Naught for the taxpayer’s comfort : the decisions in Big G and Clicks concerning future expenditure claims under section 24c
Author | Milton Seligson |
DOI | 10.10520/EJC-1ea62fb053 |
Published date | 01 June 2020 |
Date | 01 June 2020 |
Pages | 9-18 |
9
© SIBER INK
Naught for the Taxpayer’s
Comfort:
THE DECISIONS IN BIG G AND CLICKS
CONCERNING FUTURE EXPENDITURE CLAIMS
UNDER SECTION 24C
MILTON SELIGSON SC*
ABSTRACT
This article considers section 24C of the Income Tax Act, which provides for
a deduction from a taxpayer’s taxable income in respect of future expendi-
ture on contracts in certain circumstances. It discusses the application of
section 24C in two recent cases decided by the Supreme Court of Appeal:
Commissioner, South African Revenue Service v Big G Restaurants (Pty) Ltd 2019
(3) SA 90 (SCA) and Commissioner, South African Revenue Service v Clicks
Retailers (Pty) Ltd 2020 (2) SA 72 (SCA). These decisions appear to have
settled once and for all that the future expenditure has to be incurred in terms
of the very same contract which gave rise to the income and not from related
contracts, even if they are inextricably inter-linked.
The decision in Big G is discussed first. In a unanimous judgment the SCA
reversed the decision of the Tax Court, which had held that the requirements
of the section were satisfied and that the taxpayer was entitled to claim the
allowance under section 24C. The author discusses the facts and analyses the
reasoning of the SCA in interpreting the section, applying it to the facts and
reaching a different conclusion.
The basis of the SCA’s decision was the narrow interpretation given to the
requirement that the income had to be earned ‘in terms of’ a contract and
that the future expenditure would be incurred in performing the taxpayer’s
obligations ‘under such contract’. In opting for this interpretation, the Court
relied on the fact that section 24C is an exception to the general prohibition
in section 23(e) of the Act, which provides that no deduction shall in any case
be made in respect of income carried to any reserve fund. It further found
support for its interpretation in the SARS Explanatory Memorandum which
accompanied the introduction of section 24C in 1980.
The article considers case law that would have justified a broader approach
to interpreting the section, by the application of the well-established maxim
generalia specialibus non derogant, and may have led to a different result. It
also suggests that the use of the SARS Explanatory Memorandum as an aid to
interpretation is inconsistent with the decision of the Constitutional Court in
Marshall NO and Others v Commissioner, South African Revenue Service 2019
(6) 246 (CC) at para [10], to the effect that, in accordance with constitutional
precepts, the Court should not have regard to an interpretation by SARS of a
statute that it administers, in litigation to which it is a party.
* Honorary Member, Cape Bar.
To continue reading
Request your trial