Major legal blow to SARS as taxpayers get the right to use cheap ‘lawyers’

In a landmark ruling, the Supreme Court of Appeal (SCA) held that taxpayers may be represented in the Tax Court by duly authorised non-legal practitioners, rejecting SARS’s attempt to limit representation to admitted legal professionals.

In a significant judgment handed down on 12 May 2026, the SCA delivered what may become one of the most important procedural tax judgments in recent years.

In Commissioner for the South African Revenue Service v Poulter, the SCA dismissed SARS’s appeal and confirmed that taxpayers may be represented in the Tax Court by duly authorised non-legal practitioners.

According to Tax Consulting SA’s Head of Tax Controversy & Dispute Resolution, André Daniels, the judgment strikes directly at SARS’s increasingly technical and procedural approach to tax litigation.

The case has potentially far-reaching implications for taxpayers, accountants, tax practitioners, and dispute resolution processes before the Tax Court.

The matter arose after Candice-Jean Poulter appealed a SARS assessment for the 2018 tax year. She authorised her father, Gary van der Merwe, to appear on her behalf in the Tax Court by way of a power of attorney.

SARS objected to Van der Merwe’s appearance on the basis that he was not a legal practitioner, Daniels explained.

The Tax Court upheld SARS’s objection, ruled that Van der Merwe could not represent the taxpayer, and proceeded to determine the matter in the taxpayer’s absence under Rule 44(7) of the Tax Court Rules.

The Tax Court then confirmed the assessment against the taxpayer and awarded costs in favour of SARS on an attorney-and-client scale, including the costs of two counsel.

The taxpayer successfully appealed to the Full Court of the Western Cape High Court, which overturned the Tax Court’s ruling. SARS thereafter approached the SCA.

The central issue before the SCA, Daniels explained, revolved around whether the Tax Administration Act (TAA) prohibits non-legal practitioners from appearing on behalf of taxpayers in the Tax Court.

This evaluation involved sections 12 and 125 of the TAA, read together with Rule 44(7) of the Tax Court Rules and section 25 of the Legal Practice Act.

SARS argued that the Tax Court is a “court of law” contemplated in section 166 of the Constitution and that only admitted legal practitioners may represent taxpayers in such proceedings. The SCA rejected this argument.

Court rejects SARS’s stance

Daniels said the SCA held that neither the TAA nor the Tax Court Rules require a taxpayer’s representative to be a legal practitioner. Importantly, the court analysed the historical wording of section 125(2) of the TAA.

“The appellant or the appellant’s representative may appear at the hearing of an appeal in support of the appeal,” the section previously expressly provided.

Although this subsection was later deleted, the SCA found that the deletion did not remove the taxpayer’s right to representation by a non-legal practitioner.

The court went further and relied on the Explanatory Memorandum to the amendment legislation, Daniels said.

This memorandum described the deletion as merely a “technical correction” because the taxpayer’s right to representation was deemed implicit.

“This finding is particularly important because SARS has, for several years, adopted an increasingly restrictive interpretation of representation rights in tax litigation,” Daniels said.

The SCA also analysed several other provisions of the TAA and Tax Court Rules which refer to a taxpayer’s “duly authorised representative”.

The court noted that the legislation consistently recognises the role of authorised representatives without limiting those representatives to attorneys or advocates.

The SCA expressly recognised that taxpayers often rely on accountants, auditors, bookkeepers, and tax practitioners due to the specialised nature of tax disputes.

Importantly, the SCA stated that the statutory provisions do not impose a requirement that the person who performs certain acts or appears on behalf of the taxpayer in the Tax Court should be a legal practitioner.

“This represents a substantial defeat for SARS’ argument that taxpayer representation in the Tax Court should effectively be reserved for admitted legal practitioners,” Daniels said.

Perhaps even more controversial, he noted, is the SCA’s finding that the Tax Court is not a “court of law” contemplated in section 166 of the Constitution.

The court reasoned that the Tax Court is established on an ad hoc basis by Presidential proclamation under section 116 of the TAA, rather than directly by Parliament itself.

According to the SCA, this means the Tax Court does not form part of the ordinary judicial hierarchy contemplated in section 166 of the Constitution.

This aspect of the judgment may well spark significant future constitutional debate regarding the precise nature and status of the Tax Court within South Africa’s legal framework.

Taxpayers gain flexibility in SARS disputes, but risks remain

According to Daniels, the judgment has immediate practical implications for taxpayers who are engaged in disputes with SARS.

For years, many taxpayers, particularly individuals and small- to medium-sized businesses, have relied heavily on tax practitioners, accountants, and specialist tax consultants during disputes with SARS.

Unfortunately, the cost of appointing attorneys and advocates for every Tax Court appearance can be prohibitive for many taxpayers.

The SCA’s judgment now confirms that taxpayers are not automatically barred from appointing non-legal representatives in Tax Court proceedings, provided they are duly authorised.

That said, Daniels stressed that taxpayers should not misunderstand the judgment as suggesting that legal representation is unnecessary in complex tax disputes.

“Tax litigation remains highly technical and procedurally demanding. Procedural missteps can have devastating consequences, particularly given that taxpayers are generally bound by the grounds raised in their objection and appeal.”

“Furthermore, SARS continues to litigate aggressively, frequently appointing senior counsel and taking increasingly technical points in disputes.”

The Poulter judgment, therefore, does not reduce the risks associated with Tax Court litigation. Rather, Daniels said, it clarifies who may lawfully appear on behalf of a taxpayer.

The judgment also highlights a broader trend in SARS litigation strategy, as it is increasingly willing to rely on procedural and technical arguments to defeat taxpayers before the merits of the underlying dispute are even considered.

This case ultimately reached the SCA over the question of who may stand before the Tax Court and speak on behalf of a taxpayer.

Taxpayers should therefore appreciate that modern tax disputes are no longer merely accounting exercises, Daniels cautioned.

“They are increasingly complex legal proceedings involving procedural law, constitutional interpretation, litigation strategy, and statutory interpretation.”

“In an enforcement environment where SARS continues to intensify collections, audits, verifications, and litigation activity, taxpayers who underestimate the procedural dimensions of tax disputes do so at considerable risk.”