Tax Legislation and the Right to Equality: Does Section 23(m) of the Income Tax Act 58 of 1962 Rationally Differentiate Between Salaried Individuals and Individuals Who Earn Their Income Mainly from Commission?

by | Jan 19, 2021 | SAMLJ, SAMLJ V32 I1

Tax Legislation and the Right to Equality: Does Section 23(m) of the Income Tax Act 58 of 1962 Rationally Differentiate Between Salaried Individuals and Individuals Who Earn Their Income Mainly from Commission?

Authors Louis Botha, Zoë Meyer & Anton Kok

ISSN: 1996-2185
Affiliations: Senior Associate, Cliffe Dekker Hofmeyr (Tax and Exchange Control); Research assistant in the Department of Jurisprudence, University of Pretoria; Professor in the Department of Jurisprudence, University of Pretoria
Source: South African Mercantile Law Journal, Volume 32 Issue 1, 2020, p. 1 – 21

Abstract

The authors speculate how a court should deal with a tax matter that implicates the right to equality. Section 23(m) of the Income Tax Act 58 of 1962 squarely raises an equality dispute — in the context of rational/irrational differentiation, not fair/unfair discrimination. The aim of this article is to evaluate if section 23(m) rationally differentiates between salaried and non-salaried individuals — if the differentiation created by section 23(m) is constitutionally permissible. First, the authors discuss the influence of the Constitution of the Republic of South Africa, 1996 on tax legislation with reference to selected cases where provisions in tax legislation came under constitutional scrutiny. Secondly, the operation of section 9 of the Constitution is explained. Thereafter, the authors interpret section 23(m) in considering whether the differentiation therein falls foul of section 9 of the Constitution. Having regard to those deductions which are not available to a salaried individual in terms of section 23(m) and to the number of individuals who are listed by SARS as salaried and non-salaried individuals in SARS’s statistics from 2015 to 2018, the conclusion is reached that the differentiation between salaried and non-salaried individuals appears to be rational as it might lead to a significant increase in the administrative burden of SARS and of the salaried individuals in question.

The Reversal of Electronic Payments Under South African Law: Possible Guidance from Recent Developments in European Union Law

by | Jan 19, 2021 | SAMLJ, SAMLJ V32 I1

The Reversal of Electronic Payments Under South African Law: Possible Guidance from Recent Developments in European Union Law

Author WG Schulze

ISSN: 1996-2185
Affiliations: Professor in Banking Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 32 Issue 1, 2020, p. 22 – 50

Abstract

It is generally accepted that the development of and growth in electronic banking, and particularly the growth in electronic payments, has raised a number of burning legal issues in South African banking law. One of the hitherto unresolved issues concerns the circumstances under which an electronic transfer can be reversed. In terms of the standard bank–client agreement, a credit transfer can be reversed only with the consent of the recipient of the money. Such an arrangement is clearly flawed and impractical. With fraud, for example, it is not fair towards the party who has been defrauded for it, or its bank, first to obtain the fraudulent recipient’s consent before the transfer can be reversed. This article considers South African case law in which the reversal of an electronic payment was scrutinised. It further considers recent developments in European Union law regarding the notification and rectification of unauthorised, or incorrectly executed, payment transactions. Some observations are made about the possible guiding role that European Union law may play in formalising the South African law regarding electronic payments, should such initiative be undertaken by either the banking and payment community or the South African legislature.

A Deceased Taxpayer: ‘Juristic Person’ for Constitutional Purposes?

by | Jan 19, 2021 | SAMLJ, SAMLJ V32 I1

A Deceased Taxpayer: ‘Juristic Person’ for Constitutional Purposes?

Author Fareed Moosa

ISSN: 1996-2185
Affiliations: Associate Professor and Head of the Department of Mercantile and Labour Law, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 32 Issue 1, 2020, p. 51 – 74

Abstract

The central hypothesis of this article is that a grammatical, purposive, contextual cum teleological interpretation of ‘person’ and, by extension, ‘juristic person’ in section 8(4) of the Constitution of the Republic of South Africa, 1996 leads to the conclusion that these terms are not derived from their common-law lineage. Accordingly, it is argued that a deceased estate is, as a statutory person for tax purposes, imbued with constitutional personality, a species of legal personality, separate from that of its executor. Consequently, a deceased estate ought, as a taxpayer, to be a holder of rights entrenched in the Bill of Rights. This interpretation underscores the Bill of Rights as a cornerstone of democracy and enables it to live up to its transformative pedigree. This article argues further that a contrary interpretation, particularly for tax administration purposes, is undesirable for various reasons: first, it would exclude constitutional protection for interests that are deserving of protection; secondly, the common-law concept of person would be excluded from constitutional scrutiny which is necessary to ensure that it accords with constitutional norms and standards; and thirdly, extending the concept of person for constitutional purposes beyond its common-law realm will ensure that section 8(4) is not an obstacle to transformation and equality, but central to its achievement regarding the content of ‘juristic person’ in its constitutional setting.

To Tax or not To Tax? Questioning Customer Loyalty Programmes

by | Jan 19, 2021 | SAMLJ, SAMLJ V32 I1

To Tax or not To Tax? Questioning Customer Loyalty Programmes

Authors Sumarie Swanepoel & Teresa Pidduck

ISSN: 1996-2185
Affiliations: Senior lecturers in the Department of Taxation, University of Pretoria
Source: South African Mercantile Law Journal, Volume 32 Issue 1, 2020, p. 75 – 98

Abstract

South Africa, like many other countries, needs additional sources of tax revenues. Recent debate indicates that one potential source of revenue is the taxation of customer loyalty rewards in the hands of customers. The arguments for the taxation of these rewards have been put forward from a principled perspective and not from a legal basis. We argue that while the taxation of these rewards would increase tax revenue, legislative reform is required as there are strong arguments that the rewards are actually not taxable. We suggest tax reforms that attempt to provide certainty and equity in the treatment of such rewards as a whole in order to provide additional revenue for the fiscus.