Monday 12 December 2011

Another Review of "Taxpayers' Rights in South Africa"

Buy your copy HERE
The following book review of my book Taxpayers' Rights in South Africa  first  appeared in the ADVOCATE, December 2011 edition.  The review was written by Advocate Andy Bester of the Johannesburg Bar.

Dr Croome's work on taxpayers' rights is the first textbook to consider fiscal legislation critically in the light of the values entrenched in the Constitution 1996.

Given that fiscal legislation is the subject matter of this work, it is a surprisingly easy read. Dr Croome has succeeded in treating substantial taxation issues in a way that makes it digestible to even the non-specialist.

The work commences with a general background and thereafter deals with the three major rights entrenched in the Constitution affected by fiscal legislation: the right to property, the right to equality and the right to privacy. These topics are carefully considered at the hand of a series of questions dealing with pertinent aspects of the real or perceived clash between fiscal legislation and constitutionally entrenched rights.

The author then turns to procedural rights. Not only is a useful comparison made with several other jurisdictions, but administrative justice and access to the courts is dealt with in an extensive yet extremely practical manner.

The work is well rounded off with the final two chapters. A discussion of the protection of taxpayers' rights in selected foreign countries is followed by a discussion of the future of taxpayers' rights in South Africa. In this chapter a critical discussion of current taxpayers' remedies interspersed with suggestions and recommendations by the author, provides food for thought not only for practitioners, but also for those involved in the administration and enforcement of fiscal statutes.

With taxation, perhaps one of the last remaining areas where the impact of constitutional values have not been that extensively tested yet, this work is a timeous and valuable addition to the bookshelves of tax practitioners, tax officials and legal practitioners in general.

The other book by Dr Croome, Tax Administration, this time co-authored by Professor Lynette Olivier, seeks to guide tax practitioners and those dealing with the fiscal authorities through the maze that is the administration of taxation. They succeed admirably.

Buy your copy HERE
Much of the subject matter contained in the book has been covered in other publications. Yet, perhaps because of the structure in which the information is presented, this work contributes substantially to the accessibility and digestibility of this area of law.

The authors deftly guide the reader through such topics as the requirements to register and submit tax returns' assessments, requests for information, access to information, penalties, refunds and more.

The text also includes a chapter on taxpayers' remedies and several annexures which go beyond the usual mere reference to the relevant legislation. Thus for instance, the SARS Service Charter is included, as is the Terms and Conditions of the SARS e-filing website. All in all this text succeeds in guiding readers through what tends to be rather complicated processes.

This review was written by Advocate ANDY BESTER, JOHANNESBURG BAR and first appeared in the ADVOCATE, December 2011 edition. 

Sunday 4 December 2011

SARS supplementary declaration for companies and close corporations

The Commissioner: South African Revenue Service ("SARS") recently announced that companies and close corporations ("CCs") will, in certain cases, be required to complete and submit a supplementary declaration for companies and CCs, Form IT14SD.

The new form will require companies and CCs to reconcile financial information across various tax types and customs. The IT14SD will require taxpayers to submit reconciliation statements for employees’ tax ("PAYE"), income tax, value-added tax ("VAT") and customs.

Most companies and CCs which are not currently reconciling financial information for the various taxes should proceed to do so, so that they will be in a position to supply the information that will be required by SARS.

It will be important for taxpayers, who are required to submit the Form IT14SD, to reconcile the turnover reflected as per the Annual Financial Statements ("AFS"), to the turnover reflected on the VAT returns. SARS is also seeking a reconciliation of the input tax as per the VAT returns and the expenditure as reflected in the AFS.

SARS will require taxpayers to submit details of salaries as per the AFS and to reconcile that to the figures submitted via the PAYE process.

In addition, information will be required by importers and exporters regarding customs information submitted to SARS and information contained in the AFS.

SARS has indicated that where companies and CCs submit their returns electronically, and that taxpayers who are identified for verification, an initial verification letter will be displayed on the taxpayer’s e-Filing profile and e-Filing will automatically make the Form IT14SD available on the taxpayer’s profile. Those taxpayers who do not submit tax returns electronically, will receive an IT14SD via the mail and will be required to complete the form and submit it to SARS.

