Browsing by Author "Moosa, Fareed"

Now showing 1 - 13 of 13
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    The 1996 Constitution and the Tax Administration Act 28 of 2011 : balancing efficient and effective tax administration with taxpayers' rights
    (University of the Western Cape, 2016) Moosa, Fareed; De Ville, Jacques R; Croome, Beric J
    Taxation is fundamental for development in South Africa (SA), a developing country with an emerging economy in which taxation is essential to capacitate the government so that it can fulfil its mandate under the Constitution of the Republic of South Africa, 1996 (Constitution). This mandate includes bringing about socio-economic transformation, part of transformative constitutionalism, through progressively realising socio-economic rights. This dissertation examines the way in which tax administration may take place efficiently and effectively with due respect for taxpayers' rights. A clear link is shown between taxation, human rights and the South African government's responsibilities to attain its transformation targets. To facilitate this process, the Constitution creates a legal framework for the imposition of tax and for the equitable distribution of tax revenue among the three spheres of government. For historical, political and other reasons, South Africans generally, as happens elsewhere in the world, lack a strong culture of voluntary tax compliance. Wilful non-payment of tax is antithetical to the values of democracy, ubuntu and the rule of law. Tax non-compliance minimises revenue collected from taxation. This, in turn, hinders the attainment of transformation in all its facets. A pressing need exists for laws that, on the one hand, promote tax morality and, on the other, strengthen the South African Revenue Service (SARS) so that it can effectively administer SA's national tax system (or grid). To this end, the Tax Administration Act 28 of 2011 (TAA) is pivotal. It regulates tax administration, a part of public administration. Under the Constitution, SARS is obliged to execute its functions in a manner respectful of taxpayers' rights and that upholds the Constitution’s values and democratic principles. Consequently, the TAA must strike a fair balance between, on the one hand, protecting taxpayers' rights and, on the other, arming SARS with adequate powers with which it can effectively combat the mischief of tax non-compliance. This dissertation shows that, when viewed through the prism of s 36 of the Bill of Rights (BOR), the powers conferred on SARS by ss 45(1), (2), 63(1) and (4) of the TAA to conduct warrantless inspections and searches, as the case may be, limit taxpayers' rights to, inter alia, privacy. It concludes that, whilst ss 63(1) and (4) ought to pass muster, ss 45(1) and (2) are susceptible to a declaration of invalidity under s 172(1) of the Constitution.
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    The appointment of a SARS official as facilitator in alternative dispute resolution proceedings: is it a violation of a taxpayer’s right under section 34 of the Constitution?
    (2024) Yokwana, Mellissa-Jane Ntomboxolo; Moosa, Fareed
    In each year of assessment, qualifying taxpayers are, by virtue of the relevant provisions of the Income Tax Act 58 of 1962 read with the Tax Administration Act 28 of 2011 (‘TAA’), required to submit an income tax return to the South African Revenue Service (‘SARS’). In such return, the taxpayer accounts for income received and accrued in order that the SARS may assess the taxpayer for a potential income tax liability. Upon the issuance of an assessment by the SARS, a taxpayer who is dissatisfied may object to it, in whole or in part. The SARS must consider every objection and decide thereon. A taxpayer who is aggrieved by a decision in relation to an objection may lodge an appeal to a competent Tax Board or Tax Court. Pending the latter adjudicative process, the TAA allows a taxpayer to request that the dispute be referred to ADR facilitated by a person duly appointed in accordance with the law.
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    ‘Citizenship by naturalisation: Are Regulations 3(2)(b) and (c) to the South African Citizenship Act 88 of 1985 invalid?’
    (Juta, 2021) Moosa, Fareed
    This article argues that regulation 3(2)(b), read with regulation 3(2)(c), issued pursuant to section 23(f) of the South African Citizenship Act 88 of 1995 (“1995 Act”), is invalid and ought to be set aside on judicial review. It is argued that they are inconsistent with sections 5(1)(c), (2), (5) and (9)(a) of the 1995 Act. This article shows that, whereas regulation 3(2)(b) requires a foreigner seeking citizenship to be physically present in South Africa and not be absent from the Republic for more than 90 days in each of the five years preceding the date of application for citizenship, no such physical presence requirement is contained in section 5(1)(c), or in section 5 of the 1995 Act in general, if read holistically. Section 5(1)(c) merely requires that an aspirant citizen be ordinarily resident in South Africa for five continuous years immediately preceding the lodgement of an application for citizenship. In the context of section 5(1)(c), the term “ordinarily resident” is interpreted as not requiring a physical presence in South Africa for any period of time during a calendar year. Rather, it merely requires that a foreigner must have sufficiently strong ties to South Africa to support a finding that his real home is there. Therefore, it is hypothesised that the Minister of Home Affairs acted ultra vires the 1995 Act when he issued regulations 3(2)(b) and (c).
