Role of tax practitioner in a tax court
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Two relatively recent court cases, one decided by the High Court in the case of Candice-Jean Poulter versus SARS. High Court case number. A88/2023. Judgement 2 April 2024 and the other by the Supreme Court of Appeal (SCA) in the case of SARS vs Poulter Supreme Court of Appeal (SCA) case number: 1110/2024. Judgement delivered on 12 May 2026, have potentially significant implications for the future role of tax practitioners in South Africa.
Two important conclusions emerge from these judgments.
The Tax Court is not a constitutional court of law
The mere fact that the Tax Court is called a “court” does not, by itself, make it a court of law.
The judgments conclude that the Tax Court is, in substance, an administrative tribunal or administrative decision-maker. Although it is established as a “court”, conducts hearings and is required to perform its functions in a judicial manner, these characteristics do not change the essential nature of its function.
The Tax Court’s primary function is to determine the correct assessment under the Tax Administration Act (TAA). In doing so, it performs an administrative function directed at determining the correct amount of tax payable and facilitating the recovery of that tax.
This distinction is important. The TAA refers to the body as the “Tax Court”, but that designation does not automatically place it within South Africa’s constitutional judicial hierarchy.
Section 166 of the Constitution identifies the courts that form part of the country's judicial system. The Tax Court is not included among those courts. Consequently, the fact that it is established and described as a “court” does not mean that it is a constitutional “court of law” contemplated by section 166.
The Tax Court is established under the TAA rather than directly under the Constitution. Its existence and functioning therefore derive from legislation, with its establishment taking place through the statutory framework provided for in the TAA.
This does not diminish the importance or authority of the Tax Court. It has a specific statutory jurisdiction to hear tax appeals and may, among other things:
• confirm an assessment;
• alter an assessment; or
• refer an assessment back to SARS for further examination.
The important point is therefore the nature of the Tax Court's function and its constitutional status, rather than the name given to the institution.
The status of the Tax Court has important implications for tax practitioners
The classification of the Tax Court as an administrative tribunal, rather than a constitutional court of law, is particularly significant for tax practitioners.
Without going into the more technical provisions of the Constitution, the Legal Practice Act, the Legal Practice Council framework and the TAA, this distinction helps explain why persons who are not legal practitioners may represent taxpayers in proceedings before the Tax Court.
The Tax Court operates within a specialised statutory framework dealing with tax disputes. Its proceedings are therefore not simply equivalent to proceedings before the ordinary courts forming part of the judicial hierarchy contemplated by section 166 of the Constitution.
This provides an important statutory space in which appropriately qualified tax practitioners can represent taxpayers in tax appeals, even though they are not admitted legal practitioners.
The role of a tax practitioner when SARS disallows an objection
What may a taxpayer do if SARS disallows the objection or alters the assessment in a manner that does not satisfy the taxpayer?
A taxpayer who is dissatisfied with SARS's decision on an objection may appeal against that decision.
The tax practitioner acting on behalf of the taxpayer will generally assist with preparing and submitting the prescribed Notice of Appeal (NOA) to SARS. The notice must be delivered to the SARS office that dealt with the objection or to the address specified by SARS in the notice of disallowance.
A notice of appeal must generally be submitted within 30 days after SARS has delivered the notice of disallowance of the objection under rule 9, subject to the applicable rules concerning an extension of the period.
What must the Notice of Appeal contain?
The Notice of Appeal must specify in detail, the grounds of objection being taken on appeal.
The taxpayer must identify which of the grounds contained in the original objection are being pursued on appeal. The taxpayer may decide not to pursue every ground raised in the objection.
The grounds for disputing SARS's decision
The tax practitioner on behalf of the taxpayer must explain why the taxpayer disagrees with the basis on which SARS disallowed the objection, as set out in the notice of disallowance under rule 9.
Any new ground of appeal
The taxpayer may raise a new ground on appeal, subject to the limitations contained in the dispute-resolution rules. A new ground may not, for example, be used to introduce a new objection against a different part or amount of the assessment that was not originally objected to under rule 7.
The important point is that an appeal is not simply a repetition of the original objection. The Notice of Appeal must address SARS's reasons for disallowing the objection and clearly identify the grounds on which the taxpayer now challenges that decision.
