In the tax court Johannesburg held at Megawatt Park: case no 11641
04 December 2006
Posted by: TaxFind™
In the matter between Appellant and the commissioner for the South African Revenue Service
Judgment given on 4 December 2006
The appellant had paid admission of guilt fines for not having submitted tax returns for several years.After he was assessed for tax, the Commissioner required the payment of additional tax.The appellant appealed against that decision, arguing that the levying of additional tax after an admission of guilt fine was paid was constitutionally impermissible, insofar as it infringed against the right to a fair trial.
Held that in terms of section 76(1)(a) of the Income Tax Act 58 of 1962, a taxpayer is obliged to pay additional tax, in an amount equal to twice the tax chargeable in respect of the taxpayer's taxable income for the relevant year of assessment, if the taxpayer defaults in rendering a return in respect of any year of assessment.
The court held that the constitutional right to a fair trial only accrues to an accused person, ie a person facing criminal prosecution or someone called upon to answer a criminal charge.A taxpayer upon whom additional tax is levied is not an accused person within the meaning of section 35(3) of the Constitution; there is no question of him being tried for an offence or of the proceedings culminating in a conviction with a concomitant criminal record.There is no likelihood of the taxpayer being sentenced to a term of imprisonment or of being deprived of his liberty.Additional tax in terms of section 76(1)(a) of the Act is a penalty of an administrative nature which cannot be equated with a fine imposed by a criminal court.
The appeal was dismissed.
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