Introduction

On May 15 2017 the South African Revenue Service (SARS) released a statement on its website regarding improvements that have been introduced to the existing dispute resolution process. According to the statement, SARS is implementing these improvements as part of its ongoing commitment to deliver a better service to taxpayers.

More specifically, the statement refers to the implementation of an electronic request for reasons (RFRs) for an assessment and the introduction of:

  • a separate 'condonation workflow' which caters for the late submission of a dispute regarding certain types of tax;
  • a request for suspension of payment pending the outcome of a value added tax (VAT) dispute; and
  • a guided process for SARS's eFiling system.

RFRs

Once a taxpayer has been issued with an assessment, the dispute resolution process can generally be summarised, in simple terms, as follows:

  • To the extent that the grounds provided in the assessment do not sufficiently enable a taxpayer to understand the basis of the assessment, the taxpayer may request SARS to provide reasons for the assessment.
  • The taxpayer may object to the assessment and SARS must consider the objection and allow or disallow it in whole or in part.
  • If the taxpayer is dissatisfied with SARS's decision following the objection, it may lodge an appeal.
  • The dispute may be resolved through alternative dispute resolution or by the Tax Board or the Tax Court.

Under Rule 6 of the rules promulgated under Section 103 of the Tax Administration Act (28/2011), a taxpayer may request SARS to provide reasons for an assessment in order to enable the taxpayer to formulate an objection. If such an RFRs is submitted, the taxpayer has 30 business days within which to lodge an objection after having received SARS's reasons, instead of the normal 30 business days after receiving the assessment.

The rules prescribe that an RFRs must be made in the prescribed form and manner and delivered to SARS within 30 days from the date of assessment. However, to date, SARS has not released such prescribed form and the RFRs could not previously be submitted via the eFiling system. As a result, taxpayers often experienced difficulty in submitting the RFR and obtaining SARS's reasons for an assessment. Further, to the extent that a taxpayer succeeded in obtaining SARS's reasons for the assessment and proceeded to submit an objection via eFiling, the SARS system would not record that the taxpayer had previously requested reasons for the assessment, thereby flagging the objection as a late objection.

In an attempt to address the abovementioned administrative problems, SARS has implemented a system for submitting an RFRs via eFiling or at one of its branches for:

  • personal income tax (PIT);
  • company income tax (CIT); and
  • VAT.

According to the statement, once the system has identified that a valid RFRs has been submitted, the period within which an objection must be lodged will be automatically extended for the period provided in the rules (ie, 30 days).

Request to allow late submission of a dispute

As mentioned above, a taxpayer that is aggrieved by an assessment or certain decisions made under a tax act may object or appeal against those assessments or decisions. Such an objection or appeal must be lodged in the manner, under the terms and within the periods prescribed in the rules. An objection against an assessment or decision must be lodged within 30 days from the date of assessment or decision. Similarly, an appeal against the disallowance of an objection must be lodged within 30 business days from the date of the disallowance of the objection.

An objection or appeal that is not lodged within the prescribed time limits (as discussed above) is deemed to be an invalid appeal or objection. However, a taxpayer may request a senior SARS official to extend the period within which an objection or appeal must be lodged.

Generally, where a request for the late submission of an RFRs, notice of objection (NOO) or notice of appeal (NOA) is unsuccessful, the existing dispute process "caused confusion regarding the outcome of the dispute and what the next available step in the dispute process was".

SARS has now introduced a separate condonation workflow whereby the taxpayer will be allowed to submit the RFRs, NOO or NOA after the periods prescribed by the rules have lapsed. More specifically, the new automated condonation process will allow SARS to attend to the request for a late submission before the dispute or RFRs case can be created and considered. To the extent that the RFRs, NOO or NOA was submitted late, the taxpayer will be prompted to provide reasons for the late submission.

The new condonation process will ensure that a request for late submission is aligned with legislation, as SARS will inform the taxpayer that the submission is late instead of classifying the dispute as invalid.

Suspension of payments on VAT

Under Section 164 of the Tax Administration Act, a taxpayer may request that a senior SARS official suspend the obligation to pay any tax or a portion thereof due under an assessment until the dispute between SARS and the taxpayer has been finally resolved. During 2015, SARS implemented requests for suspension of payment via eFiling for PIT and CIT.

Taxpayers can now request the suspension of payments pending the outcome of a dispute on VAT via eFiling or at a SARS branch.

Guided eFiling process

The SARS statement provides that eFiling has been made "an entirely guided process" which will ensure that taxpayers submit a dispute in accordance with the legislative requirements, thereby eliminating any invalid disputes from being submitted to SARS.

It is stated that this guided process will enable taxpayers to follow the correct procedures and complete all of the required information when submitting a dispute via eFiling.

It is clear that taxpayers will welcome these long-awaited improvements. It will be interesting to see whether, in practice, they assist in ensuring a more administratively fair dispute resolution process.

For further information on this topic please contact Gigi Nyanin at Cliffe Dekker Hofmeyr by telephone (+27 11 290 7000) or email (gigi.nyanin@cdhlegal.com). The Cliffe Dekker Hofmeyr website can be accessed at www.cliffedekkerhofmeyr.com.

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