Nondabula v Commissioner : SARS (2018 (3) SA 541 (ECM) (27 June 2017))

• Author: Carika Fritz
• DOI: 10.10520/EJC-17a60a19f2
• Published date: 01 April 2019
• Date: 01 April 2019
• Record Number: dejure_v52_n1_a11
• Pages: 181-188

Recent case law 181

Recent case law

Nondabula v Commissioner: SARS

(2018 (3) SA

541 (ECM) (27 June 2017))

“Victory” for taxpayer after SARS fails to fulfil its duties

1Introduction

The South African Revenue Service (SARS) is tasked with effectively and

efficiently collecting taxes (s 3(a) of the South African Revenue Service

Act 3 4 of 199 7). In t urn, the se coll ected taxes are used by government to

develop the economy of the country and regulate employment levels

(Croome Taxpayers’ Rights (2010) 3).

Section 92 of the Tax Administration Act 28 of 2011 (TAA) ensures

that SARS collects the correct amount of tax by providing for the issuing

of an additional assessment, if the assessment that was originally issued

in relation to a specific tax period was not in accordance with the relevant

tax provisions and was to the detriment of SARS or the fiscus. SARS may

estimate this additional assessed amount based on information that is

readily available to SARS (s 95(1) and 95(2) of the TAA). Whenever SARS

issues an additional assessment, section 96(1) of the TAA provides that

SARS must issue a notice of assessment in relation to assessed taxes. This

notice must contain, inter alia, the date of the assessment, the assessed

amount, and the period in terms whereof the assessment is issued, and

when the assessed amount must be paid. Where SARS has estimated the

amount of outstanding tax based on information it has at its disposal

(s 95(2) of the TAA), the notice of assessment should also contain a

statement indicating the grounds for the assessment (s 96(2)(a) of the

TAA). This statement should make it possible for the taxpayer to establish

the legal and factual basis for the assessment (SARS Dispute Resolution

Guide (28 October 2014) 31).

In Nondabula v Commissioner: SARS 19 SATC 333 (Nondabula), the

court had to consider whether SARS could proceed in fulfilling its task of

collecting assessed taxes if it did not furnish a notice of assessment as

required. This is an important aspect to consider as allegations pertaining

to an illegal “rogue” investigation unit set up by SARS and the emerging

public debate in this regard has brought the extent of SARS powers under

scrutiny (see Sikhane Investigation report – conduct of Mr Johan

Hendrikus van Loggerenberg South African Revenue Service (2014) 5-7;

Sunday Times (2016-05-15) 1; Business Day Live (2015-03-02) in this

How to cite: Fritz ‘Nondabula v Commissioner: SARS (2018 (3) SA 541 (ECM) (27 June 2017))’ 2019 De Jure Law

Journal 181-188

http://dx.doi.org/10.17159/2225-7160/2019/v52a11