Interpreting the term enterprise for South African value-added tax purposes
Botha, Hendrika Magdalena
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Value-added tax (VAT) was introduced in South Africa in 1991 by the Value-Added Tax Act (89 of 1991) (the VAT Act). The South African VAT system is a destination-based, consumption-type VAT and is levied on goods or services consumed in South Africa. The definition of enterprise is an important definition in the VAT Act and it sets out the persons, activities and supplies that are to be included in the VAT base. It is compulsory for a person that conducts an enterprise in South Africa to register for VAT if the threshold set for taxable supplies is exceeded. There are interpretational problems and uncertainties in respect of the definition of “enterprise” and when an enterprise is conducted in South Africa or partly in South Africa. The purpose of this research study was to interpret the term enterprise for South African VAT purposes, to identify interpretational challenges and uncertainties and to suggest what must be addressed through guidance and interpretation by the South African Revenue Service (SARS) to provide more clarity. The research methodology followed to achieve the set objectives was normative research which is a form of legal research, specifically doctrinal. The requirements in terms of the VAT Act for levying of VAT, registration for VAT and the conducting of an enterprise in South Africa were explored and interpretational challenges and uncertainties were identified. The requirements for levying of and registration for VAT/ GST, in New Zealand, in terms of information supplied by the EU and guidance supplied in respect thereof by the OECD were analysed and discussed. The information obtained was used to establish how the interpretational problems and uncertainties that were identified are dealt with in New Zealand and in terms of the information and guidance from the EU and the OECD. The interpretational challenges and uncertainties identified include the reference in the definition of enterprise in Section 1(1) of the VAT Act to activities that must be conducted continuously or regularly in South Africa or partly in South Africa. Uncertainty as to the interpretation of the term “utilised or consumed in the Republic” also exists. Guidance in respect of these interpretational problems and uncertainties is necessary to enable suppliers and consumers to determine with certainty if a person is obliged to register for and levy VAT on supplies made in South Africa.