Explore the implications of the Supreme Court of Appeal's judgment in SARS v Poulter, which affirms the right of taxpayers to be represented by non-legal practitioners in the Tax Court. This article delves into the legal and strategic considerations for taxpayers navigating tax disputes.
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The Supreme Court of Appeal’s judgment in Sars v Poulter confirms an important taxpayer right: a taxpayer may be represented in the Tax Court by a duly authorised person who is not a legal practitioner. The SCA held that neither section 125 of the Tax Administration Act nor rule 44(7) of the Tax Court Rules requires the taxpayer’s representative to be an attorney or advocate.
That finding is important for access to justice. It recognises the practical reality that South African tax disputes often involve accounting records, tax computations, reconciliations, Sars correspondence, and procedural detail that accountants and tax practitioners may understand intimately.
However, the judgment does not justify under-resourcing a tax dispute.
From a legal defence strategy perspective, Poulter addresses who may appear. It does not answer the more important commercial question: who should be involved if the taxpayer wants to protect the record, manage Sars’s litigation posture, and preserve appeal options.
In serious Sars disputes, the correct answer will often be a combination of accountants, attorneys, and advocates.
The matter arose from Ms Candice-Jean Poulter’s appeal against her 2018 tax assessment. The appeal was set down for hearing in the Tax Court on November 16, 2022. Ms Poulter did not personally attend the hearing, but she had executed a power of attorney in favour of her father, Gary Van der Merwe, authorising him to appear and present her case on her behalf.
Sars objected to Mr Van der Merwe’s appearance on the basis that he was not a legal practitioner. The Tax Court upheld Sars’s objection and ruled that he could not represent the taxpayer. At Sars’s request, the Tax Court then proceeded under rule 44(7) of the Tax Court Rules, decided the appeal in the taxpayer’s absence, confirmed the original assessment, and ordered the taxpayer to pay Sars’s costs on an attorney and client scale, including the costs of two counsel.
The full court of the Western Cape Division of the High Court set aside the Tax Court’s decision and remitted the matter to the Tax Court for a fresh determination. Sars appealed to the SCA. The central issue was whether sections 12 and 125 of the Tax Administration Act, read with rule 44(7) of the Tax Court Rules, preclude a non-legal practitioner from appearing for a taxpayer in the Tax Court.
The legal issue was narrow but significant: may a taxpayer in Tax Court proceedings be represented by a duly authorised person who is not a legal practitioner?
Sars argued that the Tax Court is a court of law contemplated in section 166 of the Constitution and that the ordinary restrictions on lay representation in courts of law should apply. Sars relied on sections 12 and 125 of the Tax Administration Act, section 25 of the Legal Practice Act, rule 44(7) of the Tax Court Rules, and previous litigation involving Mr Van der Merwe.
The taxpayer argued that the Tax Administration Act and the Tax Court Rules do not impose such a restriction. She also argued that the earlier order relied upon by Sars did not operate as a general prohibition on Mr Van der Merwe appearing in all future Tax Court proceedings.
The SCA was therefore required to interpret the statutory framework governing Tax Court representation and decide whether Sars’s restrictive interpretation was correct.
The SCA approached the matter as one of statutory interpretation. It confirmed that the text, context, and purpose of legislation must be considered together. It also emphasised section 39(2) of the Constitution, which requires courts to interpret legislation in a manner that promotes the spirit, purport, and objects of the Bill of Rights. The right directly implicated was the taxpayer’s access to the Tax Court and representation by a person of her choice.
Sections 12 and 125 of the Tax Administration Act regulate appearance by Sars officials. Section 12(2) provides that a senior Sars official may appear in the Tax Court or High Court only if that person is an admitted advocate or attorney. Section 125(1) provides that a senior Sars official referred to in section 12 may appear at the hearing of an appeal in support of the assessment or decision. The SCA held that these provisions deal with Sars’s right of appearance. They are silent on the taxpayer’s right of representation.
The Court then considered section 125(2) of the Tax Administration Act, as deleted. Before its deletion, that subsection provided that the appellant or the appellant’s representative may appear at the hearing of an appeal. It did not limit “representative” to a legal practitioner. The SCA rejected the argument that the deletion deprived the taxpayer of the right to appear personally or through an authorised representative. Such an interpretation would be absurd, because it would mean that a taxpayer who objected to an assessment could be prevented from attending the appeal hearing or authorising someone to do so on the taxpayer’s behalf.
