The new Tax Administration Act ("TAA").

Abstract

This dissertation examines the new Tax Administration Act (TAA), which came into effect on I October 2012 and the constitutionality of the right to just administrative action. The intention of the TAA is to simplify and provide greater consistency in South Afiican tax administration law. The Constitution of the Republic of South Africa (1996 Constitution) affords sufficient protection for taxpayers against certain practices and procedures utilised by the South African Revenue Service (SARS) to collect taxes. Explicit authority has been granted to SARS to carry out its functions. The media has noted concerns regarding the relationship between the taxpayer and SARS. This dissertation investigates the equilibrium between SARS's duty to collect taxes and the right of every taxpayer to the just administration of the collection of taxes in terms of the TAA.

The right to fair and just administrative action indicates the manner in which disputes can be resolved between SARS and the taxpayer.6 This right takes into account the legitimate expectations in terms of which SARS should act in compliance with its own notes and rulings enacted by tax legislation. An effective, just, and equitable tax system requires adherence to certain vital principles in order to achieve a balance between the interests of taxpayers and the interests of government. The 1996 Constitution mandates government with the authority to tax. However, the 1996 Constitution also imposes certain procedural and substantive limitations and challenges to government's power to tax. The Bill of Rights contained in the 1996 Constitution affords taxpayers' various rights that impose limitations on SARS. One of the most important taxpayers' rights is the right to just administrative action, which is the focus of this dissertation. As an organ of state, SARS has the executive power to make and implement decisions whereas legislation grants SARS the power to use its discretion when exercising its authority. The question that one needs consideration is taxpayers' rights against unlawful, unreasonable, or unfair practices on the part of SARS despite recent amendments to tax legislation.

The aim and purpose of this dissertation is to:

• Outline the onus of proof provisions contained in the fucome Tax Act 58 of 1962 (ITA) and the TAA relating to just administrative action; • Focus on the right of taxpayers to just administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 ( PAJA) and the procedural and substantive requirements for enforceability of such rights; • Discussion on taxpayers' rights to privacy and whether or not SARS protects or invades such privacy; • Discussion on the 'pay now, argue later' principle pnor to and following the promulgation of the TAA; and • Examination of the protection offered to taxpayers' in the 1996 Constitution.

The method employed by the study, involved an analysis of the Constitution, legislation, case law, books and published journal articles relevant to the issues set out above. This method is appropriate as it sets out the legal position pertaining to the significant issues identified. It must be borne in mind that the chapters overlap and, while some information seems repetitive, this was necessary in order to link the information to the research question and address the research topic adequately.