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Opinion writing Presenter:
PJ Nel
CA(SA)
A view or judgement formed about something, not necessarily based on fact or knowledge:
As will be explained later, for purposes of tax opinions, an opinion will have to be “based on fact or knowledge”.
With regard to the word “view” the Oxford dictionary states that it is “a particular way of considering or regarding something; an attitude or opinion”.
With regard to the word “judgement” the Oxford dictionary states that it is “the ability to make considered decisions or come to sensible conclusions.”
a belief or judgment that rests on grounds insufficient to produce complete certainty.
the formal expression of a professional judgment
a view, judgment, or appraisal formed in the mind about a particular matter
belief stronger than impression and less strong than positive knowledge
a formal expression of judgment or advice by an expert
judgment • an opinion or decision that is based on
careful thought • the act or process of forming an opinion
or making a decision after careful thought
Why would a person require a tax opinion?
One needs to understand the reason for the person requesting the opinion.
It is often to get confirmation that their understanding of the matter is correct.
It is also possible that they require an opinion protected by legal privilege. In this regard a lawyer would be consulted.
The may for instance already have an in-house opinion prepared by an employee, but as a matter of proper governance require one from an independent third party or specialist.
Often an opinion is required because they are involved in a dispute with SARS.
Section 240(1)(a) of the tax Administration Act, 2011, refers to:
Every natural person who provides advice to another person with respect to the application of a tax Act;
For purposes of this discussion I see an opinion as a formal expression of judgment or advice by a tax professional on the application of a Tax Act.
With regard to the origin of the word advice and according to the Oxford dictionary service “the original sense was a 'way of looking at something, judgement', hence later 'an opinion given'.”
It is the expression of the opinion giver's professional understanding of the legal principles applicable to a specific transaction or to a particular aspect of the transaction.
How would an opinion differ from a ‘tax position’?
According to section 221 of the Tax Administration Act and for purposes of the imposition of an understatement penalty, a …
… ‘tax position’ means an assumption underlying one or more aspects of a tax return, including whether or not—
an amount, transaction, event or item is taxable;
an amount or item is deductible or may be setoff;
a lower rate of tax than the maximum applicable to that class of taxpayer, transaction, event or item applies;
or an amount qualifies as a reduction of tax payable
This looks like an opinion to me. The use of the word ‘assumption’ may well be interpreted to include a meaning of ‘on the basis of an opinion’.
What an opinion is not
The question is whether an opinion letter can be viewed as a document that provides the recipient with the opinion giver's professional judgment about how a court would resolve the issues covered by the opinion letter.
I think we can accept that neither the opinion letter itself nor any particular (legal) opinion expressed in it is intended to be, or is, a guarantee of a particular outcome.
Now, why does section 223(3) require a registered tax practitioner to confirm “that the taxpayer’s position is more likely than not to be upheld if the matter proceeds to court”.
What is the relevance of section 223(3)?
It forces SARS to remit a ‘penalty’ imposed for a ‘substantial understatement’ – (SARS must…)
In order to do that SARS must be satisfied that the taxpayer:
made full disclosure of the arrangement, as defined in section 34, that gave rise to the prejudice to SARS or the fiscus by no later than the date that the relevant return was due;
and was in possession of an opinion by a registered tax practitioner, as defined in section 239,
Note the requirement relating to the “date that the relevant return was due”.
Section 223 of the Tax Administration Act.
What is the relevance of section 223(3)?
The opinion by a registered tax practitioner must meet the following requirements:
was issued by no later than the date that the relevant return was due;
took account of the specific facts and circumstances of the arrangement; and
confirmed that the taxpayer’s position is more likely than not to be upheld if the matter proceeds to court.
The last one is the ‘tall ask’. I have already indicated that an opinion normally doesn’t include a view of how a court would resolve the issues covered by the opinion letter.
Comment: Of course one don’t want to hear (or read) the following words: For the reasons that follow I am unable to align myself with that proposition.
Can a tax opinion then not assists a taxpayer with an understatement penalty?
Section 223(3) specifically refers to ‘penalty’ imposed for a ‘substantial understatement’.
A ‘substantial understatement’ is the first behaviour listed in the understatement penalty percentage table.
A ‘substantial understatement’ means a case where the prejudice to SARS or the fiscus exceeds the greater of five per cent of the amount of ‘tax’ properly chargeable or refundable under a tax Act for the relevant tax period, or R1 000 000
Can a tax opinion then not assists a taxpayer with an understatement penalty?