What happens after the taxpayer practitioner, acting on behalf of a taxpayer lodges an appeal?
The lodging of the appeal does not necessarily mean that the matter immediately proceeds to the Tax Court.
Depending on the circumstances, the appeal may proceed through one of the following stages:
Alternative Dispute Resolution (ADR) – the dispute may be referred to ADR at SARS Branch Office or SARS Head Office level, or
Tax Board – where ADR is not pursued, the matter may proceed to the Tax Board, provided that the Tax Board has jurisdiction over the dispute. Or
Tax Court – where ADR is not pursued and the Tax Board does not have jurisdiction, the matter may proceed to the Tax Court. Tax Court proceedings are administered through the Registrar of the Tax Court at SARS Head Office, with the relevant SARS dispute-resolution and litigation functions involved in the administration of the matter.
When may an appeal proceed to the Tax Court?
A taxpayer indicates in the Notice of Appeal whether the taxpayer agrees to Alternative Dispute Resolution (ADR). SARS may, however, decide that the dispute is not suitable for ADR. This may occur, for example, where:
there are substantial factual disputes that are unlikely to be resolved;
the dispute involves intentional tax evasion or fraud;
a settlement would be contrary to the law or a generally prevailing practice, without exceptional circumstances;
the taxpayer's serious non-compliance with a tax Act is involved; or
it is in the public interest that the issue receives judicial clarification.
If ADR is not pursued, the appeal may proceed to the Tax Board, provided that the Board has jurisdiction.
An appeal must generally first be heard by the Tax Board where the tax in dispute does not exceed R1 million. However, the matter may proceed to the Tax Court where the circumstances require judicial consideration of the dispute or the relevant legal principles. In particular, the Tax Board chairperson may direct that the matter be heard afresh by the Tax Court if, before or during the hearing, the chairperson considers that the appeal should be heard by the Tax Court rather than the Tax Board.
The essential distinction is therefore that the Tax Board deals with appeals falling within its jurisdiction, whereas matters requiring determination by the Tax Court, particularly those involving legal principles requiring judicial clarification, may proceed to the Tax Court.
Procedures of a tax court
What happens before the appeal is heard?
At this stage, the taxpayer is known as the appellant. The appeal is not yet before the Tax Court. It first goes through the pre-hearing or pleading stage, mainly governed by rules 31 to rule 43.
The purpose is for both parties to formulate their cases and identify the factual and legal issues that the Tax Court must decide. This is where the procedure becomes more formal and specialist skills may be required.
Step 1: SARS's statement – rule 31
SARS must deliver its statement of the grounds of assessment and opposing the appeal within 45 days of the relevant rule 10, 24, 25 or 29 notice.
The statement must clearly set out:
the grounds of the disputed assessment;
which facts and legal grounds in the taxpayer's appeal are admitted or opposed; and
the material facts and legal grounds on which SARS relies.
SARS may raise a new ground of assessment, provided it does not replace the entire factual or legal basis of the assessment or require a revised assessment.
Step 2: Taxpayer's statement – rule 32
The taxpayer must deliver a statement of grounds of appeal within 45 days after SARS's rule 31 statement or, where applicable, discovery of the required documents.
The statement must set out:
the grounds of appeal;
which facts and legal grounds in SARS's statement are admitted or opposed; and
the material facts and legal grounds supporting the appeal.
A new ground of appeal may be raised, provided it does not constitute a new objection to a part or amount of the assessment that was not originally objected to.
Step 3: SARS's reply – rule 33
SARS may reply to the taxpayer's statement of grounds of appeal within the period prescribed by rule 33, generally 15 days after discovery by the taxpayer, where discovery was requested, or 20 days after delivery of the taxpayer's statement.
These statements progressively define the issues that will ultimately be placed before the Tax Court.
It is at this stage that the court process becomes a challenge for a normal tax practitioner
The need for specialised skills
Although the court judgments confirm that non-legal practitioners, including tax practitioners, may represent taxpayers before the Tax Court, this does not mean that every tax practitioner necessarily possesses the specialised skills required to conduct Tax Court proceedings effectively.
