Page 752 - SAIT Compendium 2016 Volume1

CASE DIGEST 2012–2013
Once again, the judge did not agree with SARS’ argument. It was held that the business rescue plan was circulated amongst the interested parties and no objection was made at the creditors’ meeting. The judge could nd no merits to SARS’ suggestion that the business plan was invalid and unlawful.
The judge concluded that there is no need to terminate the business rescue proceedings and to liquidate the company. This will not be in the best interests of creditors since it will result into additional costs that will decrease the funds available for distribution amongst the interested parties. Based on the above-mentioned ndings, SARS’ application was dismissed.
[Link: http://c.ymcdn.com/sites/www.thesait.org.za/resource/resmgr/2014_case_law/commissioner_for_south_afric. pdf]
23. Application for determination of costs where the issue of the application for review arising out of the seizure of vehicles is no longer relevant
[Clear Enterprises (Pty) Ltd v ITAC & Others – North Gauteng HC 75670/09 (18 December 2013)]
Introduction
This matter was an application for a review arising out of the seizure of vehicles belonging to the applicant by the rst respondent, ITAC (International Trade Administration Commission), in terms of the provisions of International Trade Administration Act 71 of 2002 (ITA Act). The applicant sought costs against the rst respondent or any other respondent opposing the application. Both the rst and second respondents opposed the application.
The applicant sought that the costs be determined against the rst and second respondents, whilst the rst and second respondents sought that the costs of the application be awarded in their favour, such costs to include costs consequent upon the employment of two counsel.
In Jenkins v SA Boiler Makers, Iron and Steel Workers and Ship Builders Society 1946 WLD 15, the court held that where a disputed application is settled on a basis which disposes of the merits except in so far as the costs are concerned, the court should not have to hear evidence to decide the disputed facts in order to decide who is liable for costs, but the court must, with the material at its disposal, make a proper allocation as to the costs.
Facts
The second respondent, being the Commissioner for the South African Revenue Service, attached the applicant’s vehicles on 22 February 2007, in terms of s 88(1)(a) of the Customs and Excise Act 91 of 1964. The second respondent further attached another vehicle of the applicant in terms of s 88(1)(a) of the Customs and Excise Act, on 23 April 2007. The applicant subsequently provided the second respondent with the relevant documents pertaining to the vehicles after the aforesaid detainment. As a result of the continued detainment of the vehicles, the applicant caused two applications to be issued in which it sought the second respondent’s continued detention of the vehicles to be set aside.
At the time the application commenced against the second respondent, the rst respondent had seized all the three vehicles in terms of s 41(g) of the ITA Act, without notifying the applicant. The seizure notices had been handed to representatives of the second respondent; the notices were, however, not forwarded to the applicant.
Held
The court held that unless the application had been instituted within 90 days, there would be no application and the lawfulness and reasonableness of ITAC’s conduct in relation to the seizure of the vehicle would not be ruled upon by any court. In that event ITAC would be able to set the matter down for determination of costs. For the applicant to be successful, the applicant would have had to succeed rst with the application for condonation and extension of time.
It was held further that taking into account the facts and the law, the applicant had failed to make out a proper case. The applicant was ordered to pay the costs of the respondents, such costs to include the costs consequent upon the employment of two counsel.
[Link: http://c.ymcdn.com/sites/sait.site-ym.com/resource/resmgr/2014_SARS/LAPD-DRJ-HC-2013-09_-_Clear_. pdf]
2013–2014
1. A Company & Two Others v CSARS (17 March 2014)
Introduction
This case considers an application made by three applicants to the Western Cape High Court for a declaratory order that certain content contained in the invoices between the rst applicant and its attorneys is subject to legal advice privilege. This was asserted as the basis for the applicants’ refusal to disclose portions of the invoices (alternatively referred to as ‘fee notes’), when complying with a request by the Commissioner for the South African Revenue Service (SARS) in terms of s 46 of the Tax Administration Act 28 of 2011 (hereafter the ‘TA Act’). The provision broadly covers relevant material that SARS may require of a taxpayer or any other person in order to administer a tax Act. Copies of the invoices in question had been supplied to SARS, but the applicants had redacted the content thereof that was subject to their claim of privilege. The application by the companies for declaratory relief had been brought in the context of the Commissioner’s insistence on being provided with uncensored copies of the documents concerned.
Facts
The applicants are three companies in a well-known group of companies. In the course of the completion of an audit of the applicants’ tax affairs, a letter of audit ndings was sent to the third applicant on 28 November 2013 per s 42 of the
744 SAIT CompendIum oF TAx LegISLATIon VoLume 1