| 17/5/2012 |
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| Board of Special Commissioners - Cases |
| Case No. 4/74 |
Decided: 26 January, 1976 |
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Assessments relating to deceased taxpayers - articles 34 and 53, now respectively 71, Income Tax Act and 31, Income Tax Management Act
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Appellant, an heir to an estate, maintained that the issue of assessments in respect of income earned by deceased persons is regulated solely by the provisions of article 34 of the Income Tax Act. The Commissioner is not, therefore, empowered to issue an additional assessment in terms of article 53.
In a previous case (number 12/1964) the Board had maintained that article 34 was the only one that dealt specifically with the eventuality of the death of a taxpayer. It was an established tenet of legal interpretation that the provisions of a specific article(34) were to prevail over those of a generic one (53). The provisions of article 53 are not applicable in so far as cases governed by the provisions of article 34 are concerned. Indeed had the provisions of article 53 to apply, in the case of heirs as representatives of the deceased person, article 34 would be superfluous. This decision is reinforced by the fact that article 34 is included in the Income Tax Act under the title "Persons Assessable" and article 53 under the title "Assessments". Evidently, an assessment may only be raised in the name of an assessable person, in this case the heirs.
Whilst agreeing with this decision the Board observed further that it was only natural that the generic article was applicable in aspects that the specific article did not cater for. Article 34 is placed in that part of the Income Tax Act that determines those persons who are assessable, but does not provide for the raising of assessments and the period during which they may be raised. Those articles falling under the title "Assessments", including article 53, govern these aspects of the law.
The two articles are not conflicting but complimentary, ensuring that when an assessment is raised in the name of an heir, this is done within the time frame set by law.
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