LOA SUBMISSION

 

DRAFT TAXATION LAWS SECOND AMENDMENT BILL

 

 

The LOA appreciates the opportunity to comment on the two Bills but there has been a very short time period to review and comment on the Bills, and it was not sufficient time to do this thoroughly.

 

At this stage, the LOA has the following comments on the above Bill:

 

  1. Deductions of medical aid and medical deductions (section 16 of the Amendment Bill)

 

Paragraphs 2(4) (d) and (e) of the Fourth Schedule allow employers the option of making certain deductions from remuneration before levying PAYE on the ‘balance of remuneration’. Paragraph 2(4) (d) allows employers to deduct contributions to medical scheme made by employees 65 and over.  Paragraph 2(4) (e) allows employers to deduct the tax-free amounts in respect of medical aids (currently R570 for the first two members and R345 for all dependants thereafter) from remuneration, before levying PAYE.

 

The change seeks to remove this option open to employees, effectively allowing employees to enforce this deduction.  Although this may be possible with actual employees, these changes cannot easily be implemented with the current systems making payment to annuitants.  Not only does this require system changes to ensure that sufficient proof is recorded of the medical aid contributions, it also requires an investigation into the number of members/dependants such annuitants may have on a medical aid.  Current systems do not cater for these changes.

 

In addition, it is noted that this change is intended to be effective from 1 March 2008, which does not allow for any system development.  It is submitted that it is imperative that the implementation date should, at the very least, be effective from 1 March 2009 in order to allow time for the system changes.

 

  1. Penalties to be applied on submission of late reconciliations (section 18 of the Amendment Bill)

 

Paragraph 14 of the Fourth Schedule provides for annual reconciliations to be sent to SARS for the tax certificates and PAYE payments made.  It requires that employers submit the reconciliations within 60 days after 1 March each year. 

 

The change now seeks to impose a 10% penalty on the total amount of employees’ tax for the tax year, if the submission is not made in time.  Previously there was no penalty imposed for late submission.  While it is agreed that LOA members should at all times aim for administrative efficiency, it is not always feasible to provide reconciliations within 60 days. 


This may be possible for small employers who deal with common law employees, but the complexities of administering systems that deal with common law employees, commission earners such as intermediaries, annuitants and recipients of lump sums must be taken into consideration when imposing penalties for what is, in effect, an administrative requirement.  It is recommended that large employers be given the opportunity to refine systems and negotiate the implementation of such a change.

 

In addition, the proposed changes provide that the Commissioner may remit the penalty if he/she is satisfied that the circumstances warrant it.  There is, however no basis given under which the Commissioner may remit such a penalty, and it is recommended that the exact bases should be provided for such remission.

 

  1. No set off of employees’ tax deduction on assessment (section 20 of the Amendment Bill)

 

SARS currently allows employees to set off (against their normal tax), the employees’ tax that has been deducted by their employer.  This is allowed irrespective of whether their employer has rendered an annual reconciliation to SARS.

 

The change precludes employees from setting off their employees’ tax unless the employer has rendered its annual reconciliation, and the return has been found acceptable by the Commissioner.  Even though the employee may have received his/her tax certificate, they will not be able to use the tax certificate to set-off against their normal tax liability. Revenue is therefore penalising the employee for the employer’s potential failure to submit the annual reconciliation.  This is in contradiction to paragraph 28(2) which states that any employee’s tax certificate will be prima facie evidence that the amount of employees’ tax has been deducted by the employer.  What will then be the point of issuing a tax certificate if it cannot be relied on either by the employee or SARS? It is also not understood why it is necessary to penalise the employee when the intention is to impose a penalty on the employer in terms of paragraph 14.

 

  1. Interest on underpayments made during the year (section 14 of the Amendment Bill)

 

Section 89quat deals with interest imposed on underpayments and overpayments on provisional tax.  Interest was only levied in respect of provisional tax payers.

 

The change seeks to impose interest on non-provisional tax payers, such as employees.  The provision effectively levies interest if the normal tax on assessment exceeds the employees’ tax (credit) paid by that employee’s employer during the year. This means that if the employee has received a travel allowance, for instance, and has a tax liability on assessment, they will be liable for interest.  In addition to the interest being levied, the interest will be calculated from 6 months after the last date of the tax year, which will offer some respite if taxpayers submits their returns timeously.

It is submitted that it is unwarranted that employees, who have been the target of reduced deductions in terms of section 23(m) and reduced limits in respect of travel allowances should now be liable for interest payments in the same manner that provisional tax payers are.

 

This will also have a serious effect on annuitants receiving annuities from different long-term insurers, as their remuneration would not have been aggregated across insurers, and they may have a credit due on assessment.  It is therefore recommended that the status quo with employees remain.  

 

  1. Penalties for administrative and procedural non-compliance (section 11 of the Amendment Bill)

 

This proposed insertion into the Income Tax Act (section 75B) grants SARS sweeping powers to impose ‘administrative penalties’ in respect of ‘non-compliance with any procedural or administrative action or duty imposed or requested in terms of this Act’.  This effectively allows SARS to impose any administrative obligation on taxpayers (or employers) and thereafter impose penalties for non-compliance.  There is therefore no balance between taxpayers’ rights and those of SARS when implementing administrative obligations. 

 

In addition section 75B (2) states that the Commissioner must ensure that the obligations are imposed ‘impartially, consistently and proportionately to the seriousness of the non-compliance’. This effectively means that there will be no possibility of review, since SARS determines what is balanced.  The fact that administrative penalties may be imposed by regulation as opposed to promulgation in the main body of the Act indicates that it will not have the same level of public scrutiny and debate that amendments require- this is irrespective of section 75B (6), which only requires submission of the changes within 30 days to parliament, but does not prescribe the number of days for public comment.

 

The most significant omission is a definition of ‘non-compliance with any procedural or administrative action or duty’.  This effectively means that SARS has carte blanche to impose any administrative obligation for any provision of the revenue Acts, which therefore extends the scope of their powers.  It is argued that the current provisions of section 75 and section 76 should be sufficient to impose penalties on administrative non-compliance such as the failure to submit returns timeously etc.

 

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Contact:

 

Ms Anna Rosenberg

Deputy Executive: Legal & Policy

Life Offices’ Association of SA