Author: SARS Legal and Policy
What is it?
The institution of legal proceedings is a process whereby a taxpayer delivers court papers to SARS requiring the Commissioner for SARS to appear and defend a matter in the High Court. Prior notice before the institution of the proceedings is required in some instances, particular in matters involving the State.
What does the tax and customs laws say?
There are two different Acts in terms of which the institution of legal proceedings against the Commissioner for SARS is governed and although they have a similar purpose, the requirements are not identical.
Section 96 prescribes the process by which any legal proceedings against the State, the Minister, the Commissioner or an officer are instituted. This may not be instituted before one month after the delivery of a notice informing the Commissioner of the intended legal proceedings in the specific format and manner as prescribed by rule.
The rules for section 96 indicate that a notice in terms of section 96 must be delivered (refer to the definition in rule 96.01) in a particular manner – refer to How does it work? below.
Two new subsections were added to section 11 of the Tax Administration Act, 2011, by the Tax Administration Laws Amendment Act, 2013, and read as follows:
“(4) Unless the court otherwise directs, no legal proceedings may be instituted in the High Court against the Commissioner unless the applicant has given the Commissioner written notice of at least one week of the applicant’s intention to institute the legal proceedings.
(5) The notice or any process by which the legal proceedings referred to in subsection (4) are instituted, must be served at the address specified by the Commissioner by public notice.”
The public notice mentioned in subsection (5), once finalised, will be published in the Government Gazette. It will be available under Secondary Legislation - Public Notices.
Why is it necessary?
Experience has shown that most parties to a dispute would generally prefer resolution over litigation and it is, therefore, necessary to have these measures in place for the following reasons:
- To avoid unnecessary and costly litigation.
- If SARS receives prior notice of an intended court application, it will ensure that the matter is brought to the attention of an appropriate senior official.
- The senior official can then use the prior notice period productively to investigate the merits of the intended application and, if appropriate, resolve the dispute before formal court proceedings.
- The compulsory prior notice is mitigated by the ability of a court on application by the intended applicant to waive formal compliance in extremely urgent cases.
- The prior notice requirement will ensure that resolution is sought timeously, which would lessen the burden on the court system.
How does it work?
Please note that there are two different ways in which the notices under the two different Acts should be instituted.
Any notice or process by which legal proceedings are instituted in terms of the Customs and Excise Act, 1964, must be as follows:
?Duly completed and signed by the litigant:
- Form DA 96
- (Notice in terms of section 96(1)(a) of the Customs and Excise Act, 1964)
Any of these methods of delivery –
- Registered Post
- Hand delivery
If delivered per fax or email, the original signed document must be handed in or sent by registered postwithin 10 days after it was faxed or emailed.
?Mrs L Odendaal
The Manager: Litigation (Customs)
Legal & Policy Division
271 Bronkhorst Street
Private Bag X923
Tel (+27) 12 422 5113
Fax (+27) 86 576 7444
A notice or any process, by which legal proceedings are instituted in terms of the Tax Administration Act, 2011, must be as follows:
All notices must be served electronically via email to HighCourtLitigation@sars.gov.za or via facsimile to (+27) 12 422 5194.
All applications must be served at the physical or electronic address in the applicable regions as per the table for the attention of the SARS official indicated.
This article first appeared on sars.gov.za.