Mark Lifman loses court bid to stop SARS seizing assets to pay R388m tax debt

Controversial Cape Town businessman Mark Lifman has lost his latest bid to stop the South African Revenue Service from seizing his assets in order to recover outstanding taxes amounting to R388m.

In the latest salvo in a longstanding legal battle with SARS, Lifman asked the Western Cape High Court for an order to halt SARS’ execution orders, which would see the taxman seizing Lifman’s assets and auctioning them off to recover the tax debt.

On Tuesday, Judge Elizabeth Baartman dismissed Lifman’s application.

In her written judgment, which News24 has seen, Baartman found that Lifman’s objections to the assessments raised by SARS had been raised ""belatedly and opportunistically".

Lifman has persistently contended that he is a victim of the so-called SARS "rogue unit", an investigative unit at SARS otherwise known as the High Risk Investigations Unit.

His matter has, however, been on the radar of SARS officials - led by Keith Hendricks - for years. Hendricks has investigated a slew of shady Cape Town businessmen - including Andre Naude, a former business partner of Lifman.

Lifman and Naude are said to be part of a bloody turf war against rival "businessmen" Nafiz Modack.

Baartman did not buy Lifman’s claims of "untoward or subjective" actions aginst him by SARS, instead setting out that "the power SARS exercised is circumscribed and the applicants [Lifman] have been unable to indicate any flouting or abuse of those powers".

Additionally, she pointed out that Lifman had failed to raise objections in the proper channels after being notified of the assessments by SARS in 2015 and 2016. The assessments, therefore, were final, due and payable.

'I will appeal'

Lifman told News24 on Tuesday that he felt the judgment was very odd, and that he would be instructing his legal team to take it on appeal. He vowed that he would take his battle with SARS to the Constitutional Court if necessary.

"She [Judge Baartman] never gave me any benefit of the doubt. I find it very difficult to understand," Lifman said.

His incredulity stems from a November 2016 email from a specialist tax auditor at SARS, Gavin Cairns, wherein he refers to a meeting the day before and tells Lifman he will be conducting a "review" of the audits done on Lifman’s tax affairs.

This was well after SARS had finalised a tax inquiry into Lifman and his companies, and issued the assessments totalling R388m.

It remains unclear who gave Cairns the instruction to proceed with the so-called review, and Baartman also found there was no provision in the Tax Administration Act (TAA) for such a review to be done.

Lifman maintains that SARS agreed to review the audits, but then "just took it away".

ALSO READ: SARS at war over underworld figure Mark Lifman

In February 2018, SARS chief officer for enforcement Mogola Makola wrote a letter to Lifman in which she pointed out that the TAA made no provisions for such a review and, accordingly, declared it null and void.

Baartman, in her judgment, agreed with this point of view.

Lifman, speaking to News24, said he could not understand this.

"They [SARS] have said one thing, but done another thing. They gave me the review, then took it away. Why won’t they be transparent?"

He maintains that the Cairns review must have found in his favour, hence SARS’ reticence to release his findings.

"It would be a sad, sorry state of affairs for South African taxpayers if this stands,” Lifman said. "This means that, if SARS can just say you owe them so much, and there is nothing you can do.”

What R388m?

Lifman added that his businesses were not worth anything near R388m, but rather valued at R100m.

He said he could not fathom how SARS had reached the conclusion that he owed nearly R400m in taxes.

"I built my companies over 20 years, buying properties for R10, R10 000 or R100 000 at sales of executions. All my stuff is in black and white," Lifman said.

Baartman’s judgment, meanwhile, sets out that Lifman failed to follow any prescribed complaint procedures after the assessments were raised and did not, at the time, dispute Makola’s February 2018 letter.

She did, however, agree that Lifman had been "brought under the impression" that the Cairns review was legal up to that point.

"There is no indication that an injustice will result from a failure to suspend the execution. On the contrary, this application appears to be an abuse of the process," Baartman’s judgment reads.

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