Commissioner, SARS v Van Kets  JOL 28416 (WCC)
09 May 2012
Posted by: SAIT Technical
In March 2009, the SARS (applicant) received a request from the Australian Tax Office ("ATO”) for information in terms of the double tax treaty ("DTA”) between South Africa and Australia.
It appeared to be common cause that the respondent possessed the information which ATO had requested from applicant and that such information could not be obtained, in that respondent refused to disclose the information on the basis that it was confidential.
Accordingly, the applicant sought orders declaring that section 74A and 74B of the Income Tax Act 58 of 1962 may be invoked by it for the purpose of obtaining information from the respondent in order to comply with its obligations under the DTA which contained a provision for the exchange of information.
Held that the crisp issue for determination was whether the words "any taxpayer” as used in section 74A and 74B can be interpreted to include a person who is not a taxpayer as defined in section 1, but who, in terms of the DTA, has been identified as the person who can provide the information pursuant to the request. The respondent's case was that section 74A and section 74B only apply to information which is possessed by a taxpayer as defined in terms of section 1.
The provisions of the DTA, in terms of section 231 of the Constitution, must rank at least, equally with domestic law, including the Income Tax Act. when the DTA is read together with the Act so as to render the one congruent with the other, the applicant was entitled to act in terms of sections 74A and 74B, and to require another person, in this case the respondent, to furnish such relevant information.
The application accordingly succeeded.