Draft Tax Administration Bill: Deputy Minister and SA Revenue Services informal briefings

Meeting report

Draft Tax Administration Bill (TAB): informal briefing by Deputy Minister of Finance and South African Revenue Services (SARS)
Mr Nhlanhla Nene, Deputy Minister of Finance, noted an apology for the Minister of Finance, who was unable to be present. He noted that the reasons for the draft Tax Administration Bill (TAB) would be presented, noted that it would take into account various factors, including the honesty of taxpayers, and said that the National Treasury (NT) and South African Revenue Services (SARS) looked forward to engaging further with the Committee.  

Mr Oupa Magashula, Commissioner, South African Revenue Services, outlined that effective revenue collection was essential to meet Government’s socio-economic priorities such as health care, education, infrastructure, employment and growth. SARS was created to effect optimum revenue collection, and aimed to achieve efficient and effective collection of revenue, and control over import, export, manufacture, movement, storage or use of certain goods. In order to achieve its objectives, SARS must ensure the widest possible enforcement of national tax and customs legislation, in an efficient and effective way. Tax legislation provided the framework to enable SARS to do its work, and it comprised tax liability and tax administration provisions.

The TAB dealt only with matters that related to tax administration. He noted that the current provisions around the administration of tax dated back to 1962, and were in need of updating and alignment with modern approaches. SARS would be left behind if it did not  adapt the framework to meet current trends, to better the administration of collection of revenue, and to align any duplicate or disparate requirements in the existing law. Further rationales for the  tax administrative review was to enable adaptation to a fast and developing world, and to lower the cost of tax administration to both SARS and to the tax payers. The TAB incorporated certain generic administrative provisions, currently scattered across different Acts, into one piece of legislation, which would allow for the provisions to be simplified and clarified. Tax administration would no longer be seen as capricious and arbitrary. The TAB sought to balance the powers and duties of SARS with the rights and obligations of the taxpayers,  thereby enhancing equity and fairness of tax administration. It would be the preliminary step to the rewriting of the Income Tax Act. It would assist in this process by dividing the work into more manageable parts. He pointed out that the administrative provisions comprised about 25% of the current Income Tax Act. SARS was hoping to achieve a complete re-write in less than the ten years it had taken for this task in the United Kingdom (UK).

He added that the TAB would provide a foundation for further modernisation, in the context of single registration, self assessment, and to enable the SARS to transform accounting. The simplified and harmonised system would benefit SARS and taxpayers. The compliance burden on tax payers would be reduced, with all duties and rights being set out in one composite Bill, and SARS’s burden would be reduced by the removal of  unnecessary, inefficient or ineffective provisions.

Mr Magashula said that SARS had been assisted, in the drafting process, by international tax experts from the International Monetary Fund (IMF), local Constitutional law experts, internal SARS stakeholders and the National Treasury. A closed workshop with external tax payers was also conducted in May 2009. The first draft was released for public comment from 29 October 2009 to 28 February 2010. A Constitutional review by external Constitutional experts and pre-certification by State Law Advisers was done. A workshop with the Economic Sectors Cluster was held in August 2010. Cabinet approved the introduction of the draft Bill in Parliament on 1 September 2010, and a second draft was introduced for public comment from 29 October to 15 December.

The TAB recognised that the majority of taxpayers were compliant, and would welcome a more modern and responsive revenue administration. However there was still a minority who sought to evade tax or to defraud the government. Tax evasion undermined compliant taxpayers’ morale and placed an unfair burden on compliant tax payers if not countered effectively, so SARS must actively pursue tax evaders to maintain confidence in the integrity of the tax system, and needed stricter enforcement powers to target increasingly sophisticated tax evaders. The TAB would allow generally compliant taxpayers to be subjected to less stringent measures, and to be given better service, whilst tax evaders would face stricter enforcement, assessment and collection powers. He pointed out that a recent judgment in favour of SARS had ordered an evading taxpayer to pay R1.2 billion to SARS, and had imposed a 200% fine.

