Would court action to prevent the recent tax amnesty ‘succeed? Our legal columnist thinks not
The government has again extended its tax amnesty to non-payers. In essence, this is an invitation to people who have not paid tax, for various lengths of time and often ever, to come forward and put themselves inside the taxation net. In return, the accumulated interest, penalties and ultimately, maybe even arrears tax, are all waived.
Naturally, this vexes all law-abiding citizens; they have kept this nation economically viable by their industry and taxes for many years now; they pay a high rate by modern standards; they have had to watch billions of rand slip through the tax net by way of a combination of sophisticated tax avoidance, idiotic and corrupt allowances made by the Nats and downright fraud; they know that if every citizen paid his full tax, the marginal rates could easily be reduced, and there would still be tens of billions more rand each year to fund the equalisation of facilities and infrastructure.
Their grumbling is thus both understandable and justified. But will they, or some of the more energetic minded of them, try to take the belly-aching further? There have been some low mutterings, for example, of court proceedings to prevent the grant of a tax amnesty ‘ it is not, after all, specifically authorised by the Constitution, unlike the amnesties now being granted at the Truth and Reconciliation Commission.
English taxpayers had a similar beef about 20 years ago. About 6 000 people who worked in the newspaper industry on a casual (but well-paid) basis had developed a practice of giving false names when collecting their pay. This meant they could not be traced for taxation purposes, and the country lost about ‘1-million a year. The Revenue authorities believed the most efficient way of bringing them back into the tax net was to strike an agreement with them whereby their arrears tax would be written off, but they would register properly and pay all future taxes.
A group of small businessmen, incensed at what they perceived to be an unfair advantage granted to the casuals, attacked the decision to strike the agreement and grant the amnesty. They suggested the casuals had been unfairly favoured because they were backed by powerful trade unions. They asked the courts to review the decision and to set aside the agreement. They failed in the first court, won in the court of appeal, and the matter then went to the House of Lords.
The small businessmen lost the case ultimately on the technical issue that they lacked ‘sufficient interest’ in Revenue’s decision to strike the agreement and grant the amnesty to the casuals (which would not, in South Africa today, be any impediment to success). Of far more interest, though, is what the judges said about the merits of the application.
Lord Wilberforce, for example, recognised that there must be ‘a sense of fairness between one taxpayer … and another … so that a sense of unfairness may be the beginning of a recognisable grievance’.
Lord Diplock was totally dismissive of the contention that the courts had no power to intervene because Revenue officials were answerable only to Parliament: ‘They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.’
The House of Lords then did consider the main question, which was whether the Revenue authorities had failed to carry out their duties fairly. The argument was that Revenue was obliged to collect taxes, not to waive them. But the Lords found that, in the collection of taxes, the Revenue officials had wide managerial powers and that ‘they had made a sensible arrangement in the overall performance of their statutory duties … in the best interests of everyone … for the agreement reached would be likely to lead ultimately to a greater collection of revenue than if the agreement had not been reached’.
The South African government is faced by the same problem, albeit far greater in scale, and its tax amnesty is motivated by precisely the same considerations; it is therefore difficult to imagine a South African court coming to any different conclusion.