Now that we have discussed searches, the Customs demand and the pre-appeals process, we can go through the formal appeals process.
You have received the Letter of Demand and you have decided to go with the internal appeals process with SARS Customs. Also, you have paid up all the amounts demanded which will include the outstanding duties, taxes, penalties and interest.
You will have 30 working days from the date of the Letter of Demand within which to lodge the first appeal.
The first level of appeal is with the local Customs Branch Office which made the adverse decision. This is called the IAA (Internal Administrative Appeal) process.
If this fails, the second level of appeal will be with the Office of the Commissioner for the SARS. This is called the ADR (Alternate Dispute Resolution) appeals process. Your appeal may be mailed directly to the Commissioner’s Office or alternatively, it may be addressed via the local Customs Branch Office.
You will have 30 working days after the IAA response letter (if unsuccessful) from SARS to appeal by ADR. In each instance, SARS is required to establish a separate and independent review committee known as the Appeals Committee. You may also (in addition to written representations) elect to make representations in person to the Appeals Committee.
In some cases (prior to appealing) you might require SARS Customs to provide further explanations or reasons for a decision made. If so, you should, within the 30 working days in any instance, request reasons from SARS in writing. Going forward, extensions of the 30 working days within which to respond to an appeal may also be granted, upon request. A maximum of 15 calendar days may be provided.
In the new legislation SARS will have 60 calendar days within which to respond to any appeal with a decision. The Commissioner may extend this by an additional 30 calendar days. If SARS does not respond with a decision within this timeframe, the case will automatically be won by the applicant.
The period 16 December to 15 January (inclusive of both dates) are excluded in any periods of limitation.
There is also provision for an Ombudsman in the new legislation.
You are in any event advised to consult with a professional prior to attempting to appeal any matter by yourself.
Anyone involved in the appeals process may at any time still decide to follow litigation. The period of time normally allowed for litigation following the last decision made by SARS (whether in or outside of the internal appeals process) is 12 months.
However, there are additional time constraints involved in this process which relates to the PAJA (Promotion of Administrative Justice Act) number 3 of 2000. Traders are advised to consult with a Customs Attorney in advance. Litigation however is normally reserved as a last resort.