Your VAT refund is being withheld, your suspension of payment is not being finalised, your tax clearance for a foreign investment is being delayed and you are frustrated with SARS? What are your rights and how can you resolve the matter effectively?

These are all administrative actions or inactions of SARS and as a taxpayer you have the inherent right to fair administrative action.

The level of action is dependent on several factors – urgency, quantum and your level of frustration.

1. The Call Centre

Whilst this can be quite a frustrating process primarily due to the long waiting time in trying to get through to a consultant, this is an important step. Escalating a matter through this step does potentially provide SARS with an extended time frame to resolve the matter as this manner of escalation provides one with a case reference number, which can only be followed up on after 21 days. This case number can be used later on in the process (noted further below) and also serves useful to determine if the matter has even been allocated to a SARS agent to begin a process of resolution. It is important to ensure that one utilises all internal remedies before matters are escalated and the call centre might actually assist by highlighting the step that has not as yet been taken by the taxpayer to assist in expediting the resolution of the matter.

2. The SARS Complaint System

Not every matter requires the most severe of responses. A complaint submitted on SARS e-Filing through the completion of a Complaints Management Form (CM01) can also be utilised as a starting point. This Form is essentially the submission of a formal complaint to the SARS Complaints Management Office Team that monitors administrative non-compliance by SARS. This has a more defined timeframe for resolution but in many cases, this may be the best and cheapest form of resolution. Whilst it is not essential to have always obtained a case number from the call centre prior to lodging a complaint, it generally helps to expedite the complaint.

3. The Tax Ombud

Once the first two processes have run their course (e.g., SARS timeframes as indicated in their Service Charter have elapsed) and the matter has not been resolved, a formal complaint submission can be made to the Tax Ombud, who will intervene on your behalf. This is also a time-consuming process but there are occasions when the Ombud can intervene earlier, for example, where the nature of the administrative delay is regarded as a systemic issue that is already seen as a pervasive problem.

4. The High Court

Administrative issues are also the domain of the High Court. This is a more expensive form of resolution and may require you to ultimately brief an advocate to move the motion in the High Court. We have had success in resolving many of the administrative issues without having to go to court and this is certainly a major weapon at the disposal of aggrieved taxpayers.

5. Tax Court

Even within the area of objections and appeals, there are areas of administrative non-compliance by SARS to the Rules of the dispute process. Simple examples of such non-compliance are listed as follows:

• How often have you been frustrated that your objection has been declared invalid, when it has met all the tests of a valid objection in terms of the Rules?
• How often have you been frustrated that your objection is not being dealt with in the 60-business day timeframe set out in the Rules?
• How often have you been frustrated that your request for reasons is not dealt with, within the 45-business day timeframe set out in the Rules?
• How often have you been frustrated that your appeal has not been approved for ADR within the 30-business day timeframe or been set down for an ADR meeting within the 20-business day timeframe after the appointment of the facilitator?
• How often have you been frustrated that your appeal has not been attended to within the prescribed time periods for Tax Court or Tax Board?

Here the taxpayer can address any of the above non-adherence to timeframes with an application to the Tax Court.

We, at PKF, have a dedicated team of qualified tax personnel who can assist you in resolving these administrative frustrations and assist with various types of disputes.