SARS has advised taxpayers that the new Form IT14SD can be submitted either through e-Filing, via SARS branches or by post.

It is important that taxpayers who are not currently reconciling the information regarding the various taxes to the information contained in the AFS undertake to do so, with a view to the requirement that such information must, in future, be submitted to SARS.

Monday 14 November 2011

No deduction when shares used to acquire goods

The Supreme Court of Appeal recently delivered judgment in the case of Commissioner for the South African Revenue Service v Labat Africa Limited.

The dispute between Labat Africa Limited (“Labat”) and the South African Revenue Service (SARS) was first heard by the Tax Court, where Labat’s appeal against the disallowance of expenditure incurred by it was decided in Labat’s favour. In that case, the taxpayer had concluded an agreement to acquire a business in terms of which it acquired a trade mark from the seller.

In accordance with the agreement concluded by the parties, the total purchase price was R120m and that portion of the purchase price attributable to the acquisition of the trade mark was R44 462 000. The taxpayer acquired the rights to the trade mark on June 1 1999 and on June 15 1999 had issued shares to the seller in compliance with its obligations to give consideration for the trade mark acquired. The taxpayer sought to claim an allowance, which was then available under section 11(gA) of the Income Tax Act, in respect of the expenditure incurred on the trade mark acquired by it in its 2000 year of assessment.

SARS disallowed the taxpayer’s deduction on the basis that the agreement whereby the trade mark was acquired, the taxpayer was obliged to issue shares to the seller and, therefore, did not expend any monies or assets and, as a result, no expenditure was incurred by the appellant in acquiring the trade mark from the seller as required by section 11(gA) of the act. SARS sought to rely on the judgment of Judge Goldblatt, in ITC 1783 [2004] 66 SATC 373, where it was decided that the taxpayer had not incurred any expenditure for the purposes of section 11(gA) on the basis that the consideration given by the taxpayer consisted of shares issued by the taxpayer.

In ITC 1801, Judge Jooste decided that the taxpayer had incurred an unconditional legal obligation to pay for the trade mark, even though it had been agreed by the parties that shares would be issued in settlement of the obligation in question. The court, therefore held that the taxpayer had incurred an unconditional legal obligation as required, and that that was not dependent upon the making of payment, as was decided in Edgars Stores Limited v CIR. Judge Jooste held that the taxpayer was entitled to the deduction claimed for the acquisition of the trade mark in terms of section 11(gA) of the act.

SARS was dissatisfied with the decision of the Tax Court and noted an appeal against the decision, which was heard by the North Gauteng High Court in 2009. In Commissioner for the South African Revenue Service v Labat Africa Limited, the full bench of the North Gauteng High Court ruled that the conclusion of the Tax Court was correct and that the issue of shares by the taxpayer for the acquisition of an asset constituted expenditure, as envisaged in section 11(gA) of the act. Judge Sapire disagreed with the decision of Judge Goldblatt in ITC 1783 and therefore dismissed SARS’s appeal against the decision of the court in ITC 1801. SARS was dissatisfied with the decision of the North Gauteng High Court and lodged an appeal, which was heard by the Supreme Court of Appeal in September.

Judge Harms pointed out that Labat acquired the business for a consideration of  R120m, which was to be discharged by the issue of shares and expressed the view that the agreement was not an agreement of sale in that a sale agreement requires payment in money and not consideration in kind.

As a result of the transaction, Labat had to increase its authorised share capital and various special resolutions were passed to give effect to the transaction. The appeal court identified that the sole issue between the parties was whether “any expenditure” had “actually” been “incurred” by Labat. Judge Harms expressed the view that the Tax Court did not deal properly with the meaning of the term “expenditure” but rather whether expenditure had been incurred. The court stated that there was no issue as to when the liability, payable to the purchaser, arose. The appeal court pointed out that the question that the Tax Court should have considered was whether the issuing of shares by a company constitutes “expenditure” and not whether the undertaking to issue shares amounts to an obligation, which it accepted that it did.

The issuing of shares does not constitute
expenditure and, therefore, no allowance is
available to the company. 

