held that
the sponsors had in point of fact not charged VAT on the value of the
goods and services
supplied and that the appellant had not paid VAT
to the sponsors in respect of the supply of such goods and services.
It
does not seem to me, however, that the observation by the learned
judge a quo in this regard affected the material finding of the
court
that the appeal should fail because of the appellant’s
inability to satisfy the requirements of s 16(2)(a) or
(b) of
the VAT Act. It is in any event not apparent from the judgment
on what basis the factual finding was made. It
may have been
predicated on the provisions of the SABC and SAA sponsorship
contracts which expressly excluded VAT in certain respects.
Thus, for example, clause 4.6 of the SAA contract provided ‘
All
amounts in this agreement exclude VAT and VAT shall be paid by the
SPONSOR upon receipt of a VAT invoice from
[the appellant]’. Counsel for the Commissioner advanced a
similar line of argument before us on appeal relying on those
contractual provisions.
[9]
In
my judgment the approach overlooks that what required to be
determined in respect of the appellant’s claim to be entitled
to a deduction for input tax was the ‘
open
market value
’
[11]
of the supplies given by the sponsors in consideration for the
services provided by the appellant. In the context of what
is
accepted by the parties to have been akin to a barter transaction,
the value of the goods and services supplied by the sponsors
fell for
tax purposes to be determined in terms of s 10 of the VAT Act.
Section 10(3)(b) provides that ‘
For
the purposes of this Act the amount of any consideration referred to
in this section shall be - to the extent that such consideration
is
not a consideration in money, the open market value of that
consideration
’.
There has not been any dispute between the parties on the
Commissioner’s computation of the open market value
of the
goods and services in question. On the contrary, the value of
the non-cash benefits received by the appellant from
each of the
sponsors was common cause in the tax court. There was also no
contention in the tax court that the sponsors had
not supplied the
goods and services stipulated in the sponsorship agreements.
[10]
Insofar as currently relevant s 10(2)
of the VAT Act provides:
‘
The
value to be placed on any supply of goods or
services
shall, save as is otherwise provided in this section, be the amount
of the consideration for such supply, as determined
in accordance
with the provisions of subsection (3), less so much of such amount as
represents tax: Provided that - (ii) where
the portion of the amount
of the said consideration which represents tax is not accounted for
separately by the vendor, the said
portion shall be deemed to be an
amount equal to the tax fraction
[14/114
[12]
]
of
that consideration
’.
Notwithstanding any
contractual arrangements that were in place, the sponsors did not
account separately for the tax on the consideration
given by the
appellant. The tax levied by them is thus deemed to have been
an amount equal to the tax fraction of the open
market value of the
goods and services supplied. By virtue of its counterprestation
in terms of the barter transaction, the
appellant must be taken to
have paid the tax and it should have been issued with the relevant
tax invoices by the sponsors.
[11]
In the circumstances the only question that
the court below was called upon to decide was whether, in the context
of the failure,
despite demand, by the sponsors to have issued tax
invoices, the provisions of either s 20(7)(b) or 16(2)(f) of the
VAT Act
should have been applied to allow the appellant the
deductions in respect of input tax.
[12]
Section 20(7)(b) provides:
Where
the Commissioner is satisfied that there are or will be sufficient
records available to establish the particulars of any supply
or
category of supplies, and that it would be impractical to require
that a full tax invoice be issued in terms of this section,
the
Commissioner may, subject to such conditions as the Commissioner may
consider necessary, direct-
(a)
…; or
(b)
that a tax invoice is not required to be issued; or
(c)
… .
The Commissioner
must be able to be satisfied as to two things before he may direct
that a tax invoice is not required to be issued:
(i) the
existence or availability of sufficient documentary records and
(ii) the impracticability of requiring a full
tax invoice to be
issued.
[13]
It was argued on behalf of the appellant
that the sponsorship contracts afforded ‘sufficient records’
of the supplies
concerned. In the context of there being no
contention that the stipulated goods and services had not been
supplied and no
dispute that the contract documents record their open
market value, I am willing for present purposes to accept that
argument.
I am unable, however, to find that it would be
‘impractical to require that a full tax invoice be issued’.
No
basis for any such finding is apparent on the record. The
fact that the sponsors have failed to issue the invoices does not
make it impractical to require that they be issued. On the
contrary it was the Commissioner’s responsibility in the
circumstances to compel their issue. The evidence provides no
basis for us to find that the Commissioner could reasonably
have been
satisfied as to the requirement of impracticability.
