Author: admin_kmos

Section 47 (TAA) – Production of relevant material in person

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47.    Production of relevant material in person

(1)     A senior SARS official may, by notice, require a person, whether or not chargeable to tax, an employee of the person or a person who holds an office in the person to attend in person at the time and place designated in the notice for the purpose of being interviewed by a SARS official concerning the tax affairs of the person, if the interview-

(a)     is intended to clarify issues of concern to SARS-

(i)      to render further verification or audit unnecessary;

[Subparagraph (i) amended by section 17(a) of Act 43 of 2024]

(ii)     to expedite a current verification or audit; or

[Subparagraph (ii) amended by section 17(b) of Act 43 of 2024]

(iii)    to expedite an application for an instalment payment agreement, write-off or compromise of a tax debt; and

[Subparagraph (iii) added by section 17(c) of Act 43 of 2024]

(b)     is not for purposes of a criminal investigation.

[Subsection (1) substituted by section 43 of Act 23 of 2015 effective on 8 January 2016]

(2)     The senior SARS official issuing the notice may require the person interviewed to produce relevant material under the control of the person during the interview.

(3)     Relevant material required by SARS under subsection (2) must be referred to in the notice with reasonable specificity.

(4)     A person may decline to attend an interview, if the distance between the place designated in the notice and the usual place of business or residence of the person exceeds the distance prescribed by the Commissioner by public notice.

Section 46 (TAA) – Request for relevant material

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46.    Requeset for relevant material

(1)     SARS may, for the purposes of the administration of a tax Act in relation to a taxpayer, whether identified by name or otherwise objectively identifiable, require the taxpayer or another person to, within a reasonable period, submit relevant material (whether orally or in writing) that SARS requires.

(2)     A senior SARS official may require relevant material in terms of subsection (1) –

(a)     in respect of taxpayers in an objectively identifiable class of taxpayers; or

(b)     held or kept by a connected person, as referred to in paragraph (d)(i) of the definition of “connected person” in the Income Tax Act, in relation to the taxpayer, located outside the Republic.

[Subsection (2) substituted by section 42 of Act 23 of 2015 effective on 8 January 2016]

(3)   A request by SARS for relevant material from a person other than the taxpayer is limited to material maintained or kept or that should reasonably be maintained or kept by the person in relation to the taxpayer.

[Subsection (3) substituted by section 50(a) of Act 21 of 2012, by section 42(a) of Act 23 of 2015 and by section 30 of Act 33 of 2019]

(4)     A person or taxpayer receiving from SARS a request for relevant material under this section must submit the relevant material to SARS at the place, in the format (which must be reasonably accessible to the person or taxpayer) and-

(a)     within the time specified in the request; or

(b)     if the material is held by a connected person referred to in subsection (2)(b), within 90 days from the date of the request, which request must set out the consequences referred to in subsection (9) of failing to do so.

[Subsection (4) substituted by section 46 of Act 44 of 2014 effective on 1 October 2012 and section 42 of Act 23 of 2015 effective on 8 January 2016] 

(5)     If reasonable grounds for an extension are submitted by the person or taxpayer, SARS may extend the period within which the relevant material must be submitted.

[Subsection (5) substituted by section 50 of Act 21 of 2012 effective on 1 October 2012 and section 42 of Act 23 of 2015 effective on 8 January 2016]

(6)     Relevant material required by SARS under this section must be referred to in the request with reasonable specificity.

(7)     A senior SARS official may direct that relevant material-

(a)     be provided under oath or solemn declaration; or

(b)     if required for purposes of a criminal investigation, be provided under oath or solemn declaration and, if necessary, in accordance with the requirements of section 212 or 236 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

(8)     A senior SARS official may request relevant material that a person has available for purposes of revenue estimation.


(9)     If a taxpayer fails to provide material referred to in subsection (2)(b), the material may not be produced by the taxpayer in any subsequent proceedings, unless a competent court directs otherwise on the basis of circumstances outside the control of the taxpayer and any connected person referred to in paragraph (d)(i) of the definition of “connected person” in the Income Tax Act, in relation to the taxpayer.