The TAB was designed with due regard for the Constitutional rights of taxpayers and the Constitutional obligations of SARS. For example, to ensure consistent treatment and greater equity and fairness, certain discretionary powers were linked to objective criteria. He reiterated that the constitutionality of the TAB was reviewed by external constitutional experts and State Law Advisors. The TAB did not seek to re-codify the basic rights of taxpayers, such as the right to fair administration action, as this was a given. Its drafting was informed by international best practice and comparative evaluations of tax administration laws of other experienced countries, including Australia, Botswana, Canada, New Zealand, UK and the USA. He stressed that it was not a case of SARS “cutting and pasting” any of this legislation, but of considering and adapting the relevant concepts to local conditions.

The general reception of the draft TAB was positive. However, during the extended consultative process, there was debate on certain issues, including the Tax Ombud, secrecy disclosure extension, ambit of information gathering powers, search and seizure without a warrant, and extension of collection powers.

Mr Magashula indicated that he would like to outline two of these issues. The first was the Tax Ombud. He noted that the creation of an independent and effective recourse for taxpayers, through the Tax Ombud, was in line with the objectives of the Bill to balance powers and rights. An independent Tax Ombud had been recommended by the Katz Commission. The Joint Standing Committee on Finance had responded with a suggestion concerning the Office of the Public Protector, and the SARS Service Monitoring Office (SSMO) was intended as the first step towards improvement. He pointed out that when the SSMO was launched, it had already anticipated the creation of the Tax Ombud. The Tax Ombud was a mechanism to address service failures and failure to respect the taxpayers’ rights.

Mr Magashula noted that SARS dealt with two kinds of disputes. Firstly, there could be disagreement on the interpretation of the law, in which case the normal dispute resolution steps, such as objection and appeal, Alternative Dispute Resolution (ADR), appeal to the Tax Board and the Tax Court would apply, as well as appeals to higher courts up to the Constitutional Court, if appropriate. The second type of dispute related to the administration of the law, and here the administrative resolution steps were the internal service issue resolution, the SSMO, the Tax Ombud, the Public Protector and the normal court system.

Mr Magashula pointed out that the Minister of Finance determined the appointment and term of office of the Tax Ombud. The staffing of the office of the Tax Ombud would be done through secondment of SARS officials. The office would be funded through the SARS budget. The mandate of the Tax Ombud was to review complaints regarding service, procedural or administrative matters. The powers of the Tax Ombud would be to review and report any administrative failures on the part of SARS, directly to the Minister of Finance. This was in line with the UK and Canada models.  

Mr Magashula said that the other issue provoking much discussion had been the question of secrecy and disclosure to Financial Regulatory Agencies. The current secrecy and disclosure provisions sought to balance two important but competing interests - namely the taxpayers’ Constitutional right to privacy, and the information needs of the government to enable it to meet law enforcement and integrity provisions. Disclosure would be justified where the public benefit achieved through disclosure would outweigh the individuals’ concerns about privacy. Several regulatory and enforcement agencies were subject to secrecy provisions that limited their ability to share information, but this hampered enforcement and the protection of the public from financial exploitation. The TAB therefore proposed the disclosure of information to the selected regulatory agencies, being the Financial Services Board (FSB), the South African Reserve Bank (SARB), the Financial Intelligence Centre (FIC) and the National Credit Regulator (NCR). Disclosure would be permitted, but only to the extent that such disclosure was necessary for the regulatory functions of the Agency, and provided that it was both relevant and appropriate to what the disclosure was intended to achieve.

Mr Magashula concluded that collection of tax funded government services, which gave concrete meaning to the public’s Constitutional rights. The effectiveness of the tax administration impacted fundamentally on the public’s confidence in the tax system, and on the socio-economic contract between a citizen and the state. The TAB pursued tax fairness and was grounded on democratic principles that the tax system would support.

Overview of the draft Bill
Mr Frans Tomasek, Group Executive: Legislation and Research, SARS, outlined in general the approach to the design of the TAB. The core provisions required for the administration of the tax system were identified and incorporated. A step by step methodology had been followed in an attempt to align the structure of the TAB to the administrative ‘life cycle’ of taxpayers. The legislative style that had been followed was a new and simplified manner of legislative writing, using shorter sentences, shorter sections and less formalistic language.

