A critical analysis of the income tax implication of income from illegal activities in South Africa

Moneymaking schemes such as prostitution, drug dealing, fraud, corruption, pyramid schemes and the sale of counterfeit goods have been around for years. The taxing of these transactions/schemes has become a contentious issue. It has recently been reported in the press that SARS has lodged a claim for R183 million in income taxes against the estate of the slain mining magnate, Brett Kebble, in respect of the R2 billion allegedly stolen by him from the mining companies of which he was a director.4 It is further reported that the Master of the High Court has rejected the claim on the grounds that the amounts on which SARS sought to levy tax constituted money stolen by Kebble, and that stolen money is not subject to income tax. It has been reported that SARS is to take the Master’s decision in this regard on review.5 The Kebble case raises an interesting and unresolved tax issue and, in view of the large sum at stake, it may be a case that will go all the way to the Supreme Court of Appeal and bring long-overdue certainty to the law. The Income Tax Act No. 58 of 1962 (the Act) is of no assistance in determining the issue. Section 23(o) states that payments that are illegal in terms of Chapter 2 of the Prevention and Combating of Corrupt Activities Act No. 12 of 2004 or that constitute a fine or penalty for any “unlawful activity carried out in the Republic or in any other country if that activity