Not satisfied with your tax assessment

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Tax Assessment

Tax assessment making you frustrated?

What do you do if you are not satisfied with your tax assessment? There are rules that must be followed when lodging a tax dispute with SARS (South African Revenue Services). These rules have been issued in terms of section 103 of the Tax Administration Act, 2011. The rules applied from the 11 July 2014 and the rules influence the following.

  • Reasons for tax assessment
  • Objection to an tax assessment
  • Appeal against disallowance of a tax assessment
  • Post-appeal stage
  • Procedural applications relating to a dispute
  • Pre-hearing formalities.

The process to lodge an objection of a tax assessment

After the tax assessment has been raised, you may request reasons in writing within 30 business days from the date of the tax assessment. In terms of section 104 (1) a taxpayer who is aggrieved by an assessment may object the assessment.

The objection must be delivered at the address stated on the tax assessment, within 30 working days after date of tax assessment. It must be made on form NOO² or ADR1 (Notice of Objection Form) and must include supporting documents, it must state the reasons for the objection and must be signed by the taxpayer.

If your objection does not comply with the requirements, it may be invalid however in terms of the rules you may submit a revised objection within 20 days on receipt of the notice of invalidity by SARS.

In terms of section 104(4) of the Tax Administration Act 2001, a Senior SARS official may extend the period prescribed in the rules within which objection must be made if satisfied that reasonable grounds exists for the delay in lodging the objection.

SARS will have to assess the notice of objection and must consider whether it is a valid objection or not. In terms of section 106 (2) SARS must within 60 days after delivery of the objection notify the taxpayer whether the objection is valid or not, whether they require more supporting documents. SARS may extend the 60 days period for a further period not exceeding 45 days.

What to do if you are dissatisfied with the decision made by SARS in regard of the objection?

If you are dissatisfied, the next step is to note an appeal against the decision. The appeal must be on a Notice to Appeal (form NOA³ or ADR2) prescribed by SARS and it must show the grounds specified in the objection you wish to appeal. You may indicate whether you want to make use of ARD procedures.

SARS may be directed in one of the following ways:

  1. Alternative Dispute Resolution (ADR) process, it is used where both the taxpayer and SARS agree to resolve a particular tax dispute outside of court.
  2. The Tax Board, which has jurisdiction in respect of those matters where the tax in dispute does not exceed R500 000.
  3. The Tax Court, which has jurisdiction over matters where the tax in dispute is in excess of R500 000.00.

It is advisable to try resolving the dispute through the Alternative Dispute Resolution (ADR) process first. The ADR process is much less formal than the litigation process. A dispute subject to ADR (Alternative Dispute Resolution) process may be resolved via an agreement or settlement between yourself and SARS (Rule 23 & 24 under section 103 of the Tax Administration Act, 2011).  After settling the dispute, SARS must issue a tax assessment within 60 business days from date of concluding the agreement or settlement; it must give effect to the agreement or settlement that was reached between the two parties.

When indication has been made in your Notice of Appeal, SARS will then inform you within 30 business days after receiving the Notice of Appeal on whether the dispute is appropriate for ADR procedure. The ADR proceedings will start within 20 business days after date of receipt by you of SARS’s notice stating that the matter is suitable for ADR. The proceedings must be finalized within 90 business days from the date of receipt of the Notice of Appeal or within a further period as SARS may agree to.

In terms of  Rule 16 under section 103 Tax Administration Act, a facilitator will be appointed; and you and SARS will participate in the ADR proceedings with full reservation of the rights of each other in terms of Rule 14, ADR proceedings are not projected to be of record, the proceedings is made or tendered without prejudice.

What to do if the Alternative Dispute Resolution is unsuccessful?

Your appeal will have to be referred to the Tax Board or Tax Court depending on the amount involved in the dispute.

The procedure of the Tax Board

Rule 26(1) under section 103 of the Act states that the clerk must set an appeal down before the tax board within 30 days after receipt of-

  1. a notice by the appellant under rule 11 ((2) (a), 23 (4), 24(4) or 225 (3);
  2. a decision by the chairperson to condone non-appearance before the tax board under rule 30; or
  3. An order by the tax court to condone non-appearance before the tax board under rule 53.

Sub-rule (2) & (3) further states that the clerk in his or her own discretion may allocate a date for the hearing and must give the parties written notice of the date, time and place for the hearing of the appeal at least 20 days before the hearing.

