HELP: Employer owes SARS money, cannot submit my return

**Babylove12** · 18-Oct-17, 10:32 AM

Hi Forum.

Any advice would be greatly appreciated.

I left my previous employer in February of this year after 8 years of employment. I was earning above the threshold and need to submit my 2016 tax return. The problem is I have not received an IRP5 - I know for a fact that this is due to the previous employer not submitted to SARS and also owing money (they never paid over any of the PAYE or UIF amounts that they were deducting from their employees, not sure for how long).

It wouldn't be fair for me to incur an penalties as a result? Also, I am due a refund.

What do I do??

**HR Solutions** · 18-Oct-17, 10:37 AM

The problem is I have not received an IRP5 - I know for a fact that this is due to the previous employer not submitted to SARS and also owing money

This is stealing from you the employee !! - How do you know this ?

**Andromeda** · 18-Oct-17, 12:36 PM

Be very, very careful Babylove12, of the 4th Schedule YOU can be be held responsible for the paye in such a case.

At the very least, you must make sure that you have all payslips for the period, and bank statements reflecting the net pay on the payslips.

I seriously doubt that you will be paid a refund.

**EAB** · 18-Oct-17, 03:49 PM

Just to add to Andromeda. Had a client a couple of years in the same situation where the company didn't pay the PAYE to SARS.

We reconstructed a summary from payslips tying back to his bank statements. SARS just turned around and said sorry the taxpayer is still liable for his taxes and used the net salary as per the bank statements as his gross income.

**siyandan** · 19-Oct-17, 03:46 PM

Does your payslip reflect the PAYE amount deducted ?

**siyandan** · 19-Oct-17, 03:52 PM

In terms of TAA 157 157.

Personal liability of withholding agent.—(1) A withholding agent is personally liable for an amount of tax—

(a) withheld and not paid to SARS; or

(b)which should have been withheld under a tax Act but was not so withheld.

(2) An amount paid or recovered from a withholding agent in terms of subsection (1) is an amount of tax which is paid on behalf of the relevant taxpayer in respect of his or her liability under the relevant tax Act.

**Babylove12** · 20-Oct-17, 09:09 AM

Originally Posted by siyandan

Does your payslip reflect the PAYE amount deducted ?

Yes it does, I have 10 of 12 payslips for the year.

**Babylove12** · 20-Oct-17, 09:38 AM

Originally Posted by HR Solutions

This is stealing from you the employee !! - How do you know this ?

I was part of the management team so I was aware of some things - as far as I know they were only making payments to SARS every 6 months so using the employee deductions as part of their cash flow. Times grew tougher and as a result they no longer had the funds to pay over, I don't think they paid over for the entire year.

**HR Solutions** · 20-Oct-17, 10:27 AM

Whoops ....... A lot of companies try to do this to improve cash flow and it lands them in the dang !

On another note tho ..... you were part of the decision making to do this so you may have hurt other people as well so what about them ?

**Babylove12** · 20-Oct-17, 11:11 AM

Originally Posted by HR Solutions

Whoops ....... A lot of companies try to do this to improve cash flow and it lands them in the dang !

On another note tho ..... you were part of the decision making to do this so you may have hurt other people as well so what about them ?

No no, I was never part of the decision making (I was not on the board) - I was just exposed to some information as it was / is a small company. I had no influence over any decisions made.

As for my colleagues, obviously they are in the same position - If I can solve this for myself i can solve it for them too so advice is greatly appreciated.