CONFERENCE ON TAX AND GOOD GOVERNANCE IN AFRICA, VIENNA: 1 2 OCTOBER 2015: JUDGE B M NGOEPE
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1 CONFERENCE ON TAX AND GOOD GOVERNANCE IN AFRICA, VIENNA: 1 2 OCTOBER 2015: JUDGE B M NGOEPE Changing the Dynamics between Taxpayers and Tax Administrators to move towards Cooperative Compliance Cooperative compliance is one of the best ways to ensure tax compliance. One way to achieve it, is to facilitate positive interaction between the tax administrator and the taxpayer. South African taxpayers have always had remedies to resolve tax assessment disputes with the tax administrator; other disputes were dealt with inconsistently or not at all, and taxpayers would have nowhere else to turn to. This impacted negatively on cooperative compliance; for example, some wealthy taxpayers would resort to protracted litigation as a stratagem to stall things or frustrate tax authorities. The perceived hostility or abuse of immense power at the disposal of tax authorities did not help things either. To try and improve the situation, the idea of a Tax Ombud was come up with, and the first Ombud was appointed effective 1 October The Office of the Tax Ombud has to some extent been able to bridge the gap between taxpayers and the tax administrator. The co-operation between the office of the Tax Ombud and the tax administrator s office has resulted in the latter improving even more its own internal complaints management systems and procedures. By accepting most of the recommendations from the Ombud, the tax administrator is facilitating, for their own benefit, cooperative compliance. In cases where a taxpayer is in the wrong the Tax Ombud ensures that a proper explanation is given to the taxpayer in order for the taxpayer to understand exactly how the tax system works; this kind of education reduces frustration.
2 The Tax Ombud therefore plays a very positive role in changing the dynamics between the tax administrator and the taxpayer, facilitating cooperative compliance. Experiences In the short period of time that the Tax Ombud has been operational, we have seen very good reactions in terms of stakeholder engagement between the taxpayers and the tax administrator. Where there are problems, individual taxpayers are now confident enough to approach the office without the need to involve tax practitioners, whom they would have to pay. Approximately 80% of complaints received are resolved in the taxpayer s favour. We have received numerous compliments and letters of thanks from both individuals as well as tax practitioners. Some of the issues resolved have been outstanding for a long time. All these serve to facilitate cooperative compliance. There is definitely a need for the Office of the Tax Ombud, or its equivalent; which has to be structurally independent of the tax administrator; must have resources in terms of competent personnel and finance.
3 Taxpayer Rights and the Exchange of Information The question relating to confidentiality of taxpayer information is important, but should be considered with due regard to a tax administrator s own obligations and authority. In South Africa, the general confidentiality provisions set out in legislation provide that the tax administrator is not allowed to provide taxpayer information to any third parties unless ordered to do so by a Court. The provisions place an obligation on the tax administrator to defend any application by a third party for such an order. One of the few exceptions to the general rule of confidentiality is where South Africa receives a request for the exchange of information from a foreign jurisdiction with which it has a valid agreement in place. The tax administrator is therefore allowed to disclose confidential taxpayer information to a contracted jurisdiction. Two issues arise in relation to the taxpayer right to confidentiality: - Disclosure of Information to Law Enforcement Agencies The tax administrator is allowed to provide information to the South African Police Service if it would be necessary for the purpose of proving a tax offence. The scope of most, if not all, of the International Exchange of Information Agreements in place between South Africa and other jurisdictions include the exchange of information for purposes of possible criminal prosecution related to tax offences.
4 It is therefore legally possible for the tax administrator to request information relating to possible criminal prosecution from a foreign jurisdiction. There is no way a contracting jurisdiction can ensure the taxpayer information will remain confidential after it has been handed over. The agreements are entered into on the basis that taxpayer rights will be protected under the requesting jurisdiction s laws. The agreements also state that the requested jurisdiction may only provide information to the extent that its own laws allow. The agreements contain a confidentiality article which includes undertakings by both the contracting jurisdictions to keep the information confidential and only disclose it to persons or authorities for tax administration purposes. All these powers are essential for a sound tax management system; any infringement of a taxpayer s right would be justified. - Right to prior notification The exchange of information agreements which South Africa is a party to do not require the tax administrator to notify a taxpayer that it intends to request information from a contracting jurisdiction. It is therefore necessary to look at local legislation to determine if taxpayers do enjoy this right. In terms of the Constitution of South Africa, every person has the right to just administrative action. In other words any administrative action by the tax administrator must not unjustifiably infringe on a taxpayers rights. Should the tax administrator take certain actions against taxpayers without prior notification it might very well breach the affected taxpayers rights.
5 For this reason the general provisions relating to information gathering and investigations in South African Legislation provide that a taxpayer must remain informed throughout the whole process. The provisions even go so far as to place an obligation on the tax administrator to provide the taxpayer with reports on the progress of the investigations. There is however an exception to this rule where the tax administrator does not have to notify a taxpayer or keep it informed; this is when there is a reasonable belief that prior notification would impede or prejudice the investigation. A good example of this exception would be where an entity is established purely for the purpose of obtaining fraudulent VAT refunds. There are no physical operations taking place in the business, but input VAT claims are made to create refunds. In general when there is any suspicion that an entity is fictitious and involved in this kind of activity, the tax administrator would have an in loco inspection of the business to confirm if the business actually operates or not. In such cases, the tax administrator would not notify the taxpayer that there is an investigation or an in loco inspection forthcoming, to avoid the setting up of fake operations. It could be argued that this same principle should be applied when the tax administrator makes a request for exchange of information. The exchange of information agreements specify that a contracting jurisdiction should only make a request after it has exhausted its own information gathering tools unsuccessfully. It would only be in exceptional cases where a contracting jurisdiction would have utilised all its internal tools without the taxpayer being notified. In that case, they
6 would have already made the decision to apply the exception to prior notification, and the exception would also apply with regard to the international request. It is also important to note that should a South African taxpayer feel that the decision not to inform it of the request has in any way violated its rights, it would challenge this decision by way of a review application before the courts.
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