F v COMMISSIONER OF TAXES 1982 (2) ZLR 60 (S)

Flynote

Sales Tax Act [Chapter 184] — section 4 (1) (a) — value of sales subsequently reduced by reason of cancellation of sales — refund by Commissioner of excess ^taut paid — section 23 — scope of — whether entitlement to refund falls under section or under general law.

Headnote

In early 1976 the appellant corporation claimed refunds of sales tax allegedly due to it by reason of the cancellation of certain sales. The Commissioner considered that the appellant was not entitled to them. The appellant selected two claims and appealed. The Fiscal Appeal Court, on the 2nd January, 1980, ruled in favour of the appellant, which then submitted further similar claims. Some of these the Commissioner met but others were rejected on the grounds that the claims were prescribed by section 23 of the Sales Tax Act [Chapter 184], having been brought more than three years after the tax was paid. The Fiscal Appeal Court upheld this ruling and the corporation appealed.

The appellants' contention was that section 23 did not apply to refunds of the type claimed, which, it said, fell under section 4 (1) (a) of the Act and could be claimed under the general law. In particular, it was argued, if section 23 did apply, one could have the anomalous position of a claim being prescribed before it arose, as where cancellation took place more than three years after the sale.

The Commissioner argued that section 23 provided the only method of claiming refunds of tax, the Act providing a complete scheme for the imposition, collection and refund of sales tax. This was a situation where, to make the Legislature's intention clear, words should be read into the section.

Held, allowing the appeal with costs, that no aid could be sought for the interpretation of section 23 outside the section itself, which applied to any person who has paid tax for which he was not and never had been liable. It did not apply to the circumstances of this case, where the appellant was liable to pay sales tax determined by the original sale value but events occurred thereafter giving rise to a permissible deduction in terms of section 4 (1) (a).

Held, further, that the method of recovery of excess tax paid available under the general law remains unless the statute provides a method. As no method was provided, recovery was available under the general law and no prescription period operated.