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    Consequences for non-payment of PAYE and VAT compared
    (2020) Moosa, Fareed
    This article shows that, whereas a bilateral legal relationship exists between the South African Revenue Service (SARS) and a vendor in relation to value-added tax (VAT), a tri-partite legal relationship exists among the SARS, employees and employers in relation to Pay As You Earn (PAYE). This article shows further that employers are, as withholding agents of PAYE, in the same legal position as vendors as regards VAT, namely, they are not in a trust or agency relationship with the SARS. Rather, this article argues that PAYE is in the nature of trust funds held by employers on behalf of employees from whose remuneration it is deducted. Since the employees retain ownership of the PAYE deducted, this article argues that employees have locus standi to lay a charge of theft against employers who misappropriate PAYE. Such a charge of theft is not grounded in tax administration. This article shows further that, as the law presently stands, a charge of theft falls outside the ambit of the remedies available to the SARS against employers and vendors who default in remitting PAYE or VAT. The Tax Administration Act, 2011 read with the Income Tax Act, 1962 and Value-Added Tax Act, 1991 codified only a limited range of criminal sanctions and administrative penalties that may be imposed against a defaulting employer or vendor. If theft is to be included, then a legislative amendment is required.
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    A cryptocurrency wallet: Is it “relevant material” for tax administration purposes?
    (Siber Ink, 2020) Moosa, Fareed
    This article shows that wallets storing cryptocurrency are intangible property so that they ought to qualify as a ‘thing’ within the meaning of this term in section 1 of the Tax Administration Act 28 of 2011, read with the definition of ‘relevant material’ therein. This article shows further that cryptocurrency ownership is transferred electronically by way of the relevant encrypted ledger information being sent from one crypto user to another. It is argued that this ledger comprises data messages within the meaning of this term in section 1 of the Electronic Communications and Transactions Act 25 of 2002. Accordingly, it is also argued that the digital log of communication pertaining to the creation, storage and transfer of cryptocurrency ought to qualify as information as defined in section 1 of the Tax Administration Act read with the definition of ‘relevant material’. If this contention is correct in law, then SARS’s extensive investigative powers entitle it to access the contents of a taxpayer’s e-wallet. If a taxpayer fails to comply with a lawful demand by a SARS official for access to data of a blockchain in a virtual wallet, then SARS may exercise its powers of search and seizure. If so, then it is argued that taxpayers’ privacy rights entrenched in section 14 of the Constitution of the Republic of South Africa, 1996 ought to apply to all devices and databases on which digital information is stored related to cryptocurrency transactions. Consequently, a taxpayer ought to be entitled to challenge the validity of the investigative power utilised by SARS by seeking to have the relevant legislative provision declared unconstitutional on the basis that it does not pass muster under section 36 of the Constitution
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    Interpretation of wills – Does the Endumeni case apply?
    (Academy of Science of South Africa, 2021) Moosa, Fareed
    This article argues that the general approach to documentary interpretation articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) (Endumeni) applies also to the interpretation of wills, subject to adaptation for context. It is argued that interpretation of wills and the application of an interpretation to a particular factual setting are coequal tasks. Each case must be decided on its own facts. The cardinal rule is the ascertainment of a testator's intention and giving effect thereto, provided that this will not bring about a violation of the law. It is argued that a court must put itself in the armchair of the testator and, after determining where the probabilities lie, it must infer or presume what the testator had in mind at the time that the will was created. Although intention is subjective, the interpretive process to determine a testator's intention is objective in form.
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    A plea of double jeopardy by accused employers: are there limits?
    (Nelson Mandela University, 2021) Moosa, Fareed
    The rule against double jeopardyentails that, generally, apersoncannot be charged more than oncefor the same, or substantially the same, offenceor misconduct in respect of whichhe or she has been convicted or acquitted. Under the Constitution of the Republic of South Africa, 1996, this rule ispart of an accused’s right to a fair trial. This article shows that every employerprosecuted for allegedlynotcomplyingwith either employees’ tax obligations in the Fourth Schedule of the Income Tax Act 58 of 1962,or for an offence at common law,is entitled to raise the procedural defence of double jeopardy. This article arguesthat the recent judgment in Grayston Technology Investment (Pty) Ltd v Sis authority for the proposition that, in any such prosecution,an accused employermay invoke double jeopardy, even if the prior punishment or acquittal stems from non-criminal proceedings under the Tax Administration Act 28 of 2011 before theTax Court or the Tax Board. Akeyhypothesis of this article is the argument thatdoublejeopardyought not to be applied as an inflexible procedural rule in every instance.This is because such an approach would lead to the undesirable result of undermining the Legislature’s objective in catering for criminal and civil sanctionsin respect of certain violations of fiscal legislation. No hard-and-fast rules can be laid down in advance as to when double jeopardy maybe successfully invoked.
