Secrecy of Taxpayer Information and the Disclosure thereof by an Order of Court in Terms of the Tax Administration Act 28 of 2011 and the Promotion of Access to Information Act 2 of 2000

Abstract

The secrecy provisions of the Tax Administration Act 28 of 2011 (hereinafter, the TA Act) provide that taxpayer information may generally not be disclosed by the South African Revenue Service (hereinafter, SARS). One of the exceptions to the preservation of secrecy is when a court orders disclosure following an application regulated by secs. 69(2)(c), 69(3), 69(4), and 69(5) of the TA Act. This article considers this exception to taxpayer secrecy in terms of the TA Act, with a focus on the circumstances provided in sec. 69(5) of the TA Act, which must be met before the court may order disclosure. This is done by first considering the previous provisions relating to secrecy and the exception thereof by an order of court found in, for example, the Income Tax Act 58 of 1962, which applied before the commencement of the TA Act. The case law on the previous provisions and the more recent cases on the TA Act secrecy provisions are analysed. This article also considers the disclosure of taxpayer information by a court in terms of the Promotion of Access to Information Act 2 of 2000 (hereinafter,
the PAI Act), in light of the recent finding by the Constitutional Court in Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Service and Others.1 In this case, the majority of the court declared certain provisions of the PAI Act and the TA Act constitutionally invalid, which results in the mandatory disclosure of taxpayer information when it is in the public interest, as contemplated in sec. 46 of the PAI Act. The PAI Act, in addition to the TA Act, now allows for a court order to disclose information in terms of the public interest procedure if access was refused by SARS. This begs the question: What is the interaction between a TA Act court order to disclose taxpayer information and a PAI Act court order to disclose taxpayer information if the requirements of
sec. 46 of the PAI Act are applicable and if access was refused by SARS?