Judge Harms reached the conclusion that for Labat to succeed with the deduction claimed by it, it must be shown that the legal obligation must be discharged by means of “expenditure” and that timing is not the question to consider. The court analysed the term “expenditure” and expressed the view that the ordinary meaning of the term refers to the “action of spending funds, disbursement or consumption.”

The court stated that expenditure requires a reduction in the assets of the taxpayer or, at the very least, a movement of the assets of the person who expends an amount.

In ITC 1783, Judge Goldblatt indicated that an allotment or issuing of shares does not, in any way, reduce the assets of the company and it can, therefore, not qualify as “expenditure” for purposes of the act.

Having analysed the transaction concluded by Labat with the seller, the court concluded that issuing of shares did not constitute expenditure and, therefore, no allowance was available to the company under section 11(gA) of the act.

Thus, no deduction is available under section 11(A) of the act based on the unanimous decision of the Supreme Court of Appeal, where a taxpayer issues shares for goods or services acquired by it.

The legislature chose to intervene insofar as assets acquired in exchange for shares issued by inserting section 24B into the act. Therefore where a taxpayer acquires assets by way of the issue of shares, the taxpayer is deemed to have incurred expenditure for purposes of determining base cost and arriving at the capital gain, which may be liable to tax when the taxpayer disposes of those assets.

However, where a company issues shares to an employee for services rendered, under a share incentive scheme, no deduction is available based on the decision of the court in the Labat case. The act allows a deduction, in terms of section 11(lA) where shares are issued in respect of qualifying equity shares issued pursuant to a so-called “broad-based employee share plan,” as envisaged in section 8B of the act. Taxpayers will be unable to claim a deduction for goods and services acquired where shares are issued to settle the amount due, unless the transaction falls into one of the exceptions referred to above.

Dr Beric Croome is a tax executive at ENS. This article first appeared in Business Day, Business Law and Tax Review November 2011. Free Image from ClipArt

Monday 10 October 2011

SARS loses battle over MTN audit fees claim

In Mobile Telephone Networks Holdings (Pty) Limited v the Commissioner for the South African Revenue Service, the South Gauteng High Court was required to determine whether the Commissioner was correct in disallowing MTN’s deduction of audit fees for the 2001 to 2004 years of assessment and the expenditure incurred by the company, in respect of professional fees charged for the training of staff on a new accounting package.

The company initially appealed the Commissioner’s finding to the Income Tax Court, ITC 1842 [2010] 72 SATC 118, and succeeded partially on the deductibility of audit fees by securing a deduction of 50% on the audit fees claimed for the 2001 to 2004 years of assessment.  The Tax Court agreed with the Commissioner that the costs incurred on the training of staff for the new accounting package, was not deductible for tax purposes.

SARS loses battle:
Case provides some clarity
on the deductibility of audit fees and
professional services rendered.
The South African Revenue Service (“SARS”) was dissatisfied with the Tax Court’s decision and cross-appealed in respect of the decision on the audit fees, and contended that the deduction of 50% of the audit fees was incorrect.  In deciding whether the audit fees, or the fees paid for professional services, were deductible, the Tax Court was required to consider the provisions of section 11(a) of the Income Tax Act, Act 58 of 1962, as amended (“the Act”), the so-called “general deduction formula”, and also to take account of sections 23(f) and (g), which preclude the deduction of expenses incurred in relation to amounts which do not constitute income, or which are not expended for the purposes of the taxpayer’s trade.

MTN is a wholly-owned subsidiary of the MTN Group Limited (“MTN Group”) and has five wholly-owned subsidiaries. MTN Group conducts business by providing mobile telecommunication networks and related services. Victor J, pointed out that it was agreed in a pre-trial meeting that MTN carries on a trade. SARS disallowed the audit fees, which were incurred for purposes of complying with the company’s statutory obligation to have its accounts audited, as well as for the purpose of trading. Professional fees relating to the second issue, which SARS disallowed in full, comprised services provided in order to train the company’s staff on a computer accounting system.