Tax practitioners have varying levels of experience, knowledge and competency. The skills required to navigate the Tax Court process, formulate legal and factual arguments, present evidence and deal with procedural requirements are specialised and cannot necessarily be acquired overnight.
Accordingly, there may be circumstances where a tax practitioner should seek assistance from, or consult with, a tax specialist or senior tax specialist during the course of the proceedings.
Tax court is an evidence court
A Tax Court is fundamentally an evidence-based forum. Since the taxpayer generally bears the burden of proof, evidence is more than simply producing PDF invoices or affidavits.
The taxpayer must present a credible documentary trail, reliable witnesses and, where necessary, expert evidence. The evidence must also be admissible at trial. Either SARS or the appellant may challenge the admissibility of particular evidence.
An appeal cannot succeed through weak or unsupported documentation. The evidence must substantiate the taxpayer's case on the balance of probabilities.
A tax practitioner may have extensive knowledge of tax law but may have limited experience in evidence, administrative law, constitutional law and litigation procedure. Likewise, acting as a litigator requires particular skills, including the ability to analyse evidence, challenge opposing evidence and present legal arguments effectively.
Not every tax practitioner, or taxpayer, is equipped to perform the role of a litigator. Effective Tax Court representation requires both sound tax knowledge and strong litigation and evidentiary skills.
This does not detract from the role of the tax practitioner. Rather, it recognises that Tax Court matters can involve complex legal, procedural and technical issues requiring a level of expertise beyond the practitioner’s usual area of practice.
The ability to represent a taxpayer before the Tax Court therefore should not be confused with the ability to handle every aspect of a Tax Court matter without specialised assistance.
This position is also recognised in section 125 of the Tax Administration Act, which provides for a senior SARS official to appear at a Tax Court hearing and represent SARS.
However, the statutory provisions governing the participation of non-legal practitioners in representing taxpayers before the Tax Court were amended by Parliament in 2024. The Minister has not yet announced the effective date of these amendments.
The pending amendments provide as follows:
“The ‘appellant’ or the representative of the ‘appellant’ may appear at the hearing of an appeal in support of the appeal: Provided that if the representative of the ‘appellant’ is a person who is not a legal practitioner, the president of the tax court is satisfied that the person is a fit and proper person to appear on the ‘appellant’s’ behalf.”
The proposed provisions require the President of the Tax Court to be satisfied that a non-legal representative acting on behalf of a taxpayer is a “fit and proper person” to undertake the representation.
This is not the first instance in which the expression “fit and proper” has been used in legislation. Similar terminology can be found, for example, in the Trust Property Control Act.
In practice, the concept of being a “fit and proper person” may require consideration of several factors, depending on the circumstances. These could include the person's relevant years of experience in the area of tax concerned, academic or professional qualifications, practical knowledge and experience, professional conduct, and the ability to understand and deal with the legal, factual and procedural issues arising in the matter.
It is therefore not necessarily sufficient for a person simply to have experience as a tax practitioner. The complexity of the particular Tax Court matter may require a level of specialised knowledge, experience and professional competence appropriate to the issues under consideration.
Conclusion – the future of accountants
The fact that the institution is called a “court” should not be confused with its constitutional status. The Tax Court performs a specialised statutory and administrative function under the TAA and does not form part of the constitutional court structure identified in section 166 of the Constitution.
That distinction is particularly important for tax practitioners because it provides the legal context within which non-legal practitioners may participate in and represent taxpayers in Tax Court proceedings.
With the growing use of AI in tax administration, including individual auto-assessments and the phased introduction of automated assessments for vendors, the role of the tax practitioner is already changing.
The prospect of tax practitioners appearing in the Tax Court represents a further shift in their professional role. With appropriate training and experience, practitioners can develop the skills required to participate effectively in this area.
Courses on Tax Court procedure and litigation skills are likely to become increasingly relevant, with some local and international institutions already offering such programmes.
The future of the tax profession remains promising, but it will require practitioners to continually expand their skills beyond traditional tax knowledge.
Future articles on this website will explore the nuances of rules 31 to 33 in greater detail, with reference to relevant high Court and Supreme Court of Appeal (SCA) court decisions.
If you are a tax practitioner interested in pursuing a career in Tax Court appearances, a good starting point is to familiarise yourself with these articles in CIBA’s website.
References for more information
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