Unicus Tax
About our

Dispute Resolution Services

Unicus Tax has a 100% success rate in resolving tax disputes in favour of taxpayers. This simply means we have always been able to get a tax liability reduced or a decision by SARS changed every time we have taken on a case through the objection and appeal process. The reason for this is aptly explained by one of our dispute resolution clients for whom we achieved an unprecedented result in the Tax Court with significant and extensive savings:

Tactical Defence Cases

Cases we take on

We focus mainly (but not exclusively) on cases we call tactical defence cases (TDC). TDC’s are typically high value cases where the amount in dispute is in excess of R1 million and the assessments in question follows a full fledge audit by SARS. Challenging these assessments are often not simple and are also often the cases that SARS may be willing to push all the way to litigation if needs be. Taxpayers in these situations more often than not need a comprehensive defence strategy. These are not cases where simply providing documents will take care of the problem. These are typically cases where the assessment needs to be challenged on both a factual and legal basis with the necessary evidence.

Case acceptance is at our sole discretion. We will not engage to defend taxpayers where it is clear to us that the taxpayer intentionally evaded tax. That is not to say if SARS penalised the taxpayer for intentionally evading tax we will not engage – it is not unheard of for SARS to impose penalties for intentional tax evasion even where the taxpayer was not actually intentionally evading tax.

Unicus Tax

Frequently asked questions

How do you normally work?

How we work:

We typically engage clients on tax disputes in two phases, to wit:

  • Phase 1, which consists of our review of the merits of your case and our recommendation; and
  • Phase 2, which consists of the execution of our recommendations under phase 1.

Our fees are generally based on time spent at the applicable hourly rate which vary from anything between R2 500 ex VAT per hour to R7 000 ex VAT per hour (excluding disbursements) depending on the circumstances. Alternative fee structures may be available depending on your facts and circumstances.

We are geared to deal with a tax dispute at almost any stage during a dispute with SARS, whether that be at objection or appeal or litigation stage.

What would you require from us?

Please provide the following information, insofar relevant and possible, when enquiring about our service:

  • The assessment/(s) currently under dispute or which you intend to dispute (for example: the additional income tax assessment/(s) (ITA34)/VAT assessment/(s) (VAT217)/PAYE assessment/(s) (EMP217 etc);
  • The original assessment/(s);
  • SARS’s “Audit findings” letter (if applicable);
  • SARS’s “Finalisation letter” (if applicable);
  • The underlying tax return/(s) submitted (for example the ITR14, VAT201 and/or EMP217);
  • If an objection has already been submitted, a copy of the objection;
  • If SARS has already made a decision on the objection, the notice of outcome of objection;
  • If an appeal has already been submitted, a copy of the appeal submitted;
  • If SARS has already delivered their rule 31 statement, a copy of their rule 31 statement;
  • A short explanation of the issue under dispute.

 

All information shared with us will be treated and regarded as strictly confidential. We will not charge or otherwise bill you until we have been formally engaged and you have formally accepted the terms of our services.

Who will be leading the team?

Our dispute resolution team is headed by our founder, Nico Theron MTP (SA).

Nico (BCom Law (cum laude); BCom Honors Taxation; MCom Taxation (SA and International Tax)) has over a decade’s experience in dealing with tax disputes, mainly for large corporate taxpayers. He is the author of a book that explains the tax dispute resolution remedies and which has been favourably reviewed by Advocate Julia Boltar. The book is titled: Practical Guide to Handling Tax Disputes and has been published by the leading global provider of legal, regulatory and business information – Lexis Nexis. In addition, Nico is a member of Tax Administration Technical Work Group of the South African Institute of Tax Professionals where is also registered as a master tax practitioner. Nico lectures on tax dispute resolution from time to time to post graduate tax students at the University of Pretoria. Nico is well known for his strategic and pragmatic way of resolving tax disputes.

How do I make contact?

You can reach us by sending an email to [email protected].  A member of our team will then make contact with you to discuss the way forward.  Your accountant/auditor/lawyer/tax practitioner can also contact us on your behalf – this is preferred in most cases.

