advanced litigation strategies in transfer pricing prof d n erasmus prof a venter
TRANSCRIPT
Advanced Litigation
Strategies in Transfer
Pricing
Prof D N Erasmus
Prof A Venter
Conte
nt IntroductionBackgroundTax Administration
Process - BEFORE the Audit - DURING the Audit
- AFTER the AuditLitigation
Back
gro
und
REASON for the seminarPURPOSE of the seminar
BACKGROUND: REASON for the Seminar
16 Feb 2013 30 July 2013
30 April 2013
19 July 2013
RECENT PUBLICATIONS
Tax
Adm
in
Proce
ss BEFORE the Audit DURING the Audit
AFTER the Audit LITIGATION
• Level of detail & sophistication to be pursued (p6)
• Q?s to be answered in a TP Risk Assessment Process (p8)
• Risk Factors (p11)• Evaluating TP risk (p13)• Risk Assessment Process (p30)• Sharing risk assessments with taxpayers
(p33 par. 147)
BEFORE the Audit: Key Indicators
• Refer to the documentation WHITE PAPER pages 23 – 25
• Discharging the onus of proof
• Efficient & Effective use resources
• The Constitution s 232 and soft law
• The Constitution ss 1(c), 2 and 195
• Shuttleworth case para’s [44]and [46]
• SARS Act s 4(2)
BEFORE the Audit: Documentation Requirements
Ensuring compliance with the TAA sections on the status of the audit, and the letter of findings at the conclusion of the audit…
• Relevant material
• s 3(2) of TAA
• s 41 of TAA
• s 42 of TAA
• s 46 of TAA
• s 102 of TAA – onus of proof
• s 105 – court forum
DURING the Audit
Refer to the suggested Audit Engagement
Letter
BEFORE the Audit: Audit Engagement Letter
• Ensure a comprehensive response to the letter of findings
• Ensure an objective review by SARS
• Promotion of Administrative Justice Act
• Consider any Review Application to the High Court for procedural defects
• Invoke the MAP process
• Draft a comprehensive request for reasons
• Draft a comprehensive Letter of Objection
• Other issues
AFTER the Audit
• Costs of proceeding directly to litigation
• Guarding against the potential Loss of Evidence
• Potential for settlement
• Onus of proof
• Discovery regarding expert witnesses
• Foreign Law in TP cases
• Other issues
Litigation
