What resourse does an employee have if the employer has withheld monthly PAYE but has not filed monthly EMP201's nor the PAYE reconciliation so there are thus no IRP5 certificates?
Important:
This answer is based on tax law for the tax year ending 28 February 2020.
Answer:
Each individual has an obligation to submit a return and declare the income from employment in this instance, therein. The problem is that SARS won't provide the taxpayer, the employee, with a populated return nor process the return until the IRP5 tax certificate information from the employer is received. According to information on the SARS website, “SARS won't penalise the taxpayer for the non-compliance by an employer.”
SARS provides the following answer on their website:
If the taxpayer has requested his / her IRP5 or IT3(a) certificate from the employer / ex-employer and the employer has failed to provide such, the taxpayer must visit the nearest SARS branch or call the Contact Centre for advice pertaining to the steps to be taken.
When visiting the SARS branch or calling the Contact Centre, the taxpayer will be required to provide the following documentation:
All payslips issued by the employer for the year of assessment in question;
Bank statements to show the movement of salary into the taxpayer’s account from the employer, and if applicable a copy of a service contract;
Name and contact details of the employer; and
Physical address of the employer.
The above documentation will only be accepted if the employer is –
Insolvent / in liquidation;
Untraceable;
Deceased; or
Not registered for PAYE.