Section 1 of the Income Tax Act, 58 of 1962 (the Income Tax Act) and other related Revenue Acts empower the South African Revenue Service (SARS) to administer the Acts and to collect revenue for the government of the Republic of South Africa. Sometimes, in order to assess tax liability and collect revenue, the Commissioner and/or officials of SARS have to make certain representations and undertakings to taxpayers in general through interpretation notes, rulings, and other forms of communication. In certain circumstances, SARS is authorised to withdraw rulings made and at times already acted upon, often to the taxpayer’s detriment. This results in lack of clarity, uncertainty and inconsistency in the application of the law. In order to address this problem, an Advanced Tax Ruling System (ATRS) was introduced. In terms of the ATRS, the issuing of rulings is statutorily regulated and binding on both the taxpayer and SARS when certain conditions provided for in the Income Tax Act are met. The purpose of an ATRS is to promote clarity, consistency, and certainty in respect of the interpretation or application of the provisions of tax laws to which it applies. However, the Commissioner is not obliged to follow a policy or undertaking which is in violation of tax laws. Section 76N(3) provides that the Commissioner may withdraw or modify a binding private ruling, or a binding class ruling retrospectively, if the ruling was made in error; subject to sub paragraphs (a), (b) and (c) thereof. This creates uncertainty as opposed to the intention for which the ATRS was introduced. The critical question is, if the Commissioner timeously informed the taxpayer that he has decided not to honour the undertaking made in a valid binding private ruling, which is still in force to the detriment of the taxpayer, can the taxpayer raise a defence of substantive legitimate expectation? It is argued that the issuing of an ATR is an administrative action subject to judicial review, if, in the opinion of the concerned party, it will have an adverse effect. Further, in the event that the Commissioner informs the taxpayer timeously of the intention to withdraw a valid binding private ruling, which the taxpayer has acted upon to their detriment, can they raise a defence of a practice generally prevailing and/or substantive legitimate expectation? The doctrine of legitimate expectation as a defence was authoritatively accepted as part of the South African administrative law in the landmark case of Administrator Transvaal v Traub. However, Chief Justice Corbett expressly stated in a dictum that the content of the expectation may be substantive or procedural in nature, [but] the protection of that expectation, if found to be legitimate, was exclusively procedural. It is argued that the dictum ignores section 33 of the Constitution which introduced reasonableness as an element of the right to just administrative action, which means that the substance of a decision may be reviewed if it is unreasonable. The objective is to examine whether the courts could develop the doctrine of legitimate expectation beyond the procedural protection, as already done in countries in Europe. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

Politicians and tax practitioners often claim that tax uncertainty negatively affects investment. In many countries, firms can request fee-based Advance Tax Rulings (ATRs) to mitigate tax uncertainty. We analyze theoretically the circumstances under which investors request ATRs, how tax authorities should price them and how they can affect investment. We assume that tax authorities integrate investors' reasoning into their decisions. We find that it is often optimal for tax authorities to charge prohibitively high fees to discourage firms from requesting an ATR. However, we find that revenue-maximizing tax authorities offer ATRs if the ruling enables them either to significantly reduce their tax audit costs or to increase the probability of detecting ambiguous tax issues. Under certain circumstances, ATRs may effectively foster investment and potentially benefit both the tax authorities and taxpayers. Our results provide new explanations for why taxpayers that face high levels of tax uncertainty often do not request ATRs, even when the fee is rather low. Our results also hold when the tax authority maximizes social wealth instead of its revenues. Regulatory changes in ATR requirements might serve as a natural quasi-experiment for an empirical study of our predictions regarding investment decisions. (authors' abstract) / Series: WU International Taxation Research Paper Series

Made available in DSpace on 2016-04-26T20:30:22Z (GMT). No. of bitstreams: 1 Andre Almeida Blanco.pdf: 1002763 bytes, checksum: 28ef2f0f9b5656800da8d2eacb4558c6 (MD5) Previous issue date: 2010-06-01 / This study is the theoretical approach to the study of Tax on Goods and Services Mode or ICMS-market operations - commercial operations (with commercial operations of the materiality of initials congenital ICMS) in an attempt to understand how this imposing figure behaves when it operate on other categories of tax law, in this case, the anticipation of tax incidence with the replacement of the taxpayer for the new guy on the duties of the tax liability falls. In this effort, we seek to understand how they behave each of the criteria of the rule array of tax incidence when injured by the impact of the rule of law which we call rule of advance replacement. Widely known as replacement tax - a name that does not discriminate nor define - the institute is studying tax cutting edge tool in the exercise of such taxation, focusing on recovery initiative, anticipates cash flow to Treasuries, reduces stress and improves tax and, consequently, reduces tax evasion. Driven back to the definition of the object in view of the opportunities opening up with the theme, we decided to attempt an understanding of the constitutional legislative basis set forth in paragraph 7 of Article 150, for, from it, build the general and abstract rule that combines some species tax homelands, including the tax imposed on the movement of goods. Required to research the phenomenon from the standards of competence that permit the use of anticipation and tax substitution, down regulation of its exercise. We have proposed tests with some rules of incidence of the tax (the exercise of jurisdiction imposing) without, however, intend to exhaust the many possible experiments. Our analytical effort led us to advance in the event that the institution of anticipation and tax substitution poorly worded, off the narrow constitutional limits, and in defiance of the ICMS feature - commercial operations, also embedded in the text of 1988, works in the collection of disorders tax and introducing legal uncertainty in the legal relationship Treasury-Taxpayer / O objetivo deste trabalho é a aproximação teórica ao estudo do Imposto sobre Circulação de Mercadorias e Serviços na modalidade Operações Mercantis ou ICMS Operações Mercantis (sendo Operações Mercantis uma das materialidades congênitas à sigla ICMS) na tentativa de compreender como esta figura impositiva se comporta quando sobre ela operam outras categorias do direito tributário, no caso, a antecipação da incidência do imposto com a substituição do contribuinte, para que sobre novo sujeito de deveres recaia a obrigação tributária. Neste esforço, buscamos compreender como se comportam cada um dos critérios da regra matriz de incidência tributária quando contundidos pela incidência da norma jurídica que denominamos norma de antecipação com substituição. Largamente denominado substituição tributária nome que não o discrimina nem o define , o instituto estudado é ferramenta fiscal de vanguarda no exercício da imposição tributária, pois concentra a iniciativa de cobrança, antecipa o fluxo de caixa das Fazendas Públicas, reduz e aperfeiçoa o esforço fiscal e, consequentemente, reduz a evasão de tributos. Coibidos à delimitação do objeto em face das oportunidades que se abrem com o tema, optamos pela tentativa da compreensão do suporte legislativo constitucional constante do parágrafo 7º do artigo 150, para, a partir dele, construir a norma geral e abstrata que se conjuga a algumas das espécies tributárias pátrias, inclusive o imposto que incide sobre a circulação de mercadorias. Instados à investigação do fenômeno a partir das normas de competência que autorizam a utilização da antecipação e substituição tributária, descemos à regulamentação de seu exercício. Propusemos testes com algumas normas de incidência do imposto (exercício da competência impositiva) sem, entretanto, a pretensão de esgotar as múltiplas experiências possíveis. Nosso esforço analítico levou-nos a avançar na manifestação de que a instituição de antecipação e substituição tributária mal formulada, fora dos estreitos limites constitucionais e em desrespeito à feição do ICMS Operações Mercantis, também fincada no Texto de 1988, opera desarranjos na cobrança do imposto e instaura insegurança jurídica na relação jurídica Fisco-Contribuinte