The impact of CSARS v South African Custodial Services (Pty) Ltd. on the income tax position of construction contractors

Abstract

Infrastructure is one of the top priorities of the South African Government. Substantial amounts will be invested by the Government in infrastructure between 2014 and 2016 as good infrastructure plays a pivotal role in the growth of the South African economy. Government does not have sufficient resources to meet its infrastructure goals and is therefore dependent on the private construction sector to provide assistance. Discrepancies were noted between the judgment laid down in CSARS v South African Custodial Services (Pty) Ltd (SACS) and the interpretations from the relevant sections contained within the Income Tax Act governing the normal tax treatment of construction contractors. The aim of this study was to determine whether reliance could be placed on the judgement laid down in CSARS v South African Custodial Services (Pty) Ltd in order to determine the nature and deductibility of expenditure incurred by construction contractors in future. It is crucial that tax legislation should be correctly interpreted and applied in determining the taxable income of taxpayers as it is evident that tax consequences influence the behaviour of South African taxpayers. A literature study of prior case law, sections of the Income Tax Act governing the normal tax treatment of construction contractors as well as other relevant literature was performed in order to determine the correct application of sections governing the normal tax position of construction contractors. The negative tax consequences suffered by SACS as a main contractor due to judgement laid down in CSARS v South African Custodial Services (Pty) Ltd could influence the willingness of the private construction sector to provide assistance to Government in future. Based on the literature study performed it was found that the court's application of Section 22(2A) of the Income Tax Act was correct. It was further found that the Court erroneously applied Section 11 (a), and as a result incorrectly determined the normal tax position of SACS. In response to this it is recommended that no reliance should be placed on the judgement laid down in CSARS v South African Custodial Services (Pty) Ltd in respect of determining the nature and deductibility of fees paid to subcontractors by construction contractors, as this could result in negative tax planning consequences.