GEN GEN 08 G01 Reporting Unprofessional Conduct

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TABLE OF CONTENTS,1 PURPOSE 3,2 INTRODUCTION 3,3 BACKGROUND 3. 4 GOVERNING LEGISLATION AND DISCUSSION 4, 5 HOW CAN A PERSON REPORT UNPROFESSIONAL CONDUCT 7. 6 COMPLETION OF RUC001 FORM 7,6 1 DETAILS OF COMPLAINANT 7. 6 1 1 PERSONAL DETAILS 7,6 1 2 CONTACT DETAILS 8,6 1 3 LINE MANAGER DETAILS 9. 6 2 DETAILS OF TAXPAYER 9,6 2 1 PERSONAL DETAILS 10.
6 2 2 ENTITY DETAILS 10,6 2 3 CONTACT DETAILS 11,6 3 DETAILS OF TAX PRACTITIONER 11. 6 3 1 PERSONAL DETAILS 11,6 3 2 CONTACT DETAILS 11. 6 3 3 BUSINESS ADDRESS DETAILS 12,6 3 4 POSTAL ADDRESS DETAILS 12. 6 3 5 OTHER DETAILS 13,6 4 NATURE AND DETAILS OF COMPLAINT 13. 6 4 1 NATURE OF COMPLAINT 14, 6 4 2 NATURE OF RELATIONSHIP WITH TAX PRACTITIONER 14.
6 4 3 ADDITIONAL DETAILS OF COMPLAINT 14,6 5 SUBMISSION OF THE FORM 15. 7 DECLARATION 16,8 CROSS REFERENCES 16,8 1 LEGISLATION 16. 9 DEFINITIONS AND ACRONYMS 16,EXTERNAL GUIDE REVISION 2 Page 2 of 17. REPORTING UNPROFESSIONAL,GEN GEN 08 G01, This guide in its design development implementation and review phases is guided. and underpinned by the SARS values code of conduct and the applicable legislation. Should any aspect of this guide be in conflict with the applicable legislation the. legislation will take precedence, The purpose of this guide is to provide information regarding tax practitioners and the.
role that SARS plays in their governance circumstances under which any person can. report to SARS another person who professionally provides untoward tax advice or. assistance and sets out the procedures and actions that SARS will follow and take. when such reports are received,2 INTRODUCTION, The guide applies to the reporting to SARS of the unprofessional conduct of persons. who provide tax assistance and covers the conduct of registered tax practitioners as. well as other professionals who provide tax assistance professionally. The guide also covers the completion of the form for reporting alleged unprofessional. 3 BACKGROUND, SARS respects the right of taxpayers to obtain professional tax advice as it endorses. the principle of tax self determination However the need for integrity in the. relationship between a tax professional and a taxpayer must be emphasised as this. relationship is of utmost importance for tax compliance It is expected that tax. practitioners who are experts in this field will, clearly outline the tax laws and obligations of taxpayers to the taxpayer. accurately and honestly assist taxpayers in the completion of their tax returns. when appropriate honestly and openly engage with SARS on behalf of. As stated the role of the tax practitioners is vital for compliance. For these reasons the Tax Administration Act of 2011 in Chapter 18 provides a. framework to ensure that tax practitioners are appropriately qualified and that a. mechanism is available to both taxpayers and SARS to ensure that misconduct is. The first leg of the framework is the compulsory registration of tax practitioners with. controlling bodies recognised by the law or SARS in accordance with certain. prescribed criteria Such recognition affords a controlling body the status of a. Recognised Controlling Body RCB and ensures that registered tax practitioners. subscribe to the Code of Conduct as well as other requirements of the RCB of which. they are a member The Code of Conduct stipulates the minimum ethical conduct. requirements for RCB members as well as consequences of its contravention. including disciplinary action by the RCB against its members This means that where a. registered tax practitioner has been negligent contravened tax law on behalf of. taxpayers or otherwise disadvantaged a taxpayer or affected their compliance levels. the taxpayer or another member of the public may report the practitioner to their RCB. As Chapter 18 provides a mechanism for SARS to do likewise taxpayers and the. public have the option to report such unprofessional conduct to the RCB to SARS or. to both the RCB and SARS, The second leg of the framework is the compulsory registration of tax practitioners with. SARS In this regard Chapter 18 requires that SARS must decline to register or. EXTERNAL GUIDE REVISION 2 Page 3 of 17,REPORTING UNPROFESSIONAL.
