Taxpayers Rights When Audited By Tax Authorities In South Africa (Chapter 5.5.6 – 5.5.6.9)

Posted in sections, this is my Doctoral Thesis on taxpayers rights when audited by the tax authorities in South Africa – equally applicable to many English-based law systems in Africa and abroad (eg. India). This will be of particular use to any tax practitioners doing work in Africa and in other English-based legal systems around the world.

Analysis of Challenging The Commissioner’s Discretionary Powers In Auditing Taxpayers under The Constitution of The Republic of South Africa

CHAPTER 5 – JUDICIAL REVIEW WITH REFERENCE TO SS 74A AND 74B –

5.5.6.9 Constitutional obligations in terms of s 195(1)

What is also clear from case law123, and the wording of ss 1(c), 33, 41(1), 195(1) and 237 of the Constitution, is that the constitutional obligations set out in s 195(1) of the Constitution must be followed, promoted and ‘must be performed diligently and without delay.’ This includes:

(a) a right to a high standard of ethics from SARS;

(b) fairness, absence of bias, and impartiality;

(c) accountability; and

(d) transparency.

As previously stated, these constitutional obligations placed upon SARS are also repeated in s 4(2) of the SARS Act to ensure proper compliance by SARS with these duties. Any transgression of these constitutional obligations will amount to SARS acting ultra vires124 the Constitution, and that in itself would amount to conduct that is inconsistent with the Constitution and ‘invalid’.

Section 172(1) of the Constitution is clear: ‘When deciding a constitutional matter within its power, a court…must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and…may make an order that is just and equitable…’. If a taxpayer has a complaint about unconstitutional conduct of SARS, such as SARS not complying with its constitutional obligations in terms of ss 1(c), 33, 41(1), 195(1) and 237 of the Constitution, it must approach the appropriate court for relief. In terms of s 172(1)(b) and (2)(b) the court may make an order that is just and equitable, and grant a temporary interdict or other temporary relief to the taxpayer.

The appropriate relief would be sought in terms of the ground of review in s 6(2)(i) being conduct ‘otherwise unconstitutional or unlawful’, or in terms of a transgression of the principle of legality – the rule of law, supreme to the Constitution, has been transgressed.

Next:  5.6 SUPPORT FOR REVIEW OF SS 74A AND 74B

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Footnotes:

123 Premier, Western Cape v President of the Republic of South Africa 1999 (3) SA 657 (CC) at para 44; The Permanent Secretary, Department of Welfare, Eastern Cape Provincial Government and Ano v Ngxuza and Others 2001 (4) SA 1154 (SCA) at para [15] footnote 23; Reuters Group Plc and Others v Viljoen NO and Others 2001 (2) SACR 519 (C) at para [46]; Carephone (Pty) Ltd v Marcus NO and Others 1999 (3) SA 504 (LAC) at para’s [9]-[14].
124 See section 3.3: Lawfulness supra.

International Tax Attorney, EA, US Tax Court Practitioner in the USA, Counsel of the High Court in South Africa, adjunct Professor of International Tax at Thomas Jefferson School of Law.

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