The Tax Administration Act No. 28 of 2011 (“TAA”) which took effect on 1
October 2012 created the Office of the Tax Ombud to deal with complaints
against the South African Revenue Service (“SARS”) empowering that office to
deal with complaints made by a taxpayer regarding a service matter or
procedural or administrative matter arising from the application of the
provisions of a tax Act by SARS.
Before a taxpayer can lodge a complaint with the Office of the Tax
Ombud, it is important that they have exhausted the internal complaints
resolution mechanisms within SARS, unless there are compelling circumstances to
do so. The TAA prescribes what constitutes compelling circumstances and those
are not dealt with further in this article.
During September 2015 SARS refined the process a taxpayer must follow
when lodging a complaint regarding the manner in which they have been dealt with
by SARS. According to the SARS website a
complaint is a grievance or some other type of dissatisfaction experienced by a
taxpayer, trader or representative relating to a process, including queries,
returns or any other service request or a service experience that is not
adequately resolved.
The SARS guidelines dealing with complaints makes it clear
that SARS’ processes should be fully exhausted to resolve a taxpayer’s query
before a formal complaint is lodged. Where the taxpayer remains dissatisfied with
the service after their normal interaction with SARS, they are entitled to
complain against SARS. It must be noted that where a taxpayer disagrees with an
assessment or any decision taken by SARS, it is necessary to follow the formal
dispute resolution process and to lodge an objection against the assessment
raised. The complaints process cannot deal with the merits or otherwise of an
assessment issued by SARS.
Where a taxpayer is dissatisfied with SARS’ service or processes, it is necessary to have a case number first, particularly where a taxpayer wishes to complain about missing documentation, quality or speed of service or unresolved issues.
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Taxpayers are required to submit a complaint via e-filing which means
that the complaint will be tracked electronically or alternatively by calling
the SARS Complaints Management Office (“CMO”) on 0860121216. In order to
complain via e-filing, the taxpayer must be a registered e-filer to complete
and submit the complaint form. Previously taxpayers were unable to lodge
complaints electronically which meant that complaints were not capable of
comprehensive tracking and follow up.
Where a taxpayer is unable to file a complaint via e-filing, they may
seek assistance from a SARS agent to complete the complaints form on their
behalf when contacting the CMO. When lodging a complaint, a taxpayer is
required to indicate the nature of the complaint and to categorise the
complaint into one of the specified categories. According to the SARS website,
the categories of complaints and examples relating thereto are as set out
below:
“No. Category Example
1 Legal/Policy For
example, debit cards not accepted for payments.
2 Employee
behaviour/Competence For example, agent X
was rude, or agent did not know how to assist
me.
3 Channel
experience/environment/ For example,
contact centre is very slow to answer, or there is no
technical issues parking at
branch X.
4 Quality
and speed of service For
example, incorrect resolution of request, or it took 6 months to
process
my banking detail change.
5 Unresolved
service/operational For example,
turn-around-time exceeded and my return has not yet
matter been processed.
6 Missing
or lost documentation For
example, I have submitted my return, but SARS cannot find it.”
Where a taxpayer wishes to lodge a complaint relating to the quality and
speed of service, or an unresolved service operational matter or missing or
lost documentation, the taxpayer must submit a case number first. Thus, the
taxpayer’s complaint will only be accepted if there is already a case logged on
SARS’ systems and the case number is inserted on the complaints form.
SARS has indicated that once a taxpayer has complained, they will
receive either a text message or email notification at various stages of the
process confirming that the complaint has been received. It is intended that
the resolution date will be a maximum date of 21 days after the complaint has
been logged with SARS. Where the taxpayer remains dissatisfied with the outcome
utilising the SARS internal complaints process, the taxpayer may lodge a formal
complaint with the Office of the Tax Ombud.
SARS published a document entitled “Guide to the Complaints
Functionality on E-filing” setting out how taxpayers and tax practitioners can
lodge complaints via e-filing in respect of the taxpayer’s own affairs or in
respect of the affairs of taxpayers managed by a tax practitioner.
Where the taxpayer remains dissatisfied after having followed the
internal complaints process at SARS, they are entitled to file a complaint with
the Office of the Tax Ombud, which office will determine whether the complaint
falls within the mandate of that office and advise the taxpayer accordingly.
The Tax Ombud intends to finalise complaints made by taxpayers within 15 business
days of receipt of the taxpayer’s complaint. Where the Tax Ombud anticipates
that the complaint will not be resolved within the specified time period, the
Office will advise the taxpayer thereof.
The Tax Ombud recently tabled its annual report for 2014/2015 in
Parliament as required under the TAA. That report indicates that during the
twelve months under review, 1277 complaints were received from taxpayers, of
which 861 were rejected on the basis that the complaints fell outside of the
ambit of the Tax Ombud’s mandate or that the taxpayer had failed to exhaust
SARS’ internal complaints process. Of the 409 complaints accepted by the Tax
Ombud, 75% were resolved in favour of the taxpayer.
The Tax Ombud’s report identifies the most important categories of
complaints lodged by taxpayers against SARS and these related to problems
relating to the following areas:
·
Withdrawal of assessments by SARS
·
Delays in refunds
·
Changes in banking details of
taxpayers
·
Identity theft
·
Turn-around time on objections and
appeals
·
Outcomes of objections/appeals not
implemented by SARS
·
Debt procedures not adhered to by
SARS
·
Undue delay in issuing of tax
clearance certificates
It must be remembered that the Office of the Tax Ombud cannot compel
SARS to adhere to the finding made by the Ombud’s office but where SARS chooses
not to adhere to the recommendations made by the Tax Ombud, that will be
reported to Parliament. Thus, SARS must have
very sound reasons not to accept the recommendations made by the Tax
Ombud, particularly when reference is made to the provisions of the
Constitution.
In conclusion, where taxpayers are aggrieved with the manner in which
they have been dealt with by SARS officials or SARS has failed to resolve the
taxpayer’s complaint properly, they are entitled to take that up with the
Office of the Tax Ombud and based on experience in practice, the Office of the
Tax Ombud is having the desired effect in resolving complaints made by
taxpayers against SARS. Taxpayers are therefore urged to lodge complaints with
the Office of the Tax Ombud once they have failed to resolve the matter
utilising SARS’ internal complaints processes.
Dr Beric Croome is a Tax Executive at ENSafrica This article first appeared in Business Day, Business Law and Tax Review, November 2015.