A party must present all evidence, including leading witnesses, on which the party’s case is based and must obey to the rules of evidence. At conclusion of the evidence, the parties may be heard in argument and the clerk must deliver a copy of the tax board’s decision to both parties within 10 days of receipt pf the decision (Rule 28 (2) (3) & (4) under section 103 of the Act).

You may deliver a notice of appeal to the clerk for the matter to be referred to the Tax Court. If referral is not made to the Tax Court, SARS must if required, issue the tax assessment to give effect to the decision of the Tax Board within period of 45 days after delivery of a copy of the tax board’s decision by the clerk ( Rule 28 (5) & section 29 (1) under section 103 of the Act).

Rule 29 (2) under section 103 of the Act states that, the referral notice must be delivered within 21 day period prescribed under section 115 or the period extended under this rule. The clerk must within 10 days of receipt of the request, deliver the request to the Chairperson and a copy to the other parties (Rule 29 (4) under section 103 of the Act). The chairperson will then decide whether there is good cause for the extension and make a decision within 15 days of receipt of delivery of the decision (Rule 29 (5) under section 103 of the Act).

Procedure of the Tax Court

Rule 31 (1) under section 103 of the Act states that SARS must deliver to the appellant a statement of the grounds of assessment and opposing the appeal within 45 days after delivery of the following:-

  • Documents required by SARS under rule 10 (4);
  • If ADR proceedings were followed, the notice by the appellant of proceeding with the appeal under rule 24 (2) or 25 (3);
  • If the matter was decided by Tax Board, the notice of a de novo referral of the appeal to the Tax Court under rule 29 (2).
  • Notice of appeal under rule 10.

The statement of the grounds of opposing the appeal must set out  a clear and concise statement of the consolidated grounds of the disputed tax assessment, must set out which facts and legal grounds in the notice of appeal are admitted and which are opposes; and material facts and legal grounds which SARS relies in opposing the appeal.

A statement of grounds to appeal must be delivered to SARS within 45 days by the appellate and SARS may after receiving the statement of ground of appeal reply to the statement within 15 days after the appellant has discovered the required document or 20 days after delivery of the statement under Rule 32 (Rule 32 & 33 under section 103 of the Act).

After delivery of the statement, the appellant my within 10 days delivery a notice of discovery to SARS requesting it to make discovery on oath of all documents relevant to the dispute and SARS may do the same too, within 10 days after delivery of the statement under rule 32, request the appellant to make discovery under oath any document material to a ground of appeal.

A Pre- Trial Conference must be held within 60 days before the date of the hearing decided by the register of the Tax Court (Rule 38 under section 103 of the Act). Both parties must try to reach consensus on the evidence issue and once the conference is concluded SARS must deliver minutes of the conference to you.

For the matter to be set down for hearing the appellant needs to apply to the register  to allocate a date for hearing  of the appeal within 30 days after delivery of the appellant’s statement of grounds of appeal under rule 32. If the appellant fails to apply for a date then SARS must apply for a date within 30 days after expiry of the period. The register will allocate a date for the hearing on his or her own discretion and deliver a written notice of the time and place for the hearing of the appeal at least 80 days before the hearing date (Rule 39 under section 103 of the Act). You may request the register to subpoena witnesses for the hearing and SARS must deliver to you and the Register a dossier containing all relevant documents in the dispute (Rule 40 under section 103 of the Act).

At the day of the hearing, you and your representative will commence the proceedings. The Tax Court may reserve its judgment and you or SARS may appeal to the higher courts if unhappy with the judgment.

Conclusion

Yambu Legal offers free legal advice (check our Benefit schedule) for all our Yambu Legal policy holders! If you are a policy holder and need advice regarding tax disputes or fail to find a resolution according to the ADR procedure, a claim can be loaded for legal representation where Yambu will provide an attorney to assist you with the disputed matter.

For additional information you may contact your own tax advisor or tax practitioner, visit SARS branch office or contact SARS National Contact Centre at 0800 00 7277 for local calls and +2611 602 2093 for outside the Republic. You may also visit the SARS website at www.sars.gov.za .

Reference

Tax Administration Act No. 28 of 2011
Rules promulgated under section 103 of Tax Administration Act No. 28 of 2011 – Government Notice, 11 July 2014 No. 37819www.gpwonline.co.za
www.sars.gov.za
http://www.taxdisputeresolution.co.za/services/a[ppealing-to-the-tax-board-or-tax-court

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