Tax Administration Act - 2013 Update

Tax Administration Act - 2013 Update Prof Daniel N Erasmus

www.ErasmusOnTax.com Prof. Daniel N. Erasmus 083-4588422 Additional updated notes www.IITF.net

INDEX PART A Recent key updates & issues and per the brochure Search & Seizure - Case Study Preservation Order – Case Study Other emerging issues

Retired Judge Bernard Goepe

I. Tax Administration Act • TAA • Constitutional issues

I. RECENT KEY UPDATES • Important issues indentified: • Definitions - key definitions, such as relevant material, administration of tax Acts – requirement of registration of a company representative taxpayer • What are SARS’ obligations in practice? Asummary of what SARS’ obligations are in each step of the process (jurisdictional facts s3(2), letter of findings, request for reasons, objection, appeal etc) • Information gathering, audits, relevant material, letter of findings, criminal investigations – things like the PAYE questionnaire issued by SARS recently andTaxpayers’ rights at the commencement of an audit and the Issues with tax clearance certificates (TCC obtained in 2012, but denied in 2013 due to amounts outstanding in previous years – going back even further than 5 year ago) • ‘Just cause’ defence • General administration provisions - conflicts of interest by SARS, Tax Ombudsman, powers

I. RECENT KEY UPDATES • Assessments - New rules on onus of proof, jeopardy assessments • Reduction in Chapter 16 Understatement Penalties, and generally, Administrative Non-Compliance Penalties - fixed amount penalties, % based penalties, remedies and can taxpayers object; • Tax Practitioner Provisions; • Dispute resolution issues: • Notifying SARS ONE WEEK before instituting action at head office; • Recent objection and other Dispute Rules amendments, including pitfalls when lodging objections and appeals – The new proposed rulesand use of test cases. SARS attempt in practice to curtail the 3 year prescription period SARS appears to also disallow an objection without first asking for additional information that could have avoided an appeal and doesn’t stick to the time periods in the TAA.

I. RECENT KEY UPDATES • Other emerging issues: • Dispute Resolution - When can you approach the High Court directly, burden of proof • Tax Liability and Payment - personal liability, instalment payment agreements – the request for suspension should be discussed • Rescue provisions under the new Companies Act & Recovery of Tax - liability of shareholders for tax debts • Write off or Compromise of Tax Debts - typical procedure & liability of shareholders for the tax debts of a company • Voluntary Disclosure Programme – its effect on the understatement penalties

I. SA & AFRICA CASE LAW • Retrospective Tax Act ultra vires, aritrary & capricious – International Financial Services v Mauritius Revenue Authority • Judicial review in high court not tax court – Republic v C o T ex parte SDV Transami (Kenya) • Income Tax Case No 1866 75 SATC 268 • MTN INTERNATIONAL (MAURITIUS) LTD v COMMISSIONER FOR SOUTH AFRICAN REVENUE SERVICE 75 SATC 171 • Review retrospective VAT regulations – Republic v M o F (Kenya) • Review assessment not via tax court – Republic v C o I ex parte National Employers Mutual General Insurance Association Ltd (Ghana)

I. SA CASE LAW • Administrative Action – Mazibuko v City of Jhb ; Viking Pony v Hidro-Tech Systems • Lawfulness – HOSA v Minister of Health • Procedural/Substantive fairness – substantive legitimate expectation – Quinella Trading v M o Rural Develpoment • Exercising a discretion – Ulde v M o Home Affairs • Right to Reasons – Wessels v M o Justice • PAIA – President v M & G Media

II. SEARCH & SEIZURE CASE STUDY • Be present; • Obtain clear Power of Attorney; • Check SARS authority; • Ensure SARS communicates only through your office; • Be present at the opening of documents; • Ensure compulsion by SARS – dangers of giving info unless under compulsion; • Monitor when SARS notifies about a parallel criminal investigation; • Constitution and conduct by SARS;

III. PRESERVATION ORDER CASE STUDY • Check SARS authority; • Review the meaning of section 163 of Tax Administration Act 28 of 2011; • Are the provisions constitutional? Proposed amendments being considered • The practical effect of what happens when such an order is obtained?

