30 May 2023 – Arena Holdings and others v SARS and another Constitutional Court Case No 365/21 – concerning tax confidentiality and the right of access to information
The Constitutional Court has handed down judgment in the matter involving a request to access certain tax records of the former President of the Republic of South Africa. This request was made in terms of the Promotion of Access to Information Act (PAIA) and was declined by SARS on the basis that legislation prohibited SARS from acting in any other way.
The Constitutional Court has made findings regarding the constitutional invalidity of certain provisions of the PAIA as well as the Tax Administration Act 28 of 2011 (the TAA). It has ordered that Parliament, within the next 24 months considers measures to address the constitutional validity. In the meantime, and until Parliament remedies the constitutional invalidity, the Court has ordered a “read-in” to the PAIA and the Tax Administration Act, 2011 (TAA).
The Constitutional Court further directed that the request for the said record must be reconsidered by SARS against the “read-in” provisions. These provisions provide that SARS must consider whether:
- The disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law, or
- The disclosure of the record would reveal evidence of an imminent and serious public safety of environmental risk, and
- The public interest in making the disclosure clearly outweighs the harm
While SARS is considering the application of the judgment in full, the Commissioner wishes to note that taxpayer confidentiality remain fundamental to our administration. The judgment does not set aside the tax confidentiality provisions. It sets a high threshold to meet when access is requested to the tax records of a taxpayer.
Commissioner Kieswetter states: “We respect the findings of the Court, and are applying our mind to exact implication for SARS and taxpayers. I wish to assure all taxpayers that any request made under PAIA for the tax records of a taxpayer will be judiciously scrutinised within the parametres set by the Constitutional Court. We must guard any frivolous abuse of the provisions set out by the Constitutional Court.”
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