The constitutionality of the audit procedures and information gathering powers of the South African Revenue Service

Abstract

This contribution is an analysis of the information gathering powers granted to the SARS officials for the purpose of tax administration and collection of taxes as previously governed in terms of the Income Tax 58 of 1962, and now in terms of the Tax Administration Act 28 of 2011, specifically how the warrantless search and seizure came into force. This will also include a brief overview of the types of assessments which can be issued by SARS as a result of an audit. This research critically analyses the constitutionality of the audit and information gathering powers of SARS, particularly the search and seizure provisions in terms of the TAA, specifically focusing on what rights are affected and whether any infringement is justifiable in terms of section 36 of the Constitution of South Africa, 1996. This will also include a brief discussion on any remedies available to a taxpayer in case of an infringement of his or her constitutional rights. The discussion also includes a comparative analysis of search and seizure provisions in the TAA with search and seizure provisions under other areas of law, such as custom and excise, criminal and competition law, from the perspective of the constitutionality and possible infringement of constitutional rights. The discussion will also include a comparative discussion of search and seizure procedures in South Africa with search and seizure procedures in other selected jurisdictions specifically New Zealand, to highlight any lessons available for South Africa. Naturally, the discussion provided conclusions regarding the constitutionality of SARS audit and information gathering procedures, specifically warrantless search and seizure.