Abstract:
SARS’ main objective is the collection of revenue. When an incorrect application of a Tax Act occurs, SARS is obliged to correct the prejudice caused to SARS or the fiscus. Section 92 of the TAA states that SARS’ correction entail the issuance of an additional assessment. SARS’ notice of assessment contains the tax liability that would have been determined by an application of Tax Acts. A tax liability has an adverse effect. Once the assessment is issued the taxpayer must pay the tax liability due. Section 42 of the TAA empowers SARS to conduct an audit to assess whether a taxpayer’s tax position has been completely and accurately declared.
During an audit, adjustments may be identified which then necessitate the raising of an additional assessment. This conclusion is contained in an audit findings letter. This study critically analyses this interrelationship between audit findings and an additional assessment. Chief to the enquiry is to determine what the audit procedure envisaged by section 42 entail and to analyse the interface between the rationale of section 42 and the right to just administrative action in terms of section 33(1) of the Constitution. The study argues under what circumstances would SARS’ action during and upon the conclusion of an audit be considered procedurally unfair. Particularly, that it is procedurally unfair for SARS to amend the basis of its audit findings and issue an additional assessment on new bases without the taxpayer knowing nor making further representations.
The shortcomings of section 42 are analysed and how these shortcomings may be contributing to the unfettered discretion exercised by SARS during an audit. Various judgment where SARS’ statutory powers have been interrogated within the context of procedural fairness and the courts’ views in this regard differ. It is hoped that the Kalahari case currently pending appeal in the Supreme Court of Appeal will settle the law on how the prescripts under section 42 should be interpreted
