The Tax Administration Act (2011) entitles an aggrieved taxpayer to object or appeal against an assessment and certain decisions made by SARS. But what should you do if you are aggrieved by a decision made by SARS and such decision is not subject to objection or appeal?
1. SARS decisions not subject to objection and appeal
In terms of section 104(2) of the Tax Administration Act (2011), a taxpayer is entitled to object or appeal against a decision by SARS not to extend the period for lodging an objection or appeal, and any other decision specifically provided for by a tax Act. An example is section 224 of the Tax Administration Act, that specifically entitles a taxpayer to object or appeal against a decision by SARS not to remit an understatement penalty.
However, some SARS decisions are not subject to objection or appeal. Examples include:
- An assessment or determination to give effect to a voluntary disclosure agreement.
- The rejection of a suspension of payment application.
- The refusal to issue a reduced assessment in terms of section 93(1)(d) of the Tax Administration Act.
- The rejection of a tax debt compromise application.
- Refusal to grant a suspension of payment.
- Refusal to confirm a taxpayer’s tax compliance status or to correct a status error.
But what remedies are available where a taxpayer is aggrieved by a SARS decision that is not subject to objection or appeal?
2. The Tax Ombud
Where the grievance relates to a service, procedural or administrative matter, a taxpayer may refer the matter to the Tax Ombud.
The Tax Ombud, however, only makes recommendations and cannot instruct SARS on how the grievance should be addressed. Furthermore, this remedy is not available where the grievance relates to legislation or tax policy.
3. Review Request
Any decision taken by SARS constitutes an administrative action. Therefore, an aggrieved taxpayer can take a decision for review before the High Court in terms of the Promotion of Administrative Justice Act (2000) (PAJA). However, given the costs involved, High Court litigation is not always a viable option. Fortunately, the Tax Administration Act provides for one last internal remedy before an aggrieved taxpayer enters the litigation realm: The submission of a review request.
Where a SARS decision relates to a matter that is not subject to objection or appeal, the taxpayer is entitled to submit a review request. In terms of section 9 of the Tax Administration Act (2011), a taxpayer is entitled to request the relevant SARS official, the SARS official to whom such SARS official reports or a senior SARS official, to withdraw or amend a decision.
Given the fact that the outcome of such request is still within the discretion of SARS, and that the review request submission will also be considered as part of a PAJA review request (where relevant), it is important that such review request is correctly constructed.