Tax Ombud

Tax Ombud

Prior to the 1st of October 2013, the Tax Ombud had not been chosen and complaints were dealt with by members of the South African Revenue Service. The problems with this were self-evident, as it created an opportunity for bias and unfair treatment of the taxpayer without recourse to an impartial, unbiased third party that is both procedurally and substantively fair.

While the official launch of the Office of the Tax Ombud occurred on the 7th of April 2014, the Tax Ombud (Judge Bernard Ngoepe) had already been appointed in terms of the Tax Administration Act 28 of 2011 [hereinafter referred to as the Act] on the 1st of October 2013 by the Minister of Finance, Pravin Gordhan. The establishment of the abovementioned office is specifically mentioned in the preamble to the Act, and the Minister is bound by section 14 thereof to appoint a person as Tax Ombud. The term of office that this position holds is for a period of 3 years.[1]

Mandate

The mandate of the Tax Ombud is to review and address any complaint by a taxpayer regarding a service matter or a procedural or administrative matter arising from the application of the provisions of a Tax Act by SARS.[2] The Act further goes on to set out actions that the Tax Ombud must take when discharging his or her mandate.[3] This provision is couched in peremptory language and it is therefore incumbent on the Tax Ombud to perform in terms thereof.

Matters which the Ombud may hear

The Tax Ombud may review any issue within his/her mandate on receipt of a request from a taxpayer, and may determine both how a review is conducted, as well as whether a review should be terminated before completion.[4] However, in Section 17, the Act details the limitations on the Ombud’s authority by listing which matters he/she may not review.

These matters include legislation or tax policy; SARS policy or policy generally prevailing (other than to the extent that it relates to a service matter or a procedural or administrative matter arising from the application of the provisions of a tax Act by SARS); a matter subject to objection and appeal under a tax Act (except for an administrative matter relating to such objection and appeal); or a decision of, proceeding in or matter before the tax court.[5]

Further, all complaints resolution mechanisms of the South African Revenue Services (SARS) must be followed before the Tax Ombud may review a request.[6]

The Tax Ombud must also attempt to solve all issues within his/her mandate at the level at which they can most efficiently and effectively be resolved and must, in so doing, communicate with SARS officials identified by SARS.[7]

Obligations of Tax Ombud to report to Minister

In terms of Section 19(1) of the Act, the Tax Ombud has an entrenched duty to submit an annual report containing both a summary of at least ten of the most serious issues encountered by tax-payers, as well as systematic and emerging issues that the Ombud has identified. This report is submitted to the Minister of Finance within 5 months of the end of the financial year. The report is, inter alia, to also contain actions taken and the result of such action in dealing with the ten serious issues dealt encountered by tax-payers.

Effectiveness fo the Tax Ombud

Despite the Office’s self-stated vision that the Tax Ombud is “an effective and efficient instrument for the respect, promotion, fulfilment, and protection of taxpayer rights and responsibilities”, the limited nature of the scope of matters that the Ombud may review or assess casts a doubt on the usefulness of such an Office.

Whilst matters that fall under their purview are dealt with efficiently (in terms of time taken to deal therewith), a large portion of taxpayers’ complaints are not represented due to the fact that the Ombud will not address any issue of legislative interpretation, nor the correctness of a tax assessment or decision. In fact, the Act specifically states that the Tax Ombud’s recommendations are not binding on taxpayers or SARS.[8]

Pieter Faber, a senior manager national tax technical at PricewaterhouseCooper, has stated that he has reservations about the independence of the Tax Ombud, as he is appointed for a renewable term and is accountable to the same Minister that SARS is, which entails that the Ombud has a vested interest in ensuring that the Minister is satisfied and is not embarrassed by unlawful conduct on SARS’ part.[9]

Conclusion

While legitimate complaints that have been lodged with the Ombud have been dealt with expediently, a limited scope in which to act and little power to change a decision taken by SARS (whether taken fairly or otherwise) coupled with the fact that the Ombud may not review a matter arising more than one year before the day on which he/she was appointed has given rise to questions about the efficiency of the Ombud.

It seems that the Office of the Tax Ombud applies an inadequate bandage to a large wound, by dealing with service and administrative issues that could be dealt with by SARS itself. Ombudsmen in other fields have clout and the required legislative power to effectively deal with complaints, but it seems that it will remain to be seen whether the powers of the Ombud will be amplified in order to give him/her some teeth.

[1] Section 14(1)(a) of Act 28 of 2011.
[2] Section 16(1) of Act 28 of 2011.
[3] Section 16(2)(a) – (f) of Act 28 of 2011.
[4] Section 18(1) and 18(2) of Act 28 of 2011.
[5] Section 17 of Act 28 of 2011.
[6] Section 18(4) of Act 28 of 2011.
[7] Section 20(1) of Act 28 of 2011.
[8] Section 20(2) of Act 28 of 2011.
[9]http://www.moneyweb.co.za/moneyweb-south-africa/tax-ombud-another-toothless-entity accessed on 17 July 2014.


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