TAXPAYERS’ RIGHT TO HAVE DISPUTES RESOLVED

RING-FENCING OF ASSESSED LOSSES OF CERTAIN TRADES – PART I
April 16, 2019
SARS SCAMS
April 17, 2019
In a recent Tax Court decision[1], the Tax Court confirmed that taxpayers have a right to have their disputes resolved in a court of law as enunciated in section 34 of the Constitution. However, they cannot rely on this right when they are using delaying tactics to prevent the matter from being heard.

In this regard, the South African Revenue Service (“SARS”) issued a revised assessment to the taxpayer in 2013 based on the under-declaration of income. The taxpayer’s objection to this assessment was disallowed and the taxpayer filed a notice of appeal at the end of 2014.

An appeal meeting was then held at the beginning of 2017 and in July 2017 SARS filed its statement of grounds of assessment.[2] The taxpayer appointed a representative and requested an extension to April 2018 to file his statement of grounds of appeal.[3] SARS, however, only granted extension until middle December 2017.

No further extension was requested by the taxpayer and by February 2018 SARS informed the taxpayer of its intention to apply for a default judgement against the taxpayer and thereafter obtained a date for the hearing in November 2018.

Days before the hearing the taxpayer (via a new representative) requested that the matter be postponed in order for him to obtain all relevant information. The Tax Court granted such postponement until the end of February 2019 and ordered the taxpayer to file his grounds of appeal on or before the date of the hearing. No such grounds were filed. Also, on the date of the hearing, the taxpayer applied for condonation and a further postponement to obtain information.

The Tax Court found that the taxpayer had sufficient information to lodge the objection (in 2014 already) and that he was also not entitled to expand on his grounds of appeal beyond that contained in his objection. The taxpayer also did not make use of the proper rules for discovery of information[4] if he believed that he needed additional information for his grounds of appeal.

The Tax Court held that the taxpayer was intentionally delaying the legal process in order to prevent it from being finalised and disobeyed a court order without providing substantial reasons for his non-compliance. SARS’ request for a default judgement was therefore granted.

The takeaway is that taxpayers must duly take note of the rules and timelines provided for with regards to dispute resolution and that the courts (and likely SARS) will not tolerate any unnecessary
delaying tactics.

[1] TCIT 13868 BLF 27 February 2019.

[2] In terms of Rule 31(2) of the rules promulgated under section 103 of the Tax Administration Act, No. 28 of 2011. See Public Notice 550 (GG37819 of 11 July 2014).

[3] In terms of Rule 32.

[4] Rule 36.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)