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A test for whether section 93 of the TAA applies

Tuesday, 09 December 2014   (0 Comments)
Posted by: Author: SAIT Technical
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Author: SAIT Technical

Q: The background is as follows:

  • The 2013 return was e-filed on 28.9.2013 and assessed and selected for audit / verification..
  • An additional assessment was issued by SARS on 11/11/2013.
  • An objection was lodged to this on 14 November 2013 and supporting documentation provided for some of the expenses.
  • An additional assessment was issued by SARS on 3 July 2014, where some of the expenses were allowed.   However, other expenses were disallowed as no proof was supplied.
  • As our client is overseas, it was with difficulty that we finally obtained the proof required.
  • We visited SARS on 17/9/2014 to submit the appeal, reference numbers were received, they were unable to assist.
  • On 23 October the Appeal and all the documentation was captured and handed into SARS.
  • The client received correspondence from SARS legal department on 4 November that the appeal was invalid in terms of section 107 (2) b of the act – that the period for the appeal had been prescribed.
  • Since then we were notified that the assessment could be reopened under section 93 of the TAA act, provided all the necessary requirements are met.
  • Kindly advise your recommended course of action. Yours assistance is appreciated.

Kindly advise your recommended course of action. Yours assistance is appreciated.

A: According to section 93(1)(d) of the Tax Administration Act (TAA): 

"SARS may make a reduced assessment if SARS is satisfied that there is an error in the assessment as a result of an undisputed error by—

        I.            SARS; or  

        II.            the taxpayer in a return.”

SARS’ interpretation of an ‘undisputed factual error’, which appears in section 98(1)(d)(i)(aa) of the TAA, is that one should not encounter any interpretation problems when applying the law to the facts. We submit that the same could be said of "undisputed error” in section 93(1)(d).

Section 93(2) additionally points out that "SARS may reduce an assessment despite the fact that no objection has been lodged or appeal noted.”

From the facts of your particular case, this was not an ‘undisputed error’ by SARS or the taxpayer. This was the disallowance of the deduction because the taxpayer did not discharge the onus of proof regarding the incurral of the other expense. As such, our opinion is that section 93 will not apply. However, we would advise that you get a more extensive tax opinion from a tax practitioner as we only provide guidance.

Section 107(2) of the TAA states when an appeal can be extended:

A senior SARS official may extend the period within which an appeal must be lodged for—

a)      21 business days, if satisfied that reasonable grounds exist for the delay; or

b)      up to 45 business days, if exceptional circumstances exist that justify an extension beyond 21 business days.

Unfortunately your appeal was lodged way after even the 45 business days extension a person could qualify for in exceptional circumstances.

As such, we are not of the opinion that the matter can be reopened. However, you are again urged to get a tax opinion regarding the matter.

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.



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.

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