Income Tax Case No 11641

• Jurisdiction: South Africa
• Judge: Boruchowitz, J
• Judgment Date: 04 December 2006
• Docket Number: 11641
• Hearing Date: 04 December 2006
• Citation: 2007 JDR 0427 (JSpCrt)

Boruchowitz J:

[1] This is an appeal against the assessment of the appellant's liability to pay additional tax in terms of section 76(1)(a) of the Income Tax Act No. 58 of 1962 ('the Act').

[2] The question at issue is one of law, namely, whether it is constitutionally permissible for the Commissioner to impose additional tax in circumstances where the taxpayer has already paid an admission of guilt fine under section 75(1)(a) of the Act.

[3] Section 75(1)(a) provided, at the relevant time, that any person who failed or neglected to furnish, file or submit any return or document as and when required by or under the Act would be guilty of an offence and liable on conviction to a fine not exceeding R2 000,00 or to imprisonment for a period not exceeding twelve months or to both such fine and such imprisonment. In terms of section 76(1)(a) a taxpayer is obliged to pay additional tax, in an amount equal to twice the tax chargeable in respect of the taxpayer's taxable income for the relevant year of assessment, if the taxpayer defaults in rendering a return in respect of any year of assessment. This is subject to the Commissioner's right to remit such additional charge or any part thereof in specified circumstances (section 76(2)).

[4] The appellant was charged in the Magistrate's Court with a contravention of section 75(1)(a) as a result of his failure to submit income tax returns in respect of the 1994 to 1998 years of assessment. After submitting the relevant returns the appellant paid admission of guilt fines of R300,00 for each year of assessment. Additional tax was thereafter imposed in terms of section 76(1)(a) for the late submission of the returns. Following an objection lodged by the appellant revised assessments were issued by the Commissioner in which the additional taxes for the 1995, 1997 and 1998 tax years were reduced to R300,00 each. No reduction was made in respect of the 1996 tax year. The position that obtained after the issue of the reduced assessments was as follows:

Tax year	Fines	Original Assessments	Reduced Assessments
	s. 75(1)(a) R	s. 76(1)(a) R	s. 76(1)(a) R
1995	300	600	300
1996	300	900	900
1997	300	1200	300
1998	300	1200	300
	R1200	R3900	R1800

2007 JDR 0427 p2

Boruchowitz J

[5] Having unsuccessfully appealed to the Tax Board under section 83A of the Act, the appellant now appeals to this Court in terms of the provisions of section 83A(13)(a) of the Act.

[6] The appellant submits that the imposition of additional tax, after the appellant had already been convicted and fined in the Magistrate's Court in respect of the late submission of the tax returns, infringes his fair trial rights embodied in section 35(3)(m) of the Constitution of the Republic of South Africa [1] . Section 35(3)(m) stipulates that:

'Every accused person has a right to a fair trial, which includes the right-

...

(m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or...