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Sars, have you taxed that Aston Martin?

The revenue service seems oblivious of the work the tax-paying public wants it to be doing.
Few are likely to be uncomfortable with the giftor of an Aston Martin being charged with donations tax, or the recipient being made to pay tax on the gift. Image: Chris Ratcliffe, Bloomberg

The public has been aghast at the ongoing revelations at the Zondo Commission of Inquiry into State Capture, where implicated persons are quite comfortable admitting to having received a R2.6 million Aston Martin sports car as a gift, or security equipment, the use of a rental car, or other expensive services.

Read: Nomvula Mokonyane, Bosasa, and all those repairs

The South African Revenue Service (Sars), however, appears neither shocked nor horrified.

Sars’s attention is elsewhere, putting out a press release on September 4, 2020 stating that they had won a court judgment against a company called Carte Blanche on a technical matter (see Sars press release here.). They do not have to give reasons for performing a tax audit.

And it “noted the judgment” in the matter related to the seizure by its customs officials of a Lesotho-registered vehicle in the Free State town of Ficksburg (and the arrest of its owner) last May. Sars lost that case, as adequately covered by Moneyweb journalist Ciaran Ryan last month.

No press releases on state capture.

Come on, Sars

Sars Commissioner Edward Kieswetter has frequently been mentioned in the press warning tax dodgers of the consequences of their actions. He has also stated that Sars is endeavouring to improve compliance, based on the notion that making it easier for taxpayers to comply will reduce the level of non-compliance. Sars has also been going after value-added tax (Vat) fraudsters, and has put some in jail.

But all of the above is focused on those who are in the system. Why does Sars not get to grips with those who aren’t?

And where are the lifestyle questionnaires?

Are we to understand that Sars does not even have the expertise to put one together? Surely Sars could outsource this?

Read: Low-hanging fruit for Sars to harvest

The Income Tax Act is quite clear on the deductibility of bribes or illicit payments: there is no deduction for any amount or payment (or agreement or offer) that “constitutes a corrupt activity” as contemplated in the Prevention and Combating of Corrupt Activities Act.

Law, and precedent

However, the taxability of the receipt of the amount, or the use of any benefit, hasn’t been specifically catered for in the act. But it has been clarified in case law, as seen in MP Finance Group cc (in liquidation) v Commissioner for South African Revenue Service 2007 (5) SA 521 (SCA).

MP Finance Group was a pyramid scheme that enticed gullible investors to hand over their money, and even though it was obliged to refund the deposits, the court held that operators of the scheme had accepted the deposits with the intention of retaining them for their own benefit. Hence, these deposits constituted a taxable receipt within the act.

Sars would claw back some credibility if it systematically raised tax assessments on every single gift-receiving ‘implicated person’ to appear before the Zondo Commission.

Read: Tax is an important weapon in clawing back ‘ill-gotten gains’

Sars can also demand to be told the identity of the magnanimous friends and relatives who are dispensing expensive gifts in cash or in kind, so that they can be charged with donations tax (plus penalties and interest).

And if the ‘implicated person’ cannot pinpoint the magnanimous friend or family, Sars can dip into their bank accounts and help themselves to the owed amount.

Who would be uncomfortable with the giftor of the Aston Martin being charged with donations tax, and the recipient being made to pay tax plus interest plus 200% penalties on the gift?

Many investigative pathways open to Sars

As for those who purchased R600 000 alcohol over a period of a few months, surely Sars would want to see the Vat invoices? And any enterprise that stocks champagne costing R7 000 a bottle would obviously be Vat-registered, and a profitable tax-paying enterprise.

But perhaps Sars and National Treasury can take the bull by the horns, and legislate for the taxation of ‘loans’, the use of money, the use of CCTV sets, the receipt of a backpack of cash, or any other asset that magically appears in the home of a politically connected person or family member – assets that have been provided, gifted or loaned from any entity or related party to that entity, including officials, directors, shareholders, lovers, wives, children and so on?

What action is being taken?

Many years ago, Sars arrested the partner of an accounting firm over some or other nebulous transfer pricing matter to make a point. Nowadays, apart from the occasional press appearance of the commissioner mentioning tax dodgers, and the odd press release, we see no action being taken against the recipients of the illicit proceeds from state capture.

