Esselmann v Secretary of Finance (11/90) [1990] NASC 5 (13 November 1990)

In this matter the Appellant appeals against a judgment of Hendler, J of the former Supreme Court of South West Africa, which judgment was upheld on appeal by the Full Bench of that Court.

(the deceased), who died on 22 January 1976. The deceased left a valid will in which he appointed Appellant as executrix of his estate and sole heir. Appellant was duly appointed executrix, and as such appointed one Oehl to be her agent for the purpose of winding up the estate of the deceased. Such appointment did not, however, release her from any responsibilities as executrix.

On 3rd February 1976 the Secretary of Finance, who is the Respondent herein, wrote to Oehl as agent for Appellant, enclosing inter alia income tax forms to be completed in respect of the tax period 1973 to date of death on 22 January 1976, and v/hich had not been rendered by the deceased during his lifetime. Likewise attention was drawn to the fact that an amount of R23,923-80 was outstanding by the deceased in respect of assessed tax in respect of the tax. year 1972.

Pressure was put on the executrix via her agent to comply with the demands made by the Respondent. On 20 June 1979 Respondent gave Appellant final notice to pay the outstanding tax for the year ending 28 February 1972, and render the required returns for 1973 to date of death within 30 days, failing which he would make tax assessments for the years in question on estimated income. The returns were then ultimately rendered on 18 July 1979, and Respondent thereafter calculated the amount of tax for each of

the years in question, and issued formal assessments in respect thereof. These notices of assessment were forwarded by ordinary post to Appellant's agent Oehl on 1 February 1980. Appellant in her evidence later asserted that she never received these assessments, and was unaware thereof as well as of the amounts assessed for each year until some time later. The tax which had already been assessed for the year 1972 also remained unpaid at this stage, so that a total amount of R79,083-05 had been assessed and for which payment was demanded by Respondent.

On 9 November 1980 a final demand for the payment of the tax amounting to R79,083-05 was sent by Respondent by registered post to Appellant at her correct postal address, requiring her to pay the outstanding amount within 14 days, failing which legal steps would be taken. Appellant in her evidence also denies having received such notice. Respondent in his additional replying affidavit does not deal with this allegation, does not deny it, and Appellant's evidence must therefore be accepted.

The whole matter was not pursued, however, and no action was taken by Respondent until 1986, when (after some inconclusive discussions between Appellant and Respondent had taken place in 1980) Respondent on 13 March 1986 sent a registered letter to Appellant demanding payment of the outstanding tax by 31 March 1986, otherwise proceedings would be instituted. There was no reaction by Appellant to this notice.

- 4 -of Section 83(1)(b) of the Income Tax Act 24 of 1981 (being identical to the former section 69(1)(b) of Ordinance No. 5 of 1974, which had been repealed) with the Registrar of the then Supreme Court of South West Africa. The statement (containing details of the outstanding tax) once so filed "had all the effects of, and any proceedings may be taken thereon, as if it were a civil judgement" in favour of the Secretary of Inland Revenue for a liquid debt of the amount specified in the statement".

I shall refer to this as "the judgment". On the same day the judgment was granted a registered letter was sent to Appellant "Mrs. Karin Esselmann, p.a. Boedel wyle H.J.K. Esselmann", demanding payment of the judgment sum within 21 days, failing which a warrant of execution would be issued.

Appellant thereupon launched an application for the setting aside of the judgment. The basis of the application was that the registered letter demanding payment v/as addressed to Appellant "p.a. boedel wyle H.J.K. Esselmann", and that from this it was not clear whether the demand was directed to Appellant personally or in her capacity as executrix. The application was opposed and evidence was led. From the evidence it became clear that Respondent intended the judgment and subsequent demand to be operative as against Appellant in her capacity as executrix, and not in her personal capacity. It also became clear that Appellant had no objection to the judgment being of force against her in her capacity as executrix, but that she strongly opposed

At the conclusion of the hearing of the Application Strydom. J. held that inasmuch as it had clearly emerged that Respondent intended to obtain the judgment against Appellant in her capacity as executrix, and that on the other hand the Appellant had no objection against the granting of the judgment against her in her capacity as executrix, but sought to set aside the judgment if this v/as against her in her personal capacity, the practical way to decide the application was to amend the judgment to make it clear that it was granted against Appellant in her capacity as executrix of her late husband's estate, and not against her in her personal capacity. This was achieved by a suitable Order granted by Strydom, J. on 2 October 1986.

The whole matter then rested until 3rd March 1987, when Respondent issued summons against Appellant in respect of the tax for the years 1973 to 22nd January 1976 amounting to R55 024,83, the assessed tax for the year 1972 having in the meantime been paid. From the Particulars of Claim and Further Particulars thereto it is clear that Respondent instituted the action against Respondent personally in terms of section 74 of the Income Tax Ordinance No. 5 of 1974.

