Administrative review in the Tax Court : a way forward

• Published date: 01 June 2018
• Author: Julia Moore
• Pages: 19-29
• Date: 01 June 2018
• Record Number: btclq_v9_n2_a5
• DOI: 10.10520/EJC-f5676d26a

19

© Siber ink

Administrative Review in the

Tax Court:

A WAY FORWARD

JULIA MOORE*

AbstrAct

An issue which has not yet been settled by the South African judiciary is

whether the Tax Court has the jurisdiction to review the South African

Revenue Service’s (‘SARS’) administrative and procedural decisions in the

context of tax disputes. Chapter 9 of the Tax Administration Act 28 of 2011

(‘TAA’) and the Rules promulgated in accordance with section 103 thereof

specif‌ically empower the Tax Court to adjudicate matters that are subject

to objection and appeal. It is currently unclear as to whether SARS’s admin-

istrative decisions can be disputed using the objection and appeal process

contained in the TAA, given that the TAA neither specif‌ically includes nor

excludes the adjudication of procedural disputes (i e disputes concerning the

administration, as opposed to the interpretation, of tax law) from the Tax

Court’s jurisdiction.

SARS takes the view that all administrative disputes must be resolved

within an alternative dispute-resolution framework, which requires taxpayers

to utilise SARS’s internal complaints mechanism or section 9 of the TAA, and

ultimately, to approach the High Court for the judicial review of such deci-

sions if need be.

This article considers whether the High Court is indeed the only forum in

which procedural disputes can be adjudicated, with reference to the SARS

guidelines, legislation and relevant recent judgments. It is submitted that

the Tax Court should have the necessary jurisdiction to hear and adjudicate

on disputes involving the administration of tax law where the dispute incor-

porates elements of legal and factual interpretation, whereas administrative

disputes of an exclusively legal nature, brought in terms of the Promotion of

Administrative Justice Act (‘PAJA’), should be adjudicated by the High Court

exclusively. To avoid the ongoing development of a dichotomous body of

precedent in relation to administrative tax disputes, it is submitted that the

existing internal remedy contained in section 9 of the TAA (in terms of which

taxpayers can address a request to the relevant SARS off‌icial to amend or

withdraw a decision) should be developed to provide a parallel process to

that contained in Chapter 9 of the TAA, culminating in an appeal to the Tax

Court where appropriate.

Introduction

In exercising its powers and performing its functions, the South African

Revenue Service (‘SARS’) is required to issue assessments and make other

decisions within the framework of the applicable legislation. These deci-

* Associate, Bowman Gilf‌illan.