Would this not qualify as a section 93 (1) (e) (i) submission of incorrect return by a 3rd party? Under these conditions could they not agree to re-open this? It is clear the return was submitted with turnover and no expenses to claim yet the financial
Important:
This answer is based on tax law year ending 28 February 2019.
Answer:
We indicated that it would not qualify under section 93(1)(e). The third parties referred to are the ones mentioned in the public notice, and includes a person who employs, pays amounts to, receives amounts on behalf of or otherwise transacts with another person, or has control over assets of another person, see section 26(1). It does not include SARS.
We agree with you that the taxpayer will be able to prove there is a bona fide error. The problem is that the Act doesn’t allow for SARS to change the assessment because they will become aware of the error after the three-year period. Section 93(1)(e) doesn’t have a time limit, but it only applies in the instances listed (and none apply in your case).
Going into the branch will, in our view, not change the position. It is unlikely that the SARS official will accept the request for a reduced assessment. The only other option would be to argue that there was “misrepresentation; or non-disclosure of material facts” – see section 99(2). In our view that is not available where a reduced assessment is required.
SARS is reluctant to accede to section 93 requests, principally because it would result in a refund, and generally would look for any reason not to do so.