Article by: Azwinndini Magadani CA(SA)

Director: Tax Advisory

 

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With effect from 01 October 12, the administrative provisions of various tax acts were moved to the Tax Administration Act No.28 of 2011 (the TAA). The TAA contains the provisions which create rights (or entitlements) and impose obligations for the South Africa Revenue Service (SARS) and the taxpayers. Understanding your right as a taxpayer is critically important in ensuring that you pay no more and/or no less tax than is required by the law. In this article, we deal with the right of the taxpayer to request and be provided with reasons for an assessment. SARS is empowered to raise original, additional, reduced or jeopardy assessments. An assessment is defined in section 1 to the TAA and means the determination of the amount of tax liability or refund, by way of self-assessment by the taxpayer or assessment by SARS. SARS may make the aforesaid assessments based in whole or in part on estimates where the taxpayer fails to submit the return as required or has submitted a return or information that is incorrect or inadequate.

 

When taxpayers are aggrieved by an assessment, they have the right to dispute it. 

As part of the tax dispute resolution process, the taxpayers are entitled to request reasons for assessment. The reasons for assessment enable the taxpayer to understand the basis of the assessment and to formulate its objection against the assessment.

Essential requirements for a request for reasons for assessment

In terms of Rule 6[1], a taxpayer who is aggrieved by an assessment may, prior to lodging an objection, request SARS to provide reasons for the assessment required to enable the taxpayer to formulate an objection. The request must meet the following requirements:

  • It must be made in prescribed form and manner
  • It must specify an address at which the taxpayer will accept delivery of the reasons; and
  • It must be delivered to SARS within 30 days from the date of assessment.

It is important to note that SARS may provide an extension of the period within which the request for reasons must be submitted where reasonable grounds exist for the delay in complying with the prescribed period. Such extension may not exceed 45 days.

 

[1] Rules issued under section 103 of the TAA.

What reasons will the taxpayer be given?

In the context of a tax dispute, the taxpayer is entitled to receive reasons for the assessment that will enable the taxpayer to formulate the objection (Rule 6). In its Dispute Resolution Guide[1], SARS indicates that it is only required to provide the “actual reasons” for an assessment that enables the taxpayer to formulate an objection and not its reasoning process. The “actual reasons” are the SARS’ findings of fact and the law applicable thereto.

SARS, as an organ of state, is subject to the provisions of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA). The PAJA requires that a person whose rights have been materially and adversely affected is entitled to “adequate reasons” (section 5(2), (3) & (4) of the PAJA). The PAJA does not provide guidelines for determining what is considered “adequate reasons”. It is difficult to lay down a general rule as to what could constitute adequate or proper reasons. Each case must depend upon its own facts: Réan International Supply Company (Pty) Ltd and Others v Mpumalanga Gaming Board, 1999 (8) BCLR 918 T, 926F (per Kirk-Cohen J).

In ITC 1811 (68 SATC 193), the court dealt with what constituted “adequate reasons” and held that it was not sufficient for SARS to simply refer to previous correspondence entered between the parties. The taxpayer was entitled to clearly formulated reasons before formulating his objection under the following headings:

  • the relevant statutory provisions or applicable requirements of the practice note.
  • the findings of fact on which his conclusions depend; and
  • the reasoning process which led him to those conclusions.

Although ITC 1811 dealt with the old rule[2],  the guidelines provided may still be useful when determining whether the reasons provided by SARS are sufficient to enable the aggrieved taxpayer to formulate an objection.

 

  1. Rules issued under section 103 of the TAA.
  2. [1] SARS Dispute Resolution Guide: Guide on the Rules Promulgated in terms of section 103 of the TAA, Second issue 30 March 2020.
  3. [2] The repealed Rule 3(1)(a) of the rules promulgated in terms of section 107 of the Income Tax Act No. 58 of 1962.

A request for reasons under the provisions of the PAJA obliges SARS to provide adequate reasons which must include but not limited to “the actual reasons” for the assessment together with SARS’ reasoning process. It would therefore be advisable for any taxpayer who is aggrieved by an assessment, prior to lodging an objection, to request from SARS, reasons under Rule 6 and/or section 5 of the PAJA.

Such a request would enable the taxpayer to obtain the actual and adequate reasons for the assessment. Consequently, the taxpayer would be put in a better position to be able to formulate the objection against the assessment that he or she is aggrieved by.

How to submit the request

The request for reasons can be submitted to SARS electronically via eFiling and the SARS branches for Personal Income Tax (PIT), Company Income Tax (CIT), Value-Added Tax (VAT) and Pay-As-You-Earn (PAYE). A manual process for a request for reasons also exists for all other taxes.

In conclusion

  • When taxpayers are aggrieved by an assessment, they have the right to dispute it.
  • Prior to lodging an objection against the assessment, the taxpayer has a right to request reasons for an assessment to enable him or her to formulate an objection.
  • The taxpayer has a right to receive actual and adequate reasons for the assessment (Rule 6 and section 5 of PAJA). SARS is required to provide the actual reasons for the assessment, that is, SARS’s findings of the fact, the law applicable thereto and its reasoning process.