Footnote:
In: Pidduck, T. and Swanepoel, S., 2021. 'Semantic Gyrations' - When are Naartjies oranges? Beneath the surface of ABSA Bank Limited v CSARS. SA Mercantile Law Journal, 33(3), pp.470-495
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments December 31, 2021 erstellt
Description:
Taxpayer rights and tax avoidance are both highly debated topics in tax law. The Absa case addressed both by dealing with two different but equally critical concerns within South Africa’s tax legislation:(i) First, from an administrative perspective, the case considers the entitlement of a taxpayer to review a decision taken by the South African Revenue Service (‘SARS’) in court rather than to pursue the protracted dispute resolution mechanisms provided for in the Tax Administration Act 28 of 2011 (‘TAA’). The case also brings issues around burden of proof into play, as well as the interaction of various administrative provisions in the TAA with those in the underlying tax Acts.(ii) Secondly, from a substantive perspective, the case is the first reported case to consider any aspect of the General Anti-Avoidance Rule (‘GAAR’) since the GAAR’s amendment in 2006. While admittedly not all of the components of the GAAR are considered in the case, it is the first judicial interpretation of the provision and may be the first indication of the efficacy of the GAAR in combatting tax avoidance.This case note sets out the facts, issues, judgment — including submissions — and comments and analysis of the Absa case. The analysis of the case unearths a disjointedness between the legislature’s intention and the wording of certain administrative provisions, and criticises the ability of the administrative provisions contained in various tax Acts to work in concert with one another. A review of these administrative provisions by the legislature may be warranted in the light of this case. Furthermore, the judgment could also impact the interpretation and application of similar terms used in the reportable arrangement section of the TAA.The analysis also exposes some causes for concern regarding the interpretation of the GAAR that may undermine its ability to combat tax avoidance and suppress the mischief of taxpayers. Consequently, until possible appeal, this judgment may have far-reaching effects on the GAAR if the precedent set here is followed in other courts. These matters are explored in more detail in the comments analysis in Part V