He summarised the chapters of the TAB. He noted that all terms used in the TAB had already been defined in the other tax legislation, and the meanings assigned to these terms had been retained, unless the context indicated otherwise or unless a term was specifically and separately defined in the TAB. Each piece of tax legislation would be amended to provide that, for the purposes of any duty, power or obligation, or for the exercise of any right under that piece of legislation, any administrative requirement and procedure would, if not regulated specifically in this legislation, be regulated by the TAB. Administrative provisions that were specific to a piece of tax legislation, or related to the particular type of tax covered in the separate pieces of tax legislation, would remain in that legislation.

Mr Tomasek then described each chapter of the TAB, as follows:

Chapter 1: Definitions
The TAB contained certain new defined concepts. Assessment would now include self-assessment, and biometric information provided for less intrusive data. Self assessment meant determination by the taxpayer of the tax payable. A taxable event meant an occurrence affecting liability for tax. The term “tax” had also been defined for purposes of the administration of the TAB, and it included penalties and interest.

Chapter 2: General Administration
Mr Tomasek reminded Members that the purpose of the TAB was to provide for effective and efficient collection of tax, alignment of the administration provisions of other tax legislation, and the consolidation of all provisions, eventually, into one piece of legislation. SARS would be responsible for the administration of the TAB, once passed, under the control or the direction of the Commissioner. Once it was passed, the TAB would apply to every person liable to comply with a provision of a tax Act.

A three tier decision making level would be established and more serious powers would be reserved for the Commissioner or senior staff with delegated powers. Conflict of interest provisions would prohibit personal, family, financial involvement in matters. All SARS officials would be required to carry identity cards. Any delegations must be made in writing, with a defined mandate. Only certain officials would be endowed with the authority to act in legal proceedings. The Minister of Finance had the power and duty to issue regulations under the TAB, and appoint a Tax Ombud. These duties could not be delegated to the Deputy Minister or the Director General.

Chapter 3: Registration
A platform for single registration would be established. The registration period of 21 business days across most taxes would be effected. An obligation would be placed on the taxpayer to inform the SARS of changes in registered particulars, to ensure that SARS had current information. The Commissioner also had the power to prescribe additional information by notice. A tax number would be allocated by SARS in respect of one or more taxes.  The use of the tax number was compulsory in all correspondence to enable SARS to process taxpayers’ information more efficiently. SARS had the power to disregard correspondence which did not show the reference number.

Chapter 4: Returns and Records
An obligation was imposed by relevant tax laws for the submission of returns, and the form and the manner of return would be regulated by the TAB. The taxpayer could submit an amended return before the original assessment, to correct errors. SARS could require much more detailed reports. A statement could be required in respect of the extent of the examination reflected in accounts/ financial statements. An obligation would also be imposed on SARS for record retention.

Chapter 5: Information Gathering
Mr Tomasek noted that the SARS’s information gathering powers were substantially supplemented or extended, to address protracted  disputes as to whether SARS might be entitled to the information, and the waste of resources on such disputes. The powers were more aligned with international practice. The rationale for wide tax information-gathering powers was to achieve equitable levying of taxes and a correct discharge of the duty to correctly assess taxable income. The revenue authority should have access to all information which could affect tax liability, since information was “the lifeblood of a revenue authority’s audit activities”. He cited examples of obstruction, including one company that refused to allow the SARS auditors access to its toilet facilities, or to use its desks, and scribbling over the name in a contract.

Mr Tomasek said that concerns that SARS would embark upon “tax fishing activities” were misplaced. In a tax audit it was impossible to audit all the tax payers, so a random or risk-based selection of the taxpayers who would be audited had to be conducted. Information gathering was supported by international case law. The new and extended powers included inspections to determine the identity of the person occupying business premises, and whether that person was registered for tax. The other new or extended power related to the request for information, informal examination or interview at SARS offices, and search and seizure without a warrant.

