Lodging Objections Against Assessments Issued by the Commissioner: South African Revenue Service

INTRODUCTION

On 1 October 2012, the Tax Administration Act, No 28 of 2011 (‘the TAA’) came into force.  As a result of the commencement of the TAA, several sections of the fiscal statutes were repealed and replaced by corresponding provisions in the TAA.  

The primary purpose of the changes is to consolidate existing tax administration legislation into a single, more comprehensive statute, which will, hopefully, ensure that tax administration is managed more efficiently and effectively.  

It is important that taxpayers are aware of the changes introduced as a result of the TAA, particularly insofar as it relates to the objecting of assessments issued by the Commissioner: SARS.  

It must be noted that the TAA applies to all taxes administered by the Commissioner, other than customs and excise.  Therefore, what is stated below will apply to assessments issued to taxpayers for income tax, value-added tax and other taxes also.

THE DATE BY WHEN AN OBJECTION SHOULD BE LODGED AGAINST AN ASSESSMENT

One of the important changes brought about by the TAA relates to the definition of ‘date of assessment’, the importance of which relates to tax dispute resolution.

Previously, section 81(1) of the Income Tax Act, No 58 of 1962, as amended (‘the Act’), stated the following:

“Objections to any assessment made under this Act shall be made in the manner and under the terms and within the period prescribed by this Act and the rules promulgated in terms of section 107A by any taxpayer who is aggrieved by any assessment in which that taxpayer has an interest.”

Rule 4(e) of the Rules promulgated under section 107A of the Act, prescribing the procedures to be observed in lodging objections and noting appeals against assessments (‘the Rules’) states:

“a taxpayer who is aggrieved by an assessment may object to an assessment, which objection must –

                (e)           be delivered to the Commissioner at the addressed specified in the assessment for this purpose, within                   30 days after –

                                in the case where the taxpayer has requested reasons under rule 3, either the date of the notice by the                       Commissioner that adequate reasons or the date the reasons were furnished by the Commissioner, as                   the case may be, or;

                                in any other case the date of assessment.”

The Rules themselves do not define the meaning of the words ‘date of assessment’, and it is necessary, therefore, to refer to the definition section contained in section 1 of the Act, which defines the terms as follows:

“in relation to any assessment, means the date specified in the notice of such assessment as the due date, or, where a due date is not so specified, the date of such notice.”

Lastly, the meaning of ‘day’ in the definition section contained in section 1 of the Rules means:

“a day as contemplated in section 83(23) of the Act.”

Section 83(23) of the Act defines ‘day’ as:

“any reference in this Part and the Rules to ‘day’ means any day other than a Saturday, Sunday or public holiday: provided that the days between 16 December of a year and 15 January of the following year, both inclusive, shall not be taken into account in determining days or the period allowed for complying with any provision in this Part or the rules.”

In addition, paragraph 6.1 of SARS Guide on Tax Dispute Resolution (‘SARS Guide’) sets out when an aggrieved taxpayer may object to an assessment.  It refers to the definition of ‘date of assessment’ contained in section 1 of the Act and thereafter states the following:

“Please note that where an assessment has a ‘date of assessment’ on the assessment form, as well as a due date and a second date, the 30-day period must still be calculated with reference to the due date, in accordance with the definition of ‘date of assessment’ in the Act.  The ‘date of notice’ or ‘date of assessment’ only applies where there is no ‘due date’ on the notice.”

The SARS Guide provides an example, summarised in the table below, and which provides clarity on the matter:

Date of Notice:	29/09/2003
Due Date:	03/11/2003
Second Date:	28/11/2003
In the above example, the objection must be filed within 30 days after 03/11/2003 of the ‘due date’, that is, by 15 December 2003.  The tax due must be paid before 28/11/2003 (the “second date’).

THE DEFINITION OF ‘DATE OF ASSESSMENT’ AND DISPUTE RESOLUTION UNDER THE TAA

The TAA has repealed section 81 of the Act, and, hence, objections and appeals against assessments issued by SARS are now governed by section 104 of the TAA.  Section 104(3) of the TAA directs that an objection to an assessment or decision must be lodged in the manner and within the time periods prescribed in the ‘Rules’.  

The aforementioned Rules have not yet been published by Public Notice in terms of section 103 of the TAA, and, thus, until such time as they are, the old Rules promulgated under the Act remain the relevant Rules in terms of section 264(2) of the TAA.

As pointed out above, there is no definition of ‘date of assessment’ in the ‘old Rules’.  It is, therefore, necessary to consider the definitions contained in the TAA, which took effect on 1 October 2012.  Section 1 of the TAA defines ‘date of assessment’ as follows:

“(a)          in the case of an assessment by SARS, the date of the issue of the notice of assessment;”

Based on the above, the period granted for the submission of an objection has changed, and has been reduced.  

Now, by referring to the example contained in the table above, the objection must be filed 30 days after 29 September 2003, that is, by 7 November 2003, which is a reduction of the time allocated for the submission of the objection of over a month.  

Were a taxpayer unaware of this change and thus follow the old rules in conjunction with the old definition of ‘date of assessment’, they would have to seek condonation for the late filing of the objection, which is unlikely to be continuously entertained by SARS on the basis of ignorance of the law.  The example shows the importance of this amendment to the fiscal provisions, and is important for all parties, especially taxpayers and their advisors, to ensure that they are aware of the changes that the TAA has introduced, and to seek advice where uncertainty arises.

