LDC Limited v Zimbabwe Revenue Authority

The appellant, LDC Limited, is a private company wholly owned by TL. It owns land in the Lowveld area of Zimbabwe, a predominantly sugarcane-growing region, which it leases to TL in exchange for rental payments calculated by a formula based on the area under sugar cane and TL's total sugarcane revenue. The lease is verbal. The appellant routinely submitted income tax returns and paid income tax on the rental income but did not calculate, withhold or remit any VAT. ZIMRA (the respondent) conducted a tax audit and investigation, determined that the appellant was liable for VAT on the rental income, compulsorily registered the appellant for VAT, and issued assessments for unpaid VAT for the period 2009-2017 totaling $1,370,007.08 including interest and a 20% penalty. The land is used extensively for sugarcane growing but also contains pastoral activities including a commercial feedlot, grazing land, dip tanks, and a dairy unit. The land had been listed by government for compulsory acquisition but the appellant remained in possession and continued using it as before. The appellant objected arguing it does not carry on a trade as defined in the VAT Act and is not liable for VAT registration or payment. This matter was previously heard resulting in judgment HH 433-20 which found the taxes were due. On appeal to the Supreme Court, that judgment was set aside and the matter remitted for hearing de novo before a different judge.

• Whether the land leased by the appellant constitutes 'farm land' as defined in section 2 of the VAT Act, or merely 'agricultural land'
• Whether the letting of the land constitutes a supply of 'goods' or 'services' for purposes of the VAT Act and thus liable to VAT
• Whether the land is used for both agricultural and pastoral activities conjunctively as required by the definition of 'farm land'
• Whether the respondent was entitled to assess VAT for the period 2009-2017
• Whether the appellant was entitled to relief under section 41(d) for amounts of tax for periods more than six years from the date of assessment (prescription)
• Whether the 20% penalty imposed by the respondent was appropriate and justified

The appeal was allowed. The decision by the Commissioner of ZIMRA dated 31 July 2019 disallowing the appellant's objections was set aside in its entirety. The penalty charged by ZIMRA against the appellant was set aside. There was no order as to costs.

The binding legal principles established are: (1) 'Farm land' as defined in section 2 of the VAT Act means land used for both agricultural AND pastoral activities conjunctively; (2) Land that qualifies as 'farm land' is specifically excluded from the definition of 'fixed property' and therefore does not constitute 'goods' or 'services' subject to VAT under section 6 of the VAT Act; (3) The classification of land as 'farm land' depends on the actual use to which the land is put, not on the identity of the person using it or the registered operator; (4) Buildings and fixed improvements on land are not movable property but form part of the land itself; (5) Where a taxpayer leads credible evidence that shifts the evidential burden, the tax authority must provide factual evidence (not merely legal arguments) to refute that evidence; (6) The standard of proof in fiscal appeals is on a balance of probabilities, not absolute or documentary proof in every instance; (7) The burden of proof that any supply is exempt from or not liable to tax lies on the person claiming the exemption (sections 15 of the Fiscal Appeal Court Act and 37 of the VAT Act).

The court made several non-binding observations: (1) The court noted its initial misgivings about the procedural approach of proceeding by way of the previous record, agreed facts and written submissions rather than a full trial de novo, but ultimately endorsed the parties' agreement on this approach; (2) The court observed that parties in argument may have strayed to haggle on extraneous issues or put emphasis on peripheral matters, but the crisp issue was whether the land was farm land or agricultural land; (3) The court commented that the respondent seemed bent on 'splitting hairs' in its arguments; (4) The court noted that the VAT Act does not define 'agricultural or pastoral activities', meaning the legislature intended these terms to carry their ordinary grammatical meanings; (5) The court observed that even though the onus was on the appellant, it was not enough for the respondent to make legal findings and expect the appellant to disprove every aspect without the respondent having laid a proper factual foundation; (6) The court noted that the respondent's argument regarding State land was misguided as the relevant exclusion related to State land with approved layouts for subdivision under section 43 of the Regional, Town and Country Act, which was not applicable to the facts.

This case establishes important principles regarding the interpretation of 'farm land' under Zimbabwe's Value Added Tax Act and the tax treatment of land rental income. It clarifies that for land to qualify as 'farm land' exempt from VAT, it must be used for both agricultural AND pastoral activities conjunctively, not just agricultural activities alone. The case emphasizes that the classification depends on the actual use of the land, not on who uses it or who owns it. It also demonstrates the importance of proper evidential foundations for tax assessments and that the tax authority cannot rely solely on legal arguments without factual evidence when the taxpayer has discharged the initial evidential burden. The case provides guidance on the standard of proof required (balance of probabilities, not absolute proof) in fiscal appeals and reinforces the burden of proof provisions in sections 15 of the Fiscal Appeal Court Act and section 37 of the VAT Act.