The ANC is fighting to keep its tax affairs secret after attempts by AfriForum to access its records dating back as far as 1994.
Sars told Luthuli House this week that the pressure group was seeking the records through the Promotion of Access to Information Act (PAIA).
This follows revelations that the governing party owes millions of rand in pay-as-you-earn (PAYE) contributions it deducted from its employees but never passed on to Sars.
In a letter to Sars, the ANC argued that the request by AfriForum was an attempt to embarrass the governing party and portray it an irresponsible organisation. The Sunday Times has seen a letter from ANC attorney Krish Naidoo to Sars saying the request by AfriForum constitutes “an unreasonable disclosure of confidential information”.
According to Naidoo and ANC treasurer general Paul Mashatile, the party has a duty to protect its and its employees’ tax records.
“It is worth restating the principle that international tax practice and jurisprudence guarantees the right to confidentiality of all taxpayers and this right is inviolable,” Naidoo said in his letter. “As you are also aware, section 4 of the Income Tax Act provides for the preservation of secrecy by Sars officials in regard to a taxpayer’s affairs.”
The Sunday Times reported last year that Sars had garnisheed the ANC’s funding from the Electoral Commission of SA in part-payment of its ballooning tax bill.
At the time the ANC owed Sars R80m in unpaid PAYE debt and about R140m in provident fund debt.
In its letter to Sars, AfriForum requested the ANC's full tax history since 1994 and the total amount the party owes to Sars. It wanted to know what steps the revenue collector had taken to recoup the debt. AfriForum also wanted Sars to explain whether the ruling party enjoyed any special treatment.
In an interview this week Mashatile said the ANC’s tax affairs were private and confidential.
“We said if Sars goes to court we will join Sars. We don’t know how Sars is going to respond but we are saying there’s no need for Sars to give any third party our information. We’re refusing. It’s not correct,” Mashatile said. “Because now when do you stop? Tomorrow they will want your tax records or mine, so where do you stop?”
As we speak now we don’t have a problem with Sars, we have paid them
— ANC treasurer general Paul Mashatile
Mashatile could not be drawn into disclosing how much the party owed Sars, but said it was nowhere near the reported R100m.
“We have been paying Sars and we have paid Sars in February and we have now paid them as of March. As we speak now we don’t have a problem with Sars, we have paid them,” he said.
Mashatile said AfriForum could not put up a viable argument for access to the ANC's records.
“They can’t even argue it’s public funds because we account for public funds separately. The money we get from the IEC as a party we account for to the IEC separately. So what we owe Sars has nothing to do with that, it’s our private arrangement so why do they want it? We are private organisation,” he said.
In his letter to Sars, Naidoo said that AfriForum’s request for ANC tax records sought to “delegitimise” the ANC while doing the same to Sars “as an organ of state that treats taxpayers the same”.
“The ANC has come to this conclusion because it is not readily apparent what right AfriForum is purporting to protect or advance in making the PAIA application and how the information it seeks is relevant to the right it wishes to protect or advance,” Naidoo said.
“For these reasons, the ANC requests an unequivocal written undertaking from your office within 14 days that Sars will not disclose the tax records of the ANC to AfriForum or any other third party.”
“We have also been instructed to request an undertaking from your office that in the event that AfriForum institutes legal proceedings against Sars to demand such records, you will immediately inform ANC of such proceedings so that it can join the litigation as an interested party to prevent AfriForum from abusing the constitutionally entrenched right of all South Africans to privacy and from violating SA’s internationally recognised tax administration system.”
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