The judgment points out that it was common cause between the parties that the company traded during the tax years in dispute.  The audit required the input and consideration of an auditor regarding the dividends received by the company, and income in the form of interest. The court pointed out that the dividend income represented the largest portion of MTN’s income, ranging between 89% and 99%, during the tax years in dispute.

The Tax Court decided that the audit fees were incurred for a dual purpose and, thus, reached the conclusion that it was appropriate to apportion the expenditure and decided that 50% was deductible and the balance was not.

The High Court pointed out that the taxpayer contended that, on average, only 6% of the entries in its books of account related to dividends, which was not disputed by SARS, was an important factor. SARS contended that the audit fees did not advance the trade of the company and were not directly related to the production of its income and, thus, all audit fees claimed by the company, should be disallowed.

SARS argued that the audit fees were incurred by the company to comply with its statutory obligations, and relied on Australian tax authority where expenditure was disallowed for undertaking a statutory task, FCT v The Swan Brewery Co. Limited (1991) 22 ATR 295.

The court pointed out that it was common cause that the amount of work undertaken by the auditors extended beyond the verification of interest income and receipt of dividends, but that those additional tasks did not detract from the appellant’s contention that the audit fees related to its income-earning activities.

It would appear that only 6% of the audit time was spent on the dividend section of the audit. The court decided that the expenditure incurred by the company on the audit fees, was incurred to directly facilitate the carrying on of its trade, not only in a legally compliant manner, but also to generate income.

The court decided that the only fair basis on which the audit fees should be apportioned was that 94% of those costs should be allowed as a deduction for tax purposes. The court, thus, decided that it was appropriate to take account of the time spent on auditing the interest income, as opposed to the fact that a substantial part of the income derived by the company, comprised dividends.

When dealing with SARS’ cross-appeal, the court indicated that SARS sought to argue that the audit fees did not attach to the company’s operations and even where trading is conducted through the company, the taxpayer should accept that there are additional expenses for audit fees and the legal obligation relating thereto is unrelated to the earning of the taxpayer’s income.  The court pointed out that SARS approach would provide an enormous obstacle to the world of commerce and trade if the deduction of audit fees was to be denied on this basis.

In reaching its apportionment ratio, SARS took account of the values of income derived and did not take account of the amount of work involved in the audit process. The court rejected SARS method of apportionment as being factually and legally incorrect. The court held that the bulk of the audit fees related to the earning of interest and not dividends based on the time spent by the auditors on the different tasks required to complete their audit.

In addition, SARS disallowed the professional fees paid for services rendered regarding the implementation of the computerised accounting system. The court pointed out that the majority of transactions in MTN’s financial records related to the interest income derived and that the accounting system was not used in relation to the dividend income received by the company. The expenditure claimed by MTN related to its business only and was not used for the benefit of its subsidiary companies.  The court expressed the view that the professional fees were closely connected to the earning of the interest-income received by the company and that the professional fees were directly related to the company’s trading activities.

SARS argued that MTN had not provided sufficient information and decided that the company had not discharged the onus placed in relation to the accounting system. The court was critical of SARS and pointed out that SARS had failed to consider the relevant information, before disallowing the professional fees relating to the accounting system.

Thus, the unanimous decision of the court was that 94% of the audit fees were deductible and that the expenditure relating to the training on the accounting system must be allowed. SARS was, accordingly, ordered to pay the costs of the company’s appeal. The case, therefore, provides some clarity on the deductibility of audit fees and, indeed, professional services rendered regarding the implementation of an accounting system.

  • Dr Beric Croome is a Tax Executive at Edward Nathan Sonnenbergs. This article first appeared in Business Day, Business Law and Tax Review, October 2011. Free Image from ClipArt

Thursday 15 September 2011

SARS's Beady Eye on Intragroup Transactions

In June, the Treasury released the Draft Taxation Laws Amendment Bills, 2011 that contained a proposal that section 45 of the Income Tax Act be suspended with effect from June 3.

Section 45 of the act allows for qualifying intragroup transactions to take place without adverse tax consequences and the South African Revenue Services (SARS) wanted a period of 18 months to allow it time to investigate what it perceived as abuse of the section.

On August 3, the Treasury and SARS issued another media release regarding section 45 intragroup transactions that contained details of more changes to the provision.

