Author: ABDURAGHMAAN FARAO
15 March 2021
How to resolve tax disputes
FEE FI FO FUM – SARS IS WATCHING YOU FROM FAR BEYOND, SHOULD YOU BE ALIVE OR DEAD, SARS WILL GET HIS TAXES, NONETHELESS…
There are many things one can escape in life but facing the mighty giant, SARS, is not one of them. If a taxpayer is aggrieved by an assessment or not satisfied with a decision taken by SARS, it is not the end of the road for them. The law has not left you without any recourse.
If the decision is subject to objection and appeal, you have a right to dispute the assessment or decision. However, it is not always necessary for a taxpayer to immediately dispute an assessment issued and/or decision taken by SARS. There are various pre-dispute remedies the taxpayer may explore prior to initiating the dispute process. These pre-dispute remedies are said to be a faster, less time-consuming and in some instances cost effective.
PRE DISPUTE PHASE
REQUEST FOR CORRECTION (RFC)
Section 93 of the Tax Administration Act 28 of 2011 (the Act), makes provision for a taxpayer to request SARS to correct a previous return or declaration submitted. An RFC is available to various tax types namely, income tax, value-added tax (VAT) or Pay-As-You-Earn (PAYE). This remedy is only available to taxpayers where the specific return or declaration has not been selected for verification or audit. The RFC is a quick turnaround remedy available to taxpayers where they have made an error in their returns or declarations, for instance, by submitting their returns with an incorrect source code or incorrect amounts.
REQUEST FOR REMISSION OF PENALTIES OR INTEREST
Where the tax itself is not disputed, a taxpayer may, in some instances have missed a deadline or under declared certain income or VAT, which results in penalties and/or interest being levied. These are instances where the taxpayer has not adhered to the provisions of the Act. A taxpayer does, however, have some recourse where they can justify the non-compliance. These penalties may be made up of fixed amount penalties, as well as percentage-based penalties.
REQUEST FOR REASONS (RFR)
When SARS has issued an assessment and where the grounds for the assessment are not provided, or the grounds provided for the assessment are not sufficient to enable the taxpayer to understand the basis of the decision to formulate an objection, a taxpayer may request reasons for the assessment. It should be noted that SARS is not required to provide reasons for each, and every assessment issued, but a taxpayer may request reasons only for an adverse decision or assessment both under Rule 6 of the rules promulgated under Section 103 of the Act and section 5 of Promotion of Administrative Justice Act 3 of 2000 (PAJA).
The dispute phase should only be explored in the event that the pre-dispute remedies are not suitable to the taxpayer’s dispute or the taxpayer was unsuccessful with the pre-dispute remedies. For instance, when the pre-dispute phase would not be applicable is where the dispute is substantive. A substantive dispute means that there is a disagreement on the interpretation of either the relevant facts involved or the law applicable thereto, or of both the facts and the law, which arise due to the assessment or a decision.
Where a taxpayer is aggrieved by an assessment raised, outcome of verification or audit, or a decision taken by SARS, there are three main variants to challenge SARS.
A taxpayer has the right to object to an assessment raised by SARS where the pre-dispute remedies mentioned above were not allowed by SARS such as the taxpayer’s request for remission of such penalty/interest. The purpose of an objection is to submit all of the relevant grounds of the objection the first-time round. The grounds will be a mirror of the reasons why the assessment issued by SARS does not reflect the correct tax stance taken by the taxpayer. The grounds must address the part, or the amount disputed, the specific grounds raised by SARS that are disputed and any documentation that the taxpayer has at its disposal to dispute the grounds raised by SARS. When the objection is submitted to SARS and then considered, SARS will issue that taxpayer, within 60 business days, an allowance or disallowance letter which will either allow the objection, or partially allow, or disallow.
Where SARS has decided to partially allow or disallow a taxpayer’s objection, the taxpayer is able to submit an appeal to the decision, should the taxpayer disagree with the decision taken.
When submitting an appeal, the taxpayer may appeal to either the Tax Board established in terms of section 108 of the Act, or the Tax Court established in terms of section 116 of the Act. A taxpayer must always consider whether they are of the view that the matter is appropriate for alternative dispute resolution (ADR) prior to lodging the appeal. Should the taxpayer be of the view that the matter should be considered for ADR, SARS must first consider the dispute resolution process prior to proceeding with submitting its statement of grounds.
Should SARS not deem the matter appropriate for ADR the matter may be directed to the Tax Board, which hears tax appeals involving a disputed amount not exceeding R1 million. Both the taxpayer and SARS must agree that the matter be heard by the Tax Board. The decisions made by the Tax Board are binding between the parties, not appealable, does not have precedent value and may be heard on a de novo basis in the Tax Court.
Where the Tax Board is not the appropriate platform, the matter will be heard in the Tax Court, which deals with tax appeals lodged in terms of section 103 of the Act; and may also hear other interlocutory applications pertaining to the appeal. In the Tax Court, there is no restriction on the monetary jurisdiction and any matter may be ventilated herein. The decisions of Tax Courts are not binding on other courts, but hold persuasive value in other Tax Courts, the High Courts and the SCA. The judgments are, however, only binding between the parties.
If taxpayers so wish they may approach the High Court for review applications or appeals from the Tax Court. Where the taxpayer is still aggrieved and wishes to pursue the matter even further, they may appeal to the SCA and where it is merited to the Constitutional Court.
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