Category: Chapter 5 – Information gathering (TAA)

Section 42A (TAA) – Procedure where legal professional privilege is asserted

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42A.  Procedure where legal professional privilege is asserted

(1)     For purposes of Parts B, C and D, if a person alleges the existence of legal professional privilege in respect of relevant material required by SARS, during an inquiry or during the conduct of a search and seizure by SARS, the person must provide the following information to SARS and, if applicable, the presiding officer designated under section 51 or the legal practitioner referred to in section 64:

(a)     a description and purpose of each item of the material in respect of which the privilege is asserted;

(b)     the author of the material and the capacity in which the author was acting;

(c)     the name of the person for whom the author referred to in paragraph (b) was acting in providing the material;

(d)     confirmation in writing that the person referred to in paragraph (c) is claiming privilege in respect of each item of the material;

(e)     if the material is not in possession of the person referred to in paragraph (d), from whom did the person asserting privilege obtain the material; and

(f)     if the person asserting privilege is not the person referred to in paragraph (d), under what circumstances and instructions regarding the privilege did the person obtain the material.

[Subsection (1) amended by section 29 of Act 33 of 2019]

(2)     A person must submit the information required under Part B to SARS at the place, in the format and within the time specified by SARS, unless SARS extends the period based on reasonable grounds submitted by the person.

(3)     If SARS disputes the assertion of privilege upon receipt of the information-

(a)     SARS must make arrangements with a practitioner from the panel appointed under section 111 to take receipt of the material;

(b)     the person asserting privilege must seal and hand over the material in respect of which privilege is asserted to the practitioner;

(c)     the practitioner must within 21 business days after being handed the material make a determination of whether the privilege applies and may do so in the manner the practitioner deems fit, including considering representations made by the parties;

(d)     if a determination of whether the privilege applies is not made by the practitioner or a party is not satisfied with the determination, the practitioner must retain the relevant material pending final resolution of the dispute by the parties or an order of court; and

(e)     any application to a High Court must be instituted within 30 days of the expiry of the period of 21 business days, failing which the material must be handed to the party in whose favour the determination, if any, was made.

(4)     The appointed practitioner-

(a)     is not regarded as acting on behalf of either party;

(b)     must personally take responsibility for the safekeeping of the material;

(c)     must give grounds for the determination under subsection (3)(d); and

(d)     must be compensated in the same manner as if acting as chairperson of the tax board.

[Section 42A inserted by section 41 of Act 23 of 2015 effective on 8 January 2016]

Section 50 (TAA) – Authorisation for inquiry

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50.    Authorisation for inquiry

 

(1)     A judge may, on application made ex parte and authorised by a senior SARS official grant an order in terms of which a person described in section 51(3) is designated to act as presiding officer at the inquiry referred to in this section.

 

(2)     An application under subsection (1) must be supported by information supplied under oath or solemn declaration, establishing the facts on which the application is based.

 

(3)     A senior SARS official may authorise a person to conduct an inquiry for the purposes of the administration of a tax Act.

Section 65 (TAA) – Person’s right to examine and make copies

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65.    Person’s right to examine and make copies

 

(1)     The person to whose affairs relevant material seized relates, may examine and copy it.

 

(2)     Examination and copying must be made-

 

(a)     at the person’s cost in accordance with the fees prescribed in accordance with section 92(1)(b) of the Promotion of Access to Information Act;

 

(b)     during normal business hours; and

 

(c)     under the supervision determined by a senior SARS official.

Section 51 (TAA) – Inquiry order

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51.    Inquiry order

(1)     A judge may grant the order referred to in section 50(1) if satisfied that there are reasonable grounds to believe that-

(a)     a person has-

(i)     failed to comply with an obligation imposed under a tax Act;

(ii)    committed a tax offence; or

(iii)    disposed of, removed or concealed assets which may fully or partly satisfy an outstanding tax debt; and

(b)     relevant material is likely to be revealed during the inquiry which may provide proof of the failure to comply, of the commission of the offence or of the disposal, removal or concealment of the assets.

[Subsection (1) substituted by section 45 of Act 23 of 2015 effective on 8 January 2016]

(2)     The order referred to in subsection (1) must-

(a)     designate a presiding officer before whom the inquiry is to be held;

(b)     identify the person referred to in subsection (1)(a);

(c)     refer to the alleged non-compliance, the commission of the offence or the disposal, removal or concealment of assets to be inquired into;

(d)     be reasonably specific as to the ambit of the inquiry; and

(e)     be provided to the presiding officer.

[Subsection (2) substituted by section 45 of Act 23 of 2015 effective on 8 January 2016]

(3)     A presiding officer must be a person appointed to the panel described in section 111.

Section 66 (TAA) – Application for return of seized relevant material or costs of damages

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66.    Application for return of seized relevant material or costs of damages

 

(1)     A person may request SARS to-

 

(a)     return some or all of the seized material; and

 

(b)     pay the costs of physical damage caused during the conduct of a search and seizure.

 

(2)     If SARS refuses the request, the person may apply to a High Court for the return of the seized material or payment of compensation for physical damage caused during the conduct of the search and seizure.

 

(3)     The court may, on good cause shown, make the order as it deems fit.

 

(4)     If the court sets aside the warrant issued in terms of section 60(1) or orders the return of the seized material, the court may nevertheless authorise SARS to retain the original or a copy of any relevant material in the interests of justice.

Section 52 (TAA) – Inquiry proceedings

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52.    Inquiry proceedings

 

(1)     The presiding officer determines the conduct of the inquiry as the presiding officer thinks fit.

 

(2)     The presiding officer must ensure that the recording of the proceedings and evidence at the inquiry is of a standard that would meet the standard required for the proceedings and evidence to be used in a court of law.

 

(3)     A person has the right to have a representative present when that person appears as a witness before the presiding officer.

Section 53 (TAA) – Notice to appear

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53.    Notice to appear

 

(1)     The presiding officer may, by notice in writing, require a person, whether or not chargeable to tax, to-

 

(a)     appear before the inquiry, at the time and place designated in the notice, for the purpose of being examined under oath or solemn declaration, and

 

(b)     produce any relevant material in the custody of the person.

 

(2)     If the notice requires the production of relevant material, it is sufficient if the relevant material is referred to in the notice with reasonable specificity.