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  • Nights Filling in a Questionnaire or Nights in a Prison Cell?

Nights Filling in a Questionnaire or Nights in a Prison Cell?

25 August 2016

Ignore SARS qustionnaires at your peril

By Nthati Khumalo, Tax Compliance Trainee at BDO South Africa

The High Court recently held that a certain Mr Brown must submit a response to a SARS lifestyle questionnaire or suffer the consequences.

SARS may in terms of the Tax Administration Act (the TAA), in administering a tax Act, require a taxpayer or another person to submit relevant material (orally or in writing) within a reasonable period. SARS delivered a lifestyle questionnaire to Mr Brown who was not registered as a taxpayer and never submitted an income tax return. SARS requested information relating to Mr Brown and his spouse’s personal particulars and circumstances, investments and assets, properties and income and expenses. Mr Brown did not comply with SARS’ request for information within the required timeframe. In the High Court Mr Brown’s argued that:

  • The request to complete the Lifestyle Questionnaire was an unlawful “fishing expedition” and infringed on his constitutional (dignity and privacy) and statutory rights;
  • The information sought was not “relevant material” in terms of the TAA as it was not specific but general and wide-ranging;
  • He was entitled to request adequate reasons for selection for a Lifestyle Questionnaire; and
  • As the decision to issue the questionnaire constituted an administrative action, alternatively under the principle of legality, he was entitled to fair, reasonable and lawful conduct by SARS.

Mr Brown tried to subject the completion of the questionnaire to the condition that the SARS first had to supply him with the information he requested in terms of the Promotion of Access to Information Act (“PAIA”).

The Court held for SARS as follows:

  • Mr Brown’s claim that the questionnaire was an unlawful “fishing expedition” was indefensible. Factors such as the non-disclosure of relevant information linked to the fact that Mr Brown did not register as a taxpayer or submit tax returns, constituted a justifiable basis for the request for completion of the questionnaire;
  • The information in the questionnaire constituted “relevant material” for TAA purposes as it includes “any information, document or thing that in the opinion of SARS is foreseeably relevant for the administration of a tax Act…” as it pertained to his assets, liabilities and expenses.
  • Mr Brown’s constitutional right to privacy was justifiably limited and that there was no challenge on the constitutionality;
  • SARS’ objection to disclosing the information sought by Mr Brown in terms of PAIA was warranted as it constituted “SARS confidential information”, which was protected in terms of the TAA; and
  • The questionnaire did not constitute an administrative action for purposes of the Promotion of Administrative Justice Act as the request was merely a preliminary investigation.

The court concluded that SARS established a clear right and a reasonable threat of harm and had no other satisfactory solution available. The institution of criminal proceedings as suggested by Mr Brown’s counsel would not assist SARS with its stated objective – to swiftly obtain the relevant material. The court ordered Mr Brown to submit his response to the questionnaire within two weeks of the granting of the order and that failure to comply would bring him in contempt of court and could result in imprisonment.

Although this case demonstrates the power of SARS in requesting information, taxpayers are not in all cases required to supply information, for example, where it is clear that it is irrelevant.

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