[14]
Section 16(2)(f) of the VAT Act provided as
follows before its amendment in terms of s 173(1)(a) of the
Taxation Laws Amendment
Act 31 of 2013 with effect from 13 December
2013:
No
deduction of input tax in respect of a supply of goods or services,
the importation of any goods into the Republic or any other
deduction
shall be made in terms of this Act, unless –
(f) the
vendor, in any other case, is in possession of documentary proof, as
is acceptable to the Commissioner, substantiating
the vendor's
entitlement to the deduction at the time a return in respect of the
deduction is furnished.
The
phrase ‘
in any other case
’ distinguishes the
circumstances in which s 16(2)(f) might apply from those in
which paragraphs (a) to (e) of the subsection
pertain. The
provision was inserted by s 30(c) of
Revenue Laws Second
Amendment Act 36 of 2007
with effect from 8 January 2008.
Counsel for both parties were agreed that the matter is amenable to
determination taking
the provision into account because it was in
operation when the relevant assessments were made.
[15]
Mention
has already been made of the fact that it was not in issue that what
the parties were content to characterise as barter
transactions were
implemented, and that it may thus be inferred that the goods and
services stipulated to be provided by the sponsors
under the
sponsorship contracts (which were in writing) were indeed provided.
As also mentioned, it is evident that the Commissioner
predicated his
calculation of the output tax on the information provided in the
contracts.
[13]
The
appellant’s contention is that the contracts also serve as
proof of its entitlement to a deduction for input tax.
In my
judgment the contention is well-made. If the documents were
good enough for the Commissioner to assess the appellant’s
output tax liability, it is impossible to conceive, having regard to
the character of the particular transactions, why they should
not
also have been sufficient for the purpose of computing the input tax
which should have been deemed to have been levied by the
sponsors.
The appellant had invoked the provisions of
s 16(2)(f)
in its
representations to the Commissioner. In the circumstances he
was bound to take them into account in making the assessment.
I
do not think that the Commissioner could reasonably have decided that
the information in the contracts did not in the circumstances
provide
sufficient proof substantiating the appellant's entitlement to the
deductions claimed. The Commissioner disallowed
the deductions
because the appellant was not in possession of relevant tax
invoices.
[14]
That was
also the only ground for disallowing the deductions expressly
advanced by the Commissioner in his Statement of Grounds
of
Assessment filed in terms of
rule 10
of the rules issued in terms of
s 107A of the Income Tax Act 58 of 1962 and its replacement,
s103 (read with s264) of the
TAA.
[15]
He did not explain why s 16(2)(f) should not have applied.
[16]
The respondent’s counsel sought
before us to counter the appellant’s reliance on s 16(2)(f)
on three bases.
[17]
Firstly,
he submitted that the provision was not of application to deductions
claimed in respect of input tax. Counsel contended
that the provision
bore only on ‘
any
other deductions
’
as mentioned in the introductory part of the subsection.
[16]
That argument may be disposed of summarily in my view. It is
simply not sustained by the plain and unambiguous wording
of the
provision. Paragraph (f) is expressly intended to provide a
general supplemental basis for the allowance in cases
in addition to
those specifically identified in paragraphs (a) to (e). The
phrase ‘in any other case’ means in
any case other than
those in (a) to (e). According to its tenor the paragraph
applies in respect of any deduction comprehended
in the introductory
part of the subsection – that includes a deduction ‘
of
input tax in respect of a supply of goods or services
’.
[18]
Secondly, he contended that ‘although the documentation
[i.e. the sponsorship contracts] refers to amounts, there is no
evidence
on record that the amounts referred to can in any way be
equated to the value of the services rendered or the consideration
paid
therefor’. He also argued that the documentation did
not comply with the requirements of s 20(4) of the VAT Act.
[19]
In regard to the respondent’s second contention, I agree
with the submission by Mr
Sholto-Douglas
SC for the taxpayer
that it is not open to the Commissioner, in circumstances when the
point was not clearly taken earlier, to contend
for the first time at
this stage that the appellant should have adduced evidence on the
value of the consideration given for the
goods and services provided
by the sponsors. Moreover, not only was the point not taken, as
described, but the Commissioner
has proceeded for his own purposes
using the information in the documentation as sufficient for
computing the output tax.
