By Ricardo Wyngaard

The Law Society of South Africa (LSSA) was invited to take part in the Tax Indaba 2015. The indaba, has been a result of the collaboration between a number of the Recognised Controlling Bodies (RCBs), as defined in the Tax Administration Act 28 of 2011 (TAA). The indaba was held over five days and reportedly attended by over 600 delegates and covered a wide range of tax-related topics, including –

• eFiling;
• VAT;
• international taxation;
• tax risk management;
• recent amendments to exchange control policy;
• portfolio investment tax; and
• the TAA.

Keynote address

The Tax Ombud, Judge Bernard Ngoepe, gave the keynote address and provided more insights into the mandate of the Tax Ombud which is set out in s 16 of the TAA, being; ‘… 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 South African Revenue Service [Sars]’. Judge Ngoepe also informed delegates that the Tax Ombud is in the process of ‘motivating for the amendment of the Tax Administration Act on issues that negatively affect the independence of the Office of the Tax Ombud.’ He further stated that: ‘We believe that this office must enjoy full legal status in order to operate and act independently without relying on Sars for financial and human capital. In other words, institutional independence.’

Davis Tax Committee

Chairperson of the Davis Tax Committee, Judge Dennis Davis, provided an overview of the Davis Tax Committee and commented on the challenges of an increasing fiscal gap. He emphasised the need to increase revenue and introduce a tax system that is not regressive and negatively impacting on a vulnerable sector of society.

Panel discussions

A panel consisting of, among others, accountants and lawyers discussed tax within the context of day-to-day practices.  It revealed interesting reflections on various issues, including, the different approaches that accountants and lawyers may have when dealing with tax matters. One panelist, for example, commented that accountants would usually interpret and approach a tax matter on the basis of what will be acceptable to Sars, whereas attorneys will approach a matter on what will be acceptable by a court of law.

A further panel discussion consisting of journalists discussed ‘Relationships beyond the advisory’, which deliberated on public perceptions of tax within South Africa. The South African public appears to be generally appreciative of the need for taxes. Panelists did, however, reflect on the public’s response to the e-tolls in Gauteng, as a form of taxation.

Attorneys as tax practitioners

The focus of the indaba was largely on tax practitioners, which naturally include legal practitioners. Law firms that specialise in tax matters were also present at the indaba and presented on various topics. The presentations by lawyers dealt with, among others, international tax and corporate tax.

The LSSA participated in the event to emphasise the valuable contribution that attorneys make as tax practitioners. Provincial law societies are automatically recognised as RCBs pursuant to the TAA. This means that provincial law societies are not required to comply with any additional requirements to be recognised by Sars as RCBs.

It is, however, important to note that practicing attorneys who provide advice to another person with respect to the application of a tax Act or completes or assists in completing a return, as defined, must also register with Sars as a practitioner in the prescribed manner.  Attorneys who provide such advice as an incidental or subordinate part of providing good or other services to another person are not required to register with Sars as tax practitioners.

Ricardo Wyngaard BProc LLB (UWC) LLM (University of Illinois) is the senior Legal Official at Professional Affairs at the Law Society of South Africa.

This article was first published in De Rebus in 2015 (Nov) DR 13.