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What can you do if SARS didn’t transfer an old assessed loss to a future year?

15 April 2015   (0 Comments)
Posted by: Author: SAIT Technical
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Author: SAIT Technical

Q: One of our clients’ 2007 assessed loss was never transferred to the subsequent years.  They only picked this up years later when the company started making profits and it had an effect on tax due. Their objection was declined at the time due to it being late. Is there another route to follow where this was a SARS system error as the 2007 clearly recognised the loss and the company had continuous trading?

A: Section 98 of Tax Administration Act (the TAA) is worth a try.

Specifically sec 98(1)(d) read with sec 98(2) and sec 99(2)(d)(iii) of the TAA. Although it is submitted that the scope of sec 98(1)(d) is really narrow, it may be worth a try.

Sec 98 of the TAA states the following 

98.   Withdrawal of assessments.—(1)  SARS may, despite the fact that no objection has been lodged or appeal noted, withdraw an assessment—

(d) in respect of which the Commissioner is satisfied that—

      (i) it was based on—

           (bb) a processing error by SARS

     (ii) it imposes an unintended tax debt in respect of an amount that the taxpayer should not have been taxed on;

     (iii) the recovery of the tax debt under the assessment would produce an anomalous or inequitable result;

     (iv) there is no other remedy available to the taxpayer; and

     (v) it is in the interest of the good management of the tax system.

(2) An assessment withdrawn under this section is regarded not to have been issued, unless a senior SARS official agrees in writing with the taxpayer as to the amount of tax properly chargeable for the relevant tax period and accordingly issues a revised original, additional or reduced assessment, as the case may be, which assessment is not subject to objection or appeal.’

Sec 99(2)(d) of the TAA further determines that sec 99(1) does not apply to the extent that it is ‘... necessary to give effect to ... an assessment referred to in section 98(2)’. This would allow SARS to issue a reduced assessment for the taxpayer despite the fact that the three years have passed (see sec 99(1)(a) of the TAA).

The Memorandum of the Object of the Tax Administration Laws Amendment Bill, 2013 stated the following with regards to the amendment to sec 98:

‘In practice, erroneous assessments are often only discovered after all prescription periods and remedies have expired and it becomes apparent that it would be unreasonable and inequitable to recover the tax due under such assessments. Examples are assessments that result from fraud by a person not authorised by the taxpayer to complete or submit a return, an undisputed error by the taxpayer in a return or a processing error by SARS in making the assessment ...

The Act doesn’t define what ‘a processing error’ is. However, it can be argued that the fact that an ITA34 doesn’t reflect an assessed loss could qualify as such.

Sec 98(1)(d)(iv) requires that no other remedy must be available to the taxpayer. Due to fact that three years have already lapsed since the date of assessment, your client has no further right to force SARS to consider its objection. It can thus be argued that no other remedy will be available and this requirement may therefore be met.


Given the fact that the three years have lapsed since the date of assessment sec 98(1)(d) of the TAA may be your client’s last remedy. In terms of sec 98(1)(d), the ‘Commissioner’ must be satisfied that the requirements are met. Furthermore, the Memorandum of the Object of the Tax Administration Laws Amendment Bill, 2013 reiterates the fact that sec 98 of the TAA will only be applied in narrow circumstances. One can therefore expect that a strict approach would be followed for the authorisation of an application for sec 98(1)(d). It is difficult to express an opinion as to whether your application in terms of sec 98(1)(d) will succeed, but it is worth a try.

You can write a letter to SARS, and ask them to first withdraw the current assessment. In the letter, cite your client’s circumstances and how they meet the section 98 requirements. Then email it to the pcc SARS email address for your region.

Secondly, you can ask them to issue a revised original assessment as mentioned in sec 98(2) of the TAA.

Disclaimer: 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.


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