Prior to the adoption of the democratic interim and final Constitution, taxpayers' rights in South Africa were extremely attenuated.
The advent of the interim and final Constitution effected a sea change to taxpayers' rights vis-à-vis the revenue authorities, for
the Constitution declares that it is now 'the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the
obligations imposed by it must be fulfilled'. The constitutionality of tax legislation and the conduct of the South African Revenue
Service and its officers can thus now be challenged as being in conflict with the Bill of Rights. The Promotion of Access to
Information Act 2 of 2000 and the Promotion of Administrative Justice Act 3 of 2000 give detailed content to rights adumbrated in
the Constitution.
All tax professionals – and the South African Revenue Service – need to be cognisant of the rapidly developing jurisprudence that
takes account of and builds upon all of the above.
COURSE NOTES CONTENT:
Relevance of Constitutional rights in the tax arena:
background - pre-constitutional democracy
Katz Commission on Taxpayers' rights
the Constitution
the tax process - that is registering for tax, submitting returns, receiving assessments and payment of tax
Right to property:
is tax an unlawful deprivation of property
personal liability of directors for VAT, PAYE and dividend tax
enactment of tax amendments with retrospective effect
Right to privacy:
SARS information-gathering powers - that is audits, search and seizure and inquiries
privilege and tax practitioners
exchange of information under tax treaties
Right to just administrative justice:
section 33 of the Constitution and Promotion of Administrative Justice Act
adequate reasons for decisions taken by SARS
procedural fairness
status of rulings issued by SARS and the doctrine of legitimate expectations
Right of access to information and calling for information from SARS
Remedies currently available to taxpayers:
SARS Service Monitoring Office
cost orders by courts
Future remedies:
an ombudsman
recovery of wasted costs and damages from SARS
Objection and Appeal:
SARS letter of enquiry or audit
taxpayer's reply to SARS enquiry
SARS letter of findings
taxpayer's reply to SARS letter of findings and submission on additional tax, penalties and interest
SARS letter of assessment
has an assessment been received?
has SARS supplied adequate reasons for the assessment? Call for reasons and delay running of 30 days, discuss section 83(23)
receive SARS reasons and draft letter of objection, consider whether any assessments have become prescribed
taxpayer to decide whether to pay tax in dispute or call for postponement of payment of tax
SARS decision on objection
call for SARS reasons for decision on the objection
if objection allowed dispute is over unless problem in Carlson Investments Share Block case, section 79 and 81
if objection disallowed note an appeal to Tax Court or Tax Board if tax in dispute less than R 500 000 and request that matter
is referred to ADR
discuss ADR process
if ADR results in resolution of dispute Tax Appeals Committee must ratify settlement
if ADR fails proceed to next step in legal process, discuss appeal and run up to court.
PRESENTER:
Dr Beric Croome BCom (University of Cape Town), CTA (University of Cape Town), BProc (Unisa), LLB (Unisa), Higher Diploma in
Tax Law (cum laude) (University of the Witwatersrand), Doctor of Philosophy (Commercial Law) (University of Cape Town), Admitted as
an Advocate of the High Court of South Africa, CA(SA), FCMA(UK), MTP(SA)
Beric has 24 years of experience and specialises in the area of tax law, advising clients on income tax, value-added tax, stamp
duties, PAYE and other fiscal statutes. He has advised foreign clients on investments in business in South Africa and the tax
consequences thereof. He regularly assists clients with objections and appeals and represents clients in meetings with the South
African Revenue Service (SARS), including alternative dispute resolution meetings.
Beric received his PhD degree from the University of Cape Town in June 2008. His thesis dealt with issues relating to
constitutional law, taxpayers’ rights and the powers of SARS, with particular emphasis on the rights to property, to privacy, to
administrative justice, to access to courts and access to information.
Beric acted as chair of the National Tax Committee of the South African Institute of Chartered Accountants (SAICA) from 1999 to
2002 and during 2003 he became a member of the editorial panel of SAICA’s tax publication, Integritax. He is a former vice-chair of
the South African Chamber of Business Taxation Committee. During 2008 Beric was invited to join the technical committee of the
South African Institute of Tax Practitioners and was conferred honorary life membership of that body.
Beric was the 1999 South African reporter on “Taxation of non-profit organisations” for the International Fiscal Association.
During 2002, he was a nominee for the University of the Witwatersrand 2002 Convocation Honour Award for his contribution to
commerce and industry.
From 2006 to 2008 he authored a column “Dear SARS” in Accountancy SA, SAICA’s journal. In 2007, Beric was requested to sit on the
Employee Share Ownership Plan Sub-Committee, one of the ad hoc committees falling within the structure of the Minerals and Mining
Development Board of South Africa. Beric has been listed in Who’s Who of Southern Africa from 2004 to 2008 and in Chambers Global:
The World’s Leading Lawyers for Business, The Clients’ Guide in 2006, 2007 and 2008. In 2008 he was nominated to appear in the
inaugural Best Lawyers list in South Africa, in the specialty of tax. In addition, he was listed as one of the top five South
African tax advisers in the Tax Directors Handbook, which lists 250 advisers world-wide. From 2004 to 2007, Beric has been a
co-author with other members of the tax team of the Fiscal File, a layman’s guide to tax, published for client use. During 2008
Beric became the author of a column “Tax Bites” in Business Law and Tax Review, a monthly supplement in the Business Day
newspaper.
