Key changes to the dispute resolution rules
Since the introduction of the Tax Administration Act (hereafter “TAA”) in 2011, the Dispute Resolution Rules have been very strictly applied by the South African Revenue Service (hereafter “SARS”).
These rules have not changed since 11 July 2014 and after much consultation with stakeholders, primarily tax practitioners, these rules have been significantly amended.
As these rules (previous and new) are rather comprehensive, we will focus only on the significant changes that impact most taxpayers, noting that the changes take effect on 10 March 2023. The new rules contain the following main procedural changes to be followed when:
- lodging an objection (under Rule 7) or an appeal (under Rule 10) against an assessment or decisions stated in section 104(2) of the TAA;
- requesting Alternative Dispute Resolution (hereafter “ADR”) (under Part C Rule 13 up to Rule 25); and
- requesting a hearing before a Tax Board (under Part D Rule 26 up to Rule 30) or a Tax Court (under Part E Rule 31 up to Rule 49).
In terms of Rule 7 “Objection against assessment”- the taxpayer must now deliver a notice of objection within 80 days (an extension from the historic 30 days). This does allow taxpayers and tax practitioners a significantly longer and practically easier time frame to adhere to ensuring that assessments are disputed timeously.
Prior to this change many disputes took a significantly long time to resolve if a taxpayer were to miss the very short 30-day time frame as they would have to go through the additional process of having to first obtain condonation of a late objection from SARS before the merits of the case could be dealt with. Although the same request for condonation rules remains intact upon late submission the extended period of up to 80 days from the date of assessment will likely reduce the overall number of late objections that SARS has to condone.
Rule 44 deals with the “Procedure in tax court” with the main changes being:
- the Tax court’s “Registrar” must deliver the written judgment of the tax court to the parties within 10 days (a reduction from the historic 21 days).
- the introduction of sub-rule (8) provides a duty on SARS to issue the assessment within 45 days which will give effect to the decision of the tax court in the event that SARS does not appeal such decision.
Rule 50 deals with the “Procedure under Part F (Application on notice)” and has introduced a timeframe in sub-rule 50(4) which provides that the taxpayer must bring the application to the Tax Court within 20 days after the non-compliance by SARS.
The above timeframe is critical for taxpayers as the failure to bring the application against SARS within the allocated timeframe may in some instances leave the taxpayer without internal recourse in terms of the TAA.
The sensitivity or practical implication of SARS’ new timeframes can be seen from the following example:
SARS issued an assessment on 13 March 2023, thereafter the taxpayer lodges a notice of objection on 11 July 2023 (within 80 days of the date of the assessment) and in terms of Rule 9(1)(a) SARS is required to make a decision in respect of that objection within 60 days (before or on 05 October 2023).
On 05 October 2023, SARS does not make a decision hence it is not compliant with Rule 9(1)(a).
The taxpayer may then make an application for a default judgment against SARS in the Tax Court based on their non-compliance in terms of Rule 56. The application commences with a notice to SARS (allowing SARS 15 days to fix the non-compliance).
In terms of Rule 50(4), the application must be issued to SARS within 20 days from the date of non-compliance (05 October 2023). If the 20 days lapses (02 November 2023), the taxpayer cannot bring the default judgment application.
It is important to note that the default judgement can result in the Tax Court obliging SARS to set aside the assessment hence no further dispute process would need to be actioned.
Based on the above example, it is rather clear that when commencing the dispute resolution process and throughout the various stages, should SARS fail to comply with the necessary time frames as stipulated in the new rules, the default judgement application must be made timeously so as to not lose such right.
Rule 10 deals with the “Appeal against assessment”- which has been amended to include the wording “the taxpayer may appeal on a new ground not raised in the notice of objection under rule 7 unless it constitutes a new objection against a part or amount of the disputed assessment not objected to under rule 7”.
The impact of the above is not a deviation from the historic prohibition of inserting new grounds of appeal (as demonstrated in various case law), however this merely clarifies that the taxpayer may supplement the grounds of appeal with new reasons that were not previously included in the objection to the extent that said inclusion or supplementation of new grounds does not result in a new objection.
In terms of Rule 26 which deals with the “Set down of appeal before tax board”, “if the appellant fails to apply for the date within the prescribed period, SARS must apply for a date for the hearing within 30 days after the expiry of the period.”
The above brings into play an interchangeable onus in respect of applying for a date, in that SARS must apply for a hearing date within 30 days from the elapsing of the taxpayer’s timeframe to make an application for a date.
The new rules provide some much-needed relief to taxpayers by extending the Rule 7 timeframe to 80 days, however it is important to consider that the extension may cause some stringent considerations for late objections and appeals, despite there being no amendments to section 164 of the TAA.
Furthermore, the ability to hold SARS accountable for non-compliance with the rules under Part F (Application on notice) is now limited - which one must take into consideration and ensure that internal processes (including utilising the SARS e-filing complaints system) are followed along with default applications to the Tax Court within 20 days from the date of non-compliance by SARS.
Based on the above, it is recommended that taxpayers seek professional advice where they wish to dispute an assessment as the new dispute resolution rules leave very little room for error should one of the procedural steps not be done properly or timeously. The taxpayer may then end up being unjustly taxed due to non-compliance with the new rules.