Risk assessment involved the assessment of the risk profile of taxpayers, which would allow for better allocation of resources, in accordance with the risk profiles. The benefits of risk assessment were that there would be quicker guidance on tax matters, that this limited disputes, and reduced the incidence of tax underpayments, administrative penalties and interest. Obtaining real-time “relevant information” from taxpayers was the key to effective risk management. Mr Tomasek then elaborated on the search and seizure aspect, noting that these powers would be invoked only by a senior SARS official if that official, on reasonable grounds, believed that there was a reasonable likelihood that a search warrant would be granted, but that the delay in obtaining a formal warrant would defeat the object of the search and seizure, because there was an imminent danger of removal or destruction of relevant material from the premises of the taxpayer. This power was a very narrow exception to the normal requirement that searches and seizures could only take place pursuant to a warrant being issued by a Court. The Constitutional Court had held that there could be instances where search and seizure without a formal warrant were justified, and had therefore declared that they could be Constitutionally correct. This power was consistent with that found in more than 15 other pieces of legislation in South Africa. Other organs of State or officials in South Africa had similar powers, such as the Competition Tribunal, Fire Protection Officers, Forestry officers, Immigration Officers and the South African Police Service (SAPS).

Chapter 6: Confidentiality
The rationale for tax secrecy was to protect taxpayers’ rights to privacy, and to encourage taxpayers to make full and voluntary disclosure of all relevant information for the purposes of assessing tax liability. In the TAB the secrecy and confidentiality provisions were aligned across taxes. The TAB was more explicit as to who was subject to the provisions, and had extended this to include SARS confidential information. Information that was secret would only be disclosed if the public interest outweighed the individual’s right to privacy, as adjudicated by the High Court. Disclosure for non tax-administration purposes was widened in two ways, so that there could now be disclosure to financial regulatory agencies and in order to verify basic information. There was a general prohibition against forcing disclosure, and so the secrecy provisions were specifically applicable to the Commissioner of SARS, former or current SARS employees or persons contracted by SARS. Information that was unlawfully disclosed to a source, including the media, could not be further disclosed or published to anyone else, and any unauthorised disclosure would be criminalised.

Chapter 7: Advance Rulings
The advance ruling system was currently regulated in the Income Tax Act and the VAT Act. These provisions had now been incorporated in the TAB. The TAB provisions established a framework for the system and set out the basic rules regarding application processes and fees, exclusions and refusals, effects of rulings, retrospectivity and the publication of rulings. The provisions also provided for specific rules in respect of binding general rulings, binding private rulings and binding class rulings.

Chapter 8: Assessment
The new provisions included the original assessment, which was a first assessment by SARS, and a return which incorporated the taxpayer’s determination of the amount of tax liability. There was then provision for an additional assessment, a reduced assessment, a jeopardy assessment (which could be issued before the end of the tax period to secure early collection of tax at risk), an estimation of assessment, notice of assessment, period of limitations and provisions around the finality of assessments.

Chapter 9: Dispute Resolution
The chapter contained new provisions. In respect of the burden of proof, SARS bore this burden in cases of assessment based on estimations and additional tax, decisions on objection, decisions of the Tax Board, and conflict of interest. Other new provisions were the sitting of the Tax Court, orders for costs in favour of SARS, and publication of Tax Court judgments, which would ensure that all judgments would be published. This would prevent a situation where SARS would benefit from unreported judgments and settlements of disputes.

Chapter 10: Tax Liability and Payment
This chapter also included new provisions. It listed the categories of persons liable for tax, such as persons primarily chargeable to tax, representatives of taxpayers, withholding agents and responsible third parties. SARS could also require security to safeguard the collection of tax, including cases in which a withholding agent had failed repeatedly to withhold or pay any tax that was due. There was also provision for a preservation of assets order. The TAB codified the common law position for tax administrative purposes. An order from the High Court gave SARS the authority to seize the assets, and SARS could also seize the assets in anticipation that an order would be given. This power was made available to allow for conserving money, for purposes of mutual assistance in the recovery of tax on behalf of foreign governments. There was also the “pay now argue later” provision. The rule stated that a dispute did not automatically suspend any obligation to pay, as clarified in the Taxation Laws Second Amendment Act 18 of 2009. The TAB provided further clarification on the matter. The TAB also created a framework for a single taxpayer account with a rolling balance, a framework for the “first in first out” payment allocation rule (where a payment could be applied to the oldest debt first, despite the way in which the taxpayer sought to apply the payments). There was also an instalment payment agreement, which was a form of debt relief.