As recently observed by Ponnan JA in
Commissioner, South African Revenue Service v Pretoria East Motors
(Pty) Ltd
2014 (5) SA 231
(SCA) at para 11, ‘
The
raising of an additional assessment must be based on proper grounds
for believing that, in the case of VAT, there has been an
under-declaration of supplies and hence of output tax, or an
unjustified deduction of input tax. … It is only in this way
that SARS can engage the taxpayer in an administratively fair manner,
as it is obliged to do. It is also the only basis upon which
it can,
as it must
[in terms of the applicable rules]
, provide grounds
for raising the assessment to which the taxpayer must then respond by
demonstrating that the assessment is wrong
’. The
point taken by counsel is in any event inconsistent with the effect
of his acceptance of the characterisation
of the transactions as
barter transactions.
[20]
Section 20(4) of the VAT Act prescribes the particularity
that must be set out in a tax invoice. Much of it has nothing
whatsoever to do with the entitlement to an input tax deduction, for
example, the requirement that the words ‘tax invoice’
must appear in a prominent place on the document, that it must bear a
serialized number and date of issue, and that it must bear
the name,
address and VAT registration number of the supplier. If the
requirements of s 20(4) had to be satisfied, there
would be no
need or scope for s 16(2)(f). As it is, the identity of
the suppliers is evident from the contract documents.
It is not
in issue that they are registered vendors. They all happen to
be organs of state. Their addresses are well-known,
or readily
ascertainable. The quantity or volume of the goods and services
supplied is also determined in terms of the contractual
documentation. That what was stipulated was supplied is not in
issue. It is also not in contention that the sponsors
were
obliged to issue the appellant with tax invoices and that they have
failed to do so despite request. The respondent’s
reliance on non-compliance with s 20(4) is wholly without merit.
[21]
The third basis was a contention that the appellant’s
challenge to the assessment on the grounds that the Commissioner
should
have allowed the input tax deduction in terms of s 16(2)(f)
comes down to seeking to judicially review the Commissioner’s
decision not to accept the contract documents as proof of the
appellant’s entitlement to a deduction. The argument
proceeded that the Commissioner’s decision in that regard
constituted ‘administrative action’ as defined in the
Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’)
and if it is to be impugned may be done only in terms of
an
application in terms of s 6 of that statute, and not by appeal
in terms of the VAT Act. It was submitted that the
tax court
has no jurisdiction to entertain review applications in terms of
PAJA.
[22]
The third contention is similar in character to that raised by
the Commissioner in
Kommissaris van Binnelandse Inkomste v
Transvaalse Suikerkorporasie Bpk
1985 (2) SA 668
(T). That
matter concerned an appeal to the Full Court of the Transvaal
Provincial Division against a judgment of the Special
Tax Court which
had upheld the taxpayer’s appeal against an additional income
tax assessment made by the Commissioner.
At p. 671G-I, Van der
Walt J described the argument advanced on behalf of the Commissioner
as follows:
In
the course of the argument on behalf of the appellant it was
submitted that the respondent had misdirectedly sought relief from
the Special Income Tax Court. The submission came down to
saying that in deciding to make an additional assessment in terms
of
s 79(1)(i) [of the Income Tax Act] the appellant was exercising
an administrative discretion, which was not susceptible
to appeal,
but only to review. Such a review can, so the argument went,
only be brought in terms of Uniform Rule 53 before
the Supreme Court
as the Special Income Tax Court is a creature of statute having only
the powers and capacity provided for in
ss 83 and 84 of the
Income Tax Act. That power and capacity does not include a
power of review.
[17]
(My
translation from the Afrikaans.)
The
Full Court rejected the argument. It held that save in respect
of decisions in relation to which a right of appeal was
expressly
excluded by the tax legislation, the tax court was empowered to take
into consideration whether or not the Commissioner
had properly
exercised his discretion in respect of making assessments that were
subject to appeal. In that context, so the
Court held, where
the exercise of discretion is pertinent to the making of the impugned
assessment, the ‘appeal’ is
in reality a ‘review’
of the Commissioner’s decision on customary review
grounds.
[18]
The Full
Court’s reasoning, which attracted no adverse comment in the
judgment of the Appellate Division to which the
matter was taken on
further appeal,
[19]
is
compelling. It is also conceptually consistent in all material
respects with the judgment of Van Winsen J in ITC 936
24 SATC 361
,
from which Van Walt J quoted extensively in the course of his
judgment.
