# Sars is seeking to criminalise mistakes

- Link: https://dearsouthafrica.co.za/2020/08/12/sars-is-seeking-to-criminalise-mistakes/
- Published: 2020-08-12T08:13:00+02:00
- Author: dearSA

![tax amendment](https://cdn.dearsouthafrica.co.za/wp-content/uploads/2020/08/20190953/
tax-amendment.jpg "tax amendment")

[_Moneyweb [Barbara Curson] _](https://www.moneyweb.co.za/mymoney/moneyweb-tax/sars-is-seeking-to-criminalise-mistakes/)

### In the preamble to the latest Tax Administration Bill, the South African Revenue Service (Sars) indicates that it proposes to “remove the requirement of intent from certain criminal offences”.

In what has become Sars’s attempt at a “tough stance” to scare taxpayers into compliance,
it has taken a blunt tool to remove a higher burden of proof that an action – or
an omission – had criminal intent.
 Sars has already decided that any action or 
omission was “wilfully done”, and is therefore criminal. So why should it waste 
time in trying to determine this?

It seems that in Sars’s book, taxpayers cannot make an honest error (naturally this
doesn’t apply to Sars’s own staff).

Bowmans partner Patricia Williams explains: “Sars wants to remove the requirement
that the relevant action must have been done ‘wilfully’. This removes the requirement
of criminal intent before the action is considered a crime.”

[Have your say on the amendments here ](https://dearsouthafrica.co.za/tlab/)

#### Burden of evidence

Sars has in the past attempted to “utilise the criminal offence provisions to extract
funds from people”. However, to be successful, Sars had to clear the ‘wilful intent’
hurdle. This was obviously placing too high a degree of skilfulness on Sars’s auditors;
after all, ‘wilful intent’ requires a heavier burden of evidence.

Says Williams: “Criminal intent already encompasses dolus eventualis – that is, 
foreseeing the reasonable possibility of an outcome and reconciling yourself to 
that. In the circumstances, gross negligence would already arguably meet the standard
of something ‘wilfully’ done. What Sars is seeking to do is to criminalise mistakes.”

Many frustrated taxpayers and tax practitioners complain that Sars treats them like
criminals. Well, here is the proof.
 Sars intends excising ‘wilful intent’ from:

 * Paragraph 30 (employees’ tax offences) of the Fourth Schedule to the Income Tax
   Act (TAA);
 * Section 58 (offences in regard to compliance) of the Value-Added Tax Act; and
 * Section 234 of the Tax Administration Act.

The amendment to Section 234 of the TAA now changes an error that can be made by
anyone into a criminal act, such as: the failure to notify Sars of a postal address,
a physical address, banking particulars used for transactions with Sars, an electronic
address used for communication with Sars, or such other details as the commissioner
may require by public notice.

It is also apparent that Sars expects all taxpayers to read their public notices,
even those without access to the internet or newspapers.

Further, Section 234 provides that Sars may register and allocate a taxpayer reference
number to a person who is not registered. Woe betide the person who doesn’t know
this, as not using this number in any communication with Sars will turn you into
a criminal.

In the Draft Memorandum on the objects of the Tax Administration Laws Amendment 
Bill, Sars reasons that using the term “wilfully” in respect of a statutory crime
is not correct, and that it is not possible to “wilfully” neglect something, and
that failing to do something required by the Act could be “problematic”.

#### Intent

Williams is of the view that: “This is patently wrong. One can purposefully fail
to submit one’s tax return, or purposefully fail to pay one’s taxes. This looks 
like Sars is misstating the position, in order to make the proposed [unfair] amendment
seem more reasonable.”

The National Prosecuting Authority (NPA) is of the view “that the current wording
relating to criminal offences substantially undermines the ability of Sars to ensure
compliance based on the objective standard expected of the reasonable person”.

“Consequently,” it says, “this may hamper the criminal prosecution of non-compliant
taxpayers by the NPA in seeking to prove the elements of the crime.”

Williams is surprised: “Since when is it justifiable to remove certain elements 
of a crime in order to make it easier to prosecute?”

Is it possible that the NPA, which cannot point to a successful record in making
powerful criminals account for their crimes, realises that it is not competent to
pull off an ‘Al Capone’ tax arrest without removing ‘wilful intent’?

As for Sars, do its problems stem from the term ‘wilful intent’ scuppering its attempts
at prosecuting the big boys – or from its lack of skills, inefficiency, and having
been hollowed out by state capture?