Jeopardy assessments under the Tax Administration Act 28 of 2011

Abstract

The Tax Administration Act 28 of 2011 (hereinafter referred to as the “TAA”) has changed the law governing assessments. The introduction of jeopardy assessments in South African tax law is a new concept. The term estimated assessment previously used in tax Acts, is replaced by the concept of an original, reduced, additional or jeopardy assessment based on an estimation. If the audit process establishes that the original assessment was not correctly issued, SARS can issue an additional assessment. SARS has the right to issue an additional assessment despite the fact that the original assessment became final and conclusive. The TAA provides for simplified grounds on which additional assessments may be issued to achieve alignment across taxes. A new simplified concept prejudice to SARS or the fiscus will be used as a basis for the issue of additional assessments. Jeopardy assessments (as provided for in section 94 of the Tax Administration Act 28 of 2011), also known as a ‘protective assessment’, are introduced which may be issued in advance of the date on which the return is normally due in order to secure the early collection of tax that would otherwise be in jeopardy or where there is some danger of tax being lost by delay. SARS bears the onus and a taxpayer has the right to take the matter on review to the High Court. The Supreme Court of Appeal has held that it is well established that, in review proceedings, only under certain exceptions will a court substitute its own decision for that of an official to whom the decision has been entrusted, the exceptions being where the proper decision is a foregone conclusion or where the decision-maker has disabled himself from making a proper decision. The impression is thus gained that the purpose of a jeopardy assessment under South African law is to shorten the period within which tax is payable and not to do to away with the requirement to give notice of an assessment. A termination assessment (IRC 6851) applies to the current tax year, or the immediately preceding tax year if the due date for the return has not passed. If jeopardy is determined, the taxpayer’s tax year is terminated and treated as a complete tax year for assessment purposes. Termination assessments are made for income taxes only. A jeopardy assessment applies to a closed tax year, where the due date for filing a return has expired. For income, estate, gift, and certain excise taxes, assessment is made pursuant to IRC 6861. For other kinds of taxes (employment and other excise taxes), assessment is made pursuant to IRC 6862.