Author: admin_kmos

Section 17 (TAA) – Limitations on authority

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17.    Limitations on authority

 

The Tax Ombud may not review-

 

(a)     legislation or tax policy;

 

(b)     SARS policy or practice 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;

 

(c)     a matter subject to objection and appeal under a tax Act, except for an administrative matter relating to such objection and appeal; or

 

(d)     a decision of, proceeding in or matter before the tax court.

Section 16 (TAA) – Mandate of Tax Ombud

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16.    Mandate of Tax Ombud

(1)     The mandate of the Tax Ombud is to-

(a)     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; and

(b)     review, at the request of the Minister or at the initiative of the Tax Ombud with the approval of the Minister, any systemic and emerging issue related to a service matter or the application of the provisions of this Act or procedural or administrative provisions of a tax Act.

[Subsection (1) substituted by section 51 of Act 16 of 2016 effective on 19 January 2017]

(2)     In discharging his or her mandate, the Tax Ombud must-

(a)     review a complaint and, if necessary, resolve it through mediation or conciliation;

(b)     act independently in resolving a complaint;

(c)     follow informal, fair and cost-effective procedures in resolving a complaint;

(d)     provide information to a taxpayer about the mandate of the Tax Ombud and the procedures to pursue a complaint;

(e)     facilitate access by taxpayers to complaint resolution mechanisms within SARS to address complaints; and

(f)      identify and review systemic and emerging issues related to service matters or the application of the provisions of this Act or procedural or administrative provisions of a tax Act that impact negatively on taxpayers.

Section 15 (TAA) – Office of Tax Ombud

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15.    Office of Tax Ombud

(1)     The Tax Ombud must appoint the staff of the office of the Tax Ombud who must be employed in terms of the SARS Act.

[Subsection (1) substituted by section 50 of Act 16 of 2016 effective on 19 January 2017]

(2)     When the Tax Ombud is absent or otherwise unable to perform the functions of office, the Tax Ombud may designate another person in the office of the Tax Ombud as acting Tax Ombud.

(3)     No person may be designated in terms of subsection (2) as acting Tax Ombud for a period longer than 90 days at a time.

(4)     The expenditure connected with the functions of the office of the Tax Ombud is paid in accordance with a budget approved by the Minister for the office.

[Subsection (4) substituted by section 50 of Act 16 of 2016 effective on 19 January 2017]

Section 14 (TAA) – Power of Minister to appoint Tax Ombud

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14.    Power of Minister to appoint Tax Ombud

(1)     The Minister must appoint a person as Tax Ombud-

(a)     for a term of five years, which term may be renewed; and

[Paragraph (a) substituted by section 49 of Act 16 of 2016 effective on 19 January 2017]

(b)     under such conditions regarding remuneration and allowances as the Minister may determine.

(2)     The person appointed under subsection (1) or (3) may be removed by the Minister for misconduct, incapacity or incompetence.

(3)     During a vacancy in the office of Tax Ombud, the Minister may designate a person in the office of the Tax Ombud to act as Tax Ombud.

(4)     No person may be designated in terms of subsection (3) as acting Tax Ombud for a period longer than 90 days at a time.

(5)     A person appointed as Tax Ombud-

(a)     is accountable to the Minister;

(b)     must have a good background in customer service as well as tax law; and

(c)     may not at any time during the preceding five years have been convicted (whether in the Republic or elsewhere) of-

(i)      theft, fraud, forgery or uttering a forged document, perjury, an offence under the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004); or

(ii)     any other offence involving dishonesty,

for which the person has been sentenced to a period of imprisonment exceeding two years without the option of a fine or to a fine exceeding the amount prescribed in the Adjustment of Fines Act, 1991 (Act No. 101 of 1991).

Section 13 (TAA) – Powers and duties of Minister

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13.    Powers and duties of Minister

 

(1)     The powers conferred and the duties imposed upon the Minister by or under the provisions of a tax Act may-

 

(a)     be exercised or performed by the Minister personally; and

 

(b)     except for the powers under sections 14 and 257, be delegated by the Minister to the Deputy Minister or Director-General of the National Treasury.

 

(2)     The Director-General may in turn delegate the powers and duties delegated to the Director-General by the Minister to a person under the control, direction or supervision of the Director-General.

Section 12 (TAA) – Right of appearance in proceedings

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12.    Right of appearance in proceedings

(1)     Despite any law to the contrary, a senior SARS official may, on behalf of SARS or the Commissioner in proceedings referred to in a tax Act, appear ex parte in a judge’s chambers, in the tax court, or a High Court or any other court recognised in terms of section 166 of the Constitution of the Republic of South Africa, 1996.

[Subsection (1) substituted by section 24 of Act 24 of 2020 and by section 15(1)(a) of Act 43 of 2024]

(2)     A senior SARS official may only appear in the tax court, a High Court or any other court recognised in terms of section 166 of the Constitution of the Republic of South Africa, 1996, if the person is a legal practitioner.

[Subsection (2) substituted by section 28 of Act 33 of 2019 and by section 15(1)(b) of Act 43 of 2024]

Section 11 (TAA) – Legal proceedings involving Commissioner

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11.    Legal proceedings involving Commissioner

(1)     No SARS official may institute or defend civil proceedings on behalf of the Commissioner unless authorised to do so under this Act or by the Commissioner or by the person delegated by the Commissioner under section 6(2).

[Subsection (1) substituted by section 36 of Act 23 of 2015 effective on 8 January 2016]

(2)     For purposes of subsection (1), a SARS official who, on behalf of the Commissioner, institutes litigation, or performs acts which are relied upon by the Commissioner in litigation, is regarded as duly authorised until proven to the contrary.

(3)     An amount due or payable as a result of a cost order in favour of SARS recovered by the State Attorney resulting from any civil proceedings under this Act must be paid to the National Revenue Fund.

[Subsection (3) substituted by section 40 of Act 21 of 2012, section 33 of Act 39 of 2013 and section 48 of Act 16 of 2016 effective on 19 January 2017]

(4)     Unless the court otherwise directs, no legal proceedings may be instituted in the High Court against the Commissioner, unless the applicant has given the Commissioner at least 10 business days written notice, in the prescribed form, of the applicant’s intention to institute the legal proceedings.

[Subsection (4) added by section 33(c) of Act 39 of 2013 and substituted by section 27 of Act 33 of 2019 and by section 15 of Act 4 of 2026]

(5)     The notice or any process by which the legal proceedings referred to in subsection (4) are instituted, must be served at the address specified by the Commissioner by public notice.