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The general meaning of “extenuating circumstances” for the purposes of section 76(2)(a) of the Income Tax Act, No. 58 of 1962, (the “Act”), was discussed by the current author in a previous article in this research journal. Certain defences or pleas and their effect on the level of penalties imposed by the judiciary were also analysed in previous articles in this research journal. These defences and pleas include reliance on a tax advisor, bookkeeper, accountant or member of staff and the conduct of the taxpayer before, during and after committing an offence. This article specifically examines those special or unusual defences or “extenuating circumstances” that may influence the level of a penalty that is imposed in terms of section 76 of the Act for offences that are committed in terms of that section.

Heavy penalties may be imposed on a defaulting taxpayer in terms of section 76(1) of the Income Tax Act, 58 of 1962 (the “Act”), unless “extenuating circumstances” are found to prevail, in which case any penalty imposed may be remitted partly or even in toto. This article examines the defence or plea of adverse personal circumstances, such as education, intelligence, financial means, hardship, age, influence of others, provocation and the death, insolvency or liquidation of a taxpayer, and whether such adverse personal circumstances could be considered to be “extenuating” for the purposes of section 76(2)(a) of the Act and lead to a remission of the penalties imposed.

An offending taxpayer may plead “extenuating circumstances” in order to reduce the penalty or sanction that may be imposed in terms of section 76(1) of the Income Tax Act. The objective of this article is to examine whether the conduct of the taxpayer before, during and after the commission of an offence (usually tax evasion), in terms of section 76(1) of the Act or of the common law, can affect the level of the penalty or sanction imposed. The conclusion that can be reached is that, in appropriate circumstances, the conduct of the taxpayer can affect the level of a penalty imposed in terms of section 76(1).

This study analyses and discusses the application and constitutionality of the general onus of proof provision (section 82 of the Income Tax Act 58 of 1962 [the “Act”]), the presumption in favour of the State when criminal sanctions are applied to an offending taxpayer (section 104(2) of the Act) and the mechanics for imposing administrative sanctions in terms of section 76(1)(b) of the Act. The conclusion reached is that the reverse onus presumption, as provided for in terms of section 104(2) of the Act, is unconstitutional. It is penal in nature and offends against the constitutional right of an accused to a fair trial (sections 35(3) of the Constitution of the Republic of South Africa Act, 108 of 1996 [the “Constitution”]). The section 36 limitation of rights clause of the Constitution does not save it. Section 76(1)(b) of the Act read in conjunction with the deeming provision of section 76(5) of the Act, is inextricably linked to the section 82 general reverse onus provision of the Act. Hence, when these three sections are applied together, they create a reverse onus that, prima facie, violates the right to just administrative action (section 33 of the Constitution). Regarding the general reverse onus burden as provided for in terms of section 82 of the Act, the conclusion reached is that it is reasonable and justifiable in an open and democratic society and can therefore be regarded as constitutional.

Many taxpayers rely on their advisors to look after their tax affairs. In spite of this reliance, taxpayers still find themselves in default for the purposes of section 76(1) of the Income Tax Act and additional tax (referred to as a “penalty” by the judiciary) is imposed. This article examines whether the reliance by a taxpayer on his advisor, be it his accountant, bookkeeper or even a member of staff, can constitute a complete or partial defence to the imposition of additional tax in terms of section 76(1) or be regarded as an “extenuating circumstance” for the purposes of remission of additional tax in terms of section 76(2)(a).

This study examines the way in which our judiciary approach the interpretation of fiscal legislation. It traces the roots of the historical approach (the strict and literal approach), its shortcomings and the modifications to such an approach when it leads to an absurdity. It then analyses whether the advent of the Constitution (Constitution of the Republic of South Africa Act 108 of 1996) has been a catalyst for a change from the strict and literal approach. The conclusion reached is that the Constitution has been a catalyst for a change in approach ‐ to a purposive approach. One of the results of the change in approach means that the taxpayer now has a realistic opportunity to question and even have unjust and unfair interpretation decisions of the past reversed in the appropriate circumstances.

The additional tax (referred to as a “penalty” by the judiciary), which may be imposed in terms of section 76(1) of the Income Tax Act (“the Act”) when a taxpayer is in default, can be very harsh (Up to 200% of the tax correctly chargeable). The Commissioner may remit any penalty imposed as he sees fit. However, when there was intent on the part of the taxpayer to evade the payment of tax, the Commissioner may not remit the 200% penalty, unless he is of the opinion that there are “extenuating circumstances”. This article examines the general meaning, as interpreted by the courts, of the “extenuating circumstances” that may be taken into account for the purposes of remission of penalties in terms of section 76(2)(a) of the Act.

Section 80A(c)(ii) of the Income Tax Act 58 of 1962, as amended (the Act), introduced a new concept to the South African income tax environment: misuse or abuse of the provisions of the Act, including Part IIA thereof. According to the Revised Proposals on Tax Avoidance and section 103 of the Income Tax Act 58 of 1962 (Revised Proposals) the rationale behind the insertion of section 80A(c)(ii) was to reinforce the modern approach to the interpretation of tax statutes “in order to find the meaning that harmonizes the wording, object, spirit and purpose of the provisions of the Income Tax Act”. The objective of this article is to examine the rationale behind section 80A(c)(ii) of the Act.

The purpose of this paper is to garner a deeper understanding of the site of influence of aspects of risk management for tax practitioners.

The research design is twofold. Phase one consisted of a wide-scale international survey with 1,061 tax experts across 59 jurisdictions. In phase two, the authors followed up with 68 semi-structured interviews with tax practitioners working in 11 different countries.

The findings recognise the importance of the firm as a significant “site of influence” for tax practitioners in shaping their risk appetite in their tax work. The firm eclipses other influences of risk such as professional body oversight, public interest and demographic markers such as gender and career stage. The authors show that firm is significant, irrespective of size of firm.

This work has practical implications as the findings highlight the importance of oversight of professional service firms by both the professional accountancy bodies and revenue authorities. The findings may have impact on the ethical training and guidance for trainee accountants in terms of an increased awareness on the employing firm as a site of influence for tax practitioners.

This research is important as it adds to the significant body of work on firm socialisation and highlights the important role that the firm holds in moderating (or exacerbating) the risk appetite of tax practitioners, which has significant implications in terms of pushing the boundaries of tax aggressive behaviours. The work aims to recognise the important role that tax practitioners can have in moderating aggressive tax practice, and, thus, reducing tax inequalities and shaping a better world of “Reduced Inequalities” (SDG10).

This study aims to explore the evidence of the probability of firms’ tax avoidance and the downward convergence trend of national statutory tax rates and firms’ effective tax rates.

This research employs exploratory data analysis using interactive data manipulation and visualization tools, namely, R with SparkR, dplyr, ggplot2 and googleVis (GeoChart and Motion Chart) packages. This analysis is based on the world-scale accounting data of all listed firms from 148 countries spanning 30 years.

The results reveal the following: three types of evidences on probability of firms’ tax avoidance, showing a non-random distribution of firms’ effective tax rates and return on assets, cross-sectional variation of firms’ effective tax rates in each country, and the trend of difference between effective tax rates and statutory tax rates, and the downward convergence trend of statutory tax rates and firms’ effective tax rates.

The results highlight the prominent issues of world-scale tax avoidance and tax rate competition and facilitate a collaborative discussion between laymen and professionals using objective evidence.

A novel methodology is adopted through the visualization of world-scale accounting data, which can facilitate a new perspective, revealing unexpected patterns and trends in otherwise hidden information. This study also highlights the importance of global consideration of firms’ tax avoidance and tax rate competition, using objective evidence.