CAPE TOWN - Candice van der Merwe and her father, businessman Gary van der Merwe, today head to the Tax Court, sitting at the Cape Town High Court, to fight for the R44m paid under protest by Candice van der Merwe in March 2016 to SARS to be returned to her.
The R44m was paid by well known Cape Town model, Candice, to SARS in terms of the “pay now argue later” rule, meaning that a taxpayer is obliged to pay whatever tax SARS claims to be due, but with the caveat that the taxpayer may then present their case as to why it should be returned to them, with interest.
Candice, assisted only by her father Gary, who she has appointed to represent her in the Tax Court with a power of attorney, is confident in her chances of winning the matter and getting the money repaid.
According to van der Merwe, the case for his daughter is a simple one, namely that the money was a donation from a friend overseas, rendering it untaxable in South Africa.
He noted that while SARS claimed that a large portion of the original US$15.3m was taxable as it was used to purchase property in South Africa by Candice, when they wanted the R44m to be paid as tax, SARS had no difficulty accepting this as a donation by the same donor as had paid the initial US$15.3m, without demur.
“The argument is simple, in that the money was not legally taxable and should therefore not have been taxed. The fact that SARS falsely alleged the money to have been mine, only to later concede it was not, should have had no bearing on what my daughter should be taxed. I want to set this thing right for Candice.”
Van der Merwe says SARS have raised a number of highly technical procedural arguments, which the court must decide upon. “I feel SARS have avoided the issues and I will have more to say about their conduct once the matter is finalized.”
In a touch of irony, the application to have the tax repaid by SARS, being heard today, falls exactly 6 years after SARS obtained a preservation order in the same court in front of the same judge against Candice, her father and all related trusts and companies, on 30 August 2013.
Van der Merwe said “Its unbelievable how this has worked out, as we are in front of Judge Rogers, the same judge that granted the preservation order exactly 6 years ago.”
The preservation order has since been lifted against Candice van der Merwe, but remains in place over the assets of Gary and a few related companies, including the prized historic Woodbridge Island Zonnekus Mansion property, itself the subject of ongoing litigation. The Zonnekus Mansion property was referred to in a 2016 judgment by Judge Gamble as “van der Merwe’s castle”, which van der Merwe remains in occupation of.
As previously reported, Gary and Candice van der Merwe are also presently suing SARS for an amount of R7.6bn in damages.