Judge Bernard Ngoape. The Ombud can only make non-binding recommendations. Photo: Dimpho Maja/African News Agency (ANA)

JOHANNESBURG – The office of the Tax Ombud has made a submission to Parliament to allow it to initiate investigations into systemic problems taxpayers experience with the SA  Revenue Service (Sars) – without having to ask for ministerial approval. 

Currently, the office must first obtain approval if they have identified systemic problems before they can investigate. The Ombud has been waiting two months for approval after identifying a systemic problem it wants to investigate.

Tax Ombud Bernard Ngoepe said in normal, properly functioning democracies it would not be a problem to obtain ministerial approval for such investigations. 

He said when the Ombud initiated the investigation into the withholding of refunds, former finance minister Pravin Gordhan gave the go-ahead in six days. The Ombud has not received any feedback on its latest request for two months. 

“When the minister drags his feet that creates a problem,” he told delegates at the Annual Tax Indaba organised by regulatory bodies such as the South African Institute of Tax Professionals and the South African Institute of Professional Accountants.

The amendment to allow the Ombud to initiate its own investigations was opposed by Sars and a compromise was reached to allow for the investigations, but with ministerial approval. 

“I think there was fear that I will be another Thuli Madonsela (former Public Protector) – once I have the power to investigate. That was not the intention.” 

Ngoepe said these investigations are not driven by the passion of the Ombud. They are driven by the weight of the complaints and the passion on the part of taxpayers. He asked tax practitioners to strengthen his hand by making submissions to his office where they feel there is a need for investigations into systemic problems.

Recommendations

The Ombud can only make non-binding recommendations.

Thabo Legwaila, member of the Davis Tax Committee and professor in tax law at the University of Johannesburg, said there was a real concern when an office such as the Office of the Tax Ombud could only make recommendations. There needed to be some legal force behind the recommendations.

Ngoepe said the problem in South Africa was the culture of non-compliance. When a national office such as the Office of the Tax Ombud issued a recommendation against another state institution such as Sars – unless there were very good reasons why they should not comply –  they must comply.

“We do not have to have the powers of the court behind us, and as we know there have been complaints that some state institutions do not even comply with court orders.”

Legwaila said the ideal tax system would allow for the representative of taxpayers, the Tax Ombud, to have as much powers as the tax authority. 

He referred to the recommendation by the Davis committee that the Ombud should be allowed to act as a mediator in a tax alternative dispute resolution mechanism to solve differences between audited taxpayers and Sars and to have the power to  adjudicate the disputes brought before the Tax Ombud, subject to review and appeal by the courts. 

“There is a concern that the tax authority uses taxpayer money to institute action against them. Taxpayers have to find additional money to defend themselves against the tax authority.”

He said it would require additional resources for the Ombud to take on this role. Ngoepe said his office was not too eager to step into that role at this point, given the vast amount of resources it will require to perform this duty.

– BR MONEY