28.    

(1)     There shall be set off against the liability of the taxpayer in respect of any taxes (as defined in subparagraph (8)) due by the taxpayer, the amounts of employees’ tax deducted or withheld by the taxpayer’s employer during any year of assessment for which the taxpayer’s liability for normal tax has been assessed by the Commissioner and the amounts of provisional tax paid by the taxpayer in respect of any such year, and if—

(a)     the sum of the said amounts of employees’ tax and provisional tax exceeds the amount of the taxpayer’s total liability for the said taxes, the excess amount shall be refunded to the taxpayer; or

(b)     the taxpayer’s total liability for the aforesaid taxes exceeds the sum of the said amounts of employees’ tax and provisional tax, the amount of the excess shall be payable by the taxpayer to the Commissioner.

[Sub­paragraph (1) amended by section 30 of Act 95 of 1967 and substituted by section 48 of Act 89 of 1969, by section 48(a) of Act 88 of 1971, by section 55(1) of Act 85 of 1974, by section 53(a) of Act 94 of 1983, by section 30(1)(a) of Act No. 65 of 1986 and by section 52 of Act 34 of 2019]

(2)     The burden of proof that any amount of employees’ tax has been deducted or withheld by his employer shall be upon the taxpayer and any employees’ tax certificate shall be prima facie evidence that the amount of employees’ tax reflected therein has been deducted by the employer.

(3)     If the Commissioner is satisfied that the amount or any portion of the amount of employees’ tax shown in any employees’ tax certificate has not been deducted or withheld by the employer and the amount of employees’ tax shown in such tax certificate has been applied as provided in sub–paragraph (1), the employer and the employee shall be jointly and severally liable to pay to the Commissioner the amount which should not have been so applied and such amount shall be recoverable under this Act as if it were a tax.

(4)     An employer who has under sub–paragraph (3) paid to the Commissioner an amount which has but should not have been applied under the provisions of sub–paragraph (1), may, if the amount was shown or included in the certificate because of a bona fide error, recover the amount so paid from the employee concerned, and in that case the provisions of sub–paragraph (3) of paragraph 5 shall mutatis mutandis apply.

(5)     No employees’ tax certificate shall be issued by the employer in respect of any amount recovered by him from the employee in terms of sub–paragraph (4) nor shall any such amount be included in any return rendered in terms of sub–paragraph (3) of paragraph 14.

(6)     If the Commissioner is satisfied that the employee to whom an employees’ tax certificate refers was directly or indirectly responsible for an incorrect amount being shown on such certificate he may absolve the employer from the liability imposed upon him by sub–paragraph (3), and in that case the employee shall be solely liable under that sub–paragraph.

(7)     . . . . . .

[Sub-paragraph (7) added by section 29(1)(b) of Act 90 of 1964 and deleted by section 14 of Act 16 of 2016]

(8)     For the purposes of this paragraph, “taxes” means the normal tax levied under this Act.