GEN GEN 08 G01, deregister a tax practitioner if certain circumstances pertaining to the tax practitioner. are applicable Although the Chapter does not explicitly provide for taxpayers or the. public to report tax practitioners in this regard if such reports are received SARS will. in the interest of good governance of the tax practitioner profession investigate and. take appropriate action, Lastly the above framework is supported by the Act which makes it a criminal offence. for tax practitioners to practice without registering with both an RCB and SARS. Coupled with the fact that the above recourse to the RCB and SARS against the. unprofessional conduct of registered practitioners is unavailable when it comes to. unregistered tax practitioners it should be clear why it is advisable for taxpayers to. make use of registered tax practitioners only, The governance of tax practitioners is therefore a dual responsibility shared by both. the RCB whom the tax practitioner is registered with and SARS which is in the best. interest of taxpayers as tax practitioners can be held accountable by a higher. 4 GOVERNING LEGISLATION AND DISCUSSION, The registration of tax practitioners and reporting of unprofessional conduct is. regulated by Chapter 18 of the Tax Administration Act sections 239 to 243 These. sections are discussed below,Section 239 Definitions.
Defined meanings of terms in section 1 of the Act are applicable throughout the Act. unless the context indicates otherwise However there are also Chapters and Parts. that contain defined terms the definitions of which only apply to the Chapter and Part. in which they appear in single quotation marks Chapter 18 is one such Chapter. The Chapter differentiates between controlling bodies and RCBs A controlling body is. a body established whether voluntary or under law with power to take disciplinary. action against a person who in carrying on a profession contravenes the applicable. rules or code of conduct for the profession Although undefined in this section as. discussed under section 240A below a RCB is a body recognised by SARS or the. legislation that exercises control over members who provide the services listed in. section 240 The Chapter enables SARS to report the unprofessional conduct of the. members of both controlling bodies and RCBs,Section 240 Registration of tax practitioners. Subject to exclusions set out below every natural person must register as a tax. practitioner with both SARS and an RCB if they charge a taxpayer a fee including a. percentage of a possible refund to, provide advice with respect to the application of a tax Act. complete a tax return on behalf of the taxpayer or. assist the taxpayer in completing their return,This duty does not apply to a person who only. provides the above services,o for free,o as part of their job or. o under the supervision of a registered tax practitioner in which case the. tax practitioner is accountable for the actions of this person. provides advice for the purposes of litigation involving SARS or. EXTERNAL GUIDE REVISION 2 Page 4 of 17,REPORTING UNPROFESSIONAL.
GEN GEN 08 G01, provides other goods or services and the advice is incidental or subordinate to. providing these goods or services This would include estate planners financial. advisors and brokers However as these types of professionals are as a rule. required to belong to a controlling body their unprofessional conduct can be. reported as set out in this Guide, A person may not register as a tax practitioner or SARS may deregister or suspend a. registered tax practitioner, if a controlling body has revoked their membership for serious misconduct within. the last five years, if they have been convicted of any serious tax offences or offences involving. dishonesty within the last five years, during the period that they are being prosecuted for a serious tax offence or.
