Rossi & Others v CSARS (A5022/2011, 34417/201009)  ZAGPJHC 14
03 April 2013
Posted by: SAIT Technical
South Gauteng High Court delivered its judgment in the appeal of Petro Rossi
(first appellant), Antonia Pera (second appellant), P & R Construction
Civil Engineering Contractors (third appellant) and SARS (respondent) on 21
February 2012. The third applicant is a partnership in which the
first and second applicants are the partners.
The appellants had previously made an application to the South
Gauteng High Court to compel SARS to authorise the payment of a refund in terms
of section 102 of the Income Tax Act and also sought a declaratory order that a
letter from SARS dated 19 October 1999 did not constitute an assessment. The appellants also sought an order that the SARS
pay interest and costs.
No decision was made in the previous matter as the application was
decided on the basis that the High Court did not have jurisdiction to decide
the matter. Leave was granted to appeal to this court.
applicant’s allege that during October
1999 SARS officials inspected the third applicant’s business premises for the
purposes of conducting an audit. SARS held the third applicant to be liable for
R467390 employees’ tax in respect of the tax years from 1 March
1998 to 28 February 1999 and from 1 March 1999 to 28 February 2000.
liability appears in a letter dated 19 October 1999 addressed by the respondent
to the third applicant.
applicants alleged that the letter of 19 October 1999 did not constitute an
assessment because there was not a ‘notice’ in terms of section 77(5) of the
Act and the applicants were not informed of their rights to object to the
third applicant entered into negotiations with the respondent and claim that
they were lulled into a false sense of security, thinking that the matter had
been resolved. They received no further communication from the respondent for
almost seven years.
the respondent, contends the third applicant was assessed by him on 20 October
1999, and relies on a document, separate and distinct from the letter of 19
October 1999, as the revised ‘assessment’.
applicants contend that the notices attached do not constitute proper
‘assessments’ , for the simple reason that they have never been issued and
served on the applicants, and therefore do not constitute assessments in terms
of the Act.
was held that it is unnecessary to consider the arguments that were presented
to the court in regard to the provisions of this section in the Act. It is
time-honoured principles applied in our courts relating to disputes of fact in
motion proceedings which are dispositive of the appeal.
NP Willis noted the general principles applicable to
resolving disputes of fact in motion proceedings.
facts as stated in the respondents’ affidavits together with the admitted or
undisputed facts in the applicants’ affidavits form the basis for application
and where the application cannot properly be decided on affidavit, then it
should be referred either to oral evidence or to trial, whichever is more
allegations or denials of the respondents are far-fetched or untenable, the
court may reject them merely on the papers. It was held that it cannot be said,
merely from the papers in this case, that the factual dispute is neither
genuine nor tenable.
appeal was dismissed with costs.
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