Total value of assessments we are currently disputing

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Overview of some of our past cases

Prescription and penalties - XYZ CC v CSARS

In this case, SARS had raised additional income tax assessments for several years of assessment as well as VAT assessments for several VAT periods following an audit by SARS. The gist of the adjustments made by SARS was that SARS had increased income and decreased expenses and imposed an understatement penalty of 100% for gross negligence. The taxpayer had been the victim of an incompetent accountant. We successfully defended the taxpayer resulting in SARS decreasing the penalty from 100% to 10% and also successfully defended the tax on several years and periods on the basis of prescription.

ETI credits forfeited - XYZ 1 (Pty) Ltd v CSARS

SARS disallowed various ETI credits claimed by the taxpayer on the basis that the credits had been forfeited. We successfully disputed the disallowance by SARS of the ETI credits resulting in SARS refunding the taxpayer accordingly.

Disallowed input tax and penalties - XYZ 2 (Pty) Ltd v CSARS

Following an audit by SARS, SARS raised VAT assessments to disallow certain notional input tax credits claimed by the taxpayer across multiple VAT periods. While the disallowed input tax credits could not be challenged, we successfully decreased the understatement penalty.

Disallowed expenses and penalties - XYZ 3 (Pty) Ltd v CSARS

Following an audit by SARS, SARS disallowed certain deductions claimed by the taxpayer for income tax purposes on the basis that the amounts deducted are accounting provisions. Understatement penalties were imposed. We successfully disputed the assessment and the penalties by arguing that the accounting provision is effectively a section 24C allowance.

Penalties - XYZ 4 (Pty) Ltd v CSARS

Due to an e-filing technicality, the taxpayer erroneously claimed PAYE credits on its ITR14 return. Following a verification by SARS, SARS disallowed the PAYE credits on the basis that the taxpayer, despite the e-filing error, sought to unlawfully benefit by accepting the PAYE credits when filing the tax return. SARS imposed understatement penalties. We successfully defended the taxpayer against the understatement penalties at appeal stage with complete concession by SARS.

Manufactured dividends and anti-avoidance - Mr A v CSARS

In this case, we were engaged to respond to a letter of audit findings to prevent SARS from raising an additional assessment. SARS intended to raise an additional assessment to tax certain dividends it regarded as manufactured dividends and by invoking a particular anti-avoidance rule aimed at certain dividend schemes. Our response prevented SARS from raising the imminent assessment.

Assessed losses and penalties - XYZ 5 (Pty) Ltd V CSARS

In this case, we were engaged to prevent an assessment to understatement penalties. SARS disallowed an assessed loss claimed by the taxpayer on the basis that the taxpayer had not yet commenced trading activities – an understatement penalty was proposed. Our response prevented SARS from imposing understatement penalties.

Erroneous overpayment of tax - XYZ 6 (Pty) Ltd v CSARS

In this case, the taxpayer had made an accounting error which was only identified a couple of years after SARS had raised an assessment (but importantly, just before the assessment would prescribe). The effect of the accounting error was that the taxpayer’s taxable income had been drastically overstated and it had incorrectly overpaid a significant amount of tax. The objection remedy was not available. We nevertheless secured a reduced assessment and refund from SARS.

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Tax refund - XYZ 7 (Pty) Ltd v CSARS

In this case, SARS refused to pay a refund to the taxpayer. By the time the taxpayer engaged us, it had relied on various remedies to try and get the refund released – all of them failed.  We effected certain legal action to be instated resulting in prompt payment by SARS of the refund.

Tactical Defence Cases

High level overview of tax disputes

Many tax disputes originate from an audit conducted by SARS followed by an additional assessment/assessments. Taxpayers can then object (typically by completing and submitting an NOO online or by completing an ADR1 and delivering it to prescribed addresses, depending on the circumstances). If SARS does not allow the objection, or only allows it in part, the taxpayer can appeal (typically by completing and submitting an NOA online or by completing an ADR2 and delivering it to prescribed addresses, depending on the circumstances) . When on appeal, a taxpayer can agree with SARS to have the dispute settled by way of a process similar to mediation or, failing that, through litigation in either the tax board or tax court. If mediation and/or litigation in either the tax board and/or tax court fails, the taxpayer can appeal to higher courts. During the process between additional assessment and eventual resolution, there are various interlocutory procedures taxpayers can follow – knowing when and how to use them can be extremely powerful and extremely effective – opportunities to use these processes are very often presented but also very often missed.

The process of objection and appeal is strictly regulated by time periods. Missing deadlines can be detrimental to the defence. However, the objection and appeal process is not the only means of challenging an assessment – there are other processes available as well.

