advanced litigation strategies in transfer pricing prof d n erasmus prof a venter

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

Conta

ct Prof Daniel N Erasmus

083-458-8422 +1 561-568-7115 erasmud@tjsl.edu