Is Sars waiting for the National Prosecuting Authority (NPA) to do the necessary? Sars can surely proceed with civil action?

On this note, the virtual Tax Indaba 2020 to be held this week (September 7 to 9) will be covering sin taxes, illicit trade, and ‘taxing the tenderpreneurs’, as well as other topics. Commissioner Kieswetter will be making the keynote speech.

Read: Why there are no orange jump suits for the crooks

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In the 1930’s the famous American gangster’Al Scarface Capone’ avoided law enforcement agencies for years, however , they finally caught him on the comparatively lesser crime of tax evasion ,and locked him away
SARS could assist the seemingly hamstrung NPA by doing lifestyle audits which are not as politically sensitive to instigate -imagine the tax they could generate on the looted billions?
It’s already very clear that SARS are going to be extremely desperate for the revenue very soon

Non-action by SARS effectively condones the free cars and other “fringe benefits”.
The so called lifestyle audits also seem to be a non starter. Seems like a coordinated drive to nothing which simply encourages more activities of a similar nature.

Should have bought a Nissan gtr.

Great choice! These WMC creations?

Isn’t Nissan Japanese? So it’s more YMC then, hahaha!

Years ago in the USA, Al Capone went to jail for tax evasion. The notorious criminal proved impossible to be convicted of any other crime. Here in SA we have our prosecutors seemingly doing nothing but they are painstakingly trying to put together cases against a multitude of fraudsters. Including our ex president. In this particular case SARS actively prevents the prosecutors from looking into his tax affairs. Why?
In all these corruption cases, if the proof of corruption cannot be found, why does SARS not simply audit their affairs and reclaim unpaid tax or put people away if tax is not paid on bribes? Why Mr K?
Is it because you have been instructed to leave alone the perpetrators of this thievery? Or does your agency not have capacity? We need to know. Now!

Good questions.
What action is being taken related to all the corruption that has been and is still beiign exposed?

Barbara! How could you?

According to her evidence, the principled recipient of the Aston Martin insisted on making a personal contribution to the cost of the car saying ‘I have my own pride.’ (see https://www.businesslive.co.za/bd/national/2020-09-03-nomvula-mokonyane-says-she-got-a-r3m-aston-martin-through-a-family-friend/).

Furthermore, according to her Senior Counsel, she suffers from comorbidities, (see https://www.dailymaverick.co.za/article/2020-09-03-mokonyane-sinks-under-weight-of-contradictions-at-zondo-commission/, one of which may be Urophobia (see https://www.timeslive.co.za/politics/2017-08-08-white-people-cant-urinate-on-the-countrys-democracy-says-nomvula-mokonyane/)

Which car do you want? *Flips page of magazine*. THAT one!

Goes 90km/h on the highway.

Has Jacob Zuma filed a tax return in the past decade? Or ever?

And what about the perks tax due on Nkandla, Mr Kieswetter .

In my view this summarises that SARS has been captured since Gordhan’s time as my guess is that these apparatchiks never looked into ANC cadre corruption at all. Nothing has changed.

As with the application of “the law” in S.A. whereby the politicos and the cadres are subjected to one interpretation of “the law” and the rest of the citizens another, SARS does likewise. SARS avoids the former group and concentrates on the easy targets ….. getting the last rand out of the general PAYE employee using harassment tactics.
Until such times as all parties are treated equally, SARS will have little respect.
Of course it is easy for SARS to constantly hide behind confidentiality.

Indeed, our company was recently threatened with a fine, interest, if not criminal charges, for R 1.38 apparently outstanding. When it comes to mieljons, bieljons and lately trieljons, they are not so concerned.

South African taxpayers are mostly law-abiding citizens, but rest assured we will take our cue from those selected to lead us. It may take time to overcome ourselves, but do not be surprised when people start to figure out how to play the tax boycott game.

I would be very interested to find out if SARS are auditing the big players in the FX industry. Whilst my knowledge of forex trading is basic, i understand that one would electronically deposit into the platform and thereafter withdraw profits directly from platform into ones bank account therefore the individual would be responsible for paying the tax.

