The Tax Ombud’s office was created in 2013 by the Tax Administration Act. The mandate of the office is to review and address any complaint by a taxpayer regarding a service, procedural or administrative matter arising from the application of the provisions of a tax Act by SARS. The office of the Ombud needs to resolve disputes between taxpayers and SARS and to identify systemic problems within SARS. The office seeks to give taxpayers who have exhausted the SARS complaints process (described in our previous article ) an alternative method of remedying a complaint. Only if there are compelling circumstances will the office address a complaint prior to SARS having been given the opportunity to resolve it.
The process to lodge a complaint is fairly simple. A taxpayer can download the complaints form (OTO 01) from the website (www.taxombud.gov.za), complete it and send it to email@example.com. The office can also be contacted on 0800 662 837. The Tax Ombud strives to resolve valid complaints within 15 business days of receipt of a complaint.
According to the Act, the Ombud needs to perform its functions independently. The Ombud will always maintain a neutral position, look at all sides of the problem and recommend corrective action where appropriate and necessary.
The Tax Ombud’s recommendations are not binding on taxpayers or SARS. Despite this, Eric Mkhawane, the chief executive of the Ombud’s office has been quoted saying that in almost all cases, SARS has implemented the Ombud’s recommendations.
Note that lodging a complaint with the Ombud’s office does not remove the taxpayer’s obligation to pay any outstanding tax, penalties or interest. Although the Ombud’s office can propose that collections be stayed, only SARS has the authority to suspend collection.
The Tax Administration Laws Amendment Act contains the following amendments which will strengthen the Tax Ombud’s independence from SARS and its overall effectiveness:
- Tax Ombud’s tenure will be extended from three years to five years.
- Tax Ombud can employ staff without having to obtain consent from the SARS Commissioner which is currently the case.
- Tax Ombud will control its own budget, approved by the Minister of Finance. The Ombud is currently funded by SARS.
- If SARS or the taxpayer does not accept the Tax Ombud’s recommendations, their reasons must be provided to the Tax Ombud within 30 days and may be included in a report to the Minister or the Commissioner.
- The mandate of the Tax Ombud is extended to investigation and review, at the request of the Minister or on the initiative of the Tax Ombud with the approval of the Minister, of any systemic issue related to a service matter or the application of the provisions of the Tax Administration Act or procedural or administrative provisions of a tax Act.
If all options at SARS and the Office of the Tax Ombud have been exhausted and the taxpayer is not satisfied with the manner in which the complaint has been dealt with, one of the remedies available is for the taxpayer to escalate the complaint to the Office of the Public Protector.