Taxpayers, for the most part, bear the burden of proof. When disputing an assessment, taxpayers need to discharge this burden of proof. How to do this will depend on the issues under dispute and substantive law governing those issues. Without discharging this onus, the taxpayer is unlikely to succeed, and knowing what to prove, how to prove it and when requires an astute understanding of the substantive law governing the dispute.

Practical guide to handling tax disputes
Tactical Defence Cases

High level overview of tax disputes

Many tax disputes originate from an audit conducted by SARS followed by an additional assessment/assessment. Taxpayers can then object (typically by completing and submitting an NOO online or by completing an ADR1 and delivering it to prescribed addresses, depending on the circumstances). If SARS does not allow the objection, or only allows it in part, the taxpayer can appeal (typically by completing and submitting an NOA online or by completing an ADR2 and delivering it to prescribed addresses, depending on the circumstances) . When on appeal, a taxpayer can agree with SARS to have the dispute settled by way of a process similar to mediation or, failing that, through litigation in either the tax board or tax court. If mediation and/or litigation in either the tax board and/or tax court fails, the taxpayer can appeal to higher courts. During the process between additional assessment and eventual resolution, there are various interlocutory procedures taxpayers can follow – knowing when and how to use them can be extremely powerful and extremely effective – opportunities to use these processes are very often presented but also very often missed.

The process of objection and appeal is strictly regulated by time periods. Missing deadlines can be detrimental to the defence. However, the objection and appeal process is not the only means of challenging an assessment – there are other processes available as well.

Taxpayers, for the most part, bear the burden of proof. When disputing an assessment, taxpayers need to discharge this burden of proof. How to do this will depend on the issues under dispute and substantive law governing those issues. Without discharging this onus, the taxpayer is unlikely to succeed, and knowing what to prove, how to prove it and when requires an astute understanding of the substantive law governing the dispute.

Practical guide to handling tax disputes

Latest articles on dispute resolution

Court
ABUSING TAX COURT PROCESSES WORK?

[Durban, 03 March 2021] The full bench of the Western Cape High court recently delivered judgment¹ (Cloete J dissenting) in a favour of a taxpayer who, according to the Tax Court, was simply abusing process. When studying the judgment of the Tax Court, it is difficult to see how the taxpayer’s approach was anything more…

chess game
PRESCRIPTION, ASSESSMENTS, SARS’ SUBJECTIVE SATISFACTION AND DISPUTES

150In a recent case[1], a taxpayer tried to defend himself against an assessment raised by SARS after the original assessment prescribed. The gist of the taxpayer’s defence, insofar relevant here, was that SARS was not allowed to have raised the assessment in question because the original assessment had prescribed and that SARS had not objectively…

broken chain
SOMETHING IS SERIOUSLY AMISS WITH THE TAX OBJECTION PROCESS

The Office of the Tax Ombud (OTO) recently released its 2020 Systemic Investigation Report in which the OTO published its findings regarding certain investigations the OTO conducted into SARS’s systems. One of the issues investigated was various areas of non-compliance by SARS with the rules that govern objections and appeals. Amongst the various findings by…

Unicus Tax in the news

Unicus Tax
CLARITY FOR TAXPAYERS ON TAX DISPUTE RESOLUTION

Taxpayers and businesses are under increased pressure as a result of the economic downturn and impact of COVID-19. On the flip side, the South African Revenue Service (SARS) is also under pressure to meet targets. A possible outcome of this double-sided scenario is, according to experts, the potential for an increased number of tax disputes…

Unicus Tax
SARS, LIKE TAXPAYERS, MUST COMPLY WITH SPECIFIED TIME PERIODS

Most taxpayers know that the time periods that govern objections and appeals against assessments by SARS are very strict and, indeed, are very strictly applied by SARS. For example, a taxpayer must object and appeal within a prescribed time period. For the taxpayer, failing to comply with these time periods could have devastating consequences. The…

Unicus Tax
ABSA OPENS WAY TO AVOID TAX TIFF SLOG

In a legal victory that could save companies time and possibly money, the high court in Pretoria affirmed Absa’s contention that it can bypass a mandated “protracted slog” through a dispute resolution mechanism to resolve a difference with the SA Revenue Service (Sars).Absa took two of the tax agency’s decisions directly on review before the…