Encompassing non-legal tax practitioners in South Africa within the ambit of legal professional privilege

Abstract

South African taxpayers currently consult either accountants (i.e., non-legal tax practitioners) or attorneys (i.e., legal tax practitioners) in order to acquire tax advice. The qualitative approach adopted in carrying out this study entails the examination of the differing rights applicable to a taxpayer depending on which adviser he decides to approach for tax advice. The concept of legal professional privilege is a common law right which has only ever been applicable to members of the legal profession. However, due to the recent regulation of tax practitioners and the modernisation of the way taxpayers conduct their financial affairs in approaching both attorneys and accountants for tax advice it seems appropriate that this privilege should be extended beyond the legal profession. Upon consideration of the history and requirements of this privilege it is determined that this privilege is amenable to extension. Constitutional principles, with regard to the right to privacy and the right to equality in relation to the taxpayer obtaining the tax advice, are infringed as a result of the limitation imposed whereby only tax advice obtained from an attorney is protected. Lastly, the current legislative stances adopted by foreign jurisdictions, that currently permit or are considering permitting legal professional privilege to apply to tax advice obtained from non-legal tax practitioners illustrate that there is a global movement toward removing the current restrictions on this principle. This has been accomplished by countries such as the United States of America and New Zealand by way of introduction of statutory provisions that allow for tax advice issued by non-legal tax practitioners to be protected from disclosure to the revenue authorities in the respective countries. Based on the research conducted it is concluded that South Africa should therefore follow suit and create a separate statutory provision to protect tax advice obtained from non-legal tax practitioners.