Chapter 11: Recovery of Tax
SARS’s collection powers would be strengthened in respect of repatriation of offshore assets, to satisfy tax debts. Its powers were also strengthened in respect of the personal liability of third parties who assisted in the dissipation of assets, who received property from a tax debtor below fair market value, shareholders who benefited from ‘asset stripping’ by the tax debtor, or those who parted with or disposed of the assets or money of a tax debtor, contrary to a notice by SARS to transfer the assets or the money to SARS. The current period of limitation on collection of outstanding tax debts had been reduced from 30 years to 15 years. This provision benefited SARS in that it provided SARS with a more practical approach to debt management, and it also benefited the taxpayer in that finality would be achieved within a more reasonable period.

Chapter 12: Interest
The TAB would create a framework for alignment of interest provisions across taxes, and for compound interest. The general principle was that interest accrued from the ‘effective date’, which was normally the date on which tax was payable under a tax Act, until the date of payment. The rate would be the prescribed interest rate, except that overpayments of provisional tax would use a tax rate of 4% below the normal rate. The discretion for the remittance of interest would be retained, and it would be limited to specified circumstances beyond the taxpayer’s control. If a refund was payable by SARS, the interest would be calculated either from the ‘effective date’ or the date on which the excess payment had been received by SARS, whichever was later. The taxpayer would thus normally be entitled to refund interest from the same date on which SARS would have been entitled to interest on unpaid tax. There were, however, some exceptions – for instance the VAT Act stated that interest on refunds was only payable after 21 days of claim.

Chapter 13: Refunds
Any refund paid by SARS into the wrong account could be collected back, as if it were tax. However, in respect of other moneys, SARS could only recover the amount through protracted common law remedies such as enrichment. A refund did not need to be authorised by SARS until such a time that a verification, inspection or audit of the refund had been finalised.

Chapter 14: Write Off/ Waiver of Tax Debts
Mr Tomasek explained that these provisions were essentially a form of tax debt relief, which could be  afforded to taxpayers under certain prescribed circumstances. No major changes had been made to the current law, except that the circumstances where it was appropriate to compromise a tax debt would be made less restrictive. Some factors that would disqualify the tax debtor from a compromise agreement had been removed, including a compromise based solely on a claim of hardship in paying the tax debt, including the need to sell a home or business, a compromise to assist a debtor who had become over-committed, a compromise to save a business from failure or closure, and a compromise to alleviate harsh or unfair operation of a tax law in particular circumstances.

Chapter 15: Penalties
The administrative penalties imposed under the Income Tax Act would be included in the TAB, and would apply across taxes .These penalties targeted non-compliance with administrative obligations under a piece of tax legislation. The new provisions provided for the imposition of mandatory penalties, and targeted non-compliance, which would be listed in  a public notice by the Commissioner of SARS. There was also an administrative penalty for failure to report a reportable arrangement.

Chapter 16: Additional Tax
Mr Tomasek said that the current open-ended discretion to impose additional tax of up to 200% would be limited by a new structure, in which the percentage of additional tax would be determined by the taxpayer’s behaviour, with factors such as gross negligence or other objective criteria such as voluntary disclosure being taken into account. Other new provisions included a prescribed methodology for the calculation of a tax shortfall, an onus being placed on SARS to prove the grounds for alleged behaviour. The administrative penalty and additional tax double jeopardy would be avoided, and there would be a permanent ‘Voluntary Disclosure Programme’.

