Weare v Commissioner for South African Revenue Service (401/2003) [2004] ZASCA 89; [2004] 4 All SA 520 (SCA); 2005 (4) SA 488 (SCA); 67 SATC 31 (29 September 2004)

Weare v Commissioner for South African Revenue Service (401/2003) [2004] ZASCA 89; [2004] 4 All SA 520 (SCA); 2005 (4) SA 488 (SCA); 67 SATC 31 (29 September 2004)

The court held that the appellant's reliance on section 44(1) was misplaced. The overpayment resulted from overstating output tax by including take-back winnings, not from under-deducting input tax. Regardless of the calculation method, the substance remained that take-back winnings were treated as output tax. Therefore, the refund was not due under section 44(1) but under section 44(2)(a), subject to section 44(3). The evidence established that the inclusion of take-back winnings as output tax was a practice generally prevailing among bookmakers. The appellant failed to discharge the burden of proving otherwise. Consequently, the refund was limited to the overpayment made in the...

Citation
[2004] ZASCA 89
Parties
Appellant: Michael Weare; Respondent: Commissioner for South African Revenue Service
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2004
Case Number
401/2003
Procedural Posture
Civil Appeal / Appeal From the Natal Income Tax Special Court
Outcome
Appeal dismissed with costs, including costs occasioned by the employment of two counsel.
Judges
Scott, Farlam, Mthiyane, Cloete, Erasmus
Legal Topics
Value Added Tax, Refund of Overpayment, Prevailing Practice, Input and Output Tax, Burden of Proof
Tax Law Value Added Tax Refund of Overpayment Prevailing Practice Input and Output Tax Burden of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

Michael Weare

Appellant

Commissioner for South African Revenue Service

Respondent

Procedural Posture

Civil Appeal / Appeal From the Natal Income Tax Special Court

Legal Issues

  1. 1 Is the appellant entitled to a refund of overpaid VAT under section 44(1) or section 44(2)(a) of the Value-Added Tax Act 89 of 1991.
  2. 2 Was the overpayment made in accordance with a practice generally prevailing, thus limiting the refund to the preceding six months under section 44(3).

Ratio Decidendi

The court held that the appellant's reliance on section 44(1) was misplaced. The overpayment resulted from overstating output tax by including take-back winnings, not from under-deducting input tax. Regardless of the calculation method, the substance remained that take-back winnings were treated as output tax. Therefore, the refund was not due under section 44(1) but under section 44(2)(a), subject to section 44(3). The evidence established that the inclusion of take-back winnings as output tax was a practice generally prevailing among bookmakers. The appellant failed to discharge the burden of proving otherwise. Consequently, the refund was limited to the overpayment made in the...

Court Disposition

Appeal dismissed with costs, including costs occasioned by the employment of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs occasioned by the employment of two counsel.