IV. OTHER EMERGING ISSUES • Failure by SARS to issue Letters of Findings eg. Where the taxpayer has not agreed to an extension of time periods; • Chapter 16 Understatement penalties and “…where the prejudice to SARS or the fiscus …for the relevant period…” • Prejudice • Fiscus? • Relevant period

INDEX PART B • Return preparer penalties • Professional responsibilities • Unauthorised practice of law • Analysis of certain areas of tax practice • i.Criminal investigations • a. Criminal tax problems • Tax professionals role in criminal investigations • ii.Representing non-filers • General business advice to clients • Malpractice considerations

I. RETURN PREPARER PENALTIES • Power of Attorney • Section 67 is a general prohibition of disclosure of taxpayer information by SARS officials and to overcome this obstacle and to overcome this taxpayers must properly authorise their taxpayer representatives by a Power of Attorney • Section 67(3) that in the event of disclosure of taxpayer information ... the person to whom the disclosure was made may not be published, disclosed or made known to any other person who is not a SARS official • Criminal sanction – section 236 fine or imprisonment not exceeding 2 years • Section 28 statement concerning accounts – SARS will require a person who submits financial statements or accounts prepared by another person, in support of that persons submitted return, to submit a certificate or statement • Prevention and Combating of Corruption Act 28 of 2004 – s3

Return Preparer Penalties & Issues Continued … • Section 234 on criminal offences states a person who wilfully and without just cause: • (f) submits a false certificate or statement under chapter 4; or • (j) fails or neglects to disclose to SARS any material facts which should have been disclosed under the Tax Administration Act • (k) obstructs or hinders a SARS official in the discharge of the official’s duties • (l) is guilty of an offence and upon conviction is subject to a fine or imprisonment for a period not exceeding two years • Prevention and Combating of Corruption Act 28 of 2004 – s3

Return Preparer Penalties & Issues Continued … • Section 235 on criminal offences states that person who with intent to evade or to assist another person to evade tax or to obtain an undue refund under a tax act • (a) makes or causes or allows to be made any false statement or entry on a return or any other document, or signs a statement, return or other document so submitted without reasonable grounds for believing the same to be true • (c) prepares, maintains or authorises the preparation or maintenance of false books of account or other records or falsifies or authorises the falsification of books of account or other records • is guilty of an offence and, upon conviction, is subject to a fine or to imprisonment for a period not exceeding five years. • Section 235 is subject to the defence that the person proves that there is a reasonable possibility that he or she was ignorant of the falsity of the statement and the ignorance was not due to negligence

Return Preparer Penalties & Issues Continued … • Chapter 15 Non-Administrative Compliance Penalties • Chapter 16 Understatement Penalties • Please refer to the Malpractice Liability section

Return Preparer Penalties & Issues Continued … • STANDARDS OF CONDUCT • Analyse facts and authorities and reasonably conclude there is substantial authority • Good faith reliance • Good faith without verification on information furnished by taxpayer – beware • May not rely on information provided by taxpayer as to legal conclusions about tax issues • Relying in good faith and without verification in information furnished by another adviser, another tax return preparer, or another party from within the tax return preparers firm or from outside the tax return preparers firm – beware of Section 28 • Must make appropriate enquiries to determine the existence of facts and circumstances required as a condition of claiming any deduction or credit

Return Preparer Penalties & Issues Continued … • STANDARDS OF CONDUCT • May rely in good faith and without verification (but with extreme caution) on a tax return that has previously been prepared by a taxpayer or another tax return preparer and filed with SARS (unless glaring mistake is discovered) • May not ignore the implications of information furnished to, or actually known by the tax preparer must make reasonable enquiries if the information appears to be incorrect or incomplete. The tax preparer is not considered to have relied in good faith if the advice or information is unreasonable on its face value and the tax return preparer knew or should have known that the party providing the advice or information was not aware of all relevant facts, or that they were no longer reliable due to relevance in the law since the time the advice was given

II. PROFESSIONAL RESPONSIBILITIES • BEST PRACTICES FOR TAX ADVISORS • Tax advisors should provide clients with the highest quality representation concerning tax issues by adhering to best practices in providing advice in preparing or assisting in the preparation of a submission to SARS. Best practices include the following: • Communicating clearly with the client regarding the terms of engagement • Establishing the facts • Advising the client regarding the import of the conclusions reached and to advise the client of the potential of penalties and criminal offences • Acting fairly and with integrity in any practice before SARS

