Appeals

What is it?

If you are in disagreement with the decision made by SARS on an objection, you have the right to appeal such a decision.  

When can I lodge an appeal?

You have to lodge the appeal within 30 business days after SARS delivered the notice of disallowance or partial allowance of the objection.  

• This period may be extended by 21 business days if a senior SARS official is satisfied that reasonable grounds exist for the delay; or
• This period may be extended up to 45 business days if a senior SARS official is satisfied that exceptional grounds exist for the delay.

How do I lodge an appeal?

Tax Types: CIT, PIT, PAYE and VAT

An automated dispute management workflow process exists for the abovementioned tax types.  The dispute form to utilise is the Notice of Appeal (DISP02), which can only be submitted as follows:

• Via eFiling; or
• At a SARS branch nearest you.

The DISP02 cannot be emailed or posted to SARS. Only the electronic submission via eFiling or at the SARS branch is allowed.

When submitting the dispute via eFiling, please take note of the following:

eFiling Guided Process: To assist taxpayers in following the correct dispute sequence and complete all required information, eFiling entails a guided process. The eFiling guided process ensures that the dispute is submitted according to legislative requirements and thereby eliminating any possible invalid disputes from being submitted to SARS.

Disputing interest and penalties:

• The following source codes must be utilised when disputing the imposition of certain interest/penalties:
  • 9987 – Tax-free investment penalty  
  • 9990 – Underestimation of provisional taxpayer (Par20)
  • 9991 – Non-submission of provisional taxpayer(Par20A)
  • 9992 – Omission of Income
  • 9988 – Underpayment of Provisional Taxpayer(89Q(2))
  • 9993  – Late or Non-submission of tax return  

Tax types: Other

A manual process is utilised to submit disputes for all other taxes excluding CIT, PIT, VAT and PAYE.  The dispute form to utilise is the manual Notice of Appeal (ADR2), which can be submitted:

• Via post;
• At the nearest SARS branch; or
• Email.

The ADR2 cannot be submitted electronically via eFiling. 

When submitting the appeal late:

Where the appeal is submitted after the prescribed due date, the taxpayer must provide grounds (reasons) for the late submission.  The grounds for the late submission will be considered first and only if a senior SARS official is of the view that reasonable or exceptional grounds existed, will the late submission be condoned. 

• Where the late submission is condoned, SARS will proceed to consider the grounds for the appeal and inform the taxpayer accordingly. 
• Where the late submission of the appeal is not condoned, the grounds for the appeal will not be considered and the taxpayer will be informed accordingly. 

No appeal can or will be allowed to be submitted more than 3 years after the date of the decision to disallow the objection.

Grounds for the appeal:

When completing the dispute form the taxpayer must take care in ensuring that the grounds for the appeal are detailed and include the following:

• Which of the grounds of objection specified in the prescribed objection form are being taken on appeal.
• The grounds for disputing SARS’s basis of the decision to disallow the objection as set out in the notice of disallowance i.e. why does the taxpayer not agree with the decision made by SARS.
• Any new ground on which the taxpayer is appealing, which may not be a ground that constitutes a new objection against a part or amount of the disputed assessment not objected to.
  
  

Alternative Dispute Resolution:

By mutual agreement, SARS and the taxpayer making the appeal may attempt to resolve the dispute through Alternative Dispute Resolution (ADR) under procedures specified in the rules.  This procedure creates a structure with the necessary checks and balances within which disputes may be resolved or settled. The ADR process is less formal and inexpensive than the court process and allows disputes to be resolved within a much shorter period. Furthermore, it creates a more cost effective remedy for resolving tax disputes.  The taxpayer must indicate in the appeal whether he/she wishes to make use of the alternative dispute resolution procedures, should these procedures be available.

Tax Board:

The tax board is established under the Tax Administration Act No. 28 of 2011 (TAA) and consists of an advocate or attorney as chairperson.  Such advocate or attorney is appointed to a panel of suitable advocates or attorneys by the Minister of Finance in consultation with the Judge-President of the relevant Provincial Division. 

The tax board is administered by a clerk of the board, who is a SARS official at the SARS Branch Office responsible for the administration of the tax board in that area and acts as convener of the tax board.

An appeal against an assessment must in the first instance be heard by a tax board, if—

• The tax in dispute does not exceed the amount the Minister determines by public notice – currently R500 000
• A senior SARS official and the taxpayer so agree, and in making such decision the official must consider whether the grounds of the dispute or legal principles related to the appeal should rather be heard by the tax court; and
• The chairperson prior to or during the hearing, considering the grounds of the dispute or the legal principles related to the appeal, does not believe that the appeal should be heard by the tax court rather than the tax board. If the chairperson so believes, he or she may direct that, the appeal be set down for hearing de novo before the tax court.

Tax Court:

A tax court does not have the same status as the High Court but is a tribunal created by statue that only has the powers afforded to it by law.  The tax court has jurisdiction over:

• Tax appeals lodged under section 107 of the TAA;
• An interlocutory application related to the tax appeal;
• An application in a procedural matter relating to a dispute under Chapter 9 of the TAA as provided for in the Dispute Rules.

The tax court consists of:

• A judge or an acting judge of the High Court, who is the president of the tax court and is nominated by the Judge-President in the area where the tax court is constituted;
• An accountant selected from a panel of members appointed under section 120 of the TAA;
• A representative of the commercial community selected from the panel of members appointed under section 120 of the TAA.

What can I expect from SARS when I appeal?

The appeal may be referred to:

• Alternative Dispute Resolution (ADR) at either the SARS Branch Office or SARS Head Office level;
• The tax board (administered at SARS Branch Office level); and/or
• The tax court (administered at SARS Head Office level).

SARS endeavours to:

• Consider if a matter is suitable for ADR within 30 business days from the date the request was received;
• Set down the appeal before the Tax Board within 30 business days of receipt of the Notice of Appeal, where no ADR procedures are pursued.

What can I expect when the appeal is finalised?

SARS endeavours to:

• ADR:
  • Finalise the ADR proceedings  within 90 business days;
  • Where an agreement is concluded, issue an assessment to give effect to the agreement within a period of 45 Business days, after the date of the last signing of the agreement.
• Tax Board:
  • The Chairperson to issue a decision by the tax board within 60 days after the conclusion of the hearing
  • The clerk to deliver a copy of the decision to the parties within 10 days of receipt of the decision
  • Issue the assessment to give effect to the decision of the tax board within 45 days after the receipt of the decision of the tax board.

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