The interesting thing is that the people that are “flexing” online are mentors, IB’s and owners of platforms…highly doubt they are paying what is due however they are all driving supercars and living in mansions whilst their students lose the little they have…

Here we have selective prosecution system that only pursues those citizens who are trying their very best to comply with rules and laws that govern our country whilst the criminals and extremists thrive on their ill gotten gains as their is no disincentive.

This year South Africa has been ranked 3 on Bloombergs Missery Index, we are behind Venezuela and Argentina.
Every metric shows a simalr picture of how bad things are.

https://www.bloomberg.com/news/articles/2020-08-06/misery-ranking-will-show-u-s-getting-worse-versus-rest-of-world

SARS is CAPTURED.

If they weren’t, we would have read of the auctioning of corrupt politicians / tenderpreneurs assets on a daily basis.

I’m sorry that I had to break the bad news to you on this Monday, but it is best that you know my dearest taxpaying sucker, in the unlikely event that you didn’t know yet.

The problem starts at the top i.e. SARS is essentially captured. The self employed General Practitioner practicing from at home with Whattsapp consultations is denied a deduction for his internet line while a collection of some of the biggest criminals i.e. the ANC and EFF steal the country into bankruptcy.

Not one Eskom person arrested or taxed (for donations). Not one at SAA, Denel, SAPS, PRASA, SADF, Bosasa, etc.

I am afraid that Mr Kieswetter has lost any and all respect.

Steal
All
Revenue
Stealthily

Ah the benefits of being politically connected – tax what’s that – think Zuma and Malema and Gigaba and, and

And then move on to Hamilton Ndlovu who bought 5 new Porsche SUV’s, a Lambo Urus and Jeep for Mom, Kids, Wife and Lover etc……really and there are no consequences.
A school friend Mr Dave King had to fork over R700m to SARS to settle his tax affairs – and these cadres get away with paying ZERO. Something is amiss here!

Tax-payers, the most powerful group in the country, should learn how to mobilize because if they do, I guarantee you Government will have to listen.

And how do you propose we do this?
Majority of tax payers work for the “Big Corporates” who kneel and are at the whim for everything this government imposes on us.
How do you withhold tax when your employer pays this over on your behalf anyway?

Well, let’s say we test the law which states that corporate businesses has to deduct tax from their employees. Why are employees not given the option to choose whether they want this or not? Then, one can hit overdrive and start boycotting sars.

Last year, there was an article from SARS stating that’fewer than 3 million South Africans pay 95% of all taxes.’ That’s ALL taxes – income, VAT, corporate, CGT and all the hundreds of other stealth taxes and levies that are imposed on us. Now, would SARS like refute the statement above? If not, we few taxpayers are in a very powerful position. We pay to run the country. There are approximately 60 million people in South Africa, but 3 million supply 19 million people with social grants. We supply ‘free’ education. ‘Free’ healthcare. ‘Free’ housing. Plus the fatcat salaries of public servants who account for almost half of tax income. Methinks we need to work out how to leverage our power now.

SARS Press release dated 4th September 2020 :
“SARS is committed to leave no stone unturned in seeking and punishing those that wilfully transgress the law and engage in criminal malfeasance to deprive the fiscus of legitimate resources.”

Really, Mr Kieswetter and company ?
Its not as if you don’t know who the wilful transgressors are …
Question is, why aren’t you doing anything about it ?

There’s a nice Afrikaans term for this behaviour: Bangbroek!

Today I hear on the radio that there is a draft bill to imprison ANYONE who even unknowingly defaults on a tax return, without recourse to trial.

If this comes into law, expect a greater exodus and will the cadres be jailed? I somehow doubt it.

Gosh, luckily it’s only a draft bill!
Which radio station do YOU listen to? Me thinks any such law would be wholly unconstitutional…

CapeTalk 567 which also hosts Bruce Whitfield. Kieswetter came back on to clarify that it wouldn’t be as radical as that but when the money runs out, who knows. Yes, it is still a draft bill but with the incompetents in parliament following the party line, it may still happen.

Excellent point, Barbara

Kieswatter is preparing the nation for the biggest tax shortfall in our history on TV. Someone should ask him how much he is expecting to get from donations and gifts taxes in Oct with the mini-budget. He’s likely not to have the faintest clue….

Like everything with this rotten, corrupt and dysfunctional government, the laws are applied to the largely law-abiding citizens whilst the majority of the the population are excused from scruting.

