The Minister of Finance, Pravin Gordhan, officially launched the Office of the Tax Ombud (‘OTO’) on 7 April 2014. Judge Bernard Ngoepe was announced as the Tax Ombud in October 2013.
The OTO has recently released an informal guide in print form, which summarises the complaints procedure to be followed by taxpayers. The guide can be obtained from their offices and other government offices.
When to complain
The Tax Ombud’s objective is to review and address complaints by taxpayers regarding service, procedural, or administrative issues relating to their dealings with SARS. The OTO is an additional and free avenue for taxpayers to deal with complaints that cannot be resolved through SARS’ internal mechanisms.
The Tax Ombud may not review the following type of matters:
- Legal disputes on the interpretation of tax laws;
- Tax policy;
- SARS policy or practice generally prevailing, other than to the extent that it relates to a service matter or a procedural or administrative matter arising from the application of the provisions of tax legislation by SARS; or
- A matter subject to objection and appeal under a tax Act, except for an administrative matter relating to such objection and appeal; or a decision of, proceeding in or matter before the tax court.
Initiating the complaint
The OTO advises that it is better to contact their office first to arrange for an ‘interview’ with one of their consultants regarding the intended complaint. This meeting will take place at their offices in Gauteng. Their physical address is:
iParioli Building, Block A3, Ground Floor
1166 Park Street (Between Jan Shoba [formerly Duncan Street] & Grosvenor Streets)
Hatfield, Pretoria, 0157
Currently the Tax Ombud only has offices in Gauteng and if a meeting at their offices is not possible, the OTO should be contacted on one of their alternative contact details. When contacting the OTO you should have your ID number and tax number at hand.
A duly completed complaint form can be submitted at the OTO after the ‘interview’ is completed or if contact was made with a consultant. However, nothing prohibits a taxpayer from submitting a complaint form prior to any contact being made with the OTO. The OTO is obliged to review all complaints received by them and to contact the complainant regarding the complaint.
There are various ways to contact the OTO and according to their website their contact details are as follows:
- Phone: 0800 662 837 or (+27) 12 431 9105;
- Fax: (+27) 12 452 5013;
- Email: email@example.com
- Postal Address: PO Box 12314, Hatfield, 0028.
The complaint form is available from the OTO’s official website which is: www.taxombud.gov.za. We have included the form below as found on the OTO’s website:
Only once the OTO has received a complaint form, will the Tax Ombud decide whether they can handle the matter and inform the complainant. If not, then they will explain why they can’t handle it, and suggest alternative remedies.
Administrative complaint – Steps to follow
Step 1: Lodged with SARS
A taxpayer should first seek to resolve a complaint directly with SARS at the taxpayer’s SARS branch or, if dissatisfied with the outcome, escalate the matter to SARS’ Operational Service Escalations and Support.
Only after the above two avenues have been exhausted can a complaint be lodged with the OTO, unless there are ‘compelling circumstances’ that exist.
Section 18(5) of the Tax Administration Act (the ‘Act’) sets out the following factors the Tax Ombud shall consider when determining if a circumstance may be ‘compelling’:
- If the request raises systemic issues;
- Exhausting the complaints resolution mechanisms will cause undue hardship to the requester; or
- Exhausting the complaints resolution mechanisms is unlikely to produce a result within a period of time that the Tax Ombud considers reasonable.
Step 2: Lodged with the Tax Ombud
The Act authorises the Tax Ombud to:
- Take complaints from taxpayers about a service, procedural or administrative matter arising from the application of the provisions of a tax Act by SARS.
- Engage SARS staff to resolve complaints.
- Act independently in resolving a complaint.
- Follow informal, fair and cost-effective procedures to resolve a complaint.
- Identify and review systemic and emerging issues related to service matters or the application of the provisions of the Act or procedural or administrative provisions of a tax Act that impact negatively on taxpayers.
- Report to the Minister of Finance his findings about the nature, SARS response and systemic resolution of complaints.
- Report to the Commissioner at quarterly or other agreed intervals.
Section 18(2) authorises the Tax Ombud to determine, independently of SARS, how a review will be conducted and whether a review should be terminated before completion.
Section 18(6) of the Act requires that the Tax Ombud inform the requester of the results of the review or any action taken in response to the request, but at the time and in the manner chosen by the Tax Ombud.
Step 3: Lodged with the Public Protector (‘PP’)
If a taxpayer remains dissatisfied with a matter after having exhausted the SARS internal complaints process and the Tax Ombud complaints resolution mechanism, the taxpayer may lodge a complaint with the PP.
What to expect after a complaint has been lodged with the OTO
The OTO’s website states that they are committed to doing everything possible to find a solution to complainants’ problems. However, if there is not enough evidence to support a complaint the matter may be closed.
The OTO’s complaint resolution efforts will include:
- Reviewing the complaint to determine how it will be managed and preparing a preliminary assessment of the complaint.
- Sending the complaint and supporting documentation to SARS.
- Evaluating SARS’ response and, where appropriate, conducting further investigations of the complaint deemed.
- Turnaround time: The OTO endeavours to resolve complaints within 15 business days of receipt of the complaint. They will contact the complainant if the complaint cannot be resolved within this time period.
- A close out report, summarising the outcome for the complaint, will be sent to the complainant and SARS.
- Throughout the entire process, the OTO will maintain a neutral position and look at all sides of the problem, recommending corrective action where appropriate and necessary.
- Since the OTO cannot make binding decisions, it may make recommendations for corrective action. Such recommendations may include –
- A formal apology for a service related matter; or
- Correction of procedural and/or administrative errors; or
- A provision of written reasons.
Handling your tax affairs whilst complaining
Where tax is due and while the OTO is dealing with your complaint, you should continue to pay the tax amounts that are due. If you stop or delay your payments you will be charged interest and penalties by SARS.