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VAT case no 789: Commissioner's power in terms of section 20(7) not subject to objection and appeal

30 December 2012   (0 Comments)
Posted by: SAIT Technical
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The Tax Court (Pretoria) delivered its judgment in the matter between F- CC and SARS on 10 September 2012.

Background

The taxpayer submitted vague VAT return that were not supported by VAT input invoices, although the taxpayer deducted the purchase prices of the goods he obtained from the output amounts. The Commissioner decided to institute a tax audit on the issues of assessment on the 7th of March 2008 in the amount of R4 553 000.

The taxpayer objected on the basis that the tax invoices could not be obtained from the supplier due to an alleged fraud perpetrated by an administrative official in the supplier’s service. Reliance was placed on behalf of the taxpayer on section 20(7) 0f the VAT Act 89 of 1991.

Section 20(7) that the Commissioner may direct that a tax invoice is not required where he is satisfiedthat there are or will be sufficient records available to establish the particulars of any supply or category of supplies, and that it would be impractical to require that full tax invoice be issued.

The taxpayer appealed against this assessment in the failure to act in terms of Section 20(7).

The Commissioner raised the pointin liminethat this court does not have jurisdiction to deal with an appeal against the decision by the Commissioner taken under section 20(7).

Issue

Does the Tax Court have the jurisdiction to deal with an appeal against the decision by the Commissioner taken under section 20(7)?

Judgment

Section 32 lists sections that governed decisions by the Commissioner against which an objection can be raised.

Section 20 (7) is not on this list.

Section 33 of the VAT Act deals with appeals to the Tax Court and refers to matters in section 32.

It was held that the Commissioner is correct when he submits that the Tax Court cannot entertain the appeal on this ground.

It was further held thatrelief based upon a review which can only be launched in terms of the Promotion of Administrative Justice Act is beyond the jurisdiction of the Tax Court and that review must be brought before the High Court.

Please click here to download the full judgment.




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