In that press release the Treasury and SARS said that information regarding transactions concluded in terms of section 45 had been obtained. The primary concern identified by the Treasury and SARS related to excessive debt being created on the transfer of assets concluded in terms of section 45.

The Treasury has confirmed that commercially orientated transactions should be allowed to proceed where such transactions do not result in an erosion of the tax base. S as result the Treasury has proposed that a new provision, namely section 23K, be introduced in the legislation to restrict the interest deductions associated with debt used to finance the acquisition of assets in terms of transactions concluded under sections 44, 45 or 47.

The Treasury has indicated that the results flowing from transactions concluded under section 45 will face different consequences, depending on the nature of the transactions in question.

It is important that the Receiver has the dedicated
resources to deal with applications promptly.
Interest deductions, relating to transactions that fall into the so-called “green channel,” will be deductible automatically. The interest deduction on debt associated with so-called “amber transactions” will only be permitted upon pre-approval by the authorities. Transactions that are not approved by the authorities will not be entitled to an interest deduction.

The authorities have confirmed that the above-mentioned proposals are intended as a short-tern solution to the problems identified in administering section 45. It is anticipated that a longer-tern set of solutions dealing with the deduction of interest on so-called “excessive debt” and the characterisation of debt, remain on the agenda for 2012 and into the future.

Originally, the Treasury identified concerns regarding the perceived abuse of section 45 and the amendments proposed are intended to take effect from June 3 this year.

SARS and the Treasury have proposed that the restriction on interest deductions associated with debt used to fund the acquisition of assets also apply to sections 44 and 47. The amendments to the interest deduction available in respect of transactions concluded in terms of sections 44 and 47 are proposed to take effect from August 3.

The Treasury has indicated that preference shares will be permitted as a means of funding section 45 transferred assets, subject to the proviso that tax cost associated with intragroup debt and preference shares will be subject to tighter restrictions.

However, those section 44, 45 and 47 reorganisations that rely on interest-bearing debt will be regarded as falling into the amber category of transactions which will, in turn, be classified into two broad groups. Where the interest-bearing debt associated with section 44, 45 and 47 restructures is funded within the group of companies and does not result in any loss or possible loss to the fiscus, automatic pre-approval is required. However, a discretionary approval process will apply where the interest-bearing debt, arising from the restructure, may result in a loss of revenue.

The Treasury has advised that the decision to approve or decline a restructure relying on debt financing will depend on the effect of the interest to be incurred on the tax payable by the debtors and creditors acting as parties to the debt, including the nature of the debt instrument.

As a result of the proposals issued on August 3, those transactions that can be classified as pure intragroup transfers and transactions reliant on financing by group companies should, in the main, fall into the so-called “green channel,” which will be allowed to proceed without securing prior approval from SARS.

However, those transactions regarded as leverage buy-outs and securitisations will fall into the so-called “amber channel” and will be closely scrutinised with SARS o ascertain whether approval for those transactions should be granted.

Those taxpayers, consisting of members of a “group of companies” as defined in the act, will be entitled to restructure their affairs using the intragroup provisions contained in section 45 where no excessive debt arises as a result of corporate restructure.

Clearly, the Treasury is concerned where excessive debt is created with the result that profits, which would otherwise have been subjected to tax, are effectively stripped out through substantial interest deductions, which may be received by either exempt entities or by persons who are not resident and, therefore, are not liable to tax on the interest paid.

The proposal to require that certain transactions be approved by SARS is understood. What is important, though, is that SARS has the dedicated and specialised resources to deal with the applications for approval promptly so as to ensure that legitimate transactions are not stifled in SA.

On August, 12, SARS published a draft guide on the disclosure of reorganisation transactions which summarises the proposed changes to sections 44, 45 and 47 of the legislation, including the insertion of section 23K into the act.

Further, it is envisaged that taxpayers will be required to submit a specialised return in terms of section 41(5) where a taxpayer acquires an asset through an asset-for-share transaction in terms of section 42, or a transaction envisaged in section 44, 45 and 47 of the act.

