Litigation with SARS – levelling the playing field

court 101New rules governing the procedures to be followed in respect of objections and appeals, which are now prescribed in terms of section 103 of the Tax Administration Act, were published in the Government Gazette on 11 July 2014.

One of the frustrations experienced by taxpayers involved in litigation with SARS is the fact that SARS frequently fails to deliver documents or decisions within the time limits prescribed in the rules governing the conduct of disputes. In the event of such failure the taxpayer could apply to court for an order compelling the submission of the relevant document or decision, but there appeared to be no remedy whereby the taxpayer could apply for judgment in his favour. Many taxpayers have felt powerless to compel the resolution of disputes where SARS has been in lengthy default of its obligation to deliver a decision on objection or the statement of grounds of assessment (under Rule 10 of the old rules – now referred to as ‘a reply to the statement of grounds of appeal’ under Rule 33).

The new rules provide taxpayers with a means to change this unfortunate position. This is found in Rule 56, which is headed ‘Application for summary judgment in the event of non-compliance with rules’.

Rule 56 gives either party the right, in the event of the failure of the other party to comply with a period or obligation prescribed by the rules or an order of the tax court, to apply to the tax court for judgment, without the court hearing the matter further.

The non-defaulting party is required to notify the defaulting party that it intends to make application to the tax court for a final order if the default is not remedied within 15 days (for the purposes of the rules, day’ means a business day). If the defaulting party should fail to remedy the default within 15 days, then the non-defaulting party may, on notice to the defaulting party, make application to the tax court for a final order by notice of motion within 20 days of the expiration of that period.

The application to the tax court must be signed by the applicant or the applicant’s representative, set out in full the nature of the order that is sought and be supported by an affidavit specifying the facts on which  the applicant relies for the relief. In the case of a failure to comply with a time limit for the submission of pleadings in an appeal, the affidavit would:

  • set out the procedural history of the appeal, specifying the document which the defaulting party was required to submit and the latest date upon which that document should have been submitted in terms of the rules;
  • state that due notice had been given to the defaulting party of the intention to apply for an order of court in the event of failure to remedy the default within 15 days, attaching a copy of the notice and proof of delivery of the notice in support; and
  • state that, notwithstanding the notice, the defaulting party had failed to remedy the default within
    the specified time limit.

The notice would also specify a date, being not less than 10 days after delivery of the notice, by which the defaulting party is required to give notice of intention to oppose the application, and in the event that the application is not opposed, the matter will be set down for hearing on the first available date, being not less than 15 days after delivery of the notice.

The defaulting party, if it chooses to oppose the application, must give notice of intention to oppose the application and deliver an answering affidavit within 15 days after delivery of the notice of intention to oppose.

If no notice is given of intention to oppose the application or if no answering affidavit is received, application may be made for the matter to be set down for hearing.

If an answering affidavit is received, the applicant may file a replying affidavit within 10 days of delivery of the answering affidavit. Thereafter application may be made for the matter to be set down for hearing. The registrar of the tax court must deliver notice to the parties that the matter has been set down for hearing not less than 10 days before the date of hearing.

The tax court may, on hearing the application:

  • Make a final order in terms of section 129(2) of the Tax Administration Act; or
  • Give the defaulting party further time to remedy the default, failing which a final order will be made.

The introduction of a procedure to enable a party to apply for summary judgment will, hopefully, speed up the processing of appeals to the tax court. The procedural rules cut both ways in this regard. Both taxpayer and the Commissioner have the right to bring applications for summary judgment. That said, the new rules provide a welcome opportunity for taxpayers locked in long-standing unresolved litigation with SARS to force the pace of proceedings.

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