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A Custom(ised) VAT Analysis

21 November 2013   (1 Comments)
Posted by: Author: Ross Robertson
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Author: Ross Robertson (Norton Rose Fulbright)

A recent decision of the Supreme Court of Appeal has attracted a significant amount of attention. The court dismissed an appeal by a licensed foreign exchange dealer, Master Currency, against a revised value-added tax (VAT) assessment for two of its branches in the duty-free area at OR Tambo International Airport. Historically, the company had assumed that no VAT was chargeable as it was operating the branches in the duty-free area of the airport, which it considered to be located outside the Republic. The South African Revenue Service (SARS) disagreed with the taxpayer’s interpretation of a "duty-free area”, stating that the fees received by the two branches for a period from October 2003 to January 2005 were subject to output VAT at the standard rate of 14%. The SCA upheld the decision by the tax court that the services rendered by Master Currency at the airport were indeed subject to VAT at the standard rate as opposed to the zero-rate as the taxpayer contended.

Master Currency’s argument, that the Value-Added Tax Act, 1991 (VAT Act) does not apply to the supply of goods and services in a duty-free area, was not based on any particular provision of the VAT Act. The court referred inter alia to section 7(1)(a) of the VAT Act which, states that the section applies to the whole of South Africa. Since Master Currency was unable to show that it escaped liability from VAT at the standard rate through any particular zero-rating provisions, its application of the zero-rate was unfounded and the standard rate thus applied. Through the development of the Master Currency case and interactions with various other businesses located in duty-free areas, it has emerged that the industry understanding and practice was that all supplies made within these areas fall within the zero-rating provisions of the VAT Act.

This understanding is at odds with the Appeal Court’s decision in the Master Currency case. When the definition of "Republic” as contained in the VAT Act is referred to, it is difficult to see, in the absence of any specific provisions to the contrary, how the zero-rate could apply in respect of duty-free areas based on the argument that they are located outside the Republic, which includes the entire territory of the Republic of South Africa including territorial seas. Master Currency was unable to point to a specific provision in the VAT Act to justify the zero-rating. The closest reference to a duty and tax-free shop being found in section 11(1)(v) of the VAT Act, which states that the supply of goods by an inbound duty and tax-free shop will be zero-rated. This by definition cannot extend to outbound duty and tax free shops, which is perhaps the reason for Master Currency’s erroneous interpretation.

However, an interesting angle on the matter in question emerges if one enquires further into the concept of "duty and tax free shops”. As contemplated in the Customs and Excise Act (Rule 21.04.01, of the Customs and Excise Act, 1964 Amendment of Rules), "duty and tax free shops” are defined as special Customs and Excise storage warehouses licensed for the purpose contemplated in the Rules. Rule 21.04.01 defines "duty or tax free” to mean, in relation to duty free shops, that goods are sold at a price that does not include any duty or tax leviable in terms of the Customs Act or any VAT leviable in terms of the VAT Act. As noted above, the concept of an "inbound duty and tax free shop” is defined in section 1 of the VAT Act as being given the meaning contemplated in the Customs and Excise Act. No specific mention is made of "outbound duty and tax free shops”.

If one explores the Customs and Duties Excise Act, there is no specific definition of "duty and tax-free”. However, in a Government Notice dated 5 June 2009, and signed by the then acting Commissioner for the South African Revenue Service (SARS), the Customs & Excise Act, 1964 Amendment Rules No. DAR/52 came into effect. This amendment of rules, under section 120 for the purposes of section 21 of the Customs and Excise Act of 1964, states that the rules published in the Government Notice, 874 of 8 December 1995 are amended to the extent set out in the schedule with effect from 10 June 2009. This means that all of these rules are binding as interpreted in the context of the Customs & Excise Act. In these amended rules, the definitions expounded on present a basis of reliance that business operating in duty free areas may seek to explore in more detail in order to justify their reliance on the zero-rating provisions of the VAT Act.

Firstly "airport” is given the meaning of an international Customs and Excise airport listed as a warehouse in item 200.02 of the Schedule to the rules and approved by the Commissioner as a place where Customs and Excise warehouses operating as inbound and outbound duty and tax free shops may be established. "Duty and tax free”, in relation to a "duty and tax free shop”, goods that are sold at a price which does not include any duty leviable in terms of the Act or any Value-added tax leviable in terms of the Value-Added Tax Act, 1991 (Act No. 89 of 1991). "Duty and tax free shop” means a special Customs & Excise storage warehouse licensed for the purposes contemplated in these rules.

Firstly "airport” is given the meaning of an international Customs and Excise airport listed as a warehouse in item 200.02 of the Schedule to the rules and approved by the Commissioner as a place where Customs and Excise warehouses operating as inbound and outbound duty and tax free shops may be established. "Duty and tax free”, in relation to a "duty and tax free shop”, goods that are sold at a price which does not include any duty leviable in terms of the Act or any Value-added tax leviable in terms of the Value-Added Tax Act, 1991 (Act No. 89 of 1991). "Duty and tax free shop” means a special Customs & Excise storage warehouse licensed for the purposes contemplated in these rules.

It is submitted that qualification via this licensing process validates all the other rules that are then applicable to duty and tax-free shops. Returning to the definition of "duty and tax-free”, one notes that if you are a "duty and tax-free shop”, the sale of "duty and tax-free” goods means that those goods are sold at a price that does not include any duty leviable in terms of the Customs & Excise Act or any VAT leviable in terms of the VAT Act. This explicitly means that any sales made in carrying on a trade as a duty and tax free shop must be made with VAT charged at zero percent, as no VAT is allowed to be levied because the vendor making the supplies is a licensed duty and tax-free shop.

In order to formulate a comprehensive argument, one would then have to consider whether or not the Commissioner would have grounds to attack the inputs claimed by the respective vendors on the basis that any sales made by the vendor are free of VAT (i.e. supplies other than taxable supplies). It is submitted that no such grounds exist because the definitions expounded on in these rules apply only to goods sold. There is no reference to input purchases made. No link is made in the rules between the making or the purchasing of inputs and the making of these taxable supplies. In consequence, it is submitted that, even though taxable supplies are being made, no VAT is leviable in terms of the VAT Act; not because of any exemption in the VAT Act but because the Customs & Excise Act requires that duty and taxfree shops only sell products that do not include a VAT element.

We acknowledge that the Commissioner could argue that a "duty and tax free shop” by its very nature falls outside the VAT net, with the result that it is making exempt supplies and may not claim input tax on its expenditure. However, the Commissioner, in our view, cannot have it both ways. Either the person is a registered vendor with access to the input tax provisions, in which case our argument would be for the zero rate of output VAT, or the person is outside the VAT net and neither able to claim input VAT nor liable to recover output VAT.

This article was first published in TaxTalk magazine - November/December

Comments...

André J. van Staden says...
Posted 25 November 2013
In my view the situation should be rectified with amending legislation

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