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Taxpayers Rights When Audited By Tax Authorities In South Africa (Chapter 7.1)



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 7 – CONCLUSION

7.1 GENERAL CONSTITUTIONAL PROVISIONS

Despite the wide powers to conduct audits and inquiries into the tax affairs of taxpayers granted to SARS in terms of ss 74A and 74B, administrative law, as bolstered by the Constitution, contains important steps that SARS must adhere to in exercising its conduct.

The Constitution is the starting point as the supreme law of South Africa, governing all laws and conduct, including the Income Tax Act and discretions given to SARS, such as in the case of ss 74A and 74B, to make a decision to commence an inquiry and audit.

The Constitution requires adherence to the rule of law and the constitutional principle of legality, which prescribes that organs of state such as SARS must be governed by the law, and in particular the Constitution, the SARS Act and the relevant provisions of the Income Tax Act, in this instance, ss 74A and 74B, in exercising its discretion to audit or inquire into the tax affairs of the taxpayer. If it can be shown that the conduct of SARS is inconsistent with the Constitution, this conduct is invalid and application can be brought, on the basis of the s 172(1) of the Constitution, to have the conduct reviewed and set aside.

In terms of s 172(1)(b)(ii) the court may make ‘any order that is just and equitable’ that would include organs of state such as SARS to adhere to the scope, spirit and purpose of the Constitution in carrying out its constitutional duties and obligations.

Next:  7.2 SECTION 33 OF THE CONSTITUTION AND PAJA

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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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