Where the taxpayer has been subjected to an audit, the Commissioner will, in most cases, issue a letter advising that the taxpayer’s taxable income is being amended.  Often, these letters are referred to as a letter of assessment, and, if the letter complies with the definition of assessment contained in section 1 of the TAA, read together with paragraph 23(a) of Schedule 1 to the TAA, the taxpayer must object within thirty days of the date of the letter of assessment.  In this regard, see the decision of the Court in C:SARS v South African Custodial Services (Pty) Ltd [2012] 74 SATC 61.

This article first appeared in
Without Prejudice (March 2013)

GROUNDS OF OBJECTION

Where the taxpayer decides that the reasons received from SARS adequately set out the basis on which the assessment has been issued, the taxpayer must lodge a proper notice of objection setting out the grounds of the objection.  Clearly, in the event that the reasons received are inadequate, a taxpayer is entitled to call for adequate reasons in terms of Rule 3(1)(a) of the Rules governing dispute resolution.

It is important that the taxpayer formulates their grounds of objection in detail and sets out the basis on which they dispute the assessment issued by the Commissioner. 

A question that is often asked by taxpayers disputing an assessment is the detail which must be contained in the letter objecting to the assessment issued by the Commissioner.  It is important that the objection sets out the basis on which the taxpayer challenges the assessment issued by the Commissioner.  The question that arises is whether a taxpayer may later expand upon the grounds of objection.

In ITC 1843 [2010] 72 SATC 229, the Court was required to determine whether the Commissioner was entitled to raise a new ground of assessment at the time when the Rule 10 statement setting out the Commissioner’s grounds of assessment was being issued to the taxpayer.  

Claasen J reviewed the Rules governing objections and appeals and decided that it was competent for the Commissioner to advance new grounds of assessment which had previously not been communicated to the taxpayer in the process leading up to the amended assessment issued to the taxpayer.  

The Court decided that, just as the Commissioner is entitled to modify his grounds of assessment in the Rule 10 statement to be issued to the taxpayer, the taxpayer would also be entitled to expand on and vary the grounds of objection contained in their letter of objection when the time arrived to finalise the grounds of appeal comprising the taxpayer’s Rule 11 statement setting out the grounds of appeal.

The Court, therefore, reached the conclusion that the Commissioner could add new grounds to its Rule 10 statement of grounds of assessment, and that there could be no prejudice to the taxpayer, on the basis that Rules 10 and 11 were interpreted in the manner contained in the judgment because of the built-in safeguards which were available to a taxpayer to vary their grounds of objection in their statement of grounds of appeal, regulated by Rule 11.

However, more recently, in the case of HR Computek (Pty) Ltd v The Commissioner for the South African Revenue Service, as yet unreported (case number 830/2011), where judgement was delivered by the Supreme Court of Appeal on 29 November 2012, the Court decided that the taxpayer is limited to the grounds stated in their notice of objection.  Unfortunately, Ponnan JA did not refer to the decision of Claasen J handed down in 2010 in ITC 1843.

The Supreme Court of Appeal reached the conclusion that, by virtue of the fact that the taxpayer had not raised an objection to the principal amount of VAT in its notice of objection, the taxpayer was precluded from raising it on appeal before the Tax Court.

The Court reached the conclusion that, when the taxpayer challenged the capital amount of the value-added tax reflected as payable for the first time in its Rule 11 statement, it effectively raised a new objection against an individual assessed amount that had not previously been objected to.  

The Supreme Court of Appeal, therefore, concluded that, in terms of section 32(5) of the Value-Added Tax Act, No 89 of 1991, as amended, because no objection had been lodged against SARS’ assessment, the taxpayer was liable to SARS for the additional VAT output tax amounting to R1,246,177.60, and that the assessment issued became final and conclusive in April 2007.  

Thus, the Supreme Court of Appeal held that the taxpayer’s appeal must fail, on the basis that it was not competent to amend the grounds of objection set out in the earlier letter of objection when the time came to prepare the Rule 11 statement of grounds of appeal.  This decision would appear contrary to that of Claasen J.

If the taxpayer is to be bound to their grounds of objection, following the decision of the Supreme Court of Appeal, the Commissioner must also be bound to the reasons supplied in the grounds of assessment notified to the taxpayer at the time that the assessment is issued.  

It would be most iniquitous if the taxpayer cannot vary the grounds of objection, whereas the Commissioner is entitled to supplement the basis on which the assessment was issued to the taxpayer.

It remains to be seen if the anomalies arising between ITC 1843 and the Supreme Court of Appeal’s decision in Computek will be reconciled when the new Rules governing objections and appeals are finalised under the provisions of the TAA.

CONCLUSION

Taxpayers wishing to dispute an assessment issued by the Commissioner must lodge the objection within the time allowed, or, alternatively, request adequate reasons for that assessment, and, should they fail to meet the time periods prescribed, they will need to call for condonation for the late submission of the objection.  It is important that the objection lodged against the assessment sets out in detail the grounds on which the taxpayer seeks to rely in challenging the assessment issued by the Commissioner.

DR BERIC CROOME Tax Executive Edward Nathan Sonnenbergs Inc.