[23]
There
has been no suggestion by the Commissioner that the assessments in
issue in the current case were not susceptible to appeal.
The
Commissioner’s decision not to allow a deduction in terms of
s 16(2)(f) of the VAT Act was integral to the making
of the
assessments. The matter is thus in all respects relevant for
the jurisdictional argument directly analogous to that
which
presented in
Transvaalse
Suikerkorporasie
.
Indeed, Mr
Koekemoer
,
who appeared for the Commissioner, was unable to distinguish the
matter in principle, save to say that the earlier cases were
decided
before the enactment of PAJA. In this regard counsel laid
emphasis on the definition of ‘court’ in s 1
of
PAJA
[20]
and submitted that it
did not include the tax court. There is nothing in the
argument. PAJA regulates the bringing
and determination of
review applications in terms of s 6 of the statute; it is not
directed at the bringing and determination
of appeals in terms of the
tax laws administered under the TAA. The appellant in the
current matter was exercising a right
of appeal to the tax court
against the assessments; it was not seeking the review and setting
aside of a decision in terms of s 16(2)(f)
of the VAT Act.
The fact that the determination of the appeal might entail the tax
court in considering the legality of an
administrative decision that
was integral to the making of the assessment does not deprive the
court of its jurisdiction to decide
the appeal. To interpret
and apply the legislation as requiring the dichotomous procedures
enjoined in the argument advanced
on behalf of the Commissioner would
in many cases defeat the very purpose of the establishment of the
specialist tax court.
The jurisdiction of the tax court to
determine tax appeals is conferred without any limitation in s 117(1)
of the TAA.
The court must be taken to have been invested with
all the powers that are inherently necessary for it to fulfil its
expressly
provided functions.
[24]
In the result I consider that the appeal must succeed.
The additional assessments must be set aside and remitted for
reconsideration
by the Commissioner in the light of this judgment.
An order will issue, substantially in the terms sought by the
appellant,
as follows:
1.
The appeal is upheld, with costs.
2.
The order of the tax court is set aside and
replaced with an order as follows:
(i)
The appellant’s appeal against the
additional VAT assessments made for the tax periods 04/2006, 12/2006,
04/2007, 08/2007
and 12/2007 is upheld
(ii)
The asessments are set aside and referred
back to the Commissioner for reconsideration.
A.G.
BINNS-WARD
Judge
of the High Court
We
concur:
J.M.
HLOPHE
Judge
President
J.I.
CLOETE
Judge
of the High Court
[1]
Constituted in terms of s116 of the Tax Administration Act 28 of
2011 (‘TAA’), which came into operation on 1 October
2012.
[2]
The
judgment of the court a quo is also quoted in full in the critical
review by TS Emslie published in Davis et al (ed)
The
Taxpayer
(Book 62, December 2013) at 229.
[3]
The appeal to the tax court (then constituted in terms of s 83
of the Income Tax Act 58 of 1962) was lodged on 8 July 2010.
Section
33 of the VAT Act was repealed in terms of s 271 of the TAA.
The appeal is deemed to have continued thereafter
as if brought in
terms of s 107 of the TAA.
[4]
‘
Output
tax
’
is the tax charged by a vendor in terms of s 7(1)(a) of the VAT
Act. Section 7(1)(a) provides: ‘
Subject
to the exemptions, exceptions, deductions and adjustments provided
for in this Act, there shall be levied and paid for
the benefit of
the National Revenue Fund a tax, to be known as the value-added tax—
(a) on the
supply by any vendor of goods or services supplied by him on or
after the commencement date in the course or furtherance
of any
enterprise carried on by him
’.
[5]
The assessments were made on 21 September 2009. The appellant
lodged an objection to the assessments on 9 November 2009.
The
objection was disallowed by the Commissioner on 15 June 2010.
[6]
‘
Input
tax’, insofar as currently relevant is defined in the VAT Act
as:
‘“
input
tax
”, in relation to a
vendor, means-
(a)
tax charged under section 7 and payable in terms of that section by-
(i)
a supplier on the supply of goods or services made by that supplier
to the vendor…
where the
goods or services concerned are acquired by the vendor wholly for
the purpose of consumption, use or supply in the course
of making
taxable supplies or, where the goods or services are acquired by the
vendor partly for such purpose, to the extent
(as determined in
accordance with the provisions of section 17) that the goods or
services concerned are acquired by the vendor
for such purpose
’
.
