Author: admin_kmos

Section 77H (Customs Act) – Rules

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77H.    Rules

 

The Commissioner may make rules-

 

(a)     to prescribe at which office any appeal committee shall be constituted, and the composition of such committee;

 

(b)     to prescribe which decisions or categories of decisions of officers may be appealed against to the appeal committee;

 

(c)     to prescribe appeal procedures, conduct of meetings of committees and such forms as may be required for the purpose of this Part;

 

(d)     in respect of all matters which are required or permitted in terms of this Part to be prescribed by rule;

 

(e)     in respect of any matter relating to the appointment of persons other than officers to an appeal committee which may include requirements relating to qualifications, conduct, resignation, removal from office and remuneration;

 

(f)      to delegate, subject to section 3(2), any of the powers that may be exercised or assign any of the duties that shall be performed by the Commissioner in accordance with the provisions of this Part or any other relevant provision of this Act;

 

(g)     in respect of any other matter which the Commissioner may consider reasonably necessary and useful for the purposes of administering the provisions of this Part.

[Section 77H effective on 4 June 2007]

Section 77HA (Customs Act) – Implementation of Part A in respect of decisions

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77HA. Implementation of Part A in respect of decisions

This Part applies in respect of any decision made on or after the date on which this Part comes into operation.

[Section 77HA inserted by section 24 of Act 32 of 2005 with effect from the date Part A of Chapter XA comes into operation]

[Section 77HA effective on 4 June 2007]

Section 77I (Customs Act) – Alternative Dispute Resolution

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77I.      Alternative Dispute Resolution

(1)     The Minister may, after consultation with the Minister of Justice, promulgate rules to provide for-

(a)     alternative dispute resolution procedures in terms of which the Commissioner and the person aggrieved by a decision may resolve a dispute; and

(b)     categories of decisions which are or are not suitable for alternative dispute resolution.

(2)     The rules so published shall be part of this Act.

[Section 77I effective on 4 June 2007]

Section 77K (Customs Act) – Purpose of this Part

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77K.    Purpose of this Part

(1)     The basic principle in law is that it is the duty of the Commissioner to assess and collect taxes, duties, levies, charges and other amounts according to the laws enacted by Parliament and not to forgo any such taxes, duties, levies, charges or other amounts properly chargeable and payable.

(2)     Circumstances may, however, require that the strictness and rigidity of this basic principle be tempered where it would be to the best advantage of the state.

(3)     The purpose of this Part is to prescribe the circumstances whereunder it would be inappropriate and whereunder it would be appropriate that the basic rule be tempered and for a decision to be taken to settle a dispute.

Section 77L (Customs Act) – Circumstances where inappropriate to settle

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77L.    Circumstances where inappropriate to settle

 

It will be inappropriate and not to the best advantage of the state to settle a dispute, where, in the opinion of the Commissioner-

 

(a)     the action on the part of the person concerned which relates to the dispute, constitutes intentional tax evasion or fraud and no circumstances contemplated in section 77M exist;

 

(b)     the settlement would be contrary to the law or a clearly established practice of the Commissioner on the matter, and no exceptional circumstances exist to justify a departure from the law or practice;

 

(c)     it is in the public interest to have judicial clarification of the issue and the case is appropriate for this purpose;

 

(d)     the pursuit of the matter through the courts will significantly promote compliance of the tax laws and the case is suitable for this purpose; or

 

(e)     the person concerned has not complied with the provisions of any Act administered by the Commissioner and the Commissioner is of the opinion that the non-compliance is of a serious nature.

[Section 77L effective on 22 December 2003]

Section 77M (Customs Act) – Circumstances where appropriate to settle

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77M.   Circumstances where appropriate to settle

The Commissioner may, where it will be to the best advantage of the state, settle a dispute, in whole or in part, on a basis that is fair and equitable to both the person concerned and SARS, having regard to inter alia–

(a)     whether that settlement would be in the interest of good management of the tax system, overall fairness and the best use of the Commissioner’s resources;

(b)     the cost of litigation in comparison to the possible benefits with reference to-

(i)      the prospects of success in a court;

(ii)     the prospects of collection of the amounts due; and

(iii)    the costs associated with collection;

(c)     whether there are any-

(i)      complex factual or quantum issues in contention; or

(ii)    evidentiary difficulties, which are sufficient to make the case problematic in outcome or unsuitable for resolution through the alternative dispute resolution procedures or the courts;

(d)     a situation where a participant or a group of participants in a tax avoidance arrangement has accepted the Commissioner’s position in the dispute, in which case the settlement may be negotiated in an appropriate manner required to unwind existing structures and arrangements; or

(e)     whether the settlement of the dispute will promote compliance of the tax laws by the person concerned or a group of taxpayers or a section of the public in a cost-effective way.

[Section 77M effective on 22 December 2003]

Section 77N (Customs Act) – Power to settle and conduct of officials

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77N.    Power to settle and conduct of officials

(1)     A dispute may be settled, as contemplated in this Part, by the Commissioner personally or any official delegated by the Commissioner for that purpose.

(2)     The Commissioner or the relevant delegated official must ensure that he or she does not have, or did not at any stage have, a personal, family, social, business, professional, employment or financial relationship with the person concerned.

[Section 77N effective on 22 December 2003]