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    Property rights in personal information:a South African perspective
    (University of the Western Cape, 2024) Fransman, Marlin Lowell; Moosa, Fareed
    Technological advancements and the increasing speed of communication have given rise to the development of new products and business models. Personal information is a central element of these novel business models. Data subjects can exchange their personal information for goods and services, and businesses generate revenue by monetising such information. While the nexus between technology and personal information has long been recognised, personal information is traditionally seen as an integral aspect of privacy and is most often discussed in the context of privacy and data protection. In light of the commodification of personal information and the recognition of its economic value, it has become necessary to question whether personal information can be understood from a different legal perspective, namely, as property rights (or property interests). This dissertation analyses the data protection regulatory framework in South Africa. The dissertation finds that South African data protection legislation affords data subjects a high level of protection that is comparable to that of the European Union. However, South African legislation does not address or recognise the commodification of personal information. Similarly, the South African Constitution, 1996 does not provide much guidance on this aspect. However, due to the transformative nature and effect of the Constitution, it allows for an interpretation of laws that reflects a changing legal landscape and changed mindset. In this dissertation, an examination of the United States and the European Union reveals that, despite their differing approaches to data protection, the flow of personal information is an important enabler for economic development and creating value. The dissertation finds that data protection mechanisms in both jurisdictions seek to facilitate the flow of personal information and therefore promote the increasing commodification of personal information and its status as an asset.
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    Section 45 of the Tax Administration Act: An unconstitutional limitation on taxpayer privacy?
    (Juta, 2021) Moosa, Fareed
    The Tax Administration Act 28 of 2011 is a law of general application. Section 45 of the Act empowers a SARS official to enter, without a warrant, premises where a trade or enterprise is reasonably believed to be carried on in order to conduct an inspection aimed at gathering information that will aide SARS in determining whether the business operator is compliant with tax obligations. In a constitutional democracy, the enjoyment of fundamental rights has a high premium. Accordingly, every lawful exercise of the power conferred by s 45 must take place in an orderly fashion, with decency and respect for taxpayers and their privacy. The state may not unduly interfere with this right, whether by withdrawing it altogether, abridging it, or diminishing its scope and ambit. This article hypothesises that inspections undertaken in terms of s 45 limit taxpayers’ privacy in a manner that may not pass muster under s 36(1) of the Constitution of the Republic of South Africa, 1996. On this basis, it is argued that, to cure its deficiencies, s 45 ought to be amended by the introduction of the provisions proposed in this article.
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    Tax Administration Act: Fulfilling human rights through efficient and effective tax administration
    (Pretoria University Law Press, 2018) Moosa, Fareed
    The Constitution, 1996 embodies the ideals bonding South Africans who must cohere and transcend their divisions to change the condition of peoples’ lives by reconstructing a South African society dogged by corruption and maladministration in the public sector, as well as various social ills (such as, poverty and inequality). Section 7(2) of the Constitution obliges the State to “respect, protect, promote and fulfil” the rights entrenched in the Bill of Rights. To do so necessitates that the government has sustained access to adequate finance. Financial constraints in the public treasury will hinder the State’s ability to achieve social justice through the fulfilment of, inter alia, socio-economic rights. Unless the problem of strained governmental resources is overcome, the aspiration of a fully transformed society with human dignity, freedom and equality for all will have a hollow ring.
