Delta Beverages (Pvt) Ltd (Delta) was a taxpayer required to pay provisional tax based on estimates of its profits per quarter under section 72(2) of the Income Tax Act [Chapter 23:06]. During the 2009 and 2010 financial years, Delta underestimated its profits, resulting in underpayment of provisional tax. In both years, the margin of error in the underestimation exceeded 10 percent. On 15 August 2012, the Zimbabwe Revenue Authority (ZIMRA) demanded payment of interest totaling US$698,864.48 in respect of the underpayment of provisional tax under section 72(7) of the Act. Delta disputed liability to pay the interest and sought a declaratory order that the Commissioner-General was obligated to waive the interest under the proviso to section 72(7), which existed prior to its repeal by section 3(a) of the Finance Act 2012.
1. It is declared that the provisions of the proviso to section 72(7) of the Income Tax Act [Chapter 23:06] prior to its repeal by section 3(a) of the Finance Act 2012 obligated the Commissioner-General of the Respondent to waive any interest due by the Applicant in respect of any underestimation of its profits for the years 2009 and 2010, and in respect of any underpayment of provisional tax in respect of those two years. 2. It is declared that the Applicant has no liability to pay the sum of $698,864.48 demanded by the respondent in respect of interest on the underpayment of provisional tax for the years 2009 and 2010. 3. The Respondent to pay the costs of this application.
Where a taxing statutory provision reveals ambiguity and is capable of two constructions, the contra fiscum rule applies and the ambiguous provision must be interpreted in a manner that favors the taxpayer and imposes the smaller burden. Courts have no power to redraft or alter legislative language by ignoring words or substituting mandatory language ("shall") with discretionary language ("may"). Where the plain meaning of statutory words is clear, courts must give effect to what the Act says, not what it ought to have said. Statutes will not be held to take away existing rights retrospectively unless they expressly so provide or by necessary intendment. The proviso to section 72(7) of the Income Tax Act, in its plain and ordinary meaning, obligated the Commissioner-General to waive interest where a taxpayer failed to forecast profits within a 10 percent margin of error.
The court observed that interest cannot be regarded as a punishment in tax law. Interest is payment for use of money or upon late payment of monies due, whereas punishment by its nature imputes improper or unlawful conduct. The court noted that the legislature's deliberate change from "penalties" to "interest" in the Finance (No 2) Act 2006 was purposeful, removing the punishment element and taking into account that the country was entering a hyperinflationary environment where taxpayers might have difficulty estimating provisional tax with accuracy. The court also noted that if there was a casus omissus (gap) in the Act leading to undesirable consequences, the court has no power to fill it—that is a matter for the Legislature. The court observed that the Commissioner has power to approach Parliament to amend taxing legislation to avoid ambiguity and Parliament has power to make amendments retrospective, but in this case Parliament chose not to make the subsequent amendments retrospective.
This case is significant for establishing principles of statutory interpretation in Zimbabwean tax law, particularly: (1) the application of the contra fiscum rule when tax legislation is ambiguous; (2) the distinction between interest and penalties in tax law; (3) the limits on judicial power to redraft or modify clear statutory language; (4) the principle that statutes will not be held to take away existing rights retrospectively unless expressly provided or by necessary intendment; and (5) the courts' refusal to fill gaps in legislation (casus omissus) even where this might lead to undesirable consequences. The judgment reinforces that where legislative language is plain, courts must give effect to what the Act says, not what it ought to have said.