TERMS OF REFERENCE
What Ramaphosa wants the SARS commission to probe
Extensive terms of reference include clause clearly aimed at, among others, former president Jacob Zuma
President Cyril Ramaphosa on Thursday gazetted extensive terms of reference for the probe into the South African Revenue Service, which, among other things, requires that it look into whether politically influential people received special treatment in their tax affairs.
The clause is clearly aimed at, among others, former president Jacob Zuma, his family and business associates, against whom numerous allegations of tax evasion have been publicly levelled.
The terms of reference say the commission will look into whether SARS in its management of tax and customs settlements and audit case selection compromised its procedures by favouring or discriminating against "prominent influential persons" or their families and known close associates.
The commission will have to investigate whether the SARS leadership knowingly omitted to provide or withheld information that was necessary to ensure a fair and transparent investigation into allegations of malpractice. Also, whether it concealed or ignored criminal transgressions by resorting to "taxpayer confidentiality".
The inquiry will focus on the period between April 2014 and the end of March 2018, when Tom Moyane was at the helm.
It will be headed by former judge of the Supreme Court of Appeal Robert Nugent, assisted by tax lawyer and head of the Katz commission Michael Katz, advocate Mabongi Masilo and lawyer Vuyo Kahla. It is required to submit an interim report by end-September and a final report by end-November.
Among the other areas the terms of reference focus on are whether Moyane’s dissolution of the large-business centre after 2014 had led to inefficiencies and ineffectiveness and whether his change to SARS’s operating model had been a good decision; the proper authorisation of performance bonuses paid to senior managers; and the technical capacity of SARS to perform its functions.
It will have to determine "whether any abuse of decision-making powers took place and, if so, whether such abuse resulted in undue benefits to SARS senior managers or any connected persons".
The ambit of the inquiry will include a look into the disciplinary inquiry of former head of business and individual taxes Jonas Makwakwa.
The strong focus on corruption and mismanagement during the Moyane era has, however, caused tax experts to criticise the terms of reference, saying that they were too backward looking.
PwC tax policy leader Kyle Mandy said that the terms of reference seemed focused on past events. "While it is obviously necessary to do this to ascertain what has gone wrong at SARS, it is just as important to look forward to determine what is required to make SARS effective and efficient and to restore public trust in the institution.
"This goes beyond just the governance and operating models and includes such aspects as skills, technology, institutional knowledge, strategy, the balance between taxpayer rights and the powers of SARS."
South African Institute of Chartered Accountants senior executive Pieter Faber said the commission should focus on how to fix what was wrong in SARS and how to prevent this going forward.
He had hoped the commission would look at fundamental issues such as the governance structure of SARS, its accountability to Parliament and the appointment of the commissioner and his powers.
The question of fairness towards taxpayers was also fundamental.
With Carol Paton