if they are not tax compliant during the preceding 12 months for an aggregate. period of at least six months, Taxpayers who have information that SARS should not register a person as a tax. practitioner or should deregister or suspend a registered tax practitioner can report this. as set out in this Guide,Section 240A Recognition of controlling bodies. In order to recognise the status of statutory regulators that are directly relevant to the. services listed in section 240 the recognition of following regulators is automatic i e. SARS does not need to recognise them for qualification as a RCBs. the Independent Regulatory Board for Auditors, the Legal Practice Council the new regulator for legal professionals advocates. and attorneys and, a statutory body that the Minister of Finance publishes in the Gazette if satisfied. that they are similar to the statutory bodies in this subsection. This is so because the legislation that governs these regulators already sets the. professional standards possibly even higher ones that Chapter 18 demands from tax. practitioners, Other professional associations with members who provide the services listed in.
section 240 must apply to SARS for recognition As a prerequisite these associations. must have the power to discipline their members and to ensure sustainability and. credibility must have a minimum of 1 000 members when they apply or within a year. of application this allowance catering for new associations. SARS can recognise these bodies as RCBs if they maintain relevant and effective. qualifications experience and continuing professional education requirements codes. of ethics and conduct and disciplinary procedures This ensures that members. are required to have knowledge of tax that is kept up to date. are subject to codes of ethics and conduct that are relevant to the tax field. are required to act ethically and professionally and. can be dealt with by an effective disciplinary mechanism if they contravene the. codes of ethics and conduct, As of date of publication of this Guide the following RCBs have been recognised by. The South African Institute of Chartered Accountants SAICA. The South African Institute of Tax Professionals SAIT. South African Institute of Chartered Accountants SAICA. South African Institute of Professional and Management Accountants SAIPA. EXTERNAL GUIDE REVISION 2 Page 5 of 17,REPORTING UNPROFESSIONAL. GEN GEN 08 G01,South African Institute of Tax Professionals SAIT. Certified Institute of Management Accountants CIMA. Chartered Secretaries of South Africa CSSA, Association of Chartered and Certified Accountants ACCA. Institute of Accounting and Commerce IAC, Association of Accounting Technicians South Africa AAT.
Financial Planning Institute FPI, In addition to cater for associations that lack the capacity or willingness to adequately. deal with complaints about members by SARS the Minister of Finance is empowered. to appoint a panel of retired judges or persons of similar stature and competence to. hear these complaints on behalf of an association The costs of the appointment will. be borne equally by the association and SARS, It is clear from the above that the legislation provides a framework to ensure that tax. practitioners are appropriately qualified and that misconduct can be addressed It. demonstrates that it is in the utmost interest of all taxpayers to procure the services of. registered tax practitioners only Taxpayers can verify that the professional that they. are using is a registered tax practitioner, https secure sarsefiling co za TaxPractitionerQuery aspx on the SARS eFiling. website and are encouraged to do so, Unregistered tax practitioners are not accountable to a RCB who can ensure that they. are appropriately qualified and behave ethically The only recourse that SARS and a. taxpayer have with regard to such a person is to lay a criminal complaint with the. South African Police Service Taxpayers who have complaints about unregistered tax. practitioners or who become aware that their tax practitioner is unregistered can. Report Tax Crime by following this link on the SARS website. Section 241 Complaint to controlling body, In consideration of the definition replicated in the discussion on section 239 above a.
member of a controlling body could include a medical professional a teacher an. estate agent veterinarian or any number of professions that are required to belong to. governing bodies However it is more likely that a taxpayer will obtain tax advice or. assistance as a by product of consulting with insurance brokers estate planners. financial advisors brokers and the like Although these professionals are not required. to register as tax practitioners see discussion on section 239 and 240 SARS may. still lodge a complaint with their controlling body if they did or omitted to do anything. with respect to their own affairs or that of a taxpayer which in the opinion of SARS. was intended to assist or through negligence resulted in the taxpayer avoiding. or unduly postponing the performance of a tax obligation. contravenes the rules or code of conduct for the profession to which they belong. and that may result in disciplinary action being taken against. EXTERNAL GUIDE REPORTING UNPROFESSIONAL CONDUCT GEN GEN 08 G01 REVISION 1 Page 4 of 13 A SARS official occupying a post designated by the Commissioner for

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