South Africa: The Meaning Of ‘Date Of Assessment’ And Its Effect On Tax Dispute Resolution

Last Updated: 29 October 2012
Article by Beric Croome and Jerome Brink

Most Read Contributor in South Africa, September 2018

On 1 October 2012, the long – awaited Tax Administration Act, Act 28 of 2011 ('the TAA') came into force. As a result of the commencement of the TAA several sections of the Income Tax Act, Act 58 of 1962 ('the  Act') were repealed and replaced by corresponding provisions in the TAA. Such changes are aimed at consolidating the existing tax administration legislation into a single, more comprehensive statute which will hopefully ensure that tax administration is managed more efficiently and effectively. The transformation of the administration of tax in South Africa will have consequences for taxpayers, their advisers as well as the South African Revenue Service ('SARS'). It is therefore important to ensure that all parties are aware of the changes to the legislation, as this will have an effect on several aspects of how the administration of tax is managed. One such change is to the definition of 'date of assessment', the importance of which plays out in the realm of tax dispute resolution.

the definition of 'date of assessment' and dispute resolution under the Act

Section 81(1) of the Act stated the following:

"Objections to any assessment made under this Act shall be made in the manner and under the terms and within the period prescribed by this Act and the rules promulgated in terms of section 107A by any taxpayer who is aggrieved by any assessment in which that taxpayer has an interest"

Rule 4(e) of the Rules promulgated under section 107A of the Act, prescribing the procedures to be observed in lodging objections and noting appeals against assessments ('the Rules') states:

"A taxpayer who is aggrieved by an assessment may object to an assessment, which objection must –

(e) be delivered to the Commissioner at the address specified in the assessment for this purpose, within 30 days after –

in the case where the taxpayer has requested reasons under rule 3, either the date of the notice by the Commissioner that adequate reasons have been provided or the date that reasons were furnished by the Commissioner, as the case may be, or;

in any other case, the date of assessment."

The Rules fail to define the meaning of the words 'date of assessment' and hence it is necessary to refer to the definitions section contained in section 1 of the Act, which defined it as follows:

"in relation to any assessment, means the date specified in the notice of such assessment as the due date or, where a due date is not so specified, the date of such notice."

Lastly, the meaning of 'day' in the definitions section contained in section 1 of the Rules means:

"a day as contemplated in section 83(23) of the Act."

Section 83(23) of the Act defines 'day' as:

"Any reference in this Part and the rules to "day" means any day other than a Saturday, Sunday or public holiday: Provided that the days between 16 December of a year and 15 January of the following year, both inclusive, shall not be taken into account in determining days or the period allowed for complying with any provision in this part or the rules."

Furthermore paragraph 6.1 of SARS Guide on Tax Dispute Resolution, last updated on 30 November 2004 ('the Guide'), sets out when an aggrieved taxpayer may object to an assessment. It refers to the definition of 'date of assessment' contained in section 1 of the Act and thereafter states the following:

"Please note that where an assessment has a 'date of assessment' on the assessment form, as well as a due date and a second date, the 30 day period must still be calculated with reference to the due date, in accordance with the definition of "date of assessment" in the Act. The 'date of notice' or 'date of assessment' only applies where there is no 'due date' on the notice."

It goes on to provide an example, summarised in the table below and which provides clarity on the matter.

Date of Notice:

29/09/2003

Due Date:

03/11/2003

Second Date:

28/11/2003

In the above example, the objection must be filed within 30 days after 03/11/2003
("the due date") i.e. 15/12/2003
The tax due must be paid before 28/11/2003 ("the second date")

the definition of 'date of assessment' and dispute resolution under the TAA

The TAA repeals section 81 of the Act and hence objections and appeals against income tax assessments issued by SARS, are now governed by section 104 of the TAA. Section 104(3) of the TAA directs that an objection to an assessment or decision must be lodged in a manner and within the time period prescribed in the 'rules'. The aforementioned 'rules' have not yet been made by public notice under the direction of section 103 of the TAA and thus until such time as they are, the 'old rules' promulgated under the Act, remain the relevant rules in terms of section 264(2) of the TAA.

As discussed above, there is no definition of 'date of assessment' in the 'old rules', it is therefore necessary to look to the definition as contained in the TAA which took effect on 1 October 2012. Section 1 of the TAA defines 'date of assessment' as follows:

"(a) in the case of an assessment by SARS, the date of the issue of the notice of assessment;"

It is therefore apparent that as a result of this change, the period granted for the submission of an objection has changed and has effectively reduced the time period taxpayers previously had. In reference to the example in the table above, the objection must be filed 30 days after 29 September 2003, that is, 7 November 2003, which is a reduction of time allocated for submission of over a month. Were a taxpayer unaware of this change and thus followed the old rules in conjunction with the old definition of 'date of assessment', they would have to seek condonation for late filing which is unlikely to be continuously entertained by SARS on the basis of ignorance of the law. The example shows the importance of this (seemingly insignificant) amendment to the legislation, and it is important for all relevant parties, especially taxpayers to ensure that they are aware of these changes that the TAA has introduced and seek advice where uncertainty arises.

further consideration

Where a taxpayer has been subjected to an audit, the taxpayer will, in most cases, receive a letter from SARS advising that the taxpayer's taxable income is being amended.  Often these letters are referred to as a letter of assessment, and if the letter complies with the definition of assessment contained in section 1 of the TAA read with paragraph 23(a) of schedule 1 of the TAA, the taxpayer must object within 30 days of the date of the letter of assessment. (See further C: SARS v South African Custodial Services (Pty) Ltd [2012] 74 SATC 61).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions