After years of legal skirmishes between the SARS and former swimsuit model Candice van der Merwe, the SCA has found that a lay person may represent a taxpayer in tax court, reinforcing access to justice in tax disputes.

As a result, van der Merwe’s father, Gary, should never have been prohibited from representing her in her appeal against a 2018 multi-million-rand tax assessment.

The SCA judgment confirmed the Western Cape High Court’s ruling in favour of Van der Merwe and dismissed SARS’ appeal against that judgment with costs. 

When the matter was set down for hearing before the Tax Court in 2022, SARS objected to Van der Merwe representing his daughter in her absence on the grounds that he was not a legal practitioner.

The Tax Court upheld the objection, confirmed the original tax return and ordered Van der Merwe to pay SARS' costs on an attorney and client scale, including the costs of two counsel.

Van der Merwe took this decision on appeal before the Western Cape High Court which held that a lay person could represent a taxpayer before the Tax Court.

It found that the Tax Court is not court of law, but an administrative decision-maker. 

Moneweb reports that her tax affairs came under the spotlight in 2013 when she received a gift of almost R143m from a foreign friend.

She was slapped with a huge tax assessment and has been fighting SARS ever since.

The SCA used the Constitution as a starting point in its analysis.

‘The right that is directly implicated in this case is the taxpayer’s constitutional right of access to the Tax Court and to be represented by a person of her own choice,’ Judge Dumisani Zondi said.

He referred to the repealed section of the TAA relating to non-legal representation.

The question was whether the deletion meant that taxpayers were no longer entitled to appear at the hearing or to be represented before a Tax Court.

Moneyweb notes that Zondi said it was also clear that the provisions governing the appearance by or on behalf of a taxpayer in the Tax Court do not require the person representing a taxpayer to be a legal practitioner: ‘To do so, would disregard the fact that taxpayers engage accountants, auditors or bookkeepers in dealing with their tax disputes with SARS because of the specialist nature of tax laws and procedures.’

The dismissal of the SARS appeal means that – if not taken on appeal before the Constitutional Court – Van der Merwe’s appeal against her 2018 tax assessment is back with the Tax Court.

Full Moneyweb report

Judgment