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Access To information Held by The State - Part II

09 July 2009   (0 Comments)
Posted by: Author: Stiaan Klue
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Access To information  Held by The State - Part II
 
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 Promotion of Access to Information Act 2 of 2000 (PAIA) and the Promotion of Administrative Justice Act 3 of 2000 (PAJA) give detailed content to rights adumbrated in the Constitution.

In part one of this article (TAXtalk, June/July 2009), the taxpayer’s right of access to information was discussed.In part two,the secrecy with regard to request for records and the grounds for refusals of access to records is discussed.Secrecy with regard to request for records.The Commissioner is bound by the secrecy provisions contained in the various fiscal statutes.Furthermore, s 14 of the Constitution also provides taxpayers with the right to privacy. It is therefore important to balance the right to access information under PAJA with the right to privacy protected in the Constitution.Section 35 of PAIA recognises this right to privacy and allows SARS’ information officer to refuse a request by an unauthorised third party for access to ‘records’ if it contains information which was obtained or is held for the purpose of enforcing legislation. 

Grounds for refusals of access to records
 
The following classes of information are protected and cannot be released by SARS:
(a)Information relating to the privacy, i.e. personal information, of a third party who is natural person, including a deceased individual.
(b)Certain records of South African Revenue Service.
(c)Commercial information of third parties.
(d)Certain confidential information, and protection of certain other confidential information, of third parties.
(e)Information on the safety of individuals, and protection of property.
(f) Police dockets in bail proceedings, law enforcement and legal proceedings.
(g)Records privileged in legal proceedings.
(h)Frivolous or vexatious requests, or requests which are substantial and an unreasonable diversion of resources.

The term ‘personal information’ is defined in s 1 of PAIA as:"information about an identifiable individual, including, but not limited to—
(a)information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the individual;
(b)information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;
(c)any identifying number, symbol or other particular assigned to the individual;
(d)the address, fingerprints or blood type of the individual;
(e)the personal opinions, views or preferences of the individual, except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual;
(f) correspondence sent by the individual that is implicitly or explicitly of a private or  confidential nature or further correspondence that would reveal the contents of the original correspondence;
(g)the views or opinions of another individual about the individual;
(h)the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual, but excludes information about an individual who has been dead for more than 20 years.”

PAIA provides in s 37 that a public body may refuse a request for access to a record of that body"...if the record consists of information that was supplied in confidence by a third party—
(i)the disclosure of which could reasonably be expected to prejudice the future supply of similar information, or information from the same source; and
(ii)if it is in the public interest that similar information, or information from the same source, should continue to be supplied.”

It is important to note that the above grounds of refusals are subject to the public interest override in terms of s 46 of PAIA, which means that the interest of the public needs to be weighed against the requester’s right of access to information.Of significance in this regard is where certain confidential information supplied by third parties to the Commissioner is subjected  to a confidentiality agreement.
 
A typical example is where a third party, under oath, supplies information to the Commissioner that a taxpayer committed an offence as contemplated in s 76 of the Income Tax Act. Currie and Klaaren in this regard submit that: "Section 37(1)(b) permits refusal of disclosure if the record consists of information supplied in confidence by a third party and if disclosure could reasonably be expected to prejudice the future supply of similar information or information from the same source and if it is in the public interest that similar information should continue to be supplied.”

It is therefore clear that it will be difficult for a taxpayer to request the affidavit from the Commissioner under PAIA where a third party provided information subjected to confidentiality.Furthermore, it is submitted that SARS cannot accede to a request for information by one taxpayer concerning another taxpayer, for example, where SARS issues an advance tax ruling in relation to a particular taxpayer – the latter then cannot invoke PAIA to ascertain from SARS whether that ruling is consistent with rulings on  similar matters given to other taxpayers.

Conclusion

The idea for the Constitutional right of access to information is that people should have access to information impacting them and which is in the possession of the State.This includes information specific to someone and which the State uses to make decisions.The fundamental objective of the right of access to information is to encourage transparency and accountability in the way government and public authorities operate.Freedom of information combats arbitrariness and contributes to the ideal of an open and democratic society, where power is exercised rationally and with due deliberation.

References: Currie and Klaaren The Promotion of Administrative Justice Act Benchbook (2001) 155
Klue et al. Silke on Tax Administration
Promotion of Access to Information Act 2 of 2000.
 
Source: By Stiaan Klue (TaxTALK)


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