Taxpayers will be required to submit a return under section 41(5) where any f the following circumstances exist:

  •            The transactions the taxpayer has entered into to acquire an asset or assets cumulatively exceed R30m over a period of 12 months
  •             An asset or assets are transferred to the taxpayer at market value in terms of an intragroup transaction in terms of which section 45 of the act applies and the total value of an asset or assets exceeds R10m; or
  •       The taxpayer is required, in terms of section 23K(3) to apply for approval in order to secure a deduction of interest, and such approval was not requested by the company.

Those companies that require approval under section 23K(3) will be required to identify all parties to the restructure transactions and supply details of the debt instruments that are used, directly or indirectly, to acquire the assets in terms of the restructure transaction.

  •          Dr Beric Croome is a tax executive at Edward Nathan Sonnenbergs. This article first appeared in the Business Day supplement, Business Law & Tax Review, September 2011. Free Image from ClipArt

Friday 2 September 2011

Taxpayers' Rights Quiz

How much do you know about your taxpayers rights? 

1. When an SARS employee has been rude to you, what should you do?

a. Yell back at them.
b. Slam down the phone and swear.
c. Ask to speak to a supervisor.
d. Threaten to sue.
2. If you are afraid to go to a SARS meeting, what are your options?
a. Hire a representative to go instead.
b. Have someone go with you.
c. Arrange to record the meeting.
d. All of the above.

3. When you cannot pay all the taxes you owe, when due, what are your options?

a. Don’t file a tax return. That way, the SARS won’t know how much you owe.
b. Set up a monthly payment plan.
c. Lie about your balance due on your tax return.
d. Blame it on the economy and forget it.
4. If you disagree about the amount of your tax liability, what is not a sensible option?
a. Request an appeals hearing.
b. Go to Tax Court.
c. Go to a Tax Specialist.
d. Just give in and pay the tax.
Answer key below.How did you do? Did you get 100%? If you got less than 100%, perhaps it's time you invested in a copy of "Taxpayers' Rights in South Africa"


Here’s the answer key:

1. c 2. d 3. b 4. d

With grateful thanks to Eva Rosenberg for the quiz concept from her article "Do you know your Taxpayer Rights?", adjusted here for South African Taxpayers. Eva Rosenberg, EA, is the publisher of Rosenberg is the author of several books and e-books, including “Small Business Taxes Made Easy.” Eva teaches a tax pro course at and other tax courses at 

Thursday 18 August 2011

South African Revenue Service: Scam Alert Notifications

The South African Revenue Service (“SARS”) website, namely,, contains various warnings to taxpayers about scams used by criminals to obtain banking details of taxpayers, or other means of obtaining personal information illicitly from taxpayers.

SARS indicates, on its website, that taxpayers must not supply their banking details to anyone via the telephone, sms or e-mail, as SARS will never request banking details telephonically, via sms or via e-mail.

The website contains details of a series of phishing/scam e-mails and letters, which were purportedly sent by SARS to taxpayers whereas such letters and e-mails were, in fact, submitted by persons who have nothing whatsoever to do with SARS.

Taxpayers must remember that under the provisions of the Income Tax Act, Act 58 of 1962, as amended (“the Act”), SARS is empowered to audit a taxpayer’s affairs, but in order to do so, must make prior arrangements with the taxpayer in terms of section 74B of the Act.  The law requires that the Commissioner must give the taxpayer reasonable prior notice of a requirement to submit information to SARS, or to conduct an audit.

Furthermore, any person arriving at business premises, contending to be a SARS official, is required, upon request, to furnish a copy of an authorisation letter as envisaged in section 74A of the Act.

The Act specifically defines an “authorisation letter” as a written authorisation granted by the Commissioner, for any person designated by the Commissioner for such purpose, to an officer to inspect, audit, examine or obtain information as contemplated in section 74B of the Act.  Where a person arrives at business premises without prior notice, demanding access on the basis that they are an official of SARS, such person can lawfully be ejected from the premises and refused access to those premises.  The only occasion whereby a SARS official may arrive at business premises, without prior notice, is where the High Court has authorised the issue of a search and seizure warrant in terms of section 74D of the Act.

