There's no hiding from the taxman, as tax authorities can easily detect tax evasion. Admitting your mistakes has its benefits.
Revenue authorities often use third-party information to improve or supplement data from filing and reporting obligations. SARS, for example, can access and utilise third-party information from other government agencies or financial institutions, including international exchange networks, to enforce compliance.
Tax standards continue to evolve, and authorities have established cooperative measures with the private sector to exchange information digitally and adopt more real-time approaches to administering common rules. In some cases, SARS has even obtained confidential bank data through whistleblowers.
Taxpayers are incentivised to participate in the voluntary disclosure program, which offers a
waiver of penalties and criminal prosecutions. Under South African tax law, anyone who
willfully or negligently fails to submit a return or document, declares false information, or
under-declares income to SARS is guilty of an offense and is liable, upon conviction, to a
fine or imprisonment.
The Voluntary Disclosure Program (VDP) in South Africa aims to encourage delinquent
taxpayers who have failed to comply with tax obligations to voluntarily regularise their tax
affairs. In return, they receive some degree of immunity and relief from legal prosecution and
penalties. The VDP serves as a legal remedy to motivate all taxpayers in default to approach
SARS through this statutory recognised program.
To qualify for the VDP, the application must be voluntary, involve a default, be full and
complete, not result in a refund due from SARS, be made in a prescribed form, and involve
behaviour that resulted in an understatement, failure to take reasonable care, or an
impermissible avoidance arrangement.
However, if the default was caused by gross negligence or intentional tax evasion, SARS
may impose penalties and deny the relief. Additionally, if SARS has already started an audit
or criminal investigation into a taxpayer's affairs, VDP benefits may be denied.
In a 2020 case, the Supreme Court of Appeal held that the requirement of 'voluntary' means
that the actions of the taxpayer must be "acting or done of one's own free will without
valuable consideration or legal obligation."
SARS has adopted the practice that, due to legislation compelling taxpayers to submit
returns once registered, applying for VDP will not be considered voluntary if the taxpayer has
failed to submit returns. The writer disagrees with this rule for the following reasons:
Firstly, the Court denied VDP relief because the taxpayer first engaged with SARS to
determine whether a transaction was subject to tax. SARS affirmed this, and about a year
later, the taxpayer applied for VDP but was denied since SARS was already aware of the
default, making the subsequent disclosure not voluntary.
Secondly, denying relief to taxpayers wanting to come clean for not having submitted tax
returns contradicts the VDP's purpose, which is to encourage voluntary disclosure and
regularisation of tax affairs.
This practice undermines the VDP's goal as a permanent remedy to motivate all taxpayers in default to approach SARS through the statutory recognised program. It misaligns with SARS' strategic objective to provide clarity and certainty and make it easy and seamless for
taxpayers to comply with their obligations.
If you are in default with your tax affairs, contact SGN Konsult for assistance without further
delay.
BH Groenewald
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