The SCA also referred to the Explanatory Memorandum to the Tax Administration Laws Amendment Bill of 2017, which described the deletion as a technical correction and stated that the right of the appellant or representative to appear was implicit. The Court held that the position before deletion remained unaffected: a taxpayer could still be represented by a person who was not enrolled as a legal practitioner.
The Court then considered the broader statutory context. The Tax Administration Act refers in several places to a taxpayer’s “duly authorised representative”, including in relation to returns, confidentiality, and access to taxpayer information. The SCA treated this as part of the statutory context, showing that the Act does not confine authorised representatives to attorneys and advocates.
Importantly, the SCA expressly recognised the practical role of non-lawyer tax advisers. It stated that requiring a taxpayer’s representative to be a legal practitioner would disregard the fact that taxpayers engage accountants, auditors, or bookkeepers to deal with tax disputes due to the specialist nature of tax laws and procedures.
Rule 44(7) of the Tax Court Rules did not change the position. The rule refers to “a party or a person authorised to appear on the party’s behalf”. The SCA held that these words must be given their ordinary meaning. The rule does not require that the authorised person be a legal practitioner.
The SCA dismissed Sars’s appeal with costs. It held that neither the Tax Administration Act nor the Tax Court Rules require a taxpayer to be represented only by a legal practitioner in the Tax Court. A duly authorised lay person may represent a taxpayer in Tax Court proceedings.
The SCA also agreed with the full court’s reasoning that the Tax Court is not a court contemplated in section 166 of the Constitution. The Tax Court is not listed in section 166 and is not regarded as having a status similar to that of the High Court or the Magistrates’ Court. It is established on an ad hoc basis by proclamation under section 116 of the Tax Administration Act.
The SCA further held that the earlier Davis Order did not provide a sufficient basis to exclude Mr Van der Merwe from appearing for the taxpayer at the Tax Court hearing.
The judgment confirms the taxpayer’s right to appoint a duly authorised non-lawyer representative in the Tax Court. That is the legal position.
The commercial and litigation considerations are more nuanced.
A Tax Court matter is not a private meeting with Sars. It is a formal dispute process. Sars’s own guidance records that Tax Court appeals are dealt with under the Tax Administration Act and the rules issued under section 103. Once a notice of appeal has been lodged, Sars must initiate the rule 31 process; several pleadings are exchanged between the parties, and documents are discovered before the matter is ripe for hearing in the Tax Court.
This matters because the Tax Court record may shape what happens next. Sars’s official guidance confirms that a taxpayer or Sars may appeal against a Tax Court judgment to the full bench of the relevant High Court, or directly to the SCA if permitted. An appeal heard by the full bench may also be further appealed to the SCA.
Therefore, the representation decision is not merely about who may speak in the Tax Court. It is about who is competent to protect the taxpayer’s record if the dispute escalates.
A weak factual record cannot easily be cured later. A poorly framed ground of appeal may restrict the taxpayer’s case. A concession made in evidence may create lasting prejudice. A failure to call the correct witness may leave an evidentiary gap. A badly managed procedural step may expose the taxpayer to costs or weaken settlement leverage.
The strategic significance of Poulter lies in the flexibility afforded to taxpayers, which must be exercised with discipline and foresight.
Taxpayers involved in Tax Court matters should take five immediate steps.
First, confirm who is authorised to act. The power of attorney or written mandate must be clear, current, and specific.
Second, classify the dispute. Is it mainly factual, computational, legal, procedural, evidentiary, or strategic?
Third, assess escalation risk. If the matter may proceed to the High Court or SCA, prepare the Tax Court case with that record in mind.
Fourth, match the team to the risk. Use accountants for records and computations, attorneys for process and litigation strategy, and advocates where legal argument or appeal risk requires it.
Fifth, review the case before the hearing. Identify admissions, unsupported facts, missing documents, weak witnesses, procedural defaults, and settlement options before Sars uses them.
Sars v Poulter is an important taxpayer-rights judgment. It confirms that a taxpayer may appoint a duly authorised non-lawyer representative in the Tax Court. It also recognises that accountants, auditors, bookkeepers, and tax practitioners play a legitimate role in South African tax. However, the judgment should be applied with caution. It does not imply that serious tax disputes should proceed without the assistance of attorneys or advocates. As Sars adopts a more litigious posture, it becomes increasingly important for taxpayers to design a defence strategy that protects the record, the evidence, the pleadings, and the appeal trajectory, and to have a clear understanding of the appeal path.
The right to appear is one issue. The ability to defend the taxpayer properly is another.
* Oberholzer CA(SA), MCom (Tax), is the CEO of Fyncor Advisory Services.
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