Releasing of a company’s eFiling profile where the company has outstanding fees
13 October 2014
Posted by: Author: SAIT Technical
Author: SAIT Technical
Releasing of a
company’s eFiling profile where the company has outstanding fees with its
existing tax practitioner who is, as a result, refusing to release the
company’s eFiling profile
Q: I am in need
of some guidance at the moment as to whether or not a company is allowed to
withhold a company’s eFiling profiles due to outstanding invoices.
If I am requesting e-filing profiles and documents from a
company and they do not release it due to there being outstanding invoices for
that specific client, are they allowed to do this or is this unlawful in a
What is the procedure to follow should I encounter this
problem in the future?
On 4 September 2014, SAIT issued a notice on "override
Function to transfer of taxpayers profiles”. Apart from the instructions on how
to override the request, the last paragraph dealt with "something to remember”
and clearly stated that it is unlawful to prevent a taxpayer from submitting
their tax return to SARS and that it may equally constitute misconduct by the
tax practitioner concerned. Some tax practitioners still refuse to
release the profiles where the client has not settled the account.
We have given Mr X instruction to follow the override
procedure where the profiles are not released. Mr X would, however, like
to have something more concrete where tax practitioners refuse the release of
the e-filing profiles.
Section 32(I)(b) of the Constitution provides for the right
to access to information held by another person to everyone when that
information is required for the exercise or protection of any rights. The right
of access to information held by the private body must, however, be reasonable
Surely we can invoke the relevant applicable sections of The
Promotion of Access to Information Act as the tax profile and relevant
information and access to information thereon falls within the definition of
"personal information”. Records include any recorded information regardless of
form or medium, e-filing would therefor fall under the relevant definition.
I do believe sending the request for transfer and e-mailing
the clients formal letter of resignation can be treated as reasonable and justifiable
conduct from the client as well as the new tax practitioner’s side.
In my opinion the obligations to attend to the clients tax
starts the moment the client has signed the new mandate and that it would in
fact be unfair business practise to withhold the e-file profiles.
What is your opinion on this? We have proceeded with
the override requests but expect negative feedback from certain tax
A: Though an
argument could be made, we do not believe that s50 of PAIA (i.e. request for private
body records or personal information held) to be the best forum to achieve the
transfer of a taxpayer profile, as the latter in itself is arguably not a
record or personal information. The information it contains are records held by
SARS as they are in fact the body who controls eFiling - the practitioner
merely has access to it as allowed. This process is also not quick as it does
have protracted timelines as various provisions why a request can be legally
refused, which then could only be overturned by court order.
As noted, we sent out the previous warning on the basis that
we believe the most prudent manner in dealing with this is under SAIT’s
disciplinary code. Clause 4.6.4 of the SAIT Disciplinary Code 2009 states that
members may not knowingly obstruct the proper administration of the tax laws,
which we believe a practitioner would be doing if he prevents a taxpayer from
submitting his or her return by withholding his or her eFiling profile. Such
person may, however, withhold any of his work product such as schedules and
calculations until paid for by the taxpayer.
Should you wish to follow the above process, we would advise
that you first inform the member in writing that you intend to lay a complaint
with SAIT if he or she does not accede to the request to transfer the taxpayer
profile as duly authorised by the taxpayer. A complaint can be lodged by
contacting Michelle Landman per email at firstname.lastname@example.org
for the relevant forms.
Nothing in this
query and answer should be construed as constituting tax advice or a tax
opinion. An expert should be consulted for advice based on the facts and
circumstances of each transaction/case. Even though great care has been taken
to ensure the accuracy of the answer, SAIT do not accept any responsibility for
consequences of decisions taken based on this query and answer. It remains your
own responsibility to consult the relevant primary resources when taking a