If we ignore ‘intentional tax evasion’ the other behaviours listed in the understatement penalty percentage table are:
Reasonable care not taken in completing return
No reasonable grounds for ‘tax position’ taken
Gross negligence
It is unlikely that a person would be guilty of gross negligence if reasonable care was taken. It implies that no care was taken or no reasonable ground exists.
It is then submitted that a tax opinion can assist a taxpayer with the first two.
In tax case 13472
I am of the view that having received advice, there were reasonable grounds for the appellant to take the tax position which he did.
Judge Wepenersaid
Nor can it be said that he did not take reasonable care – he did so by consulting the experts.
It is common cause that the appellant’s tax return does so contain a substantial understatement. It was not in dispute that the appellant’s matter before the Commissioner was a standard case with the result that the penalty of 10% would be applicable unless there are reasons for a different outcome.
The appellant suggested that the provisions of s 270(6D) would allow for a reduction of the penalty to nil.
In tax case 13472
I have no evidence that there were extenuating circumstances which would warrant the reduction below the provisions of s 223, i.e. a 10% penalty for a substantial understatement.
Judge Wepenersaid
The fact that the appellant relied on advice may have exempted him from the grounds contained in s 223 for harsher penalties but that fact, on its own and as bold as it appears in the letter of the chartered accountants and confirmed in evidence by the appellant, is not sufficient to satisfy me (or it could not satisfy the Commissioner) that there were extenuating circumstances.
It is common cause between the parties that the onus to prove that such extenuating circumstances existed is on the appellant. No such circumstances were shown to be present.
Dating the opinion Section 223(3) raises another point that is relevant, and in fact important to, a tax opinion.
The question is when must a taxpayer obtain the tax opinion.
It requires that the opinion should have been ‘issued by no later than the date that the relevant return was due’.
Not only should an opinion be done before the tax return is filed. The opinion should be done in parallel with the event or transaction. That is the best way to help shape the transaction or issue.
The report should be dated.
The format of an opinion
Introduction
Statement of Facts
Identification of the Issues
Discussion and apply the law
Conclusion
Person to whom addressed
Person to whom addressedThe date should be followed by the client’s details.
I.e. the name of the person who has commissioned the tax opinion, (company name and address).
Thereafter, “Dear Mr/Mrs. XXXX”, the person you are addressing the opinion to.
Comments:
Whilst one would expect that the section 223 opinion will ultimately be read by SARS, the opinion is addressed to the person who requested the opinion.
In fact, unless legal professional privilege is asserted, one can expect that the opinion would not only be read by the person to whom it is addressed.
Of course, the opinion can also have been prepared by an in-house tax specialist (an employee).
Introduction
The topic you are addressing will then follow.
Some examples:
“The income tax treatment of preference share dividends”
This is typically typed in bold.
“The capital nature of a receipt”
“The deduction of expenses incurred under social security programmes”
Immediately below the topic the introductory paragraph will follow.
Introduction – first paragraph
This will provide a brief summary of what you are going to deal with in the tax opinion.
Would you give your conclusion or opinion in the first introductory paragraph?
One may want to also refer to the engagement letter or terms of the engagement.
Engagement letters serve the important function of communicating with the client, from the practitioner's perspective, the professional work to be performed, the terms and conditions of performing that work, any limitations on that work, and what the practitioner expects from the client, including the terms and conditions for payment.
Identification of the Issues
With the issues I mean the matters that the tax opinion would be dealing with.
This would typically be the matters that the client wanted the tax opinion to cover.
It is important for the tax practitioner as well. One would ensure that the opinion, which would normally be at the end of the report, deals with all the issues. So, in a sense, it serves as a check list.
The facts or statement of facts
In this paragraph, highlight the facts of the scenario for which you are providing a tax opinion.
This is very important as it may happen that the tax practitioner and the client have a different understanding of what the facts of the situation are.
After stating the facts as you understand them, it is common to state:
“If these facts are incorrect or incomplete, please let me know” or some variant thereof.
The facts or statement of facts
In this paragraph, highlight the facts of the scenario for which you are providing a tax opinion.
I prefer to include all the facts in this part of the opinion. In other words I don’t like putting the facts in a separate addendum or annexure to the opinion.
Comments:
A very important fact, in my view is the taxpayer or the parties to the transaction.