Professional Responsibilities cont… • PROCEDURES TO ENSURE BEST PRACTICES FOR TAX ADVISORS • Tax advisors with responsibility for overseeing a firm’s practice of providing advice concerning tax issues or of preparing or assisting in the preparation of submissions to SARS for all members, associates, and employees are consistent with the best practices set out above

Professional Responsibilities cont… • STANDARDS WITH RESPECT TO TAX RETURNS AND DOCUMENTS, SUBMISSIONS AND OTHER DOCUMENTS/PAPERS • A practitioner may not wilfully, recklessly, or through negligence do anything that contravenes the criminal offence provisions of Sections 234, 235, 236 and 237 as set out above • A practitioner should not advise a client to take a position on a document, affidavit or other paper submitted to SARS unless the position is not frivolous • A practitioner should not advise a client to submit a document, affidavit or other paper to SARS which is designed to delay or impede the administration of any tax act • Prevention and Combating of Corruption Act 28 of 2004 – s3

Professional Responsibilities cont… • STANDARDS WITH RESPECT TO TAX RETURNS AND DOCUMENTS, SUBMISSIONS AND OTHER DOCUMENTS/PAPERS continued • A practitioner should not advise a client to submit a document, affidavit or other paper to SARS that contains or omits information in a manner that demonstrates an intentional disregard of a rule or regulation, unless the practitioner also advises the client to submit a document that evidences a good faith or just cause challenge to the rule or regulation • Again please take note of the criminal offence provisions in Section 234, 235, 236 and 237 in this regard • Also take care of the Chapter 16 Understatement Penalty and in particular the table set out in Section 233, which increases the percentage penalty if the taxpayer has been “obstructive”

Professional Responsibilities cont… • REQUIREMENTS FOR OTHER WRITTEN ADVICE • Take careful note of the provisions of Section 223(3) where SARS must remit a penalty imposed for a substantial understatement, if SARS is satisfied that the appropriate timely written advice was obtained by the taxpayer from a registered independent tax practitioner • The advice must be based on full disclosure of all specific facts and circumstances in respect of the particular transaction and any related transactions to that transaction which may have an anti-avoidance or substance over form issue whether or not the taxpayer in question was a direct party to all these steps or parts of the totally of transactions effecting the one that is the subject of the advice.

Professional Responsibilities cont… • KNOWLEDGE OF CLIENT’S ADMISSIONS • A tax practitioner who, having been retained by a client with respect to a matter administered by SARS, knows that the client is not compliant with the tax laws or has made an error in or omission from any return, affidavit, document or any other paper which the client submitted or executed under the tax laws, must advise the client properly on the fact of such non-compliance, error or omission. The tax practitioner must advise the client of the consequences as provided under the Tax Administration Act and other Tax Acts of such non-compliance, error or omission.

Professional Responsibilities cont… • PROFESSIONAL BODIES CODE OF CONDUCT • AND SARS LODGING COMPLAINTS • Complaint by SARS to ‘controlling body’ s 241; • What if SARS are not acting impartially? • What if the ‘controlling body’ is not acting impartially? • Defences available to tax practitioners: • Just cause • Lack of wilfilness • Negligence? • FOR EXAMPLE: • New proposed MOI for SAIT • Code of Conduct – April 2009

III. UNAUTHORISED PRACTICE OF LAW For example, giving tax advice involved in the preparation of a tax return can be distinguished from giving the same tax advice outside of the scope of preparing a tax return where other legal issues are at play. A non-lawyer could perform any “legal task” as long as it involves knowledge possessed by any ordinary lay person. This standard, however, would hardly meet the preparation of tax returns where the tax practitioner who is not a lawyer, must be careful is in relation to the interpretation of issues and documents that may lead to litigation which would include the interpretation of legal issues that are not necessarily tax issues.

Unauthorised Practice of Law Cont… The reason for bringing this to your attention is that should a malpractice suite be instituted against you and you are found to have given advice in an area that you are not qualified to do so (such as in respect of other legal issues that are closely aligned with the tax issues under consideration) you may be held to have acted in a negligent manner, which would expose you to a malpractice liability suite.

