| dc.description.abstract | The "pay now, argue later" rule entails that the obligation to pay
tax and the right of the South African Revenue Service (SARS)
to receive and recover tax are not suspended by objection or
appeal. However, in terms of section 164(2) of the Tax
Administration Act 28 of 2011 (hereafter TAA), a taxpayer may
request a senior SARS official to suspend the payment of
disputed tax and a senior SARS official may, in terms of section
164(3) of the TAA, grant such a suspension having regard to
certain relevant factors. Section 164(5) of the TAA further
provides that the decision to suspend may be revoked on a
number of grounds. One of the grounds is when a senior SARS
official is satisfied, on further consideration of the factors which
had to be taken into account when the suspension was granted,
that the suspension should not have been granted. There is no
indication in the TAA that this ground for revoking the suspension
requires that there should be a material change in the factors, as
this is provided for in a separate ground to revoke the decision
to suspend the payment of disputed tax. It is also not required,
for example, that the taxpayer should have failed to disclose
information when making the request to suspend the payment. It
is argued in this article that the ground for revoking a decision to
suspend payment "on further consideration of the factors" raises
concerns from an administrative law point of view. This is based
on the revocation being an "administrative action" as
contemplated in section 33 of the Constitution of the Republic of
South Africa, 1996 read together with the Promotion of
Administrative Justice Act 3 of 2000, which requires that the
revocation should be lawful, reasonable and procedurally fair.
The concerns raised in this article relate not only to the rights of
taxpayers, but also to the duties of the SARS officials revoking a
decision to suspend payment as it is equally important that
administrators should be able to know how and when to act in a
manner which is lawful, reasonable and procedurally fair. | en_US |
