Revoking a Decision to Suspend Payment of Disputed Tax "on Further Consideration": An Administrative Law Perspective

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

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Title Revoking a Decision to Suspend Payment of Disputed Tax "on Further Consideration": An Administrative Law Perspective
 
Creator De Lange, Silke
 
Subject Tax administration
Tax Administration Act
pay now argue later
suspension of payment of disputed tax
administrative action
revoking a decision
functus officio
 
Description 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.
 
Publisher Faculty of Law, North-West University, South Africa
 
Date 2021-02-11
 
Type info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
 
Format application/pdf
text/plain
application/epub+zip
 
Identifier https://journals.assaf.org.za/index.php/per/article/view/7612
10.17159/1727-3781/2021/v24i0a7612
 
Source Potchefstroom Electronic Law Journal; Vol 24 (2021); 1-26
1727-3781
 
Language eng
 
Relation https://journals.assaf.org.za/index.php/per/article/view/7612/10901
https://journals.assaf.org.za/index.php/per/article/view/7612/10902
https://journals.assaf.org.za/index.php/per/article/view/7612/10906
 
Rights Copyright (c) 2021 Silke De Lange
http://creativecommons.org/licenses/by/4.0
 

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