Abstract
The South African Revenue Service (SARS) is entrusted with the duty of collecting tax on behalf of the South African government. In order to ensure effective and prompt collection of taxes, the payment of tax is not suspended pending an objection or an appeal, unless directed otherwise. This is also known as the "pay now, argue later" rule, and, for value-added tax purposes, is provided for in terms of section 36 of the Value-Added Tax Act 89 of 1991. The "pay now, argue later" rule in terms of section 36 of the Value-Added Tax Act prima facie infringes on a taxpayer's right of access to the courts as envisaged in section 34 of the Constitution. This is due to the fact that a taxpayer is obliged to pay tax before being afforded the opportunity to challenge the assessment in a court. In Metcash Trading Ltd v Commissioner for the South African Revenue Service, the Constitutional Court held the "pay now, argue later" rule in terms of section 36 to be constitutional. Olivier, however, does not agree with the court on several matters. Amongst the problems she indicates are that the taxpayer does not have access to the courts at the time the rule is invoked, and that the court did not consider the fact that there might be less invasive means available which would ensure that SARS's duty is balanced with the taxpayer's right of access to the courts. Guidelines were also issued which provide legal certainty regarding the factors SARS may consider in determining whether the payment of tax should be suspended or not. These guidelines also evoked some points of criticism. Since 1 October 2012, the "pay now, argue later" rule has been applied in terms of section 164 of the Tax Administration Act 28 of 2011. The question arises whether this provision addresses the problems identified in respect of section 36 of the Value-Added Tax Act and the guidelines. In comparing these sections, only slight differences emerged. The most significant difference is that section 164(6) of the Tax Administration Act stipulates that the enforcement of tax be suspended for a period when SARS is considering a request for suspension. Section 164(6) does not provide a solution to the problems identified regarding section 36 of the Value-Added Tax Act. It is even possible that this section could give rise to further problems. Therefore, the legislature has failed to address the imbalance between the duties of SARS and the right of a taxpayer to access the courts.
Highlights
The levying of taxes is imperative for a government to ensure that it achieves its economic objectives[1] which, amongst others, include the economic development of the country and regulating the levels of employment.[2]
The South African Revenue Service (SARS) is empowered to administer and collect taxes in South Africa,[3] and value-added tax (VAT) is one of the forms of tax collected by SARS.[4]
In the matter of Metcash Trading Ltd v Commissioner for the South African Revenue Service,[27] the Constitutional Court held that such a balance had been achieved and declared the "pay argue later" rule relating to VAT to be constitutionally sound
Summary
The levying of taxes is imperative for a government to ensure that it achieves its economic objectives[1] which, amongst others, include the economic development of the country and regulating the levels of employment.[2]. In the matter of Metcash Trading Ltd v Commissioner for the South African Revenue Service,[27] the Constitutional Court held that such a balance had been achieved and declared the "pay argue later" rule relating to VAT to be constitutionally sound. This investigation is conducted with specific reference to Metcash Trading Ltd v Commissioner for the South African Revenue Service,[30] in which the courts had to deal with a constitutional attack on section 36 of the VAT Act. After the discussion of the section 36 rule, the focus of this article will shift to the section 164 rule.
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Disclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.