The OTO complies with the legislative mandates of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) and the Tax Administration Act 28 of 2011.
1.1. Constitutional mandateIn terms of s195 of the Constitution, public administration must be governed by the democratic values and principles enshrined in the Constitution, including a high standard of professional ethics; efficient, economical and effective use of resources; provision of impartial, fair and equitable service; transparency and accountability.
1.2. Tax Administration Act 28 of 2011The mandate of the Tax Ombud is to: a) review and address any complaint by a taxpayer regarding a service matter or a procedural or administrative matter arising from the application of the provisions of a tax Act by SARS; and b) review, at the request of the Minister or the initiative of the Tax Ombud with the approval of the Minister, any systemic and emerging issue related to a service matter or the application of the provisions of this Act or procedural or administrative provisions of a tax Act.
Limitations of the MandateIn terms of section 17 of the Tax Administration Act, the Tax Ombud may not review the following:
- Legislation or 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 a Tax Act by SARS
- A matter subject to objection and appeal under a Tax Act, except for an administrative matter relating to such objection and appeal
- A decision of, proceeding in or matter before the tax court.
Reviewing a ComplaintIn terms of section 18 of the Tax Administration Act:
- The Tax Ombud may review any issue within the mandate on receipt of a request from a taxpayer.
- The Tax Ombud may —
- determine how a review is to be conducted and
- whether a review should be terminated before completion.
- In exercising the discretion set out in subsection (2), the Tax Ombud must consider such factors as:
- the age of the request or issue;
- the amount of time that has elapsed since the requester became aware of the issue;
- the nature and seriousness of the issue;
- the question of whether the request was made in good faith; and
- the findings of other redress mechanisms concerning the request.
- The Tax Ombud may only review a request if the requester has exhausted the available complaints resolution mechanisms in SARS unless there are compelling circumstances for not doing so.
- To determine whether there are compelling circumstances, the Tax Ombud must consider factors such as whether:
- 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 that the Tax Ombud considers reasonable.
- The Tax Ombud must inform the requester of the review results or any action taken in response to the request, but at the time and in the manner chosen by the Tax Ombud.
Recommendations and ResolutionsSection 20 of the Tax Administration Act sets out how the Tax Ombud resolutions and recommendations are dealt with:
- The Tax Ombud must attempt to resolve all issues within the Tax Ombud’s mandate at the level at which they can most efficiently and effectively be resolved and must, in so doing, communicate with SARS officials identified by SARS.
- The Tax Ombud’s recommendations are not binding on taxpayers or SARS.