![]() ![]() The court held that a tax judgment can be rescinded in terms of s36(1)(a) of the Magistrates Court Act, 1944. In Kruger I, the full bench heard an appeal from a decision from the magistrates' court refusing a recission of a tax judgment on the basis that the judgment was not rescindable. The precedent that he was referring to was Kruger v CIR 1966 (1) SA 457 (c) (Kruger I) and Kruger Sekretaris van Binnelandse Inkomste 1973 (1) SA 394 (A) (Kruger II). Rogers AJ pointed out that binding precedent is a core component of the rule of law, which is a founding value of the Constitution. ![]() In a unanimous judgment of the ConCourt, Rogers AJ was critical of the high court decision, particularly given that the court had been referred to all the relevant authorities, failed to discuss them and either follow them or explain why they were distinguishable. The high court also made much of the fact that SARS has the power to amend or withdraw a certified statement, concluding that this showed that it was not a final judgment and is unlike an ordinary civil judgment.Īfter both the high court and the Supreme Court of Appeal refused leave to appeal, the taxpayer sought leave directly from the ConCourt. ![]() But Capstone was not dealing with a recission of judgment it was considering whether SARS could lawfully take a tax judgment when there was a pending objection and appeal. In its judgment, the court quoted Capstone 556 (Pty) Ltd v CSARS 2011 (6) SA 65 (WCC), where it was held that although a tax judgment has all the effects of a judgment, "it is nevertheless not in itself a judgment in the ordinary sense" and "does not determine any dispute or contest between the taxpayer and the Commissioner". The Western Cape High Court held that the tax judgment could not be rescinded. It was not the taxpayer's contention that the assessment was wrong, but rather that they had made payments which SARS had failed to appropriate towards the relevant assessed taxes. In Barnard Labuschagne, the Taxpayer owed SARS R804,747 for self-assessments for value added tax and employees' tax. SARS has the power to amend or withdraw a certified statement and even file a new statement recording tax that was included in a withdrawn statement. A certified statement can be filed with the registrar even if the taxpayer is objecting or appealing against an assessment. This certified statement is treated as a civil judgment, lawfully given, that the South African Revenue Service (SARS) can execute. If a person has an outstanding tax debt, s172 of the Tax Administration Act, 2011 (TAA) allows SARS, after giving the taxpayer 10 business days' notice, to file a certified statement with the registrar of a court setting out the amount of the tax payable. Now that the ConCourt has ended any misconceptions about the rescindability of tax judgments, it is worthwhile to consider the circumstances under which tax judgments can be rescinded. One such judgment was considered by the Constitutional Court (ConCourt) in Barnard Labuschagne Incorporated v South African Revenue Service and Another (CCT 60/21) ZACC 8 (11 March 2022), where it was unanimously held that a tax judgment can be rescinded. Several recent high court judgments have incorrectly held that a tax judgment cannot be rescinded. Rescinding tax judgments: the obstacles and limitations QuarBy GRAEME PALMER, Published in Tax Law ![]()
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