In the XY Mining case the taxpayer (XY), applied in September 2018 for approval as a PBO retrospectively from 1 February 2016, as provided for under section 30(3B) of the Income Tax Act 58 of 1962 (Act). We refer to the respondent as either “ Commissioner” or “ SARS”. In this article, we focus on the issue of retrospective approval that the court had to consider. In this regard the income tax legislation is deliberate to grant PBOs retrospective and or proactive PBO status thus resulting to tax exemption.” Accordingly, only those organisations that qualify as PBOs should be released from tax burden. In XY Mining v The Commissioner for the South African Revenue Service (Case No IT25390) (as yet unreported), the Tax Court summarised this as follows: “ a PBO by designation exists to relieve the state of certain burdens. For civil society organisations, including charities, to assist most efficiently, it is crucial that our tax laws relieve them of the tax burden that they would otherwise incur, which in South Africa is done by way of the tax dispensation applicable to public benefit organisations (PBOs). While government intervention is required to alleviate the harm and impact on affected South Africans, effective alleviation of their plight will require collaboration between Government and civil society, such as charitable organisations. In the last few weeks, many South Africans have been affected by the extreme weather and flooding around the country, particularly in KwaZulu-Natal.
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