Does the constitution protect taxpayers against the mighty SARS? – An inquiry into the constitutionality of selected tax practices and procedures

Abstract

This dissertation purports to ascertain whether the Constitution of South Africa provides protection for taxpayers against specific practices and procedures utilised by SARS in order to collect taxes. The collection of taxes is imperative in ensuring that economical and socioeconomical objectives of the government are met. SARS is therefore awarded specific powers to achieve this. On the other side are taxpayers who are awarded constitutionally enshrined rights. Said rights may only be limited if the limitation is reasonable and just. Tension between SARS’ task and the taxpayers’ rights exist. This dissertation endeavours to find a balance where SARS can effectively collect tax whilst the taxpayers’ rights are not unreasonably and unjustly limited. The Constitution affords taxpayers the right to just administrative action. The right entails, amongst others, that when a dispute arises both parties sides must be heard. The right to just administrative action also includes legitimate expectations. A practice has transpired where SARS denies being bound by its own rulings and notes. A legitimate expectation is, nevertheless, created that SARS will act in accordance with its rulings and notes. The doctrine of legitimate expectations will provide assistance to the taxpayer in this situation. SARS further has the power to appoint a taxpayer’s agent. This procedure does not provide for the taxpayer to state his case before such an appointment is made. This prima facie violates a person’s right to just administrative action. When compared to the civil procedure of garnishee orders valuable differences transpired which will assist in elevating the tension between the taxpayer’s rights and SARS’ duty. A further right afforded, is the right of access to the court. The statement procedure and the “pay now, argue later” rule appear to be in conflict with said right. The statement procedure, which empowers SARS to file a statement at court to be made a judgment, exceeds the normal recourse available for ordinary litigants, namely the default judgment procedure. This procedure has, however, survived constitutional scrutiny. The “pay now, argue later” rule entails that a taxpayer must first pay the assessed amount before questioning the amount. This procedure is a departure from the general rule utilised in civil proceedings. It was held that this procedure is constitutional. This is, however, questioned due to the fact that at the time this rule is invoked the court’s jurisdiction is excluded. Furthermore, a taxpayer can rely on his right to property. If SARS unreasonably delays a refund due to the taxpayer this will violate said right. The situation relating to money owed in civil matters and the judgment of Sage Life Ltd indicates that a taxpayer will be entitled to interest and accordingly the violation will not be unreasonable or unjust. Moreover a taxpayer is afforded the right to privacy. Tension may arise when SARS obtains a warrant to search and seize the taxpayer’s property. This procedure is similar to the procedure of obtaining a warrant in terms of the Criminal Procedure Act. Declaring this procedure unconstitutional is implausible. Other countries faced with the tension between their revenue service collecting tax and their taxpayers’ rights, are utilising certain measures to reduce this tension. Amongst other a service charter, to provide legal certainty, instituting complaints forums, to deal with poor service, and providing brochures, to educate the taxpayers is identified. The predominant measure is, however, the office of the ombudsman. The Constitution, together with other measures, does provide adequate protection for a taxpayer against SARS. Accordingly, the tension between SARS’ duty and the taxpayers’ rights is balanced with the assistance of the Constitution. Copyright