“You can have a Lord, you can have a King, but the man to fear is the tax
collector.” This proverb about the tax collector was inscribed on several clay tablets
excavated at Lagash, in Sumer, the fertile area between the Tigris and Euphrates
rivers in what is now known as Iraq. The clay tablets date back some six thousand
years (Adams 1999:2–3). Times have not really changed! Most taxpayers still fear
the tax man and for good reason
In terms of section 76(1) of the Income Tax Act, 58 of 1962 (the “Act”), various
tax offences are stipulated, ranging from the mere late submission of a tax return
to an incorrect statement made on the return, which may or may not involve the
intention on the part of the taxpayer to evade taxes. The maximum penalty that may
be imposed in such circumstances is an amount equalling 200% of the tax properly
chargeable.
Although section 76(1) refers to additional tax (rather than a penalty), the
judiciary, in hearing appeals against the imposition of additional tax, generally refer
to such additional tax as “in essence a penalty” (CIR v McNeil, (22 SATC 374 at
382) and CIR v Da Costa, (47 SATC 87)). For the purposes of this article, the
words “additional tax” and “penalties” are used interchangeably, as appropriate
However, section 76(2)(a) of the Act, as well as the common law, recognise that
any penalty or sanction that ought to be imposed for a taxation offence may be
remitted in cases in which “extenuating circumstances” exist
In a previous article in this research journal, the current author examined the
general meaning of the term “extenuating circumstances” as it relates to taxation
matters (Goldswain 2001a:123–135) and it is not the intention of this article to reexamine
the general concept. It was concluded in that article (without discussion
in detail) that a number of “extenuating circumstances” have influenced the level
of the penalties or sanctions that have been imposed by our courts in taxation
matters (Goldswain 2001b:133–134)