Krok v CSARS (20230/2014, 20232/2014) [2015] ZASCA 107; 2015 (6) SA 317 (SCA); [2015] 4 All SA 131 (SCA); 78 SATC 1 (20 August 2015)

Krok v CSARS (20230/2014, 20232/2014) [2015] ZASCA 107; 2015 (6) SA 317 (SCA); [2015] 4 All SA 131 (SCA); 78 SATC 1 (20 August 2015)

The Supreme Court of Appeal held that the Protocol amending the Double Taxation Agreement between South Africa and Australia, and specifically article 25A, applies to taxes of every kind and description for the purposes of mutual assistance in tax collection, without temporal limitation. The court found that the reference to 'taxes referred to in article 2' includes article 2.4, which expressly covers taxes of every kind and description for the purposes of articles 25 and 25A. The court rejected the appellants' argument that article 13(2)(a)(ii) imposed a temporal limitation, finding that article 13 only specifies the effective dates for amendments and does not restrict the scope of...

Citation
[2015] ZASCA 107
Parties
Appellant: Mark Krok; Appellant: Jucool Enterprises Inc.; Respondent: The Commissioner for the South African Revenue Services
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 August 2015
Case Number
20230/2014, 20232/2014
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Maya, Mhlantla, Wallis, Dambuza, Meyer
Legal Topics
Double Taxation Agreement, Preservation Order, Tax Collection Assistance, Exchange Control Regulations, Beneficial Ownership, International Tax Enforcement
Tax Law Civil Procedure Double Taxation Agreement Preservation Order Tax Collection Assistance Exchange Control Regulations Beneficial Ownership International Tax Enforcement

Case Brief

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Parties

Mark Krok

Appellant

Jucool Enterprises Inc.

Appellant

The Commissioner for the South African Revenue Services

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether the preservation order granted under sections 163 and 185 of the Tax Administration Act and article 25A of the Protocol to the Double Taxation Agreement between South Africa and Australia was correctly confirmed.
  2. 2 Whether the Protocol and article 25A apply to tax claims arising before 1 July 2009.
  3. 3 Whether Jucool Enterprises Inc. established beneficial ownership of the assets subject to the preservation order.

Ratio Decidendi

The Supreme Court of Appeal held that the Protocol amending the Double Taxation Agreement between South Africa and Australia, and specifically article 25A, applies to taxes of every kind and description for the purposes of mutual assistance in tax collection, without temporal limitation. The court found that the reference to 'taxes referred to in article 2' includes article 2.4, which expressly covers taxes of every kind and description for the purposes of articles 25 and 25A. The court rejected the appellants' argument that article 13(2)(a)(ii) imposed a temporal limitation, finding that article 13 only specifies the effective dates for amendments and does not restrict the scope of...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • The preservation order granted by the Gauteng Division of the High Court, Pretoria, is confirmed.