IV. ANALYSIS OF CERTAIN AREAS OF TAX PRACTICE Criminal Investigations Tax practitioners who are not attorneys cannot rely in any manner whatsoever on the attorney/client privilege. This means that if you have a number of conversations with your taxpayer client at a time when you represented the client in a regular audit and that audit has been referred to criminal investigations, all these conversations are not subject to attorney/client privilege and you will be required to disclose them if you are called as a witness to any criminal prosecution against your client.

IV. ANALYSIS OF CERTAIN AREAS OF TAX PRACTICE CONTINUED • Criminal tax problem • A tax return preparer has prepared Mr Goodheart’s return for 20 years and he knows that he is a regular church goer, teacher of Sunday school and a deacon at the church. To the tax return preparer’s best knowledge Mr Goodheart has never told a lie and his reputation in the community for truth and veracity is exceptional. Mr Goodheart comes home one day and finds the business card of a SARS investigator with a note attached to his door saying, “please call me”. Mr Goodheart immediately calls you proclaiming his innocence and says he does not know what this is about and asks you to contact the SARS investigator. How should you proceed with this instruction? • Discuss this amongst your group • Pay attention to what type of audit this may be • What information do you have? • What communication should you enter into with the SARS official? • What information should you be obtaining from your client? • What other representation should you put into play early on in this matter?

IV. ANALYSIS OF CERTAIN AREAS OF TAX PRACTICE CONTINUED • Tax practitioners role in criminal tax investigations • The area of representing a taxpayer under investigation by SARS in the criminal investigation division of SARS is unique. It not only encompasses a knowledge of tax law but bears on other areas of practice unique to lawyers. This includes issues of criminal law, constitutional law and the law of evidence. Principal amongst these are the constitutional rights of an accused person as set out in Section 35 of the Constitution and the attorney/client privilege. There are also areas of conflict of interest that may come into play, especially where you have acted as tax return preparer and advisor to your client and the possibility exists that you may be called as witness against your client, because you are not an attorney.

IV. ANALYSIS OF CERTAIN AREAS OF TAX PRACTICE CONTINUED • Tax practitioners role in criminal tax investigations cont… • One of the most difficult areas of practice for tax practitioners is to discover that his client may have a criminal tax problem. Once the tax practitioner suspects that there may be an alleged or other transgression which carries a criminal offence, the tax practitioner should advise his client to discuss the matter with a qualified tax attorney. The principle reason for this is that the tax practitioner does not have any legal privilege which would prohibit his testimony of such conversations in any criminal tax investigation or subsequent criminal proceedings. For a tax practitioner to seek out explanations of the possible fraud areas would be to educate the tax practitioner in becoming a potential witness against his client, which he would want to avoid at all costs.

IV. ANALYSIS OF CERTAIN AREAS OF TAX PRACTICE CONTINUED • Tax practitioners role in criminal tax investigations cont… • Furthermore, if the tax practitioner becomes aware of the practice or problem area, the tax practitioner is faced with a decision of what to do next. If the tax practitioner continues with the practice on behalf of the client, the tax practitioner becomes a conspirator, or aid and abettor who will also face criminal prosecution. A tax practitioner cannot close his or her eyes to obvious facts at that point of time and proceed to represent a client with knowledge of a problem area. The best protection for the tax practitioner and the most professional way to represent the taxpayer client is to refer the matter to a competent tax attorney for advice and to take the matter further, where that attorney can then bring the tax practitioner under his or her wing and proceed with the matter.

IV. ANALYSIS OF CERTAIN AREAS OF TAX PRACTICE CONTINUED • Tax practitioners role in criminal tax investigations cont… • Some of the following issues should be carefully considered: • If a SARS investigator should want to interview the client and the tax practitioner, nothing should be discussed with that person without the tax attorney having been instructed and having been asked to be present; • The taxpayer’s records in the hands of the tax practitioner would have to be produced if SARS requires production of those records, thus not only will the tax practitioner be required to produce his or her own working papers and materials relating to the preparation of the taxpayer returns, but he or she will also be required to produce any records of the taxpayer which is in his or her possession;

IV. ANALYSIS OF CERTAIN AREAS OF TAX PRACTICE CONTINUED • Tax practitioners role in criminal tax investigations cont… • SARS will attempt to use the preparer to transfer responsibility to the taxpayer for the underlying information used in preparing the return. Similarly, SARS will seek to prove that any income or other material information not appearing on the return was not disclosed to the preparer. “Did you have any other income?” is the first expected question of a tax return preparer and becomes the double-edge sword proving understatement, concealment and wilfulness by the taxpayer. In asking this question, SARS hopes to remove any attempt of the defence of mutual mistake, confusion, negligence on behalf of the taxpayer or other related defences. So right from inception of such an investigation it becomes a slippery downward slope, which is why proper tax attorney, counsel and representation is required from inception where any type of criminal offence may be contemplated.

