Fraud, misrepresentation and non-disclosure
Generally, the prescription period that prohibits SARS from issuing an assessment does not apply if the reason the full amount of tax was not charged was due to fraud, misrepresentation, or non-disclosure of material facts. When the tax is a self-assessment, such as VAT and PAYE, the basis on which the period of limitation does not apply differs in that it refers to fraud, as well as intentional and negligent misrepresentation or non-disclosure.
This concept was recently under the spotlight in the Western Cape High Court in the matter of the Commissioner for the South African Revenue Service v Spur Group (Pty) Ltd (A285/2019) (judgment delivered on 26 November 2019). Although the case dealt primarily with whether contributions by the respondent to an employee share scheme is deductible for income tax purposes, the matter of prescription was also relevant, since the additional assessments relate rather old tax periods (2005 to 2009).
SARS argued that since the respondent answered “no” to certain questions on an income tax return, they assessed the taxpayer on a different basis than they would have had the question been answered differently. Essentially, SARS argued that answering “no” to certain questions amounted to “misrepresentations” and “non-disclosures” and they were therefore not prohibited from raising additional assessments.
In a minority judgement, judge Salie-Hlophe did not agree with the argument from the taxpayer that, although the question may have been answered incorrectly on a tax return, it did provide SARS with all the necessary information, being its financial documents (presumably, including financial statements), and is, therefore, by default, not guilty of non-disclosure or misrepresentation.
The judge indicated that this contention would be contra bones mores as it would amount to excusing a taxpayer in circumstances where it had not properly disclosed its own information on the tax return. Differently stated, it would exonerate a taxpayer who had made improper disclosures in his return by allowing him to rely on other documents furnished to SARS, however, ex facie his return, he had clearly misrepresented the true facts. It would offend the statutory imperative of having to make full and proper disclosures in a tax return but would also allow taxpayers to omit its true affairs and subsequently claim that the onus was on SARS to have uncovered it and acted upon it in good time. Furthermore, it would impose too high a standard of care or diligence on the SARS assessing officials. Very significantly, the judge makes the following comment:
“Completion of the tax returns is on par with a statement under oath. The taxpayer effectively vouches that it contains the truth, the whole truth and nothing but the truth.”
Consequently, the judge found that Spur’s incorrect answers to the questions in the tax returns constituted misrepresentations and non-disclosures of material facts which caused the full amount of tax chargeable in the 2005 to 2009 years of assessment not to be assessed to tax by the Commissioner.
The crucial lesson from this minority judgment is that the highest degree of diligence must be exercised when completing a tax return since it could negate any chances of relying on prescription.
This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
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