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SARS top-level officials sacked for saying 'let's investigate taxpayers' after Nkandla saga: What are SARS' actual powers?

by , 24 March 2015
If you're like me, you probably have some unanswered questions - just what went on at the top-level officials at SARS?

Various reports have been coming through over the last few months about the replacement of top officials.
Some people agree with the changes. They say the SARS officials overstepped their bounds. But others think it's a ploy to replace independent people with 'yes' men.

Personally, I'm in two minds about the whole ordeal. What power does SARS actually have to investigate taxpayers? And are there any limitations to these powers at all?

But I'm getting ahead of myself. Let me explain...

SARS rogue spy unit – what's the big idea?
The chaos at the top levels first began when SARS officials suggested investigating taxpayers because of the Nkandla uproar. They set up a 'rogue spy unit' (National Research Group). Was this unit rogue, and was it actually spying?
Let's break down this term 'rogue spy unit':
If we look at the definition of 'spying', it's the activity of secretly collecting info about someone. But I think we can agree another word for spying in SARS' context is information gathering. 
And the definition for 'rogue' is a dishonest or unprincipled person.
So for the 'rogue spy unit' to truly meet that definition, we'd expect that these SARS officials must be dishonest or conduct themselves in an unprincipled way in order to gather information illegally (i.e. beyond powers granted to SARS by law).
Well, let's look at SARS' actual powers to gather information. 
SARS can investigate a taxpayer's affairs if it thinks there's tax non-compliance or criminal activities (Chapter 5 of the TAA). 
And yes, SARS can also conduct these investigations in secret!
It's true! SARS only needs to tell you the taxpayer of an investigation when it's conducting an audit. But there's no need to tell you when it's conducting a criminal investigation, until the investigation is finished (Section 42(1) and 42(2) of the TAA).
But, if SARS can prove that telling you about the investigation will hinder the audit or investigation, then it doesn't need tell you anything at all (Section 42(5) of the TAA)! 
The only limitation on SARS' power to secretly gather info (i.e. spy) on you is that it must recognise your constitutional rights. And in this context, it's the right to privacy. 
So SARS can't bug, record or infiltrate any private area of your life unless it gets permission from a court of law. 
But does this include information held by third parties, connected or unconnected? Read on to find out…

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Is there a limit to SARS' powers?
SARS has the power to ask someone connected to you for your relevant information or records (Section 46(3) of the TAA).
So it's clear here then, that SARS doesn't have the power to 'take' information, but rather to 'ask' for it. But be careful. There's an exception to this rule.
SARS can simply 'take' the information without a warrant as long as it sticks to Section 63 of the TAA.
So gathering info secretly can't immediately mean SARS is spying in a roguish manner, and the rogue spy unit could've been operating within the powers SARS has in the TAA as explained above. 
But did the unit follow the rules in the TAA? Or did it use illegal tactics to gather info? We don't know for sure…
I mean, there's been talk in the press of the Group's employees using fake ID's; giving confidential info to girlfriends; running brothels; gathering info that has nothing to do with people's tax affairs; and eavesdropping on politicians.
These are clear indications of activities not allowed by the TAA! And if the Group's activities did include those mentioned above, then the claim that the unit was a 'rogue spy unit' isn't totally without merit.
But here's the kicker. The exact same unit was praised for the investigation of high profile non-compliant taxpayers like Dave King, Radovan Krejcir and Julius Malema not so long ago. And I wonder if those individuals would have a case against SARS, if they could prove SARS got the info by using illegal tactics…
In my view, this entire ordeal is both bad and good for SARS. On one hand, SARS is sadly still subject to apparent political interference. But on the other hand, even SARS isn't above the law!
I think most taxpayers are tired of all the corruption and scandals that it's easy to believe the worst, being 'SARS is being ripped to shreds to protect high ranking politicians'. But, it could actually be an exercise to get SARS back in line and to stop playing spy games!
Whatever the outcome of this top-end shuffle, you still need to comply with all of SARS' regulations.
And when SARS comes to investigate you, make sure you're on the right side of the law! So get your tax affairs right, always, with this one tool…
P.S. I thought Rachel might've missed something when she insisted we essentially give a free Tax Digital Loose Leaf Service for every print ordered this week. And to be honest: I still think it's a bit of a folly. 
But she's the publisher...  and if she's willing to take a chance just to convince you to use the service, well... so be it. 

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