In the facts I will treat a factual statement and a statement of the intention of the taxpayer differently.
Obtain a thorough understanding of the transaction.
The taxpayer concerned or the parties involved
Judge Kroon in Stellenbosch Farmers’ Winery Limited v CSARS
The Tax Court accepted, for purposes of its judgment, but without so finding, that the taxpayer was the entity which was a party to the distribution agreement. I will later return to this issue.
Case no: 504/2011
Would you, in your opinion, assume something?
What can we learn from this case?
Judge Kroon in Stellenbosch Farmers’ Winery Limited v CSARS
I do not think that it is necessary, as regards the distribution agreement, to consider the argument … that the reference to ‘Stellenbosch Farmers’ Winery’ in the agreement was ambiguous, and therefore that evidence of identification of the entity intended was admissible, and that the evidence disclosed that the intention was to refer to the taxpayer.
The taxpayer concerned or the parties involved
The following considerations dictate a finding that the taxpayer did acquire the exclusive rights of distribution provided for in the distribution agreement:
The Judge then sets the facts out as follows:
Judge Kroon in Stellenbosch Farmers’ Winery Limited v CSARS
(a) SFW Group was solely a holding company, and did not carry on any operational business activities.
The Judge then sets the facts out as follows:
(b) The taxpayer was an operational company that was capable of implementing the distribution provisions of the agreement; indeed, it had been conducting activities of the nature in question for decades.
(c) The JV agreement envisaged that marketing companies/divisions of SFW be appointed as distributors of the products in question. The taxpayer was such an entity.
(d) The taxpayer did in fact assume the role of exclusive distributor of certain products as envisaged in the agreement and that regime governed the relationship between all the role players in question until the termination agreement came into effect.
To stipulate the facts on which the desired opinion depends.
What did we learn from the way in which the Judge presented the facts.
Presenting the facts – the taxpayer:
The individual facts are numbered.
Only one fact is dealt with at a time.
The statement of fact is dealt with very briefly. I.e. not an elaborate explanation or long story.
The benefit is that it is easy to then refer to fact later on in the opinion.
Try presenting the statement of facts in chronological order so as to create a mini story of the important pieces of the case.
Presenting the facts – the taxpayer:
What are some other reason(s) for identifying the taxpayer or the parties?
The obvious point is that the opinion must deal with the correct taxpayer.
But it is also important to understand the relationship between the parties.
One would like to know if the parties are connected persons in relation to each other.
Or that the parties were dealing at arm’s length, etc.
The difference between an objective fact and a subjective one
I stated that a factual statement and a statement of the intention of the taxpayer requires to be treated differently.
An objective fact is a statement about a factual matter - one that can be proved true or false.
Subjective information is one person's opinion. It can be based on fact, but it is one person's interpretation of that fact.
In tax matters there are a number of instances where the subject matter is subjective. For instance, the intention of the taxpayer in acquiring and holding an asset (capital or revenue).
Another example is the purpose of an expense. Remember what Judge Conradie said in the Warner Lambert SA case:
“It is quite easy to mistake the purpose of an act for its consequences.”
Judge Heher in CSARS v Smith approved of the following dictum by Judge Miller in ITC 1185
It is no difficult matter to say that an important factor is: what was the taxpayer's intention when he bought the property? It is often very difficult, however, to discover what his true intention was.
It is the function of the court to determine on an objective review of all the relevant facts and circumstances what the motive, purpose and intention of the taxpayer were.
It is necessary to bear in mind in that regard that the ipse dixitof the taxpayer as to his intent and purpose should not lightly be regarded as decisive.
or her
This is not to say that the court will give little or no weight to what the taxpayer says his intention was, as is sometimes contended in argument on behalf of the Secretary in cases of this nature.
Judge Heher in CSARS v Smith approved of the following dictum by Judge Miller in ITC 1185
The taxpayer's evidence under oath and that of his witnesses, must necessarily be given full consideration and the credibility of the witnesses must be assessed as in any other case which comes before the court.
But direct evidence of intent and purpose must we weighed and tested against the probabilities and the inferences normally to be drawn from the established facts.
...aangesien ’n appellant in ’n inkomstebelastingsaak hom ... in die ongunstige posisie bevind dat die las op hom rus om te bewys dat die beslissing van die Kommissaris van Binnelandse Inkomste waarteen hy appelleer verkeerd was, dit in die belang van geregtigheid is dat sy getuienis en die vraag van sy geloofwaardigheid met groot sorg oorweeg moet word. ’n Bevinding van geloofwaardigheid kan, afhangende van die feite van die saak, ’n faktor van deurslaggewende belang wees.
