Matters for consideration before the court
The parties’ requests to the court were as follows:
The main legal issues for determination by the court were:
SARS raised VAT assessments for the taxpayer’s 2013/11 and 2014/07 tax periods resulting in understatement penalties amounting to R175 million being levied by SARS. The taxpayer objected to these assessments, which SARS disallowed. The taxpayer thereafter delivered a notice of appeal against the disallowance of objection letter on 3 June 2019.
The parties then suspended litigation on this matter so that the legal representatives of each of the parties could meet to ventilate the issues as outlined below.
After some time, the taxpayer applied for a default judgment to set aside the understatement penalties, claiming that SARS failed to file the Statement for a period of nearly two years (i.e. the period between August 2019 and July 2021) and was accordingly in default of the period prescribed by the Rules.
SARS disputed that it was in default for this full period as they (SARS and the taxpayer) had an agreement (reached on 1 August 2019) to suspend litigation, which agreement only lapsed in April 2021 (i.e. when the taxpayer filed the Default Notice).
The court considered in detail the timeline of events as from the date when the notice of appeal against SARS’ disallowance of the objection letter was delivered by the taxpayer.
We provide a schematic summary below showing the relevant dates that were considered by the court in determining whether there was a default by SARS, the validity of the taxpayer’s Notice, and whether SARS’ default warranted a condonation.
Decision of the court
The court set out the different elements which needed to be considered in arriving at its decision regarding the SARS condonation application, namely:
Was there an agreement to suspend litigation?
On the objective facts, the court found that there was an agreement—and therefore SARS was not, as alleged by the taxpayer, in default of filing its Statement for a period of almost two years.
When did the suspension lapse?
On the facts, the court found that there was no default by SARS prior to 21 June 2021 due to the agreement for all litigation to be suspended. The agreement was only terminated (at best) on 15 April 2021 (when the Default Notice was served to the incorrect address).
The validity of the Default Notice
The court considered whether the Default Notice was in fact a notice as envisaged in Rule 564. On the facts, the court found that the notice was invalid as:
Explanation by SARS for the default
SARS had to file its Statement on 21 June 2021, but only filed it on 21 July 2021. SARS explained that the late filing resulted from delays caused by SARS’ attorney of record falling ill with COVID-19 and SARS’ counsel incorrectly diarising the filing date (as 25 June 2021).
SARS requested an extension for the filing at this time, which was refused by the taxpayer. During this time SARS’ counsel contracted COVID-19 and was out of office until 19 July 2021, and on 20 July 2021 SARS attempted to serve the application for condonation for late filing electronically.
In the meantime, the taxpayer had served the application for default judgement on 29 June 2021. The court found that on this timeline, SARS was only in default for a short period of time and that the delay did not result from any non-compliance on SARS’ part, but rather as a result of the conduct of its attorney and counsel.
The court was careful to not create a precedent in which the conduct of legal practitioners excused litigants from the relevant statutory timelines (it was expressly stated that this would not be the case), but it held that considering that the non-compliance by the legal practitioners was not severe nor attributable to any fault of the litigant, “the court will be loath to close the doors of the court to such litigant. Specifically, where the blame on the part of the [legal] representative is slight and the prejudice to the litigant would be severe.”
Prospects of success in the tax appeal
Based on legal precedent, the test for condonation is whether it is in the interests of justice to grant condonation. Relevant factors for consideration include (but are not limited to) –
None of the abovementioned factors are however decisive—the court has to weigh these against each other and determine what the interests of justice dictate. Whether it is in the interests of justice to grant condonation will depend on the facts and circumstances of each case.
The court held that the interest of justice requires that a dispute be adjudicated by an impartial forum, in accordance with the Rules and the provisions of the TAA.
The court considered the facts and circumstances of this case and found that:
Accordingly, the court found in favour of SARS, and granted the condonation application with costs.
Parties in legal proceedings should follow due process when filing the (correct) legal documentation timeously. However, this clearly depends on the facts of each case, and parties should carefully consider the applicable legislation (including the provisions of the TAA and the Rules).
When considering a condonation application for the late filing of legal documentation (whether it is filed by SARS or a taxpayer), the main consideration remains whether the interest of justice will be served by the court granting the condonation.
In the present case, the court held that the importance for litigants to have access to a court of law outweighs a default resulting from a slight time delay (where a satisfactory explanation can be provided for that delay), and where the prejudice to the litigant will be severe if the condonation is not granted.
WRITTEN BY MIRON SAREMBOCK
This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)