14.       EMPLOYERS TO KEEP RECORDS AND FURNISH RETURNS

(1)     In addition to the records required in accordance with Part A of Chapter 4 of the Tax Administration Act, every employer shall in respect of each employee maintain a record showing-

(a)     the amounts of remuneration paid or due by him or her to such employee;

(b)     the amount of employees’ tax deducted or withheld from the amounts of remuneration contemplated in item;

(c)     the income tax reference number of that employee where that employee is registered as a taxpayer in terms of section 67; and

(d)     such further information as the Commissioner may prescribe,

and such record shall be retained by the employer and shall be available for scrutiny by the Commissioner.

(2)     Every employer shall when making any payment of employees’ tax submit to the Commissioner a return.

(3)     Every employer shall –

(a)     by such date or dates as prescribed by the Commissioner by notice in the Gazette; and

(b)     if the employer ceases to carry on any business or other undertaking in respect of which the employer has paid or becomes liable to pay remuneration to any employee or otherwise ceases to be an employer, within 14 days after the date on which the employer has so ceased to carry on that business or undertaking or to be an employer, as the case may be,

or within such longer time as the Commissioner may approve, render to the Commissioner a return.

(4)     ……….

(5)     Unless the Commissioner otherwise directs, no employees’ tax certificate as contemplated in paragraph 13(2)(a) or (c) shall be delivered by the employer until such time as the return contemplated in subparagraph (3) has been rendered to the Commissioner.

[Subparagraph (5) added by section 22 of Act 4 of 2008, substituted by section 16 of Act 61 of 2008 effective on 29 August 2008 and section 13 of Act 23 of 2015 effective on 8 January 2016]

(6)     If an employer fails to render to the Commissioner a complete return referred to in subparagraph (3) within the period prescribed in that subparagraph , the Commissioner may impose on that employer a penalty, which is deemed to be a percentage based penalty imposed under Chapter 15 of the Tax Administration Act, for each month that the employer fails to submit a complete return which, in total, may not exceed 10 per cent of the total amount of employees’ tax deducted or withheld, or which should have been deducted or withheld by the employer from the remuneration of employees for the period described in that subparagraph .

[Sub­paragraph (6) added by section 22(1)(b) of Act 4 of 2008 and substituted by section 22 of Act 8 of 2010, by section 271 read with paragraph 85(e) of Schedule 1 of Act 28 of 2011, by section 20 of Act 21 of 2012 and by section 9 of Act 33 of 2019]

(7)     If the total amount of employees’ tax deducted or withheld, or which should have been deducted or withheld for the period described in subparagraph (3), is unknown, the Commissioner may estimate the total amount based on information readily available and impose the penalty under subparagraph (6) on the amount so estimated.

[Subparagraph (7) added by section 7 of Act 21 of 2021]

(8)     Where, upon determining the actual employees’ tax of the person in respect of whom the penalty was imposed under subparagraph (7), it appears that the total amount of employees’ tax was incorrectly estimated under subparagraph (7), the penalty must be adjusted in accordance with the correct amount of employees’ tax effective on the date of the imposition of the penalty under subparagraph (6) read with subparagraph (7).

[Subparagraph (8) added by section 7 of Act 21 of 2021]

15.       REGISTRATION OF EMPLOYERS

 

(1)     Every person who is an employer shall apply to the Commissioner in accordance with Chapter 3 of the Tax Administration Act for registration: Provided that where no one of such employer’s employees is liable for normal tax, the provisions of this paragraph shall not apply to such employer.

 

(2)     ……….

 

(3)     Every person who is registered as an employer shall within 14 days after ceasing to be an employer, notify the Commissioner in writing of the fact of the employer having ceased to be an employer.

 

(4)     ……….

 

16.       ……….

3.

 

(1)     The liability of any employer to deduct or withhold any amount of employees’ tax in terms of paragraph 2 shall not be reduced or extinguished by reason of the fact that the employer has a right or is otherwise than in terms of any law under an obligation to deduct or withhold any other amount from the employees’ remuneration, and such right or obligation shall notwithstanding anything to the contrary in any other law contained, for all purposes be deemed to have reference only to the amount of the remuneration remaining after the amount of employees’ tax referred to in that paragraph has been deducted or withheld.

 

(2)     The provisions of paragraph 2 shall apply in respect of all amounts payable by way of remuneration, notwithstanding the provisions of any law which provide that any such amount shall not be reduced or shall not be subject to attachment.

4.      Any amount required to be deducted or withheld in terms of paragraph 2 shall be a debt due to the State and the employer concerned shall save as otherwise provided be absolutely liable for the due payment thereof to the Commissioner.

5.

(1)     Subject to the provisions of subparagraph (6), if an employer is personally liable for the payment of employees’ tax under Chapter 10 of the Tax Administration Act, the employer shall pay that amount to the Commissioner not later than the date on which payment should have been made if the employees’ tax had in fact been deducted or withheld in terms of paragraph 2.

[Subparagraph (1) substituted by section 19(a) of Act 18 of 2009, by section 271 read with paragraph 79 of Schedule 1 of Act 28 of 2011, by section 38 of Act 20 of 2021 and by section 5 of Act 16 of 2022]

(1A)  The liability of the employer as contemplated in paragraph 2 must be deemed to have been discharged if the employer made payment of the outstanding employees’ tax in terms of subparagraph (1).

(2)     Where the employer has failed to deduct or withhold employees’ tax in terms of paragraph 2 and the Commissioner is satisfied that the failure was not due to an intent to postpone payment of the tax or to evade the employer’s obligations under this Schedule, the Commissioner may, if he is satisfied that there is a reasonable prospect of ultimately recovering the tax from the employee, absolve the employer from his liability under sub–paragraph (1) of this paragraph.

