In a DeRebus October 2014 article the author Alan Lewis concludes: “In my opinion, neither the provisions of the Tax Administration Act, 2011 nor the new tax court rules, authorise SARS to deliver an assessment to a taxpayer by posting it on the taxpayer’s eFiling page on SARS’ electronic filing service.”
Here is the full article: SARS Electronic delivery of documents De Rebus – October 2014
Also SEE the article: Electronic communication with SARS – Lexology
The author in the above article makes the following important conclusion:
Rule 3(1) uses the words “an acknowledgement may be given”, but does not say whether such “acknowledgement” necessarily means that the requirements for delivery in rule 3(2) will have been complied with. For example, would an automated response stating that the message has been
received but will be delivered to the recipient at a later time, constitute an ‘acknowledgment’, and if it does, does it mean that the communication has entered SARS’s information system and is technically capable of retrieval and processing by SARS? The rule does not deal with what exactly constitutes an ‘acknowledgement’, and what the situation is where a communicator does not know whether a response constitutes an ‘acknowledgment’.
The question that arises is, where a communicator does not know whether ‘delivery’ has technically taken place, whether there is a duty on that communicator to somehow elicit a response from SARS, or attempt to deliver the relevant message or document by some other means.
Rule 3(3) of the electronic communication rules provides as follows:
(3) Except for an electronic filing transaction, if an acknowledgement of receipt for the electronic communication in accordance with subrule (1) is not received, the communication must be regarded as not delivered.
The answer appears to be clear: where a communicator does not know whether SARS has received the communication or not because no ‘acknowledgement’ has been received, the communication is regarded as not delivered.
Where the communicator is as a result forced to attempt delivery by some other means, the communicator will effectively have been deprived of the right to deliver the message or document electronically.
One should however keep in mind that, at least in principle, rule 3 of the electronic communication rules applies equally to communications by SARS to a taxpayer.
COMMENT BY DR. D.N. ERASMUS:
The above conclusion appears to support the conclusion in the first article. If the assessment is ‘delivered’ by posting it to the taxpayer’s eFiling page, it is not properly delivered in terms of the above mentioned rules.
daniel@taxriskmanagement.com