Regter Rabie in Malan v KBI
Remember the burden of proof
Section 102(1) of the Tax Administration Act
A taxpayer
that an amount, transaction, event or item
deductible or may be set-off
applicable to a transaction, event, item or class of taxpayer
that an amount qualifies as a reduction of tax payable
that a valuation is correct
whether a ‘decision’ that is subject to objection and appeal under a tax Act, is incorrect
a decision referred to in section 104(2)
is exempt or otherwise not taxable
bears the burden of proving
that an amount or item is
the rate of tax
Understanding of the transaction
In my experience persons are often uncertain about the tax treatment or tax consequences of a transaction because they don’t understand the transaction.
It is important to obtain a thorough understanding of the transaction or transactions.
This is part of the factual information and is covered as such.
Do not allow the facts to be of your making. Professionals often require the taxpayers who will benefit from the tax advisory opinion letter to confirm that the statement of facts is true and correct to the best of their knowledge, information, or belief.
Understanding the transaction
In terms of clause 6 of the agreement, under the heading ‘sale’, the taxpayer ‘purchased’ the business ‘for a consideration’ of R120 million, ‘discharged by the issue to Labat-Anderson’ of 133 333 333 Acrem shares ‘at an issue price of 90 cents per share’.
(Although called a sale, the agreement was not a sale because a sale requires payment in money and not consideration in kind.)
… reference in a … contract to the so-called sale price and nominal value of shares cannot override the true intention of the parties: that the true consideration was the shares and not the money simply because no cash consideration could have been demanded by the taxpayer from the ‘seller’.
Judge Harms in CSARS v Labat
Facts The purpose of the part dealing with the facts is to ensure that all the facts on which the desired decision depends are stipulated.
This is commonly referred to as the essential or material facts.
A ‘material fact’ is a fact that is crucial to the determination of an issue at hand. In fact, without this particular fact, the practitioner's or the court’s determination of the issue would have been different.
The following is a useful approach:
For each factual detail, ask yourself, "If this fact were changed, would the outcome of the case be different?"
By doing this you would be able to separate the material facts from immaterial background information.
Applying the law
The next step is to apply the law to the facts.
Do not merely refer to the provision, but actually quote it.
To be able to do that one would need to provide the law itself in the opinion.
And that of course requires all the applicable tax provisions.
Make absolutely sure that the version of the law as it applied at the time is used.
With the many changes that are regularly made to the RSA tax legislation there is a real risk here that a mistake can be made.
Use the law as it applied at the transaction date or in the relevant year of assessment.
Identify the crux of the matter and then:
Identify the relevant Act
the relevant section in that Act (use the index)
the words that makes the section applicable
Look for specific exclusions
Note specific details - such as dates, rates, etc.
Determine if the application of the section is subject to
Find:
Apply to the facts and conclude
other sections
or other Acts
In the opinion you must be able to justify your conclusion with reference to the correct law.
then interpret that
When faced with a problem
Interpreting tax legislationYou must use the
relevant Acts
Note the words used in the Act
The courts must adhere strictly to the words of the Act and deviation
from the literal interpretation should not readily occur
General view:
They are relevant and necessary for they offer views on the meaning that
must be given to the words used
Contra fiscum rule
not enforceable law, practice generally prevailing
Binding rulings
Forms part of the Act
Interpretation notesand guides
Regulations
Court decisions
legal precedent
Binding?
The interpretation Act
The letter of the law
if the person sought to be taxed comes within the letter of the law,
the subject is free, however apparently within the law the case might otherwise
appear to be."
"As I understand the principle of all fiscal taxation it is this:
Lord Cairns in Partington v Attorney General
"On the other hand, if the Crown, seeking to recover the tax, cannot bring the
subject within the letter of the law,
he must be taxed, however great the hardship may appear to the
judicial mind to be."
Interpreting the law
… it is as well to remember that we are engaged in the interpretation of a taxation statute, where verbal precision is essential. Nothing that is not stated is to be read in, especially not an element as important as an ouster.
Judge Kriegler in Metcash Trading Ltd v CSARS and another (CCT)
[I]n a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be
read in, nothing is to be implied. One can only look fairly at the language used.
