The Tax Ombud
12 September 2011
Posted by: SAIT Technical
by Michael Stein
Clause 14(1) of new Tax Administration Bill, 2011 provides that the Minister of Finance must appoint a person as Tax Ombud for a term of three years, which term may be renewed. (I shall refer to the Bill below as ‘the Act’ on the realistic assumption that it will be passed substantially unchanged later this year and that for that reason will also refer to it’s clauses as sections). Part F of Chapter 2 of the Act deals with the Tax Ombud.
The mandate of the Tax Ombud is to review and address any complaint by a taxpayer regarding a service matter or a procedural or administrative matter arising from the application of the provisions of a tax Act by sars. In discharging his or her mandate, the Tax Ombud must review a complaint and, if necessary, resolve it through mediation or conciliation.
He or she must facilitate access by taxpayers to complaint resolution mechanisms within sars to address complaints and identify and review systemic and emerging issues related to service matters or the application of the provisions of this Act or any procedural or administrative provisions of a tax Act that impact negatively on taxpayers.
The Tax Ombud may not review legislation or tax policy, sars policy or practice generally prevailing, other than to the extent that it relates to a service matter or a procedural or administrative matter arising from the application of the provisions of a tax Act by sars, a matter subject to objection and appeal under a tax Act, except for any administrative matter relating to the objection and appeal, or any decision of, proceeding in or matter before, the tax court. The Tax Ombud may only review a request if the requester has exhausted the available complaints resolution mechanisms in sars, unless there are compelling circumstances for not doing so.
To determine whether there are compelling circumstances, the Tax Ombud must consider factors such as whether the request raises systemic issues, exhausting the complaints resolution mechanisms will cause undue hardship to the requester, or exhausting the complaints resolution mechanisms is unlikely to produce a result within a period of time that the Tax Ombud considers reasonable.
The Tax Ombud’s recommendations are not binding on taxpayers or sars. If the Tax Ombud is half as effective as some of the other ombuds, such as the short-term insurance ombud, that at present serve the South African public in avoiding abusive behaviour by officials, I look forward eagerly to his or her appointment.