MARCO TEÓRICO CONCEPTUAL
3. El logro de la identidad: aparece cuando los individuos han pasado por una crisis adoptando un compromiso concreto Han tomado decisiones y empieza a tomar
Vendors that are aggrieved by an assessment have a right to dispute it. Chapter 9 of the TA Act provides the legal framework for disputes, including VAT disputes. Chapter 9 must be read in addition to the rules issued under section 103 of the TA Act123 governing the following:
• The procedures to lodge an objection and appeal against an assessment or decision that is subject to objection and appeal;124
• Alternative dispute resolution (ADR) procedures under which SARS and the person aggrieved by an assessment or decision may resolve a dispute;
• The conduct and hearing of an appeal before a tax board or tax court. Transitional provisions related to disputes
Those disputes not finalised at the commencement date of the new rules are dealt with as if taken or instituted under the new rules under the TA Act.125 For example, if a vendor has objected under the old rules and the objection has not been dealt with by SARS upon commencement of the new rules, the dispute must continue and be dealt with by SARS under the new rules.
123
New rules published in Government Gazette No. 37819 of 11 July 2014 as Government Notice No. 550 came into effect on 11 July 2014. Before 11 July 2014, the old rules issued under section 107A of the Income Tax Act applied. These old rules were governed by section 269 of the TA Act from 1 October 2012 when that act was introduced.
124
Section 104(2) of the TA Act. 125
VAT 404 – Guide for Vendors Chapter 16 Burden of proof
The burden of proof generally lies with the vendor in view of the fact that the assessment is essentially based on facts within the particular knowledge of the vendor. However, the TA Act now provides that the burden of proof is on SARS to prove –
• that an assessment based on an estimate is reasonable; and
• the facts on which an understatement penalty was imposed.
It must also be noted that when the Commissioner authorises a jeopardy assessment, a vendor has the right to approach a High Court for review on the basis that the assessment is excessive or that there is no justification for the jeopardy assessment. In such a review application SARS bears the burden of proving that the making of the assessment was reasonable in the circumstances. This, however, is not a burden of proof in the context of objections and appeals.
16.2.2 What to do if you dispute your tax assessment The dispute resolution process consists of the following aspects:
• Reasons for assessment.
• Objection to an assessment.
• Appeal against disallowance of an objection.
• Post-appeal stage (alternative dispute resolution).
• Pre-hearing formalities (Tax Court or Tax Board).
The obligation to pay a tax liability may be suspended for the duration of a dispute. This is dealt with in paragraph 16.4.
16.2.3 Reasons for assessment
An assessment for taxes owed should be accompanied by adequate reasons which explain why the assessment has been raised. If the reasons are not adequate (or not included at all), you are entitled to request these reasons in writing within 30 business days from the date of the assessment.
16.2.4 Objection to an assessment
If you have received an assessment and you do not agree that it is correct, you may lodge an objection.126 The objection must –
• be in a form prescribed by the Commissioner (ADR 1)127 with the information requested in the form completed;
• specify in detail the grounds upon which the objection is made;
• specify an address where you will accept notice and delivery of SARS’s decision in respect of the objection;
• be signed by you or your appointed representative; and
• be delivered to SARS at the address specified on the assessment, within 30 business days after the date of the assessment (or within 30 business days after the date that reasons for the assessment were furnished by the Commissioner, as the case may be). A vendor may apply for an extension of the period within which to lodge an objection.
126
The “pay now, argue later” rule, the obligation to pay tax, which arises upon the issue of an assessment, is not automatically suspended by an objection or appeal. A separate request for the suspension of payment must be made to SARS.
127
An objection that does not comply with the requirements may result in the objection not being entertained, and SARS may inform you by notice within 30 days that it is not accepted as a valid objection. However, you may within 20 days of delivery of the aforementioned notice , submit an amended objection. SARS will accept the amended objection if it complies with the requirements for a valid objection.
An objection that is filed after the prescribed period cannot be considered unless a senior SARS official has condoned the late filing of an objection. A request for condonation must be made before or at the same time as the objection is filed and it must contain an explanation for the delay. For further information, refer to Interpretation Note 15 (Issue 4) dated 20 November 2014 “Exercise of Discretion in Case of Late Objection or Appeal”.
In terms of the TA Act, a senior SARS official may condone an objection that is filed less than 21 business days late, if there are reasonable grounds for the delay. If an objection is filed more than 21 business days late, then there must be exceptional grounds for the late filing. No objection can be entertained if it is filed after three years have passed from the date of the assessment. If the basis of an objection is that of a change to a practice generally prevailing, then an objection must be filed strictly in time as there are no grounds on which SARS can condone the late filing of such an objection.
16.2.5 Request for further information
Within 30 days from the date of delivery of your objection, the Commissioner may request that you provide additional substantiating documents that are required in order to make a decision regarding your objection. A vendor must deliver the requested documents within 30 days from the date of delivery of the notice by the Commissioner requesting such additional information. Upon request, the Commissioner may extend the period within which you should provide the additional information by an additional 20 days.
16.2.6 Decision to allow, disallow or partially disallow the objection
The Commissioner must, within 60 days from the receipt of your objection, or within 45 days from the date that you have delivered the requested further information, take a decision regarding the grounds of the objection. The decision can be either to disallow the objection, or allow it in full, or in part. In the event that the objection is partially disallowed, it should be clear which part of the objection relating to the assessment is being disallowed.
16.2.7 Appeal against disallowance of an objection
If you are dissatisfied with the decision of SARS following the objection, you may appeal against that decision, in which case, you must deliver a notice of appeal to SARS within 30 business days from the date of receiving notice of SARS’s decision in respect of the objection. A senior SARS official can condone a late appeal on the basis that there are reasonable grounds for the delay if the delay is less than 21 business days, but there must be exceptional circumstances if an appeal is filed more than 21 business days late. The Commissioner does not have a discretion to condone the late filing of an appeal if such filing is more than 45 business days late.128
128
For further information, refer to Interpretation Note 15 (Issue 4) dated 20 November 2014 “Exercise of discretion in case of late objection or appeal”.
VAT 404 – Guide for Vendors Chapter 16 The appeal must –
• be on the form prescribed by the Commissioner (ADR 2);129
• be signed by you or your authorised representative;
• indicate on which of the grounds specified in the objection you wish to appeal;
• indicate whether you wish to make use of the Alternative Dispute Resolution (ADR) procedures or rather appeal to the Special Board or Tax Court.
16.2.8 Post-appeal stage
You may request that your tax dispute with SARS be dealt with in one of the following ways:
• By Alternative Dispute Resolution (ADR), which is intended to be used where you and SARS agree to resolve a particular dispute outside of court.130
• By the Tax Board, which has jurisdiction in respect of those matters where the total amount in dispute does not exceed R500 000.
• By the Tax Court, even where the total amount in dispute is less than R500 000. For example, where there is a legal principle in dispute.