Missed an Important SARS Email? Here’s What You Need to Do

Introduction

Many taxpayers find themselves in the frustrating position of either not receiving SARS correspondence or receiving it long after it was sent. This situation often arises when SARS officials send essential documents such as Audit Findings letters or Outcomes of Objections via email or registered mail instead of uploading them to the taxpayer’s eFiling profile. This can place the taxpayer at a material disadvantage, leading to unexpected additional assessments or declining the taxpayer’s late appeal.

However, there is hope for these taxpayers. Section 253(3) of the Tax Administration Act 28 of 2011 (“TAA”) and rule 3 of the rules promulgated under section 255 of the TAA provide a remedy for these unfortunate taxpayers. If invoked correctly, SARS must withdraw the correspondence not received by the taxpayer or received considerably later and issue a new one.

The Law

Sections 251 and 252 of the TAA deal with the delivery of documents to persons other than companies and to companies. They outline how SARS may issue, give, send, or serve notices, documents, or other communications. Some of these means include, for example, hand-delivering notices, documents, or other communications, sending them via post, or sending them to the person’s last known email address. Notices, documents or other communications delivered in this manner are regarded as received by the person or company to whom it was delivered.

However, section 253(2) and 253(3) provides that if a taxpayer can satisfy SARS that it did not receive the notice document or other communication or that it was only received at some other time, and the person has consequently been placed at a material disadvantage, SARS must withdraw the notice, document or other communication and issue it anew.

SARS can also issue, give, send or serve notices, documents or other communications by sending it to the person’s “electronic address” as defined in the rules issued under section 255(1).

The electronic communication rules established under section 255(1)(a) of the TAA cover the submission of electronic returns, electronic record retention, and other forms of electronic communication.

These types of electronic communications are typically letters issued via SARS system to the taxpayer’s email address. However, the letter in question is not necessarily on eFiling. Rule 3 governs this scenario and specifically addresses the receipt and delivery of electronic communications.

Rule 3(1) of the EC Rules stipulates that, in the absence of an agreement on the form or method of acknowledging receipt of a communication, acknowledgement may be provided through:

• A communication from either a SARS official or the taxpayer regarding the initial communication, whether automated or otherwise.
• Conduct indicating that the communication has been received.

This means that if there is no specific agreement on how to acknowledge receipt, acknowledgement can be given verbally, in writing, through automated responses (such as read receipts, delivery receipts, or automatic email replies), or by any other conduct demonstrating receipt.

According to Rule 3(3), if there is no acknowledgement of receipt as outlined in subrule (1), the communication is considered undelivered. This, however, does not apply where the specific correspondence is on the taxpayer’s eFiling profile.

In SIP Project Managers (Pty) Ltd v CSARS, the High Court set aside the Third Party Appointment (“TPA”) issued by SARS because SARS was unable to prove that the Final Demand was delivered to the taxpayer. On SARS’ side, the Final Demand reflected as sent to the taxpayer’s electronic address. However, the taxpayer never received the Final Demand, and it was not on the taxpayer’s eFiling profile. As such, the final demand was considered undelivered, and SARS’ TPA was unlawful for failure to issue the final demand under section 179(5) of the TAA.

Conclusion

It is essential for taxpayers to be aware of their rights when it comes to receiving SARS communications. Suppose a taxpayer does not receive important communication, such as an Audit Finding or an Outcome of Objection, they have the right to invoke section 253(3) of the TAA or Rule 3 of the electronic communication rules to avoid being placed at a material disadvantage.

These remedies are not applicable when the communication is available on the taxpayer's eFiling profile, which is why it crucial for taxpayers to check their profiles regularly. If you suspect that important correspondence, such as a Final Demand or an Outcome of Objection, is missing from eFiling, it is advisable to contact SARS immediately.