Tax Ombud complaint: Get your matter dealt with

The Tax Ombud released its report for the 2015/16 year on 6 October 2016. Of the 2,133 complaints received, 938 (44%) were rejected. When one is already struggling with some aspect of a matter with SARS, the last thing one needs is to face further obstacles when complaining to the Tax Ombud. To address these obstacles, we have put together some tips and pointers on how to get your matter dealt with.

Some 354 (37.7%) of the complaints sent to the Tax Ombud were rejected on the basis that the SARS internal resolution process had not been exhausted.  It therefore appears that there is significant uncertainty regarding the correct SARS internal dispute resolution process. This is the process that should ordinarily be followed before one can complain to the Tax Ombud.  This process, as well as the “compelling circumstances” that can allow you to skip this process, are described below.

In addition, 581 (61.9%) of the complaints were rejected because of the limitation of authority of the Tax Ombud.  These limitations are briefly highlighted below, together with some alternatives that you can use, instead of complaining to the Tax Ombud.

SARS COMPLAINTS PROCESS TO BE FOLLOWED BEFORE GOING TO THE TAX OMBUD

SARS complaints process

Step one:       Phone the call centre or go into your local branch to discuss your complaint, and get a case number.  You will need this case number in order to continue with the complaints process.  Give the call centre / local branch a reasonable time to attempt to resolve your complaint (typically a minimum of seven business days, or else your complaint in the next step would be rejected).

Step two:       Submit your complaint to the SARS Complaints Management Office.  This can be done by phone (0860 12 12 16), in person at your nearest SARS branch, or via e-filing.  (There is a step-by-step SARS Guide to the Complaints Functionality on E-Filing, available on the SARS website, to guide you through this process.)  SARS has publicised that your complaint should be dealt with within 21 business days.

If the matter is not successfully resolved after these processes, you are entitled to lodge a complaint with the Tax Ombud.

Compelling circumstances for not following SARS complaints process

If there are compelling circumstances for not following the complaints resolution mechanisms in SARS, the Tax Ombud may accept the complaint even though the SARS complaints process was not followed.  The Tax Ombud must determine whether there are compelling circumstances, considering factors such as whether:

• the request raises systemic issues;
• exhausting the SARS complaints process would cause undue hardship to the taxpayer; or
• exhausting the SARS complaints process is unlikely to produce a result within a reasonable period of time.

In the complaints form for the Tax Ombud, there is a section which states: “If you have not exhausted the SARS internal complaints process, please motivate why the OTO should handle your complaint i.e explain your compelling circumstance.” 

This is where you would need to explain the reasons for not following the SARS complaints process, for example saying that to the best of your knowledge and belief, your issue is a systemic issue, and explaining what hardship is caused to you by further delaying the matter by going through the SARS complaints process.  If there have already been substantial delays on the matter, you would explain these, so that the Tax Ombud could conclude that following the SARS complaints process would in all likelihood not result in an appropriate result within a reasonable period of time.

If you properly explain your reasons in the relevant section of the Tax Ombud complaints form, the Tax Ombud may decide that they can accept your complaint, without you first having to go through the SARS complaints process.

LIMITATION OF AUTHORITY OF THE TAX OMBUD

 Certain types of problems with SARS cannot be dealt with by the Tax Ombud, because of limitation of authority.  In this respect, the Tax Ombud may not review:

• legislation or tax policy – to address these issues, you can send your tips to the Finance Minister ahead of theNational Budget Speech each year, make submissions to National Treasury and SARS in relation to draft legislation each year, and even attend parliamentary hearings on draft legislation and publicly speak up about any proposed changes;
• SARS policy or practice generally prevailing (unless it is administrative or service related) – submissions can be made to SARS legal, including requesting interpretation notes on tricky aspects of tax.  If more appropriate, submissions could be made to National Treasury for changes to the law (as opposed to only the interpretation thereof by SARS);
•  a matter subject to objection and appeal, or a Tax Court matter – matters subject to objection and appeal must be dealt with by the Tax Board or Tax Court, so you will get to be heard by an independent tribunal that is capable of making a binding decision.  That is better than a mere “recommendation” by the Tax Ombud. 

For these matters, you could make use of these alternative suggestions, and avoid wasting time on a Tax Ombud complaint for matters where the Tax Ombud cannot help.