The Tax Om­bud’s of­fice is there to help if you have ad­min prob­lems with SARS

Weekend Argus (Saturday Edition) - - GOODPUZZLES - MARK BECHARD

Are you at your wits’ end be­cause the South African Rev­enue Ser­vice (SARS) can’t pro­vide a sat­is­fac­tory an­swer to a query? Per­haps you’re due to re­ceive a tax re­fund, but, for some un­known rea­son, the amount is never paid into your bank ac­count. The good news is that you have re­course to the Of­fice of the Tax Om­bud, an in­de­pen­dent body ac­count­able to the Min­is­ter of Fi­nance.

The of­fice was es­tab­lished in Oc­to­ber 2013 in terms of the Tax Ad­min­is­tra­tion Act. Its man­date is to pro­vide re­dress for tax­pay­ers who are un­able to re­solve a com­plaint with SARS. It is im­por­tant to un­der­stand that you can com­plain to the Tax Om­bud only once you have ex­hausted SARS’s in­ter­nal com­plaints- han­dling mech­a­nisms, the om­bud, Judge Bernard Ngoepe, says.

SARS’s for­mal com­plaints-res­o­lu­tion mech­a­nism is called the Com­plaints Man­age­ment Of­fice (CMO). You must ob­tain con­fir­ma­tion that the CMO re­ceived your com­plaint, as well as a ref­er­ence num­ber. If the CMO does not re­solve the com­plaint to your sat­is­fac­tion within 21 work­ing days, you can com­plain to the Tax Om­bud’s of­fice, Judge Ngoepe says.

He says only if there are com­pelling cir­cum­stances will his of­fice ad­dress a com­plaint be­fore SARS has been given an op­por­tu­nity to re­solve it – for ex­am­ple, if a large num­ber of tax­pay­ers will be se­verely prej­u­diced if the mat­ter if not ad­dressed ur­gently.

Apart from the re­quire­ment to try first to re­solve a com­plaint with SARS, the Tax Om­bud is man­dated to ad­dress only cer­tain types of com­plaints. These have to do with poor ser­vice, or if you be­lieve that SARS did not fol­low its own pro­ce­dures, or did not ap­ply the pro­vi­sions of any tax law cor­rectly.

You can­not, there­fore, com­plain to the Tax Om­bud that your tax as­sess­ment, or any in­ter­est or penal­ties, is too high, in the hope that the om­bud will re­duce the amount in your favour.

Judge Ngoepe says that if you are un­happy with your tax as­sess­ment, you must lodge an ob­jec­tion with SARS, and if the ob­jec­tion is dis­al­lowed or par­tially al­lowed, you can lodge an ap­peal.

The dis­pute would then be re­ferred to al­ter­na­tive dis­pute res­o­lu­tion, the Tax Board or the Tax Court, de­pend­ing on the cir­cum­stances. If you are not happy with the de­ci­sion of the Tax Board or Tax Court, you can ap­peal to the higher courts. Once a fi­nal de­ci­sion has been made and there is no fur­ther op­tion of ap­peal, the as­sess­ment will be fi­nal, and you must abide by the rel­e­vant court’s de­ci­sion.

The Tax Om­bud does not have any dis­cre­tion or ju­ris­dic­tion to over­rule de­ci­sions by any court.

You also can­not com­plain to the Tax Om­bud about a mat­ter that in­volves a party other than SARS – for ex­am­ple, if you are un­happy with the ser­vice pro­vided by your tax prac­ti­tioner, or if you be­lieve your em­ployer has de­ducted the in­cor­rect amount of pay-as-you-earn tax (PAYE).

Judge Ngoepe says that, when re­view­ing a com­plaint, his of­fice can make rec­om­men­da­tions only – in other words, its de­ci­sions are not bind­ing on ei­ther SARS or the tax­payer. All rec­om­men­da­tions are in­cluded in his an­nual re­port to the Min­is­ter of Fi­nance, he says.

The om­bud does not have the power to im­pose a penalty on SARS if it rules in favour of a tax­payer, Judge Ngoepe says.

Your com­plaint to the Tax Om­bud can con­cern any type of tax, not only per­sonal in­come tax, and all types of tax­pay­ers – in­di­vid­u­als, trusts, busi­nesses – can ap­proach the om­bud for re­lief.

Ngoepe says his of­fice en­deav­ours to fi­nalise a com­plaint within 15 work­ing days from ac­cept­ing the case. The of­fice will ad­vise you if it will take longer to fi­nalise the com­plaint. There is no fee for lodg­ing a com­plaint, and you do not have to ap­pear in per­son for the com­plaint to be re­solved. Your tax prac­ti­tioner can lodge a com­plaint on your be­half, as long as a power of at­tor­ney is sub­mit­ted with the com­plaint form. You can email or fax your com­plaint to the of­fice.

Com­plaint forms can be down­loaded from the Tax Om­bud’s web­site, www. tax­om­bud.gov.za, which sets out the pro­ce­dures for lodg­ing a com­plaint.

Lodg­ing a com­plaint with the om­bud’s of­fice does not re­move your obli­ga­tion to pay any out­stand­ing tax, penal­ties or in­ter­est. Al­though the om­bud’s of­fice can pro­pose that col­lec­tion be stayed, only SARS has the author­ity to sus­pend col­lec­tion.

Judge Ngoepe says his of­fice is still fi­nal­is­ing its an­nual re­port for the 2015/16 fi­nan­cial year. How­ever, he says there was a sig­nif­i­cant in­crease in com­plaints com­pared with 2014/15. In the 2014/15 fi­nan­cial year, about 75 per­cent of com­plaints were re­solved in the tax­payer’s favour. This per­cent­age in­creased in 2015/16.

• Con­tact the Tax Om­bud on 0800 662 837 or 012 431 9105. You can fax com­plaints to 012 452 5013 or post to PO Box 12314, Hat­field, 0028. Email to com­plaints@ tax­om­bud.gov.za

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