Judge Rowlatt in Cape Brandy Syndicate v IRC
Interpreting the law
So when the lawmaker uses particular words to achieve its purpose they must be given effect. In so doing a court will apply ordinary rules of grammar and syntax. It is not permissible to ignore or distort the meaning of the words to achieve its purpose. For in so doing a court will be substituting its own words for those of Parliament.
It is helpful to reiterate that the method of attributing meaning to the words used in legislation involves, as a point of departure, examining the language of the provision at issue, the language and design of the statute as a whole and its statutory purpose.
Judge Chacalia in Chetty v Hart
But if the words used are reasonably capable of bearing more than one meaning, the consequences of the divergent interpretations must be examined so that a meaning that is likely to further rather than hinder its purpose is adopted. In this regard a meaning that is more sensible and business like is to be preferred over one that has a contrary effect.
Interpreting the law
This approach as correctly submitted by counsel for the Appellant, is in line with the principles of statutory interpretation set out in Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others … in the following manner:
Judge Ndita in ITC 13541
1. the primary rule in the construction of a statutory provision is to ascertain the intention of the legislature. To do so, words, words must be given their ordinary grammatical meaning unless this would lead to absurdity so glaring the legislature could not have contemplated it;
2. where the words in question are susceptible to only one meaning, effect must be given to this meaning;
3. it is only where, on literal interpretation, a word is capable of bearing different meanings which are linguistically feasible, the question arises as to how to resolve the resultant ‘ambiguity’. In such an instance, it is necessary to consider the legislature’s intention. This is known as the purposive construction.
Interpreting the law
This approach as correctly submitted by counsel for the Appellant, is in line with the principles of statutory interpretation set out in Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others … in the following manner:
4. The literal interpretation principle is firmly entrenched in South African law and it is only where the application results in ambiguity where more than one meaning can be ascribed to the word that may have view to the purpose of the provision under construction to achieve its objects.
Judge Ndita in ITC 13541
Don’t use the words or phrases of one Act in arguments pertaining to another.
For example: a taxpayer was arguing a value-added tax case and used words like gross income, turnover, in stead of supplies, consideration, etc.
Court decisions The best authority is the Supreme Court of Appeal cases, unless of course the matter has gone to the Constitutional Court.
Decisions in the High Courts, especially the full bench ones, are also valuable to use. One would only take care in this regard if it is known that the case will be taken on appeal.
Decisions in the tax court do not bind higher courts, but are often very useful. If this is the only case available one would want to supplement it with other cases.
Foreign precedent is commonly used, but here exceptional care should be taken to make sure that the wording in the foreign act is similar to the wording in the RSA legislation.
If a decision in a lower court is used or referred to with approval in a higher court it is a more useful source of reference or support of the opinion.
Use or refer to the original case report and merely add that it was used with approval in another court.
Court decisions How do you refer to a court case in your opinion?
Example: CSARS v Capstone 556 (Pty) Ltd (20844/2014) [2016]
ZASCA 2 (9 February 2016).
How do you use the court case in your opinion.
The court case would be used because it provides support for the point that is made. It supports an interpretation of the Act.
One must then quote the relevant words of the Judge in the opinion. The decision by the Judge becomes part of our tax legislation and this is how it is treated in the opinion.
For that reason it is not advisable to put these words in your own words.
It is always better to used the most recent court case that dealt with the issue.
Court decisions What is an obiter dictum?
Latin for something said in passing. It is not a ratio decidendi.
Example:
Judge Heher of the Supreme Court of Appeal made the following obiter comment in the Scribante case:
“In addition, borrowing money and re-lending it at a higher rate of interest, thereby making a profit, constitutes the carrying on of a trade...”
It is a “by the way” type of remark or a judge's incidental expression of opinion, not essential to the decision and not establishing precedent.
SARS rulingsAn ‘advance ruling’ issued by SARS in terms of the Tax Administration Act can be a ‘binding general ruling’, a ‘binding private ruling’ or a ‘binding class ruling
A ‘binding general ruling’ means a written statement issued by a senior SARS official under section 89 regarding the interpretation of a tax Act or the application of a tax Act to the stated facts and circumstances.
In terms of the legislation a ‘binding general ruling’ may be cited by SARS or a person in any proceedings, including court proceedings.
A ‘binding general ruling’ can therefore be used (cited) by any taxpayer.
SARS is of course, in a sense, bound by them. The point is that the practitioner, in issuing the opinion, must have a good understanding of the ruling and must deal with it in the opinion.
