The Resource Krok and another v Commissioner for the South African Revenue Services : [2015] ZASCA 107 (Case Nos 20230/2014 and 20232/2014)

Krok and another v Commissioner for the South African Revenue Services : [2015] ZASCA 107 (Case Nos 20230/2014 and 20232/2014)

Label
Krok and another v Commissioner for the South African Revenue Services : [2015] ZASCA 107 (Case Nos 20230/2014 and 20232/2014)
Title
Krok and another v Commissioner for the South African Revenue Services : [2015] ZASCA 107 (Case Nos 20230/2014 and 20232/2014)
Creator
Contributor
Subject
Language
eng
Summary
Judgment by the Supreme Court of Appeal of South Africa, judgment date 20 August 2015. The taxpayer was resident in South Africa until he emigrated to Australia in 2002 where he remained for six years before deciding to move to the UK in 2008. On leaving South Africa he was required under the South African exchange control regime to place certain assets under the control of a registered foreign exchange dealer. The Australian Tax Office (ATO) charged the taxpayer with tax in respect of certain years when he was resident in Australia on the basis that he remained the legal and beneficial owner of assets in the blocked accounts. In January 2012 the ATO asked for assistance from the South African Revenue Service (SARS) in the collection of of taxes in an amount exceeding AS$25m that arose in the period the taxpayers's residence in Australia from 2002 to 2008. A double taxation convention between Australia and South Africa had been concluded in 1999, which contained no provision for assistance in the cross-border collection of taxes. On 31 March 2008 a protocol was signed which entered into force in November 2008 and which inserted a new article 25A providing cross-border assistance. At the time of the protocol, South African tax law contained no specific provisions for acts of conservancy to ensure assets potentially subject to tax collection were not dissipated. By the Tax Administration Act of 2011 such provisions were introduced with effect from 1 October 2012. Under the Act, SARS, acting on the request from the ATO, obtained a provisional order appointing a curator bonis in whom was vested all the taxpayer's property in South Africa as long as the SARS was collecting taxes on behalf of the ATO. This action was to confirm that provisional order. The taxpayer argued, inter alia, that the 2008 Protocol was not retroactive in effect and could not apply to taxes that arose in the period from 2002 to 2008 to which the common law revenue rule applied. The High Court held against the taxpayer and the taxpayer appealed, arguing that the revenue rule prevented the cross-border enforcement of taxes which arose prior to the abrogation of the revenue rule by treaty and that domestic taxpayers had been entitled to order their affairs on the basis that the revenue rule applied until it had been abrogated. The main issue in this judgment by South Africa's Supreme Court of Appeal concerns the temporal aspect of tax treaty clauses that enable the South African and Australian tax authorities to mutually assist each other in cross-border collection of tax debts
Citation source
In: International tax law reports. - London. - Vol. 18 (2015),
http://bibfra.me/vocab/relation/comm
y_8jhG9ykJM
http://library.link/vocab/creatorName
Hattingh, J
Language note
English
http://library.link/vocab/relatedWorkOrContributorName
Baker, P
http://library.link/vocab/subjectName
  • case law
  • conflict of law
  • enforcement
  • mutual assistance
  • collection of tax
  • retroactivity
  • tax treaty
Label
Krok and another v Commissioner for the South African Revenue Services : [2015] ZASCA 107 (Case Nos 20230/2014 and 20232/2014)
Instantiates
Publication
Label
Krok and another v Commissioner for the South African Revenue Services : [2015] ZASCA 107 (Case Nos 20230/2014 and 20232/2014)
Publication

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