Monday, June 1, 2009

SOUTH AFRICA: Functus Officio: SARS cannot change its reasons

Once SARS has issued revised assessments, unless it re-enters the S79 route in the Income Tax Act and complies with its jurisdictional facts to issue revised assessments again, it cannot change the reasons it gives for issuing the revised assessments in the first place. It cannot change its mind. It is married to its reasons for the revised assessments.

For this reason, it is important to get SARS to issue reasons for its revised assessment.

After the revised assessment has been issued, the regulation 3 option should also be exercised, to get the actual reasons SARS has issued the revised assessments.
If there is a difference between the reasons given in the letter of findings, and the reasons given after the revised assessment, under regulation 3, it is arguable that SARS acted arbitrarily or unfairly, in that the reasons do not match! Why do they not match? What has changed between the letter of findings and the revised assessment? If no proper justification can be given, it is arguable under PAJA that no adequate reasons exist for the decision taken by SARS to issue the revised assessments in the first place.

A similar situation may arise with the disallowance of the objection, and the grounds of assessment issued by SARS. Once again, the grounds of assessment should match the reasons given in the letter of findings, and at the time of the regulation 3 reasons past revised assessments. If not, why? What has changed entitling SARS past the time of the decision to issue the revised assessments to change its reasons. In terms of administrative law, it cannot. SARS is functus officio, unless it re-enters the whole S79 process again.

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