SARS will bust your balls over a dispute on travel allowance – but ignore the corrupt cadres, SAPS were hounding and arresting citizens for COVID mis-demeanours – like walking on the sand and not on a board-walk whilst tens of millions of people transgressing every single COVID regulation in townships around the country were not policed.

The only intent from the government is to provide a facade to try and show that the system is functioning, whilst studiously ignoring the massive government and ANC crimes.

It is a disgrace – but standard operating procedure for any african /african country …

This just highlights the unfairness in SA, always picking on the small targets. We got taxed on the promotional items our employer gave us as a gift!

Perhaps he does not watch T V or listen to the radio? He should have an employee listening to the evidence at the Zondo Commission and the next day questions should be addressed to the witnesses for an explanation. After all, my query on medical expenses arrived one day after efiling my return so it can be done.

Issue Tax certificates for Government and Municipal Tender . It’s a start . You can then track every cent paid out ……

Well done Barbara on a brilliant article. Reading all the comments there can be no doubt that SARS is captured. I have over the past 3 years repeatedly reported massive corruption, fraud and possible money laundering to SARS, the CIPC and other applicable state organisations, without success. There are Public AND Private Companies buying and selling properties worth BILLIONS of Rands, and they have not even filed Income Tax Statements for the past 8 years, yet they are not even looked at by SARS and the CIPC. SARS and the CIPC MUST WAKE UP NOW ! My little one man business have just been charged R 1 000 PLUS INTEREST, which ( according to SARS) has been underpaid by me in 2013.

Mr Kieswetter likes to talk to the media. What about a podcast with Ryk? Go for it MW!

I am so g@tvol of this current regime.

I understand that the head honcho of SARs is a card carrying ANC member.
the ANC are not known to act against their own.
i well remember Tony Yengeni being supported by MP’s and Ministers on his vway to prison.

According to several ex-SARS staff and members of the political community, “ANC connected so protected” began during the Commissionership of Pravin Gordhan.

It is yet to stop.

Consequence authority? Nil we see.

Nothing will come of the Zondo farce.
Nothing will come of the SARS enquiry.
Nothing will come of NPA.
Nothing is accountable anymore.
No consequence management.
Nothing.

Make it mandatory to have a tax clearance certificate when applying for credit . Both for individuals and entities. This can run along side FICA requirements . SARS wouldn’t have do anything ! The Banks will do it for you ……..It’s a no brainer

I doubt that will help, it will just bog down the system. The beneficiaries of corruption have probably filed returns and so their tax affairs appear to be up to date but they will not have declared the proceeds of their corrupt activity. There is plenty of evidence from the Zondo Commision and others and so all SARS needs to do is raise the assessment based on the testimony given at the commission and it is up to the taxpayer then to show it is not true.

Another source of information would be the ANC donors. Did the donors have sufficient income to make the donation?

From the SARS website

“A donation is any gratuitous (free or at no charge) disposal of property including any gratuitous waiver or renunciation of a right. If the person (donee) receiving the donation gives anything in return, that it is not a donation.

A donation takes effect when all legal formalities for a valid donation have been complied with (section 55(3)).

Donations Tax Rate is a flat rate of 20% on the aggregated value of property donated not exceeding R30 million, and at a rate of 25% on the value exceeding R30 million (section 64(1)). Take note of the following – in determining the R30 million threshold, the aggregate value of property donated commences from 1 March 2018 to date of current donation. Any donations made prior to 1 March 2018 must not be taken into account; the aggregate value of property to determine the R30 million threshold is calculated after deducting any exemptions (s56); where the donor has exceeded the R30 million threshold, all subsequent donations will be taxed at the rate of 25%.”

So the donor is liable for the taxation on the donation, not the recipient – donee.

Where public officials are tripped up is in the declaration of benefits received to Parliament. Indeed, a lifestyle audit and a capital reconciliation would highlight any discrepancies, if Sars cares to do it.

Much easier for Sars to go after compliant tax payers and make their lives a misery.

Just to clarify donations tax.

The recipient of the donation is doing it for services to be rendered and therefore falls into the gross income definition and is fully taxable.

I very much doubt that any services are rendered. Ask Vincent Smith, who explained it as a loan … never to be repaid?

End of comments.

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