In the past SARS needed to prove that a taxpayer had committed a tax crime “willfully and without just cause” but the legislation has just been changed. The court can now find you guilty of a tax crime even in cases of negligence or even in a case where the taxpayer may have made a mistake.
The amended law separates non-obedience into two groups: the first is where the taxpayer’s intention is not considered, and the other group is where the taxpayer’s intention is considered.
Here are the tax offenses which could cost you jail time, whether you have committed or not:
This is where you possibly did not have any intention to betray or to be negligent and only made a mistake or missed to do a required task as listed below. It is important to note that you can no longer use ignorance as a defense mechanism.
- Failure to register for tax or to notify SARS of a change in personal details.
- Failure to appoint a representative taxpayer or to notify SARS where there is a change in the representative taxpayer.
- Failure to register as a tax practitioner, if required.
- Failure to submit a return or a document to SARS or to issue a document to a person as required under a Tax Act.
- Failure to retain required records.
- Failure to comply with a SARS directive.
- Failure to provide information or documents as requested (this excludes information that may be requested for revenue estimations).
- Failure to give evidence when required to do so.
- Failure to disclose material facts to SARS as required.
- Failure to comply with tax payments including third-party payments.
- Failure to comply with withholding tax obligations when required to do so.
- Failure to issue any employees’ tax certificates or failure to notify SARS of no longer being a registered employer.
- Failure by an employer to deliver to any employees’ tax certificate
- Failure to submit provisional tax estimates.
- Failure to comply with the payment of VAT on imported services.
- Failure to submit VAT returns and special records.
- Failure to include VAT in the advertised or quoted price or failure to separately indicate the VAT exclusive price and the VAT inclusive price.
- Failure to keep records as required.
Here are the tax offenses that could cost you jail time with proof of intent:
This is where you intentionally deceive or misrepresent.
- Submitting false certificates or statements regarding returns, records and reportable arrangements.
- Issuing incorrect, incomplete, or falsified documents.
- Failure to reply to or answer questions posed by a SARS official honestly and completely.
- Obstructing or hindering a SARS official in fulfilling their duties.
- Refusal to assist during an audit or criminal investigation.
- Pretending to be a SARS official.
- Dissipating assets (or assisting another person to dissipate assets) in order to hinder tax collection.
- Using any amounts deducted from employees’ tax for purposes other than paying it to SARS.
- Issuing documents purporting to be employees’ tax certificates if they are not an employer or not authorised to do so.
- Declaring that the price chargeable is subject to VAT, where in fact no VAT is payable or charging VAT in excess of the VAT cost.
- Issuing more than one tax invoice, credit note, or debit note in respect of a VAT supply.
It is best to ensure that you are tax obedient and ensure that you are registered for all the tax types you should be registered for, all your details are up to date and that your tax returns are up to date and paid for.
If you are unsure about your compliancy status, you can contact SARS to enquire about your status or you can make use of a qualified tax practitioner like TaxTim to assist you.