The issue was the correctness of granting a
preservation order under a double taxation agreement in respect of an alleged
income tax debt owed to Australia by a South African expatriate.
The SCA dismissed the taxpayers appeal. The SCA
rejected the arguments made on behalf of taxpayer and Jucool that: (a) that the
relevant provisions of the DTA can only be invoked if the taxes claimed by the
ATO arose on or after 1 July 2009 – after the protocol came into effect and (b)
that Jucool was the beneficial owner of Mr Krok’s South African assets.
The SCA held, in relation to (a), that on a proper
interpretation thereof having regard to the approach to be adopted in
construing the relevant provisions, the DTA and the protocol applied to taxes
of every kind and description, including tax liabilities which arose prior to
the commencement date of the protocol. In relation to (b), the SCA held
that as the taxpayer’s assets are situated in South Africa and not in the
British Virgin Islands their fate must accordingly be decided in terms of the
relevant South Africa law.
Section 240A of the Tax Administration Act, 2011 (as amended) requires that all tax practitioners register with a recognized controlling body before 1 July 2013. It is a criminal offense to not register with both a recognized controlling body and SARS.