Chapter 17: Criminal Offences
General statutory offences would be included in the TAB but tax type-specific offences would remain in other tax legislation. New provisions included tax evasion and a reverse onus. The taxpayer would have a lesser onus, and would only need to prove that there was a reasonable possibility that he or she was ignorant of the falsity of a statement and that ignorance was not due to negligence. A decision to lay a complaint of statutory tax evasion would not only be taken by senior SARS official.

Chapter 18: Unprofessional Conduct
No major changes had been effected to the current law .Conditions had been added to the existing requirement that a person who gave tax advice should be registered as a tax practitioner with SARS. Mr Tomasek said that a person could not be registered as a tax practitioner if, during the five years before his application for registration, that person had been banned or removed from a related profession or professional body for dishonesty, or had been convicted of theft, fraud, forgery or uttering a forged document, perjury or a statutory offence of corrupt activities with a sentence of two years imprisonment  without the option of a fine, or if he or she had been convicted of any other crime involving dishonesty and had a sentence of two years imprisonment without the option of a fine.

Chapter 19: General Provisions
The provisions were predominantly based on current law, and provided for deadlines for payments, submissions and other action, power of the Minister to determine the date of submission for returns, payment of tax interest and penalties, appointment of public officers, and electronic communications, as well as a new provision which catered for non material defects in procedural requirements for the issue of documents. The procedures and requirements  for the issue of a tax clearance certificate would be regulated in the TAB under this chapter.

Chapter 20: Transitional Provisions
Mr Tomasek noted that these provisions would aim to ensure a smooth transition from the current Tax Administration legislation.

Discussion
Mr D George (DA) said that the TAB was a step in the right direction towards making tax laws easily understandable. He asked whether SARS had considered other options besides search and seizure.

Mr D Van Rooyen (ANC) said that he welcomed the intentions that had been outlined. He asked how SARS would ensure that the provisions for proper enforcement were not abused. He also asked how SARS intended to draw the line between seconding SARS officials and the Ombud, to ensure that conflicts would not arise. He further asked whether it possible for the Committee to receive a summary of evaluation and review.

Mr E Mthethwa (ANC) asked whether SARS had a strategy which would enable the public to see SARS as a friendly department.

Mr N Koornhof (COPE) asked for the name of the Company who had refused to allow SARS access to their facilities.

Ms Z Dlamini-Dubazana (ANC) asked whether businesses that were conducted in peoples’ backyards fell within the definition of “business premises”.

Mr Kosie Louw, Chief Officer: Legal Policy, SARS, responded that thorough research had been done on the issue of the Tax Ombud and on query resolution. He added that SARS had a briefing document that could be made available to the Committee, which would outline the position in other countries. He reiterated that the search and seizure concept was not uncommon in South African legislation, since 17 pieces of legislation had such provisions, fifteen of those having incorporated search and seizure after 1994. However, this provision would be used sparingly. Despite the existing provisions in the legislation, only about 30 search and seizures were conducted annually, and conditions would ensure that these provisions were not abused.

Mr Magashula reiterated that the secrecy and privacy of individuals would be balanced against other rights, which was intended to prevent abuse of the information. He added that there were also general remedies that could be exercised against SARS, in the Promotion of Administrative Justice Act (PAJA). SARS would be ordered to pay costs if it was found by a Court to have violated certain powers. However, the realities of the situation must be recognised, and it was not a given that these powers would work; for instance, some SARS officials had been sprayed with teargas at the premises of one company when they tried to open the safe to access documents.

Mr Tomasek said that the secrecy provisions in the Income Tax Act did not allow for the names of companies to be disclosed, but SARS officials had been hindered from conducting their duties by a large company in the financial services sector. He added that any premises used to conduct a business, including a backyard, would be considered as business premises.

Mr Mthethwa said that SARS had to provide simple technologies for the public to see whether they were registered.

Mr T Mufamadi (ANC) asked the Deputy Minister to convey these deliberations to the Minister. He said that this informal briefing would assist the Committee when it went through the Bill, and that the work on this Bill was important in protecting the taxpayer public.

The meeting was adjourned.