Appellant then excepted to the Particulars of Claim as disclosing no cause of action. The exception was heard by Levy, J. who dismissed the exception. In so far as the grounds for the exception, and the dismissal thereof, may become relevant I shall

deal with them later. The exception having been dismissed the Appellant then filed a plea, the essence of which was that on the facts relied upon by Respondent he had no legally enforceable claim against Appellant on a proper interpretation of Section 74(b) of the Ordinance. I shall deal with the legal and factual issues raised by the pleadings in some detail later. Ultimately Respondent replicated and the matter went to trial before Hendler, J. on 3 May 1988. Protracted evidence was led by Respondent and one of his witnesses, as well as by Appellant. Hendler, J. thereafter gave judgment in favour of Respondent in the sum claimed, namely R55 024,85, plus interest and costs.

Appellant then applied for leave to appeal against this judgment, which Hendler, J. dismissed. Appellant then applied for leave to appeal to the Appellate Division of the Supreme Court of South Africa, which was still at the stage the final Court of Appeal, which granted such application on January 1989.

By virtue of Article 138(2)(b) of the Constitution all appeals noted to the Appellate Division of the Supreme Court of South Africa are deemed to have been noted to this Court, so that this Court is now seized with the jurisdiction to hear this appeal. As a result the appeal was placed on the roll of this Court and thereafter heard by it.

The following additional facts are also relevant. It was common cause that the Appellant was at all times fully aware that no tax returns had been rendered in respect of the period referred to,

As far as the administration of the estate is concerned Final Liquidation and Distribution Accounts were filed with the Master of the Court on 8 November 1976. in which the assets of the estate were awarded to Applicant as sole heiress of the estate of her late husband. The Account then laid for the statutory inspection period and no objections thereto was raised. As far as the Master was concerned, the formal liquidation and distribution of the estate was thereby finalised, and a filing notice issued on 10 January 1987.

The assets in the estate were awarded to and handed over and transferred (in the case of immovable property) prior to the closing off of the estate on 10 January 1987 by Appe]lant in her capacity as executrix to herself in her personal capacity as sole heir.

Before dealing with the relevant provisions of the Ordinance I will shortly restate the issues before the Court in this matter. They arise from the claim by Respondent against the Appellant in her personal capacity for the taxes assessed by Respondent in December 1979 in respect of the income of the deceased during the years 1973 to date of death. Respondent relies on his right to claim those taxed from Appellant by virtue of the provision of section 74 of the Ordinance. This is the only provision which

renders a representative taxpayer liable to pay personally the tax in respect of the income earned by a deceased during his lifetime, where normally such person would only be liable to pay such tax in her representative capacity.

It is common cause that Appellant in her capacity as executrix testamentary of her husband's estate, became a "representative taxpayer" in terms of section 72(2) of the Ordinance, read with subsection (d) of the definition of "representative taxpayer". Section 72(2) reads as follows:

"72(2) Every representative taxpayer referred to in paragraph (d) of the definition of 'representative taxpayer' in section 1 shall as regards the income received by or accrued to any deceased person during his lifetime be subject in all respects to the same duties, responsibilities and liabilities as if the income were income received by or accrued to or in favour of him beneficially and shall be liable to assessment in his own name in respect of that income, but any

taxpayer, but to the extent only of any assets belonging to the person whom he represents which may be in his possession or under his management, disposal or control."

income of any deceased person shall be entitled to recover the amount so paid from the estate of such deceased person or to retain out of any moneys of the estate of such deceased person that may be in his possession or that may come to him as executor of such estate, an amount equal to the amount so paid."

Appellant's main submissions in argument are as follows. There can be no liability for payment for taxes unless a proper "income tax assessment" has been made and served upon the person liable to pay such taxes. He supports this submission by referring to sections 53(3), 53(5), 57(1) and 65(1) and (2) of the Ordinance. Section 53(3) in particular enjoins the Secretary (Respondent) that he is obliged to give notice of the assessment to the taxpayer so assessed. Furthermore, he submitted that any notice of assessment in respect of tax incurred by a deceased during his lifetime and assessed after his death, must be served on the

executor representative taxpayer in accordance with section 83(2) of the Ordinance (as amended), which provides for the methods of service of all notices etc., including notices of assessment. The relevant part of this section reads as follows:

(ii) if let with some adult. person apparently residing at or occupying or employed at his last known abode, or office or place of business in the Territory; or

(iii) if despatched by registered post in an envelope on which is written his name and his last known address which may be any such place or office as is referred to in paragraph (a)(ii) or his last known post office box

Namibia: Supreme Court

Esselmann v Secretary of Finance (11/90) [1990] NASC 5 (13 November 1990)