[7]
It was common cause that ‘travel rands’ were air travel
vouchers redeemable as payment for any SAA flight.
[8]
Section 20(4)(g) of the VAT Act.
[9]
Section 4(1) of the VAT Act has subsequently been repealed and
effectively substituted by s 3(1) of the TAA.
[10]
The
tax court stated in its judgment that the appellant would have been
well advised to have taken the steps necessary to enable
it to
create documents in terms of s 20(2) having the status of tax
invoices rendered by the sponsor-suppliers.
Section
20(2) of the VAT Act provides:
Where a
recipient, being a registered vendor, creates a document containing
the particulars specified in this section and purporting
to be a tax
invoice in respect of a taxable supply of goods or services made to
the recipient by a supplier, being a registered
vendor, that
document shall be deemed to be a tax invoice provided by the
supplier under subsection (1) of this section where-
(a) the
Commissioner has granted prior approval for the issue of such
documents by a recipient or recipients of a specified class
in
relation to the taxable supplies or taxable supplies of a specified
category to which the documents relate; and
(b) the
supplier and the recipient agree that the supplier shall not issue a
tax invoice in respect of any taxable supply to which
this
subsection applies; and
(c) such
document is provided to the supplier and a copy thereof is retained
by the recipient:
Provided that
where a tax invoice is issued in accordance with this subsection,
any tax invoice issued by the supplier in respect
of that taxable
supply shall be deemed not to be a tax invoice for the purposes of
this Act.
That obiter
statement of opinion was misconceived, with respect. It
overlooked the appellant’s inability to have complied
with the
cumulative requirements of paragraphs (a), (b) and (c) of the
subsection.
[11]
See the definition of the term in s 1 of the VAT Act read with
s 3 of the Act.
[12]
See the definition of ‘
tax
fraction
’
in s 1 of the VAT Act.
[13]
There appears to be an arithmetical problem in respect of the
assessment of the appellant’s liability for output tax in
respect of the 2006 sponsorships, but the point is borne out by the
computation of the assessment in respect of the 2007 festival.
There is no suggestion in the evidence that there was a conceptual
difference in the method of making the assessments in respect
of the
two years concerned.
[14]
When the assessments were made the Commissioner purported to
disallow any deduction for the input tax on the ground that ‘
A
sample of input tax expenses which you want to claim against the
sponsorships received in kind, indicated that the expenses
were
already allowed in previous vat periods. No further input tax
expenses will therefore be allowed in this respect.
’
(SARS’ letter to the appellant’s public officer dated
September 2009.) It was common cause that there
was no factual
premise for that statement.
[15]
Para 5.4 of the statement.
[16]
Quoted in para [14], above.
[17]
In
die loop van die betoog namens appellant is aangevoer dat die
respondent verkeerdelik by die Spesiale Inkomstebelastinghof
regshulp aangevra het. Die betoog kom daarop neer dat die appellant
by die besluit om ’n addisionele aanslag kragtens art
79(1)(i)
te doen, ’n administratiewe diskresie uitgeoefen het wat nie
aan ’n appèl onderhewig is nie maar
slegs vir
hersiening vatbaar is. So ’n hersiening kan slegs kragtens
Hooggeregshofreël 53 voor die Hooggeregshof gebring
word, so
lui die betoog, aangesien die Spesiale Inkomstebelastinghof ’n
statutêre skepping is met slegs magte en
bevoegdhede verleen
in arts 82, 83 en 84 van die Inkomstebelastingwet. Die magte en
bevoegdhede sluit nie ’n hersieningsbevoegdheid
in nie.
[18]
At
p. 676C.
[19]
1987
(2) SA 123
(A).
[20]
‘
Court
’
is defined in s 1 of PAJA as meaning:
‘
(a)
the Constitutional Court acting in terms of section 167 (6) (a) of
the Constitution; or
(b)
(i) a High Court or another court of similar status; or
(ii)
a Magistrate's Court, either generally or in respect of a specified
class of administrative actions, designated by the Minister
by
notice in the Gazette and presided over by a magistrate or an
additional magistrate designated in terms of section 9A,
within
whose area of jurisdiction the administrative action occurred or the
administrator has his or her or its principal place
of
administration or the party whose rights have been affected is
domiciled or ordinarily resident or the adverse effect of the
administrative action was, is or will be experienced
’
.