Making and disputing jeopardy assessments: An administrative law perspective
Author: S De Lange
Affiliations:BAcc LLB MComm (Tax) Lecturer, Stellenbosch University
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 46 – 69
The South African Revenue Service (“SARS”) is authorised by section 94(1) of the Tax Administration Act 28 of 2011 (“TAA”) to make a jeopardy assessment in advance of the date on which the return is normally due, if the Commissioner for the SARS is satisfied that it is required to secure the collection of tax that would otherwise be in jeopardy. As making a jeopardy assessment amounts to “administrative action” as defined in the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), it must meet the administrative justice requirements of lawfulness, reasonableness and procedural fairness as provided for in section 33 of the Constitution of the Republic of South Africa, 1996, read together with PAJA. This article analyses what is required of SARS when making a jeopardy assessment to meet these administrative justice requirements. However, should an aggrieved taxpayer not be satisfied with the making of a jeopardy assessment, the remedies which are available to the taxpayer to dispute a jeopardy assessment should be determined. Therefore, this article also sets out the various ways in which an aggrieved taxpayer can dispute a jeopardy assessment with reference to objection and appeal as provided for in the TAA, the special statutory review provided for in the TAA (which specifically allows that an application to review a jeopardy assessment may be made to the High Court on the grounds that its amount is excessive or circumstances that justify a jeopardy assessment do not exist), and the more general PAJA review process.