Objections and Appeals: The Helpless Taxpayer?

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OBJECTIONS AND APPEALS:THE HELPLESS TAXPAYER?

Only assessments and certain prescribed decisions are subject to objection and appeal in terms of section 104 of the Tax Administration Act, No. 28 of 2011 (“the TAA”). There are a multitude of decisions that can be made by SARS and that are not subject to objection and appeal. These include but are not limited to:

  • A decision by SARS VDP unit not to accept a VDP application;
  • A decision by SARS not to issue a tax clearance certificate;
  • A decision by SARS not condone suspension of debt pending the outcome of an objection or appeal;
  • A decision by SARS not to issue a reduced assessment in terms of section 98 of the TAA;

In these cases, taxpayers are left with limited, often ineffective and costly options that may leave the taxpayer feeling helpless. These options include:

  • approaching SARS’ Complaints Management Office (“CMO”);
  • approaching the Tax Ombud (“TO”); or
  • instituting proceedings in the High Court under the Promotion of Administrative Justice Act, No. 3  of 2000 (“PAJA”)

An often overlooked remedy, however, is section 9 of the TAA, more specifically section 9(1)(b) which states that:

“A decision made by a SARS official and a notice to a specific person issued by SARS, excluding a decision given effect to in an assessment or a notice of assessment –

  1. …

(b) may in the discretion of a SARS official described in subparagraphs (i) to (iii) or at the request of the relevant person, be withdrawn or amended by—

  • the SARS official;
  • a SARS official to whom the SARS official reports; or
  • a senior SARS official.”

Accordingly taxpayers may request SARS to review a decision despite that decision not being specifically made subject to objection and appeal and without having to approach the CMO or TO or launch a PAJA application. The concern, however, lies in that where SARS refuses to entertain a request for review under section 9, taxpayer’s will find themselves faced with the same, ineffective and costly options listed above.

In the 2017 budget, it is proposed that “all decisions of SARS that are not subject to objection and appeal should be subject to the remedies under section 9 of the TAA.”

While it is not clear exactly what the proposed amendment will seek to achieve, it is a step in the right direction and a welcomed proposal. We can only hope that the proposal will find its way into the legislative amendment process to provide much needed relief for taxpayers who effectively find themselves completely at the mercy of SARS.