IV. ANALYSIS OF CERTAIN AREAS OF TAX PRACTICE CONTINUED • Tax practitioners role in criminal tax investigations cont… • When the taxpayer receives a notice of an audit, the tax practitioner should prepare the taxpayer’s records for production and review them in such a way to determine any possible problem areas. If a potential fraud issue should become known prior to the inception of the audit, again the tax return preparer should advise the client and recommend consultation with a tax attorney. To proceed with an audit at this time runs a very substantial risk that documents will be disclosed or representations could be made that are inaccurate thereby prompting further enquiry by SARS and possible fraud referral of the taxpayer and/or the tax return preparer as well. Furthermore if some answers are given and then the SARS assessor makes certain enquiries and no answer can be given after the attempt to circumvent the issue, the SARS official’s suspicion will be greatly enhanced increasing the likelihood of a fraud or criminal investigation referral.

IV. ANALYSIS OF CERTAIN AREAS OF TAX PRACTICE CONTINUED • Tax practitioners role in criminal tax investigations cont… • With respect to the production of documents, the preparer and accounting records are not subject to any privilege. Initially the accounting records themselves would have to be produced. However, one should always consider that the defence of self incrimination and being prevented from self incriminating oneself in terms of the Constitution is available. How this plays out with the interaction with SARS is very tricky and is something that should be handled by the appropriate tax attorney. In this instance, it may be necessary for both the taxpayer and the tax return preparer to be represented by the tax attorney so that, to the extent that what one establishes, a fraud may have taken place, that the appropriate defences and strategy can then be worked out. It should be remembered that the work papers in the hands of the tax return preparer do not belong to the taxpayer, but are those of the tax return preparers. If there is a possibility that the tax return preparer may be implicated in any fraud charge against the taxpayer, it would be necessary for the tax return preparer to retain the services of a tax attorney to protect his or her constitutional rights.

IV. ANALYSIS OF CERTAIN AREAS OF TAX PRACTICE CONTINUED • Tax practitioners role in criminal tax investigations cont… • The tax return preparer can greatly assist the taxpayer’s attorney, not only with respect to past investigative facts, but with respect to analysing SARS current case and defences.

IV. ANALYSIS OF CERTAIN AREAS OF TAX PRACTICE CONTINUED • ii.Representing non-filers • A tax practitioner is authorised to represent non-filers and in this regard would typically take advantage of the voluntary disclosure programme set out in Sections 225 to 233 of the Tax Administration Act • However, a non-filer who has been contacted by the Special Investigations Branch of the Criminal Investigation Division of SARS should be referred to a tax attorney, who in turn can then instruct you to assist in any preparation of tax returns in proceeding with this matter

V. GENERAL BUSINESS ADVICE TO CLIENTS • The further the tax practitioner veers from the area of tax advice into the more general area of business advice, the more likely unauthorised practice of law may become an issue; • To avoid the possibility of being held to a higher duty, a tax practitioner must take great care in determining that the financial advice given is known to the ordinary person and in the realm of the general community; • Always be careful of the potential legal determinations, which must come from an attorney; • Also you must be aware that some of your actions could prompt malpractice and other civil liabilities;

VI. MALPRACTICE CONSIDERATIONS • There are three considerations in this area: • To whom is a duty of care owed? • A level of competence and diligence required • Damages • In certain instances you may have a duty of care beyond your client. For example, if you prepare your clients books and records and know the statements will be furnished to a lender who will rely on the substance of the statements you prepared and that lender has contacts with you regarding the accuracy of the statements, in certain instances you may have an exposure to the lender should the loan default. In this regard, you should pay particular attention to Section 28 of the Tax Administration Act in respect of your responsibility towards SARS in preparing any books and records and financial statements. In preparing any such financial statements you should put on the cover sheet of the statement prepared by you that these are compilations only based on information provided by the client and not intended for any third party reliance.

