54. Agents and auctioneers
(1) For the purposes of this Act, where an agent makes a supply of goods or services for and on behalf of any other person who is the principal of that agent, that supply shall be deemed to be made by that principal and not by that agent: Provided that, where that supply is a taxable supply and that agent is a vendor, the agent may, notwithstanding anything to the contrary in this Act, issue a tax invoice or a credit note or a debit note in relation to such supply as if the agent had made a taxable supply, and to the extent that that tax invoice or credit note or debit note relates to that supply, the principal shall not also issue a tax invoice or a credit note or a debit note, as the case may be:
Provided further that where an agent issues a tax invoice on behalf of a principal, such tax invoice must be issued within 21 days of the date of that supply by that agent.
[Further proviso added by section 102 of Act 43 of 2014 effective on 1 April 2015]
(2) For the purposes of this Act, where any vendor makes a taxable supply of goods or services to an agent who is acting on behalf of another person who is the principal for the purposes of that supply, that supply shall be deemed to be made to that principal and not to such agent: Provided that such agent may nevertheless request that he be provided with a tax invoice and the vendor may issue a tax invoice or a credit note or debit note as if the supply were made to such agent.
(2A)
(a) For the purposes of this Act, where any goods are imported into the Republic by an agent who is acting on behalf of another person who is the principal for the purposes of that importation, that importation shall be deemed to be made by that principal and not by such agent: Provided that a bill of entry or other document prescribed in terms of the Customs and Excise Act in relation to that importation may nevertheless be held by such agent.
(b) Notwithstanding the provisions of paragraph (a), where any goods are imported into the Republic by an agent who is acting on behalf of another person who is the principal for the purposes of that importation, and-
(i) the agent is a registered vendor; and
(ii) the principal is not a resident of the Republic and is not a registered vendor; and
(iii) the goods are imported by the principal for the purposes of a supply made or to be made by him to a person in the Republic; and
(iv) the agent obtains and retains documentary proof, as is acceptable to the Commissioner, that-
(aa) he paid the tax on importation on behalf of that principal; and
(bb) such agent and that principal agree in writing that the said tax has not and will not be reimbursed to such agent by that principal,
that importation shall for the purposes of this Act be deemed to be made by such agent and not by that principal.
[Paragraph (b) added by section 46 of Act 27 of 1997, the existing subsection (2A) becoming (2A)(a)]
[Subsection (2A) inserted by section 34 of Act 136 of 1992]
(2B) For the purposes of this Act, where electronic services are supplied by an intermediary, who is acting on behalf of another person who is the principal for the purposes of that supply, and—
(i) the intermediary is a vendor;
(ii) the principal is not a resident of the Republic and is not a registered vendor; and
(iii) the electronic services are supplied or to be supplied by the principal to a person in the Republic,
that supply shall be deemed to be made by such intermediary and not by that principal.
[Subsection (2B) inserted by section 12(1) of Act 21 of 2018 effective on 1 April, 2019 and applicable in respect of supplies made on or after that date]
(2C) For the purposes of this Act, where gold is supplied as contemplated in section 11(1)(f) or where gold is exported from the Republic in the circumstances contemplated in paragraph (a) or (d) of the definition of “exported” in section 1(1) and in accordance with section 12 of the of the Precious Metals Act, 2005 (Act 37 of 2005), by an agent who is acting on behalf of another person who is the principal for the purposes of that supply and-
(a) the agent is a registered vendor; and
(b) the principal is a resident of the Republic and a registered vendor,
the agent must obtain and retain documentary proof as is acceptable to the Commissioner: Provided that the agent will-
(aa) not be required to provide the principal with copies of the documentary evidence as prescribed; and
(bb) be liable to account for output tax in the event that the agent is not in possession of the requisite documents, other than zero-rated tax invoices in circumstances where the principal supplied its gold directly to the purchaser, to substantiate the application of the zero rate in respect of supplies made by the agent on behalf of a principal.