[Subsection (9) added by section 42 of Act 23 of 2015 effective on 8 January 2016]

Section 45 (TAA) – Inspection

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45.  Inspection

 

(1)     A SARS official may, for the purposes of the administration of a tax Act and without prior notice, arrive at a premises where the SARS official has a reasonable belief that a trade or enterprise is being carried on and conduct an inspection to determine only-

 

(a)     the identity of the person occupying the premises;

 

(b)     whether the person occupying the premises is registered for tax;

 

(bA)   whether the physical address of an applicant, as reflected on the application for registration or approval, exists and the premises at the address are suitable for conducting the activities reflected in the application; or

 

(c)     whether the person is complying with sections 29 and 30.

[Subsection (1) substituted by section 16 of Act 4 of 2026]

Section 44 (TAA) – Conduct of criminal investigation

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44.  Conduct of criminal investigation

(1)     During a criminal investigation, SARS must apply the information gathering powers in terms of this Chapter with due recognition of the taxpayer’s constitutional rights as a suspect in a criminal investigation.

(2)     In the event that a decision is taken to pursue the criminal investigation of a serious tax offence, SARS may make use of relevant material obtained prior to the referral referred to in section 43.

(3)   Relevant material obtained during a criminal investigation may be used for purposes of audit as well as in subsequent civil and criminal proceedings.

[Subsection (3) substituted by section 17 of Act 22 of 2018.]

Section 43 (TAA) – Referral for criminal investigation

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43.  Referral for criminal investigation

 

(1)     If at any time before or during the course of an audit it appears that a taxpayer may have committed a serious tax offence, the investigation of the offence must be referred to a senior SARS official responsible for criminal investigations for a decision as to whether a criminal investigation should be pursued.

 

(2)     Relevant material obtained under this Chapter from the taxpayer after the referral, must be kept separate from the criminal investigation.

 

(3)     If an investigation is referred under subsection (1) the relevant material and files relating to the case must be returned to the SARS official responsible for the audit if-

 

(a)     it is decided not to pursue a criminal investigation;

 

(b)     it is decided to terminate the investigation; or

 

(c)     after referral of the case for prosecution, a decision is made not to prosecute.

Section 42 (TAA) – Keeping taxpayer informed

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42.  Keeping taxpayer informed

(1) A SARS official involved in or responsible for an audit under this Chapter must, in the form and in the manner as may be prescribed by the Commissioner by public notice, provide the taxpayer with a notice of commencement of an audit and, thereafter, a report indicating the stage of completion of the audit.

[Subsection (1) substituted by section 48(a) of Act 21 of 2012 and by section 16 of Act 22 of 2018.]

(2)     Upon conclusion of the audit or a criminal investigation, and where-

(a)     the audit or investigation was inconclusive, SARS must inform the taxpayer accordingly within 21 business days; or

(b)     the audit identified potential adjustments of a material nature, SARS must within 21 business days, or the further period that may be required based on the complexities of the audit, provide the taxpayer with a document containing the outcome of the audit, including the grounds for the proposed assessment or decision referred to in section 104(2).

(3)     Upon receipt of the document described in subsection (2)(b), the taxpayer must within 21 business days of delivery of the document, or the further period requested by the taxpayer that may be allowed by SARS based on the complexities of the audit, respond in writing to the facts and conclusions set out in the document.

(4)     The taxpayer may waive the right to receive the document.

(5)     Subsections (1) and (2)(b) do not apply if a senior SARS official has a reasonable belief that compliance with those subsections would impede or prejudice the purpose, progress or outcome of the audit.

(6)     SARS may under the circumstances described in subsection (5) issue the assessment or make the decision referred to in section 104(2) resulting from the audit and the grounds of the assessment or decision must be provided to the taxpayer within 21 business days of the assessment or the decision, or the further period that may be required based on the complexities of the audit or the decision.

Section 41 (TAA) – Authorisation for SARS official to conduct audit or criminal investigation

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41.  Authorisation for SARS official to conduct audit or criminal investigation

 

(1)     A senior SARS official may grant a SARS official written authorisation to conduct a field audit or criminal investigation, as referred to in Part B.

 

(2)     When a SARS official exercises a power or duty under a tax Act in person, the official must produce the authorisation.

 

(3)     If the official does not produce the authorisation, a member of the public is entitled to assume that the official is not a SARS official so authorised.