By Kotie Geldenhuys
With tax season upon us, many people will again try not to pay the full share of what they owe the taxman in income taxes. People who evade taxes are not just cheating the government, they are also stealing from their neighbours who are following tax laws and regulations. Tax evaders are criminals who are dishonest and motivated by greed. Those who hold the view that tax evasion is a victimless crime are usually those who cheat the taxman. In fact, tax evasion is not a victimless crime and all honest taxpayers are the victims of these greedy tax evaders.
Tax evasion is nothing new as the concept of cheating the taxman has been around since the time of the Egyptian pharaohs. In the time of the pharaohs taxes on harvests were collected by force by the “scribes” they employed. Tax evasion was regarded as a serious crime and punished by 100 strokes with a cane as well as five bleeding cuts in more severe situations (Viljoen, 2016). Tax evasion and harsh taxes were a major cause of the downfall of empires and dynasties throughout history (Coetzee and Storm, 2018).
Tax avoidance versus tax evasion
Tax evasion is the general term used to describe efforts by individuals, firms, trusts and other entities to evade the payment of taxes by illegal means. Tax evasion usually entails taxpayers deliberately misrepresenting or concealing the true state of their affairs to the tax authorities to reduce their tax liability, and includes, in particular, dishonest tax reporting (such as under-declaring income, profits or gains or overstating deductions) (Musviba, Nd). Dr Lee-Ann Steenkamp from the University of Stellenbosch’s Business School adds that tax evasion is usually characterised by fraud and deceit. It refers to all illegal activities deliberately undertaken by a taxpayer to free him- or herself from any tax burden. Examples include the falsification of returns and the conclusion of sham transactions (Steenkamp, 2012).
Tax avoidance, on the other hand, is characterised by open and full disclosure, where a taxpayer has arranged his or her affairs in a perfectly legal manner so that he or she has reduced either his or her income or has no taxable income (Steenkamp, 2012). Nyasha Musviba, a registered tax practitioner based in Cape Town, explains further that tax avoidance is generally the legal exploitation of the tax regime to one’s own advantage, to attempt to reduce the amount of tax that is payable by means that are within the law while making a full disclosure of the material information to the tax authorities. Examples of tax avoidance involve using tax deductions, changing one’s business structure through incorporation or establishing an offshore company in a tax haven (Musviba, Nd).
Dr Steenkamp further argues that because of the thin line between tax evasion and tax avoidance, the two concepts may be confused. Therefore, courts have played an important role in clarifying the distinction between the two concepts (Steenkamp, 2012). Tax evasion is illegal and any taxpayer found guilty faces criminal charges which may result in incarceration.
Tax evasion - a costly, global problem
Tax evasion is a global problem which costs countries dearly each year. In the UK it was estimated that for the 2017/2018 tax year, the total loss from tax evasion was £5.3 billion (Seely, 2020), while the USA loses revenue from intentional evasion and unintentional errors of approximately $458 billion per year (Merrefield, 2020). The European Union (EU) member states also lose more than €170 billion a year due to tax avoidance and evasion.
In South Africa, the Davis tax committee highlighted the fact that accounting, law and tax advice firms are deeply implicated in tax evasion. “Taxpayers cannot do this alone. Many of these structures are very sophisticated,” Judge Dennis Davis argued. By the end of 2019, the committee estimated that the annual tax gap in South Africa was at least R50 billion. The tax gap is the difference between what is actually collected by the South African Revenue Service (SARS) and what can realistically be expected to be collected, and is explained by tax fraud and evasion. According to the chair of the committee, Judge Dennis Davis, the amount lost due to VAT fraud and tax evasion by high-net-worth individuals must still be quantified, but he said: “If you take all of that, a R50 billion estimate is very conservative” (Ensor, 2019).
With this in mind, anti-crime activist, Yusuf Abramjee, claims that tax evaders are systematically looting the nation of R100 million every single day. He explained that the R100 million figure is an estimate based on government's budget shortfall figures. “In 2018, there was a budget shortfall of R42.8 billion (R117 million per day), a figure for which tax criminals were overwhelmingly responsible. Many have become billionaires by stealing people’s money and leaving millions to languish in poverty. These brazen tax evaders rob the income taxes, sales taxes and corporation taxes that they should be paying and are needed to transform and rebuild South Africa,” he stressed. Mr Abramjee added that more than 4000 primary school teachers or 4000 police officials could be employed for an entire year with just one week’s worth of the recovered taxes and said: “The 5.1 million people living in shacks could be provided with social housing within just two years of collecting the lost revenue,” (Mahlangu, 2020).
Tax evasion is a crime in almost every country around the world where the guilty party is supposed to be subjected to fines or even imprisonment. According to Nyasha Musviba, Switzerland is one notable exception: tax fraud (forging documents, for example) is considered a crime, while tax evasion (like under-declaring assets) is not (Musviba, Nd).