4. Application of Act
(1) This Act applies to every person who is liable to comply with a provision of a tax Act (whether personally or on behalf of another person) and binds SARS.
(2) If this Act is silent with regard to the administration of a tax Act and it is specifically provided for in the relevant tax Act, the provisions of that tax Act apply.
(3) In the event of any inconsistency between this Act and another tax Act, the other Act prevails.
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]
5. Practice generally prevailing
(1) A practice generally prevailing is a practice set out in an official publication regarding the application or interpretation of a tax Act.
(2) Despite any provision to the contrary contained in a tax Act, a practice generally prevailing set out in an official publication, other than a binding general ruling, ceases to be a practice generally prevailing if-
(a) the provision of the tax Act that is the subject of the official publication is repealed or amended to an extent material to the practice, from the date the repeal or amendment becomes effective;
(b) a court overturns or modifies an interpretation of the tax Act which is the subject of the official publication to an extent material to the practice from the date of judgment, unless-
(i) the decision is under appeal;
(ii) the decision is fact-specific and the general interpretation upon which the official publication was based is unaffected; or
(iii) the reference to the interpretation upon which the official publication was based was obiter dicta; or
(c) the official publication is withdrawn or modified by the Commissioner, from the date of the official publication of the withdrawal or modification.
(3) A binding general ruling ceases to be a practice generally prevailing in the circumstances described in section 85 or 86.
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.
Part B
Powers and duties of SARS and SARS officials
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.
6. Powers and duties
(1) The powers and duties of SARS under this Act may be exercised for purposes of the administration of a tax Act.
(2) Powers and duties which are assigned to the Commissioner by this Act must be exercised by the Commissioner personally but he or she may delegate such powers and duties in accordance with section 10.
(3) Powers and duties required by this Act to be exercised by a senior SARS official must be exercised by-
(a) the Commissioner;
(b) a SARS official who has specific written authority from the Commissioner to do so; or
(c) a SARS official occupying a post designated by the Commissioner in writing for this purpose.
(4) The execution of a task ancillary to a power or duty under subsection (2) or (3) may be done by a SARS official under the control of an official referred to in subsection (3)(a), (b) or (c).
[Subsection (4) amended by section 38 of Act 21 of 2012 effective on 1 October 2012, substituted by section 35 of Act 23 of 2015 effective on 8 January 2016]
(5) Powers and duties not specifically required by this Act to be exercised by the Commissioner or by a senior SARS official, may be exercised by a SARS official.
(6) The Commissioner may by public notice specify that a power or duty in a tax Act other than this Act must be exercised by the Commissioner personally or a senior SARS official.
18. Review of complaint
(1) The Tax Ombud may review any issue within the Tax Ombud’s mandate on receipt of a request from a taxpayer.
(2) The Tax Ombud may-
(a) determine how a review is to be conducted; and
(b) determine whether a review should be terminated before completion.
(3) In exercising the discretion set out in subsection (2), the Tax Ombud must consider such factors as-
(a) the age of the request or issue;
(b) the amount of time that has elapsed since the requester became aware of the issue;
(c) the nature and seriousness of the issue;
(d) the question of whether the request was made in good faith; and
(e) the findings of other redress mechanisms with respect to the request.
(4) The Tax Ombud may only review a request if the requester has exhausted the available complaints resolution mechanisms in SARS, unless there are compelling circumstances for not doing so.
(5) To determine whether there are compelling circumstances, the Tax Ombud must consider factors such as whether-
(a) the request raises systemic issues;
(b) exhausting the complaints resolution mechanisms will cause undue hardship to the requester; or
(c) exhausting the complaints resolution mechanisms is unlikely to produce a result within a period of time that the Tax Ombud considers reasonable.
(6) The Tax Ombud must inform the requester of the results of the review or any action taken in response to the request, but at the time and in the manner chosen by the Tax Ombud.
7. Conflict of interest
The Commissioner or a SARS official may not exercise a power or become involved in a matter pertaining to the administration of a tax Act, if-
(a) the power or matter relates to a taxpayer in respect of which the Commissioner or the official has or had, in the previous three years, a personal, family, social, business, professional, employment or financial relationship presenting a conflict of interest; or
(b) other circumstances present a conflict of interest,
that will reasonably be regarded as giving rise to bias.
19. Reports by Tax Ombud
(1) The Tax Ombud must-
(a) report directly to the Minister;
(b) submit an annual report to the Minister within five months of the end of SARS’ financial year; and
(c) submit a report to the Commissioner quarterly or at such other intervals as may be agreed.
(2) The reports must-
(a) contain a summary of at least ten of the most serious issues encountered by taxpayers and identified systemic and emerging issues referred to in section 16(2)f), including a description of the nature of the issues;
(b) contain an inventory of the issues described in subparagraph (a) for which-
(i) action has been taken and the result of such action;
(ii) action remains to be completed and the period during which each item has remained on such inventory; or
(iii) no action has been taken, the period during which each item has remained on such inventory and the reasons for the inaction; and
(c) contain recommendations for such administrative action as may be appropriate to resolve problems encountered by taxpayers.
(3) The Minister must table the annual report of the Tax Ombud in the National Assembly.