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    ‘Taxation of a trust: the impact of statutory anti-tax avoidance measures on the effectiveness of the discretionary family trust as an estate planning vehicle in South Africa’
    (2014) Petersen, Yolande Viola; Moosa, Fareed; Du Toit, Francois
    The utilisation of trusts has become a popular trend among taxpayers, especially high net worth individuals1 (hereafter HNWI) who wish to reduce potential estate duties. The SARS Strategic Plan stated that there is a ‘compliance risk posed by HNWI and the use of trusts to conceal their income’.2 The SARS Strategic Plan announced that trust reform would be prioritised. Minister of Finance, Pravin Gordhan (hereafter Gordhan) referred in his 2012/2013 budget speech3 to various measures proposed to protect the tax base and limit the scope for tax leakage and avoidance. Gordhan reiterated the state’s position regarding the abuse of trusts by indicating that reforms will be made regarding the taxation of both local and offshore trusts which have long been a problem for global tax enforcement due to their flexibility and flow-through nature. National Treasury and SARS are concerned about trusts, largely because of the income-splitting opportunities that trusts afford taxpayers. There are envisaged tax amendments which will impact South Africa’s (hereafter SA) trust landscape and could derail many carefully drafted trust structures. It will thus be important for estate owners to consider these envisaged tax amendments when they come into operation, in order to ascertain the full extent of the implications and then it can also further be determined what the impact of these 1 Income in excess of R7 million, alternatively R75 million in assets. South Afican Revenue Service (hereafter SARS) Strategic Plan (2012/13- 2016/17) 19 available at http://www.sars.gov.za (accessed 6 November 2013) (hereafter SARS Strategic Plan). 2 SARS Strategic Plan 19. 3 2012-2013 budget speech 22 available at http://www.sars.gov.za (accessed 6 November 2013) (hereafter budget speech). 11 changes will be on the effectiveness of the discretionary family trust as an estate planning vehicle in SA in the future. The purpose of this thesis is to determine the impact of the current statutory anti-tax avoidance provisions on the effectiveness of the discretionary family trust as an estate planning vehicle in SA, especially due to the fact that the trust form has been abused in the past for tax avoidance purposes.
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    ‘Taxation of a trust: the impact of statutory anti-tax avoidance measures on the effectiveness of the discretionary family trust as an estate planning vehicle in South Africa’
    (2014) Petersen, Yolande Viola; Moosa, Fareed; Du Toit, Francois
    The utilisation of trusts has become a popular trend among taxpayers, especially high net worth individuals1 (hereafter HNWI) who wish to reduce potential estate duties. The SARS Strategic Plan stated that there is a ‘compliance risk posed by HNWI and the use of trusts to conceal their income’.2 The SARS Strategic Plan announced that trust reform would be prioritised. Minister of Finance, Pravin Gordhan (hereafter Gordhan) referred in his 2012/2013 budget speech3 to various measures proposed to protect the tax base and limit the scope for tax leakage and avoidance. Gordhan reiterated the state’s position regarding the abuse of trusts by indicating that reforms will be made regarding the taxation of both local and offshore trusts which have long been a problem for global tax enforcement due to their flexibility and flow-through nature. National Treasury and SARS are concerned about trusts, largely because of the income-splitting opportunities that trusts afford taxpayers. There are envisaged tax amendments which will impact South Africa’s (hereafter SA) trust landscape and could derail many carefully drafted trust structures. It will thus be important for estate owners to consider these envisaged tax amendments when they come into operation, in order to ascertain the full extent of the implications and then it can also further be determined what the impact of these 1 Income in excess of R7 million, alternatively R75 million in assets. South Afican Revenue Service (hereafter SARS) Strategic Plan (2012/13- 2016/17) 19 available at http://www.sars.gov.za (accessed 6 November 2013) (hereafter SARS Strategic Plan). 2 SARS Strategic Plan 19. 3 2012-2013 budget speech 22 available at http://www.sars.gov.za (accessed 6 November 2013) (hereafter budget speech). 11 changes will be on the effectiveness of the discretionary family trust as an estate planning vehicle in SA in the future. The purpose of this thesis is to determine the impact of the current statutory anti-tax avoidance provisions on the effectiveness of the discretionary family trust as an estate planning vehicle in SA, especially due to the fact that the trust form has been abused in the past for tax avoidance purposes.
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    Understanding ‘emergency monetary relief’ in the Domestic Violence Act
    (Law Society of South Africa, 2020) Moosa, Fareed
    Domestic violence is a brutal onslaught against constitutional values and the fundamental right to freedom and security of the person. In S v Baloyi (Minister of Justice and Another Intervening) 2000 (2) SA 425 (CC), Sachs J poignantly held at para 11: ‘What distinguishes domestic violence is its hidden, repetitive character and its immeasurable ripple effects on our society and, in particular, on family life. It cuts across class, race, culture and geography, and is all the more pernicious because it is so often concealed and so frequently goes unpunished’. Accordingly, the Domestic Violence Act 116 of 1998 (the Act) serves important objectives. It must be understood against the backdrop of its social context and legal purpose. In terms of the Act’s preamble, it aims ‘to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide’. It does so by providing for interim and final protection orders under ss 5 and 6 respectively, and by creating a mechanism in s 8 for their enforcement through arrest. To bolster the efficacy of this protection, s 7(7) prohibits a court from refusing a protection order, or other competent relief, ‘merely on the grounds that other legal remedies are available to the complainant’.