VI. MALPRACTICE CONSIDERATIONS CONTINUED • If you act like a lawyer, a tax advisor, business planner, investment advisor and estate planner etc. you may be held to that standard. You may not be able to defend on the theory that you are only a tax practitioner who prepares tax returns • Usually a complaining party is entitled to recover damages which have been approximately caused by a defendant’s negligence or conduct. In essence, to determine your exposure compare the plaintiff’s current position with what it would have been had you not acted in a negligent manner • A common malpractice area would be in the area of tax return preparation involving a tax practitioner failing to file a client’s tax return on a timeously basis. If the return was filed late because of the practitioner’s fault, the taxpayer may recover any interest and penalties assessed by SARS for late filing. Also possible are the recovery of legal and accounting fees expended in an effort to avoid payment of the late filing charges.

VI. MALPRACTICE CONSIDERATIONS CONTINUED • Malpractice insurance should be something that is in play in order to cover any type of exposure as set out above • Tax insurance for the client should also be considered to assist the client in any representation for the client before SARS

INDEX PART C Advanced Examinations by SARS Case Study Case Study - DISCUSSION Correcting problems of clients Correcting problems of clients – Case Study Eggshell Audits Referral of Criminal Cases

I. ADVANCED EXAMINATIONS BY SARS • A lengthy request for generic information and multiple documents usually accompanies many initail audit notices; • Assessors may also provide a statement of mutual audit expectations as part of the audit notification; • Assessors also warn that if relevant material is not provided timeously, it is a criminal offence if there is no just cause, and an obstruction for Chapter 16 Understatement Penlaties; • A pre- audit engagement letter/meeting/telephone call may be beneficial in discovering and streallining potential audit issues – incl. determining the precise nature, scope & extent of the audit, and on what risk assessment factors SARS is basing the audit on. This will assist in creating and maintaining a professional objective atmosphere; • To initiate the audit, SARS do not need to secure judicial permission, but they must act intra vires the Tax Administration Act 28 of 2011 – what are the key provisions they must adhere to?

I. ADVANCED EXAMINATIONS BY SARS CONTINUED • What about adherence by SARS to strict evidentiary rules & procedures – compare to § 7602 in the US? • Proper planning and preparation of the taxpayer is critical at the outset, especially if Voluntary Disclosure Program opportunities are identified – lookat the columns in the Chapter 16 Understatement Penalties; • Each issue that may be raised by SARS must be capable of being accurately substantiated with supporting documentation and legal tax principles; • Supporting documents should be verified; • Successful representations take place when representatives “humanize” the audit process – establishing a friendly, non-hostile environment. This will help to accelerate resolution; • Responses should be made in a timely manner – but without compromising the rights of taxpayers; • Always be available to discuss any emerging issues in the audit, so as to clarify any concerns of the assessors – in this regard regular follow up meetings are advisable.

II. CASE STUDY • Johnny and Jenny – husband and wife; • Notification of audit; • Horse breeding as a farming venture – various deductions questioned; • The facts – to be read;

III. CASE STUDY - DISCUSSION • What are the first steps to take when audit notification arrives? • What issues require research before you meet with the clients? Procedural issues? Issues of Law? Ethical issues? • What items do you place on the agenda for the meeting with your taxpayer clients? • The assessors want your clients present at the first meeting with them? What do you do and how do you prepare them? • SARS asks for a download of your clients QUICKBOOKS or PASTEL backup for the years they are investigating. What do you do? • Do you request a copy of SARS’ internal risk assessment factors for horse-breeding farming tax issues? • After the initial interview – the assessor appears not convinced that clients were conducting a trade for the production of income. What now?

IV. CORRECTING PROBLEMS OF CLIENTS • Are there any additional facts you deem critical to your knowledge before you would consider suggesting a resolution to the client’s problem? • What additional information would you request? • Do you trust your client? • What other sources of necessary factual information would you seek out or request? • Define the issues which the client must likely face to resolve the dilemma; • What potential issues or procedures could be raised by SARS? • What alternative proposals potentially are available to this client? • Does the client have any penalty exposure? • What ethical issues, if any, would you consider before accepting this client or implementing your plan?

Tax Administration Act - 2013 Update