The Office of the Tax Ombud was established by the Tax Administration Act, 28 of 2011. In particular, sections 15 to 21 of that Act set out the role, responsibilities and powers of the Tax Ombud.  Currently the position is held by retired judge Bernard Ngoepe.

In terms of section 16 of the Tax Administration Act, the mandate of the Tax Ombud is to review and address any complaint by a taxpayer regarding a service matter or a procedural or administrative matter arising from the application of the provisions of a tax Act by SARS. In discharging this mandate, the Tax Ombud must:

• review a complaint and, if necessary, resolve it through mediation or conciliation;
• act independently in resolving a complaint;
• follow informal, fair and cost-effective procedures in resolving a complaint;
• provide information to a taxpayer about the mandate of the Tax Ombud and the procedures to pursue a complaint;
• facilitate access by taxpayers to complaint resolution mechanisms within SARS to address complaints; and
• identify and review systemic and emerging issues related to service matters or the application of the provisions of this Act or procedural or administrative provisions of a tax Act that impact negatively on taxpayers.

In other words, the Tax Ombud’s role is to present an alternative forum through which taxpayers and SARS can try and have disputes resolved in a cost-effective manner.  The alternatives – being either litigation or the alternative dispute resolution (ADR) process – can be quite intimidating, formal and expensive.

However, and irrespective of the above, in terms of section 17 the Tax Ombud may not review:

• legislation or tax policy;
• SARS policy or practice generally prevailing, other than to the extent that it relates to a service matter or a procedural or administrative matter arising from the application of the provisions of a tax Act by SARS;
• a matter subject to objection and appeal under a tax Act, except for an administrative matter relating to such objection and appeal; or
• a decision of, proceeding in or matter before the tax court.

The Tax Ombud must compile an annual report to the Minister of Finance.  In its most recent report, being that of the 2014/2015 fiscal year, the Tax Ombud reported that more than 75% of all complaints received were resolved in favour of the taxpayer. During this period, it also recorded more than 6,000 contacts with taxpayers, and received 1,200 formal complaints. The Office of the Tax Ombud, albeit in its early days, appears to present a viable alternative to taxpayers to have qualifying tax disputes resolved.  To lodge a complaint, the relevant details and guides can be obtained from the Tax Ombud’s website at www.taxombud.gov.za.  It should be noted though that, somewhat controversially compared to the Office of the Public Protector, the Tax Administration Act is clear that recommendations by the Tax Ombud are not binding on either SARS or taxpayers.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)