How to resolve tax disputes where due date for objection has passed?
06 May 2015
Posted by: Author: SAIT Technical
Author: SAIT Technical
Q: How can I
resolve matters where the time has already lapsed to lodge a notice of
objection or appeal? We have clients with unresolved tax issues, eg logbook
issues, annuities not taken into account. The 30 days after the assessment date
has already expired.
A: Where an
objection has not been submitted or is deemed not to have been submitted due to
failure to comply with rules in the original time period or any extended time
period in section 104(5) of the Tax Administration Act (No. 28 of 2011)
(hereinafter referred to as ‘the TAA’) then the assessment becomes final
Where an objection has not been delivered due to the date
being missed the taxpayer may request SARS to condone the late submission
within a period of 21 business days per section 104(5)(a) TAA. The requirements
for this condonation is that exceptional circumstance’s existed.
The phrase "exceptional circumstances” take its normal
grammatical meaning used in context and which per the Oxford Dictionary means
something "unusual” occurred.
Thus if the objection is late you can within the 21 days
request condonation if the reason for it being late is exceptional or unusual.
Where no such circumstance exists (i.e. negligence to file ect) SARS would not
be able to condone the late submission. Note that a decision not to condone a
late submission by SARS is also subject to objection if then it can be shown
that the decision taken was unreasonable.
However if the basis of the assessment has been one of error
or any of the circumstances listed in section 98(1) then you can still request
SARS to reduce (section 93 TAA) or withdraw (section 98 TAA) the assessment.
However section 93(1)(d) read with section 93(2) TAA (i.e. reduced assessments) and section 98
(i.e. withdrawal of assessments) does provide relief only to the extent that
the limited circumstances stated in those sections apply which include an
undisputed error. The latter is subject to the CSARS being satisfied that such
Please refer to the following link for an explanation of the
workings of sec 93 and 98(1)(d) of the TAA: https://sait.site-ym.com/news/169101/Tax-Administration-FAQ-16-April-2014.htm
You would therefore have to decide whether you would
factually qualify for condonation and if not, when the nature of the dispute is
such that it would be an undisputed error or matter dealt with in section 98(1)
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.