Commissioner for Inland Revenue v Kuttel (349/90) [1992] ZASCA 60; 1992 (3) SA 242 (AD); [1992] 2 All SA 151 (A) (31 March 1992)

Commissioner for Inland Revenue v Kuttel (349/90) [1992] ZASCA 60; 1992 (3) SA 242 (AD); [1992] 2 All SA 151 (A) (31 March 1992)

The court held that the respondent was not ordinarily resident in South Africa during the relevant tax years. The respondent had made a clear decision to emigrate to the United States, established his home and family life there, and only returned to South Africa for business and personal reasons. His retention of assets and property in South Africa was due to exchange control regulations and prudent financial management, not an intention to remain ordinarily resident. The respondent's visits to South Africa were not for the purpose of returning home but were primarily for business and other personal matters. The court adopted the formulation that ordinary residence is where a person has...

Citation
[1992] ZASCA 60
Parties
Appellant: Commissioner for Inland Revenue; Respondent: Peter Clark Kuttel
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 1992
Case Number
349/90
Procedural Posture
Civil Appeal / Appeal From Special Income Tax Court
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Corbett, Smalberger, Kumleben, Goldstone, Harms
Legal Topics
Ordinary Residence, Income Tax Exemption, Burden of Proof, Exchange Control Regulations
Tax Law Ordinary Residence Income Tax Exemption Burden of Proof Exchange Control Regulations

Case Brief

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Parties

Commissioner for Inland Revenue

Appellant

Peter Clark Kuttel

Respondent

Procedural Posture

Civil Appeal / Appeal From Special Income Tax Court

Legal Issues

  1. 1 Whether the respondent was 'ordinarily resident' in the Republic for the relevant tax years.
  2. 2 Whether the respondent was entitled to exemptions under s 10(1)(h)(i) and s 10(1)(k)(ii) of the Income Tax Act 58 of 1962.
  3. 3 Whether the respondent's visits and retention of property in South Africa constituted ordinary residence.

Ratio Decidendi

The court held that the respondent was not ordinarily resident in South Africa during the relevant tax years. The respondent had made a clear decision to emigrate to the United States, established his home and family life there, and only returned to South Africa for business and personal reasons. His retention of assets and property in South Africa was due to exchange control regulations and prudent financial management, not an intention to remain ordinarily resident. The respondent's visits to South Africa were not for the purpose of returning home but were primarily for business and other personal matters. The court adopted the formulation that ordinary residence is where a person has...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs.
  • Costs to include those consequent upon the employment of two counsel.