Thanks Vieome.

Having read the full judgement, I'm inclined to believe that the following statement is patently untrue -

Quote Originally Posted by Empowerlaw View Post
When it comes to PAYE, a different relationship exists between SARS and the employer. The employee also remains liable for the PAYE if the employer does not pay the PAYE over to SARS (even if the employer deducted it from the employees’ income and did not pay it over to SARS.
I refer to footnotes 69 & 70 which state thus -

[69] Para 4;

Any amount required to be deducted or withheld in terms of paragraph 2 shall be a debt due to the
State and the employer concerned shall save as otherwise provided be absolutely liable for the due
payment thereof to the Commissioner.

[70] It would appear that there are only a few situations where the Schedule does not impose absolute liability on the employer to the exclusion of the employee, even if no IRP5 certificate is obtained. They are to be found in Paras 5(2), 28(1) (b), 28(3) and (4).

Para 5(2) which provides for joint liability is only triggered where the employer has not deducted or withheld the amount of employees’ tax, the effect of which is that the employee received his income in full without a PAYE deduction.

Para 28(1) (b) contemplates the case where the employee will be responsible for income derived from a source other than remuneration arising from employment or some circumstance personal to the employee taxpayer discovered during a tax audit or assessment but where the employer nonetheless is likely to have correctly applied the PAYE tables.

Paras 28 (3) and (4) deals with the corollary to Para 5 and are concerned with where a return was rendered claiming that PAYE had been deducted whereas it was not. The ordinary inference is that there was collusion which accounts for joint and several liability being imposed unless the employer can demonstrate that the underpayment was due to a bona fide error.

The present case falls squarely within Para 4. It is therefore unnecessary to distinguish Estate Late GA Pitje v Commissioner for South African Revenue Service (2002) 66 SATC219 (WLD) which concerned the application of Para 5 since in that case the employer had failed to deduct PAYE from the employee’s pay cheque.

I stress - "It would appear that there are only a few situations where the Schedule does not impose absolute liability on the employer to the exclusion of the employee, even if no IRP5 certificate is obtained."

In all instances provided for, the employer would not have actually deducted the PAYE due from the employees' income.