Dear Taxpayer...
not all letters with the SARS logo are genuine
It would appear that a number of taxpayers have received letters purporting to be from SARS, which, from close examination, indicate that the letters in question were not issued by SARS but by the fraudsters. It would appear that letters advising a taxpayer that a VAT sales enquiry was to be undertaken, did the rounds in Limpopo Province during the course of June 2011 and, more recently, in the Sandton area during July 2011.

From a review of the letter relied on by the perpetrators of the fraud, it is apparent that the letter is deficient, inter alia, in the following respects:

·         Reference is made to the “South African Revenue Services”, which should, in fact, be to the “South African Revenue Service”.

·         Reference is made to the “Special Investigations Unit”, which unit does not appear to exist at SARS.

·         The letter also refers to a “Regional Controller”, which is not a designation of an official employed by SARS.

·         Letters of audit normally refer to the rights which taxpayers have in their dealings with SARS.

It is unclear what the perpetrators of the fraudulent letters hoped to achieve by advising a business that it is intended to subject that business to one or other tax audit.

Taxpayers who receive letters, purporting to be from SARS, which do not contain the details usually reflected thereon, should report the matter to SARS with a view to establishing if the letter was, in fact, issued by SARS or not.

More importantly though, taxpayers need to be aware that they do have certain rights in dealing with SARS, and are fully entitled to establish the bona fides of any person alleging to be an official from SARS, who wishes to have access to the business premises.  It must be remembered that a person who holds himself or herself out as an officer of SARS, engaged in carrying out the provisions of the Act, is guilty of an offence. Perpetrators of these frauds can be fined or imprisoned upon convictions of this offence.

As indicated above, SARS is required, by law, to make a prior arrangement with the taxpayer to conduct an audit, at the taxpayer’s premises, and cannot arrive without prior notice.  The only exception, where SARS may arrive without prior notice is where the High Court has issued a search and seizure warrant or, alternatively, where there is a criminal investigation and a search warrant has been issued under the Criminal Procedure Act No. 51 of 1977, as amended, which is executed by the South African Police Service.

Taxpayers receiving suspicious letters, purporting to be from SARS, need to be on their guard before making arrangements with the perpetrators to audit their affairs, or before they start disclosing personal particulars or banking details to such persons.  Should taxpayers have any doubt whether a letter requesting access to the business records is, indeed, from SARS, legal advice should be sought.

Dr Beric Croome is a Tax Executive at EDWARD NATHAN SONNENBERGS INC. This article first appeared in ENS Tax Ensight August 2011. Image from SARS.

Thursday 11 August 2011

Vital to balance taxpayers’ rights against fiscal laws

In June the Minister of Finance tabled the Tax Administration Bill in Parliament, first mooted in 2005 with the stated purpose of containing the administrative provisions affecting all taxes other than Customs and excise duties.

The bill consists of 20 chapters with 272 draft sections relating to various processes taxpayers will face when dealing with SARS.

SARS has indicated that the tabling of the legislation is the first step in rewriting the Income tax Act, Act 58 of 1962.

Once the bill has been enacted those administrative provisions currently contained in the act and other fiscal statutes will be repealed.

The bill creates a legal framework for the creation of a tax ombud in SA. Under the bill the minister must appoint a tax ombud for a period of three years. SARS has indicated that the tax ombud will follow the model used by the UK in creating the tax adjudicator’s office and the tax ombud’s office in Canada. The bill provides that the staff of the office of the tax ombud must be employed in terms of the SARS Act and will be seconded to the office of the tax ombud from SARS.

The mandate of the tax ombud, according to the legislation, is to review and address complaints by a taxpayer regarding a service or a procedural administrative matter. The tax ombud is required to review a complaint lodged by a taxpayer and resolve it, either through mediation or conciliation, and must act independently in resolving taxpayers’ complaints. The tax ombud is required to follow informal, fair and cost-effective procedures in resolving taxpayers’ complaints.

It's vital to balance taxpayers' rights against fiscal laws as the bill gives SARS the power to conduct a search and seizure operation without a warrant to protect documents from destruction.

The tax ombud may review any issue falling within its jurisdiction on receipt of a request from a taxpayer. The tax ombud may determine how a review is to be conducted and may decide that a review should be terminated before completion in certain cases.

