The disclosure of taxpayer information and the right to privacy

Abstract

SARS ensures that revenue is collected and that there is tax compliance amongst taxpayers in South Africa, also that taxpayers’ fundamental rights as contained in the Bill of Rights are properly protected. This research evaluates the provisions of section 71 of the Tax Administration Act 28 of 2011(‘TAA’) against the background of the taxpayers’ right to privacy as guaranteed by section 14 of the Constitution of the Republic of South Africa Act 108 of 1996. The common law right to privacy and statutory right to privacy are discussed and how the right is limited in terms of section 36 of the Constitution of the Republic of South Africa Act 108 of 1996. Further, requirements for a justifiable limitation of the rights are briefly outlined. The TAA must seek to strike a balance between taxpayers’ rights and its powers to combat tax offences. The discussion also analyses the exceptions under the TAA that empowers SARS under certain circumstances to disclose taxpayer information, without breaching the right, to relevant authorities in order to combat tax offences. The information-gathering procedures by SARS, particularly the warrantless search and seizures provisions are discussed. This also includes the analysis of remedies that are available to taxpayers in case of an infringement of his constitutional rights