(3)     An employer who has not been absolved from liability as provided in sub–paragraph (2) shall have a right of recovery against the employee in respect of the amount paid by the employer in terms of sub–paragraph (1) in respect of that employee, and such amount may in addition to any other right of recovery be deducted from future remuneration which may become payable by the employer to that employee, in such manner as the Commissioner may determine.

(4)     Until such time as an employee pays to his employer any amount which is due to the employer in terms of sub–paragraph (3), such employee shall not be entitled to receive from the employer an employees’ tax certificate in respect of that amount.

(5)     Any amount which an employer is required to pay in terms of sub–paragraph (1) and which the employer does not recover from the employee shall, insofar as the employer only is concerned, for the purposes of section 23(d), be deemed to be a penalty due and payable by that employer.

(6)     The provisions of sub–paragraph (1) shall not apply in respect of any amount or any portion of any amount of employees’ tax which an employer has failed to deduct or withhold and in respect of which the provisions of sub–paragraph (3) of paragraph 28 apply.

6.

(1)     If an employer fails to pay any amount of employees’ tax for which the employer is liable within the period allowable for payment thereof in terms of paragraph 2 SARS must, in accordance with Chapter 15 of the Tax Administration Act, impose a penalty equal to ten per cent of such amount.

[Subparagraph (1) (pending amendment by section 14(1)(a) of Act 61 of 2008 repealed by section 271 read with paragraph 193 of Schedule 1 of Act 28 of 2011) substituted by section 271 read with paragraph 80(a) of Schedule 1 of Act 28 of 2011, by section 39 of Act 20 of 2021 and by section 6 of Act 21 of 2021]

(2)     ……….

(3)     ……….

(4)     ……….

7.       Any agreement between an employer and an employee whereby the employer undertakes not to deduct or withhold employees’ tax shall be void.

 

8.  ……….

9.

 

(1)     The Commissioner may from time to time, having regard to the rates of normal tax as fixed by Parliament or foreshadowed by the Minister in his budget statement and to any other factors having a bearing upon the probable liability of taxpayers for normal tax, prescribe—

 

(a)     deduction tables applicable to such classes of employees as the Commissioner may determine, taking into account the rebates applicable in terms of section 6; and

 

(b)     the manner in which such tables shall be applied,

 

and the amount of employees’ tax to be deducted from any amount of remuneration shall, subject to the provisions of subparagraphs (3) and (4) of this paragraph and paragraphs 10, 11, 11A (4) and section 95 of the Tax Administration Act, be determined in accordance with such tables or where subparagraph (3) or (4) is applicable, in accordance with that subparagraph.

[Subparagraph (1) substituted by section 39 of Act 88 of 1971 and by section 32(a) of Act 103 of 1976, amended by section 29 of Act 104 of 1980 and by section 46 of Act 101 of 1990 and substituted by section 55 of Act 59 of 2000, by section 21(1)(a) of Act 19 of 2001, by section 7(1)(a) of Act 16 of 2016 and by section 14 of Act 18 of 2023]

 

 

(2)     Any tables prescribed by the Commissioner in accordance with sub-paragraph (1) shall come into force on a date prescribed by the Commissioner, and shall remain in force until withdrawn by the Commissioner.

[Sub-paragraph (2) substituted by section 7(1)(b) of Act 16 of 2016]

 

(3)

 

(a)     The amount to be deducted or withheld in respect of employees’ tax from any lump sum to which paragraph (d) or (e) of the definition of ‘gross income’ in section 1 or section 7A applies, shall be ascertained by the employer from the Commissioner before paying out such lump sum, and the Commissioner’s determination of the amount to be deducted or withheld shall be final.

 

(b)      . . . . . .

[Sub-paragraph (3) substituted by section 32(b) of Act 103 of 1976 and by section 41 of Act 20 of 2006, amended by section 66(1) of Act 35 of 2007 and by section 68(1) of Act 60 of 2008 and substituted by section 20 of Act 18 of 2009. Item (b) substituted by section 8(a) of Act 23 of 2015 and deleted by section 7(1)(c) of Act 16 of 2016 effective on 1 March, 2017]

 

(4)     The amount to be deducted or withheld in respect of any amount contemplated in paragraph (eA) of the definition of “gross income” in section 1 of this Act, shall be ascertained by the employer on inquiry from the Commissioner before the date of transfer or conversion of any amount for the benefit or ultimate benefit of any member as contemplated in such paragraph and the Commissioner’s determination of the amount to be so deducted or withheld shall be final.

 

(5)     The amount to be deducted or withheld in respect of employees’ tax from any amount paid or payable to any director of any private company during any year of assessment of that director, in respect of services rendered or to be rendered by that director to that company, shall be determined after taking into account any amount of employees’ tax paid or payable to the Commissioner by that company during that year of assessment, in respect of that director in terms of paragraph 11C(2).

 

(6)     There must be deducted from the amount to be withheld or deducted by way of employees’ tax as contemplated in paragraph 2 the amount-

 

(a)     of the medical scheme fees tax credit that applies in respect of that employee in terms of section 6A; and

 

(b)     where the employee is entitled to a rebate under section 6(2)(b), of the additional medical expenses tax credit that applies in respect of that employee in terms of section 6B(3)(a)(i),

 

if-

 

(i)      the employer effects payment of the medical scheme fees as contemplated in section 6A(2)(a); or

 

(ii)     the employer does not effect payment of the medical scheme fees as contemplated in section 6A(2)(a), at the option of the employer, if proof of payment of those fees has been furnished to the employer.

[Subparagraph (6) inserted by section 95 of Act 24 of 2011 effective on 1 March 2012, substituted by section 8 of Act 23 of 2015 effective on 8 January 2016]