Some commentators have raised concerns about the fact that the tax ombud will be housed within SARS and will not be created as a separate and distinct office outside SARS.

Practically, the tax ombud is required to obtain access to taxpayer information and can only do so where the ombud is regulated by the secrecy provisions contained in the fiscal statutes. The housing of the tax ombud within a tax authority is not that unusual when reference is made to the models used as a basis to create a tax ombud in SA, and is also the manner in which the taxpayer advocate’s office was created in the US, which seeks to deal with taxpayer complaints lodged against the Internal Revenue Service.

The Tax Administration Bill also seeks to ensure that taxpayers’ rights are protected where a taxpayer faces a criminal investigation. The bill requires that audits and criminal investigations are separated, ensuring that the rights of an accused under the constitution are protected.

The one power contained in the bill that has attracted comment is SARS’s power to conduct a search and seizure operation without a warrant to protect documents from destruction by taxpayers.

Currently under the act SARS may only search taxpayers’ premises and seize documents when authorised to do so by a warrant issued by a court in terms of section 74D of the act. Clause 63 of the Tax Administration Bill confers on a senior SARS official the power to search premises and seize documents without a warrant when that senior official, on reasonable grounds, is satisfied that there may be an imminent removal or destruction of records likely to be found on the premises and that the delay in securing a search and seizure warrant would defeat the object of the search and seizure.

Clearly, the power to conduct a search and seizure operation without a warrant is not aimed at those taxpayers who comply with the fiscal laws of the country but is aimed at those who choose to operate outside the law.

A concern that arises, though, is the possibility of the power contained in clause 63 of the bill being abused by senior SARS officials, particularly as there is no oversight by a third independent party as to when it is appropriate to search premises and seize documents.

It would be preferable if SARS exercised the power it seeks such that the court, after the search and seizure operation, reviewed the decision made by an official to conduct a warrantless search and seizure operation.

The difficulty that arises is that a search and seizure operation conducted without a warrant constitutes an invasion of the rights of a taxpayer to privacy under the constitution. On the other hand, SARS has a statutory duty to ensure that taxpayers comply with the fiscal laws and faces taxpayers who, once an audit commences, seek to destroy documents.

It is, therefore, necessary to strike a balance between the rights of the taxpayers on the one hand and the statutory duty which SARS has of ensuring that taxpayers comply with the fiscal laws.

It would appear that the decision which may be made by a senior SARS official to conduct a warrantless search and seizure operation constitutes administrative action as envisaged under the rules of administrative law.

That being the case, it is important that any official making a decision under clause 63 of the bill does not have a pecuniary interest in the outcome of the decision made by that official based on the general principles of administrative law in SA.

It is unclear whether SARS officials receive incentives or bonuses directly relating to the tax that they collect. Should an official have a pecuniary interest in the outcome of the decision, that would be indicative of the official being biased.

SARS should, therefore, clarify whether its officials are in receipt of incentives directly related to the taxes collected by them and, if that is the case, it raises a question as to whether clause 63 is constitutionally valid.

It remains questionable whether clause 63 complies with the constitution, particularly when reference is made to the strict rules in place in so far as issuing search and seizure warrants under the Criminal Procedure Act are concerned and, particularly, in the light of the decision of the Constitutional Court in Minister for Safety and Security v GW van der Merwe and Others, where the Constitutional Court held that the provisions of the North-West Gambling Act No 2 of 2001 authorising an inspector to enter unlicensed gambling premises without a warrant , were unconstitutional and invalid.

It is important that taxpayers note that many of the administrative provisions currently contained in the act and other fiscal statutes will continue to exist in the Tax Administration Bill.

It is unclear at this stage when the bill will be enacted and when it will take effect. It is more than likely that the provisions of the bill will become effective on different dates and taxpayers will need to take account of the provisions so that they understand the powers that SARS has under the legislation and the rights which are contained therein.

·         Dr Beric Croome is a tax executive at Edward Nathan Sonnenbergs. This article first appeared in Business Day, Business Law & Tax Review August 2011. Image free from ClipArt