AB v Commissioner for the South Revenue Service (35476) [2022] ZATC 9; 85 SATC 377 (23 August 2022)

AB v Commissioner for the South Revenue Service (35476) [2022] ZATC 9; 85 SATC 377 (23 August 2022)

The court held that it does not have the power to refer the matter back to SARS for further examination and assessment before the appeal hearing has commenced. Section 129(2)(c) of the Tax Administration Act only permits such referral after the appeal has been heard. The relief sought by SARS is final in effect, as any new assessment would have immediate consequences for the taxpayer and would not be reconsidered in the main proceedings. The absence of pleadings and disputed facts further precludes the granting of the relief at this stage. The point in limine raised by SARS therefore fails.

Citation
[2022] ZATC 9
Parties
Appellant: AB; Respondent: Commissioner for the South African Revenue Service
Court
Tax Court
Jurisdiction
South Africa
Judgment Date
23 August 2022
Case Number
35476
Procedural Posture
Civil Appeal / Point in Limine Before Commencement of Appeal Hearing
Outcome
The point in limine raised by SARS is dismissed. Costs are awarded to the taxpayer.
Judges
Manoim
Legal Topics
Tax Administration Act, Referral Back to Commissioner, Point in Limine, Final Vs Interim Relief
Tax Law Civil Procedure Tax Administration Act Referral Back to Commissioner Point in Limine Final Vs Interim Relief

Case Brief

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Parties

AB

Appellant

Commissioner for the South African Revenue Service

Respondent

Procedural Posture

Civil Appeal / Point in Limine Before Commencement of Appeal Hearing

Legal Issues

  1. 1 Whether the Tax Court has the power to refer the matter back to SARS for further examination and assessment before the appeal hearing has commenced.
  2. 2 Whether the relief sought by SARS under section 129(2)(c) of the Tax Administration Act is competent at this stage.
  3. 3 Whether the relief sought constitutes final or interim relief.

Ratio Decidendi

The court held that it does not have the power to refer the matter back to SARS for further examination and assessment before the appeal hearing has commenced. Section 129(2)(c) of the Tax Administration Act only permits such referral after the appeal has been heard. The relief sought by SARS is final in effect, as any new assessment would have immediate consequences for the taxpayer and would not be reconsidered in the main proceedings. The absence of pleadings and disputed facts further precludes the granting of the relief at this stage. The point in limine raised by SARS therefore fails.

Court Disposition

The point in limine raised by SARS is dismissed. Costs are awarded to the taxpayer.

Orders

  • The point in limine is dismissed.
  • SARS is to pay the costs of the taxpayer.