Print Page   |   Report Abuse
News & Press: SARS operational & eFiling questions

Releasing of a company’s eFiling profile where the company has outstanding fees

13 October 2014   (0 Comments)
Posted by: Author: SAIT Technical
Share |

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 sense?

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 and justifiable.  

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 practitioners.

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 mlandman@thesait.org.za 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 decision.


WHY REGISTER WITH SAIT?

Section 240A of the Tax Administration Act, 2011 (as amended) requires that all tax practitioners register with a recognized controlling body before 1 July 2013. It is a criminal offense to not register with both a recognized controlling body and SARS.

MINIMUM REQUIREMENTS TO REGISTER

The Act requires that a minimum academic and practical requirments be set to register with a controlling body. Click here for the minimum requirements of SAIT.

Membership Management Software Powered by YourMembership  ::  Legal