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Taxpayers Rights When Audited By Tax Authorities In South Africa (Chapter 6.5)



Posted in sections, this is my Doctoral Thesis on taxpayers rights when audited by the tax authorities in South Africa – equally applicable to many English-based law systems in Africa and abroad (eg. India). This will be of particular use to any tax practitioners doing work in Africa and in other English-based legal systems around the world.

Analysis of Challenging The Commissioner’s Discretionary Powers In Auditing Taxpayers under The Constitution of The Republic of South Africa

CHAPTER 6 – THE IMMEDIATE FUTURE

6.5 CONCLUSION

Until the taxpayer is satisfied that its constitutional rights are not being transgressed by SARS implementing the proposed provisions of ss 3, 33 36 and 37 of the Tax Administration Act, the taxpayer will have ‘just cause’ not to participate in the audit, inquiry or any request for ‘relevant material’ by SARS.
Should SARS attempt to force the taxpayer to comply with the proposed provisions of ss 3, and 40 through 49 of the Tax Administration Act, judicial review of the decision of SARS to compel the taxpayer to comply, would be available to the taxpayer. The process of judicial review is discussed in Chapter 5. Nothing in the proposed Tax Administration Act changes the ability for taxpayers to review decisions taken by SARS in an attempt to enforce the proposed provisions of the Tax Administration Act, where SARS have failed to diligently and without delay perform its obligations in terms of s 237 of the Constitution, in complying with its duties as set out in ss 1(c), 33, 41(1) and 195(1) of the Constitution, and as analysed in this thesis.42

In summary ss 1 (c), 33, 41(1) and 195(1) SARS (as reiterated in s 4(2) of the SARS Act) are the constitutional duties that SARS must adhere to in order to comply with the rule of law, where SARS may only assume power and functions provided in terms of the Constitution, act with a high degree of professional ethics, use resources efficiently, be impartial, equitable, fair, unbiased, accountable, and transparent in their conduct and administrative actions. Failure by SARS to adhere to its constitutional duties will be reviewable in terms of PAJA and the principle of legality.43

Next:  CHAPTER 7 – CONCLUSION – 7.1 GENERAL CONSTITUTIONAL PROVISIONS

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Footnotes:

42 See Chapter 3 supra.
43 See Chapter 4 supra.

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International Tax Attorney, EA, US Tax Court Practitioner in the USA, Counsel of the High Court in South Africa, adjunct Professor of International Tax at Thomas Jefferson School of Law.

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