Piercing the corporate veil of the close corporation with the Tax Administration Act.

Abstract

The topic of piercing the corporate veil has long been a debated phenomenon globally. In the United Kingdom, the landmark case of Salomon v Salomon and Co Ltd1 provided much needed clarity in the application and acknowledgment of the independence of the juristic entity from its key players. The courts have been mindful of this fundamental rule and have also declared that this separate identity is not absolute as in certain instances the corporate veil will be set aside. Various statutes have been introduced to provide the courts with guidelines as in what instances veil piercing will be acceptable. The most notable statute is the introduction of the Companies Act 71 of 2008 (hereinafter referred to as the ―2008 Act‖). Worldwide, tax authorities in their role as tax administrators and collectors have been faced with the veil piercing dilemma. The aim of this dissertation is to determine if the South African Revenue Service (hereinafter referred to as SARS) could use the Tax Administration Act 29 of 2011 (hereinafter referred to as the ―Tax Admin Act‖) to attach the tax liability of an entity such as the close corporation to its members. To determine this, an investigation into the variety of sources available to SARS to pierce the corporate veil is required. The practical application by SARS, thus far, in their ability to attach the tax liability of a juristic entity to its key players is essential to determine how the SARS has been dealing with these types of matters. The enactment of the much needed Tax Admin Act has provided SARS with even further reaching powers when it comes to the collection of taxes. An evaluation of the definition of a taxpayer, as contained in Section 151 of the Tax Admin Act, will be considered. In particular, the concepts of the Representative taxpayer and the Responsible third person shall be discussed as both these terms empower SARS to attach the tax liability of a juristic entity to a natural person should the tax debt remain unpaid. The Tax Admin Act provides SARS with even further reaching powers to enforce the collection of the corporation‘s tax debts against another person. It appears as though the legislature has paved the way even further for SARS to target and hold responsible the key players of a corporation. From a global perspective, an investigation into how the tax authorities of foreign jurisdictions have been dealing with the concept of lifting the corporate veil will be conducted. In light of the findings, a determination of how South Africa compares globally in its approach to the veil piercing doctrine by the tax authorities shall be made. In my conclusion I will evaluate my findings.