An evaluation of the Tax Administration Act 28 of 2011 with reference to its objectives
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The Tax Administration Act (28 of 2011) (TAA) came into effect during October 2012 and introduced several new concepts and changes in terms of tax administration from the previous provisions set out in the various tax acts. The TAA extends the powers afforded to the South African Revenue Service (SARS) to a significant degree. In terms of the Short Guide to the Tax Administration Act (TAAG), these extended powers are specifically aimed at targeting tax evaders and non-compliant taxpayers. Critics of the TAA have commented that these extensive powers may have been granted to the detriment of compliant taxpayers. One of the main objectives stated in the TAA expresses an aspiration to improve the balance between the powers of SARS and the rights of taxpayers in order to ensure a fair, efficient and cost effective tax system. The question arises whether these objectives have been achieved, considering the extent of the powers granted to SARS in terms of the TAA. This study aimed to document the changes introduced by the TAA from the previous tax administrative provisions contained in the Income Tax Act (58 of 1962) (ITA). The study focused on the most significant changes and new concepts introduced by the TAA, namely: the establishment of a Tax Ombud; the extensive information gathering powers of SARS and the understatement penalty regime. These changes were critically evaluated against the afore-mentioned objectives of the TAA in order to determine whether these objectives have been achieved. The study also examined international best practices in terms of tax administration employed by the revenue authorities of Canada and the United Kingdom (UK) as well as the guidelines for effective tax administration researched by the Organisation for Economic Co-Operation and Development (OECD). This enabled the recommendations for improvements to the TAA. This study was performed by giving preference to and performing a critical comparison and analysis on various original sources, i.e. different acts and government publications from various countries, as well as the OECD guidelines, rather than relying only on previous studies performed on this topic, to independently establish what the changes and differences between the relevant provisions are. The study found that, in general, the TAA fails to meet the stated objectives. The extensive powers afforded to SARS with regards to information gathering are not balanced out by sufficient remedies made to protect rights of taxpayers in the event that SARS abuses these powers. Taxpayers have to seek relief from the court which is a costly recourse and, as a result, increases the administrative cost and burden of taxpayers. The study recommends improvements to the TAA in order to enhance the relationship between taxpayers and SARS and to achieve the objective of striking a balance between the powers of SARS and the rights of taxpayers. It is advised that the TAA incorporate sufficient provisions to give effect to the protection of the taxpayers’ rights to administrative fairness through more effective remedies. Further research into the constitutionality of the provisions of the TAA could also help to identify areas for improvement in this regard.