[Subsection (2C) inserted by section 52(1) of Act 17 of 2023 effective on 1 April, 2024]
(3) Where-
(a) a tax invoice or a credit note or debit note in relation to a supply has been issued-
(i) by an agent as contemplated in subsection (1); or
(ii) to an agent as contemplated in subsection (2); or
(b) a bill of entry or other document prescribed in terms of the Customs and Excise Act in relation to the importation of goods is held by an agent as contemplated in subsection (2A),
the agent shall maintain sufficient records to enable the name, address and VAT registration number of the principal to be ascertained, and in respect of all-
(i) supplies made on or after 1 January 2000 by or to the agent on behalf of the principal, the agent shall notify the principal in writing by means of a statement within 21 days of the end of the calendar month during which the supply was made or received of the particulars contemplated in paragraphs (e), (f) and (g) of section 20(4) in relation to such supplies; or
(ii) goods imported by the agent on behalf of the principal, the agent shall notify the principal in writing by means of a statement within 21 days of the end of the calendar month during which the goods were imported of the full and proper description of the goods, the quantity or volume of the goods, the value of the goods imported and the amount of tax paid on importation of the goods, together with the receipt number of the payment of such tax.
[Words following paragraph (b) substituted by section 102 of Act 43 of 2014 effective on 1 April 2015]
[Subsection (3) substituted by section 34 of Act 136 of 1992 and amended by section 100 of Act 53 of 1999 and section 51 of Act 16 of 2004]
(4) For the purposes of subsection (5), the expression “auctioneer” means a vendor carrying on an enterprise which comprises or includes the supply by him by auction, of goods as an auctioneer or agent for or on behalf of another person (hereinafter in this section referred to as a principal) and includes an agent, fresh produce agent and livestock agent as defined in section 1 of the Agricultural Produce Agents Act, 1992 (Act No. 12 of 1992).
[Subsection (4) substituted by section 40 of Act 136 of 1991 and section 100 of Act 53 of 1999]
(5) Notwithstanding anything in the preceding provisions of this section, where the principal and the auctioneer agree to have a supply by auction of any goods, other than a taxable supply, treated as if that supply were made by the auctioneer and not by the principal, the supply shall be charged with tax as if it were made by the auctioneer in the course or furtherance of the auctioneer’s enterprise and the auctioneer may-
(a) recover the amount of tax charged on that supply from that principal as a debt together with the costs of recovery in any court of competent jurisdiction; or
(b) retain or deduct such amount and costs out of any money in the auctioneer’s hands belonging or payable to the principal:
Provided that the auctioneer or agent shall maintain the records contemplated in section 20(8) as if the principal made a supply of second-hand goods to him, not being a taxable supply.
[Subsection (5) amended by section 100 of Act 53 of 1999]
(6) Notwithstanding anything in subsection (2), where any vendor makes a taxable supply (other than a supply that is charged with tax at the rate of zero per cent under section 11) of goods or services to an agent who is a vendor and is acting for or on behalf of another person who is the principal for the purposes of that supply, and-
(a) the principal is not a resident of the Republic and is not a vendor; and
(b)
(i) the supply is directly in connection with either the exportation, or the arranging of the exportation, of goods from the Republic to any country or place outside the Republic, or the importation, or the arranging of the importation, of goods to the Republic from any country or place outside the Republic, including, in either case, the transportation of those goods within the Republic as part of such exportation or importation, as the case may be; or
[Subparagraph (i) substituted by section 25 of Act 20 of 1994]
(ii) the supply is of services which comprise the handling, pilotage, salvage or towage of any foreign-going ship or foreign-going aircraft while present in the Republic or is of services provided in connection with the operation or management of any foreign-going ship or foreign-going aircraft,
[Subparagraph (ii) substituted by section 25 of Act 20 of 1994]
this Act shall, where such agent and such principal agree, apply as if the supply were made to that agent and not to the principal.