9.  Schemes for obtaining undue tax benefits

(1)     Notwithstanding any other provision of this Act, whenever the Commissioner is satisfied that any transaction, operation, scheme or understanding (whether enforceable or not), including all steps by which it is carried into effect –

(a)     has been entered into or carried out which has the effect of any person obtaining a tax benefit;

(b)     having regard to the substance of the transaction, operation, scheme or understanding –

(i)      was entered into or carried out in a manner which would not normally be employed for bona fide business purposes other than the obtaining of a tax benefit; or

(ii)     has created rights or obligations which would not normally be created between persons dealing at arm’s length; and

(c)     was entered into or carried out solely or mainly for the purposes of obtaining a tax benefit,

the Commissioner must determine the liability for tax, penalties and interest imposed by this Act and the Securities Transfer Tax Administration Act, 2007, and the amount thereof, as if the transaction, operation, scheme or understanding had not been entered into or carried out, or in the manner that the Commissioner in the circumstances of the case deems appropriate for the prevention or diminution of that tax benefit.

(2)     For the purposes of this section “tax benefit” means –

(a)     any reduction in the liability of any person to pay tax;

(b)     any increase in the entitlement of any person to the refund of tax; or

(c)     any other avoidance or postponement of liability for the payment of tax.

(3)     Any decision of the Commissioner under subsection (1) is subject to objection and appeal in accordance with Chapter 9 of the Tax Administration Act, 2011 (Act No. 28 of 2011), and   whenever in proceedings relating thereto it is proved that the relevant transaction, operation, scheme or understanding results or would result in a tax benefit, it is presumed, until the contrary is proved, that that scheme was entered into or carried out solely or mainly for the purpose of obtaining a tax benefit.

[Subsection (3) substituted by section 26 of Act 39 of 2013 effective on 16 January 2014]