SARS rulingsA ‘binding private ruling’ or ‘binding class ruling’ may not be cited in any proceeding, including court proceedings, other than a proceeding involving an ‘applicant’ or a ‘class member’, as the case may be.
These rulings, while often lacking in detail, gives a good indication of how SARS would view a transaction.
The binding rulings are published on the SARS web site and are therefore in the public domain.
SARS rulingsSARS also gives ‘non-binding private opinion’ to taxpayers.
A ‘non-binding private opinion’ means informal guidance issued by SARS in respect of the tax treatment of a particular set of facts and circumstances or ‘transaction’.
As the name indicates these ‘opinions’ does not have a ‘binding effect’ as do for instance the binding rulings mentioned in the previous slide.
A non-binding private opinion is given in to a specific taxpayer and will therefore not be in the public domain.
Again, a non-binding private opinion, if in the possession of the client, is useful and gives an idea of how SARS would approach the issue.
SARS Interpretation notesThis brings us to the issue of “practice generally prevailing”
An “official publication” means a binding general ruling, interpretation note, practice note or public notice issued by a senior SARS official or the Commissioner;
In terms of the Tax Administration Act a ‘practice generally prevailing’ is a practice set out in an official publication regarding the application or interpretation of a tax Act.
Guides issued by SARS therefore do not create a practice generally prevailing.
If there is a guide available that deals with the issue or issues being dealt with in the opinion, one would be well advised to read it. It will give an indication of how SARS may view the issue and will assist in arriving at the final opinion.
If there is a ‘practice generally prevailing’ one knows how SARS would treat that. That means that if you have a different view, that you will have to be able to support your view or show why the SARS view is considered to be wrong.
Applying the law
You have now applied the law to the facts.
This is where you are exercising professional judgment.
One would set out the argument and authorities supporting your opinion and then conclude on the matter.
One would set out the argument and authorities supporting your opinion and then conclude on the matter.
A common mistake made is that a court case (or legal provision) is cited, but the opinion writer then doesn’t show how this case or provision supports the proposition form which it is cited.
The mistake is avoided when one states the law and then apply the law to the facts.
We now arrive at the whole purpose of the exercise.
This is where you pull it all together and actually give the opinion.
The opinion mentioned in the introductory paragraph (s) will be a shorter version of the opinion. This is the complete one.
Remember to make clear the link between the facts and the conclusion. You have set out your argument and authorities supporting your opinion.
For an opinion to be of an acceptable standard, the conclusions must be sound and must be supported by sound reasoning.
There must be a logical flow of argument.
Remember that "exercising reasonable care" requires diligence not only in the ascertainment of the facts underlying the issue, but also in relation to the evaluation and significance of those facts.
Finally, you sign off
(i.e. Yours Sincerely, Mr. John Adams).
This identifies the author of the opinion. You are saying this is my opinion – I am the one that said so.
Some comments are necessary about the style, or actually how one expresses oneself – or use the words.
Tax opinions will often be dealing with highly technical issues and it is then easy to write in technical terms. It is advisable to put it in easier language. The readers of the opinion will not always be tax technical persons.
I was told that a judge of the Supreme Court reads at least a 1 000 pages a day. Even where the opinion will not end up in a court, the aim must be to keep it as short as possible.
It is easier for the reader to read through a shorter opinion and to understand it, than a long winded one.
Structure, style and content of the opinion
We have dealt with the structure of the opinion.
Structure, style and content of the opinion
I have learnt a valuable technique with regard to writing an opinion. The following approach ensures that a good style is used and there is no ambiguities in the opinion.
Start with writing down what you want to say – in the sense of what is the point I would want to make.
Then you write it down (or type it).
Now you go back and read it. It is often good to sleep on it.
Ask yourself if you are really making the point. In other words –
did I say what I wanted to?
Will the reader of the opinion understand it as I intended it to be understood?
Judge Kroon v Stellenbosch Farmers’ Winery v CSARS
The Commissioner erred in including the receipt in Stellenbosch Farmers’ Winery Ltd’s gross income and assessing same to tax.
I find accordingly that Stellenbosch Farmers’ Winery Ltd, which
did not carry on the business of the purchase and sale of rights to purchase and sell liquor products,
did not embark on a scheme of profit-making,
and that it did discharge the onus of establishing that the receipt of R67 million was of a capital nature.
Thank you for your attention
Questions
