After years of uncertainty, a full Bench of the High Court has ruled Tax Courts are not ‘courts of law’ and non-lawyers, including accountants, can represent taxpayers in any of the country’s Tax Courts.

A Business Day report says this comes after nearly a decade-long battle between SARS and a swimwear model who received a R142m ‘gift’ from an overseas companion with which SARS took issue.

SARS took action against businessman Gary Walter van der Merwe, his daughter Candice-Jean Poulter and others in 2013 over what it deemed as tax debts.

In assessing her 2014 tax year, SARS noted she received a R142m ‘gift’ from an unknown person overseas. SARS began interrogating her tax payments and the gift.

After correspondence between Poulter’s lawyers and SARS, it was agreed she would pay R44m in tax.

However, Poulter began contesting this payment years later. This was fought all the way to the SCA in 2022, and the SCA ruled she had begun contesting too early and SARS had done nothing wrong.

The dispute had to instead play out and go to the Tax Court, which it did.

The Tax Court ruled against her in her absence, confirming she must make the payments SARS asked for, and refused her father’s request to act on her behalf.

The Business Day report says it was this refusal that was taken up by Poulter on appeal to the full Bench of the Western Cape High Court. She argued the court’s refusal was wrong in law and its decision must be set aside.

In terms of legislation, only admitted legal practitioners can represent others in ‘courts of law’.

However, it has long been unclear to practitioners whether Tax Courts are like other ‘courts of law’ or more akin to the CCMA.

The full Bench has now ruled that Tax Courts are not courts as in courts of law. This meant the strict requirements in legislation about who can act on others’ behalf ‘do not apply’. 

‘There is nothing in the regulations to suggest that the references ... to a taxpayer’s representative must (mean) a person admitted as a legal practitioner,’ wrote Judge Ashley Binns-Ward for a unanimous Bench.

‘Experience tells that in the past taxpayers have often been represented in proceedings before a Tax Court by an accountant or similarly qualified tax practitioner rather than a legal practitioner, Binns-Ward wrote referencing Tax Courts before modern tax legislation.

After assessing current laws and judgments regarding Tax Courts, Binns-Ward ruled that Tax Courts operate completely differently from ordinary courts.

Tax Courts, for example, ‘are not open to the public’ and their rulings do not identify taxpayers. Tax Courts are also made up of non-judges, who are experts in accounting, sitting with a judge, notes the Business Day report.

‘All of the aforementioned characteristics of the Tax Court,’ he wrote, ‘impel the conclusion that its function is essentially that of an administrative tribunal.’

That a Tax Court was called a ‘court’ was irrelevant.

‘The Tax Court (is positioned) outside the judicial system ... Tax Courts are not courts of law.’

Because of this, the Tax Court was ‘misdirected in refusing’ Poulter’s father to act as her representative. As a result, its ruling was wrong.

Binns-Ward said his judgment was now ‘binding not only on the parties to the current proceedings but on all parties to appeals in the Tax Court’.

Poulter’s matter was sent back to the Tax Court to start afresh, for a date to be determined. SARS was ordered to pay her legal costs.

Full Business Day report

Judgment