Author: admin_kmos

Section 103 (TAA) – Rules for dispute resolution

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103.    Rules for dispute resolution

 

(1)     The Minister may, after consultation with the Minister of Justice and Constitutional Development, by public notice make ‘rules’ governing the procedures to lodge an objection and appeal against an assessment or ‘decision’, and the conduct and hearing of an appeal before a tax board or tax court.

 

(2)     The ‘rules’ may provide for alternative dispute resolution procedures under which SARS and the person aggrieved by an assessment or ‘decision’ may resolve a dispute.

 

(3)     The Commissioner may prescribe the form of a document required to be completed and delivered under the “rules”.

Section 102 (TAA) – Burden of proof

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102.    Burden of proof

(1)     A taxpayer bears the burden of proving-

(a)     that an amount, transaction, event or item is exempt or otherwise not taxable;

(b)     that an amount or item is deductible or may be set off;

[Para. (b) substituted by section 23 of Act 13 of 2017 effective on 18 December 2017]

(c)     the rate of tax applicable to a transaction, event, item or class of taxpayer;

(d)     that an amount qualifies as a reduction of tax payable;

(e)     that a valuation is correct; or

(f)      whether a ‘decision’ that is subject to objection and appeal under a tax Act, is incorrect.

(2)     The burden of proving whether an estimate under section 95 is reasonable or the facts on which SARS based the imposition of an understatement penalty under Chapter 16, is upon SARS.

Section 100 (TAA) – Finality of assessment or decision

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100.    Finality of assessment or decision

(1)     An assessment or a decision referred to in section 104(2) is final if, in relation to the assessment or decision-

(a)     it is an assessment described-

(i)      in section 95(1)(a) or (c), and no return or response described in section 95(6) has been received by SARS; or

[Subparagraph (i) substituted by section 30 of Act 24 of 2020]

(ii)     in section 95(3);

(b)     no objection has been made, or an objection has been withdrawn;

(c)     after the decision of an objection, no notice of appeal has been filed or a notice has been filed and is withdrawn;

[Paragraph (c) substituted by section 33 of Act 33 of 2019]

(d)     the dispute has been settled under Part F of Chapter 9;

(e)     an appeal has been determined by the tax board and there is no referral to the tax court under section 115;

(f)      an appeal has been determined by the tax court and there is no right of further appeal; or

(g)     an appeal has been determined by a higher court and there is no right of further appeal.

(2)     Subsection (1) does not prevent SARS from making an additional assessment, but in respect of an amount of tax that has been dealt with in a disputed assessment referred to in-

(a)     subsection (1)(d), (e) and (f), if the relevant period under section 99(1)(a), (b) or (c) has expired, SARS may only make an additional assessment under the circumstances referred to in section 99(2)(a) and (b); and

[Paragraph (a) substituted by section 56 of Act 16 of 2016 effective on 19 January 2017]

(b)     subsection (1)(g), SARS may not make an additional assessment.

Section 99 (TAA) – Period of limitations for issuance of assessments

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99.    Period of limitations for issuance of assessments

(1)     An assessment may not be made in terms of this Chapter-

[Words preceding paragraph (a) substituted by section 51 of Act 23 of 2015 effective on 8 January 2016]

(a)     three years after the date of assessment of an original assessment by SARS;

(b)     in the case of self-assessment for which a return is required, five years after the date of assessment of an original assessment-

(i)      by way of self-assessment by the taxpayer; or

(ii)     if no return is received, by SARS;

(c)     in the case of a self-assessment for which no return is required, after the expiration of five years from the-

(i)      date of the last payment of the tax for the tax period; or

(ii)     effective date, if no payment was made in respect of the tax for the tax period;

(d)     in the case of-

(i)      an additional assessment if the-

(aa)   amount which should have been assessed to tax under the preceding assessment was, in accordance with the practice generally prevailing at the date of the preceeding  assessment, not assessed to tax; or

(bb)   full amount of tax which should have been assessed under the preceding assessment was, in accordance with the practice, not assessed;

(ii)     a reduced assessment, if the preceding assessment was made in accordance with the practice generally prevailing at the date of that assessment; or

(iii)    a tax for which no return is required, if the payment was made in accordance with the practice generally prevailing at the date of that payment; or

(e)     in respect of a dispute that has been resolved under Chapter 9.

(2)     Subsection (1) does not apply to the extent that-

(a)     in the case of assessment by SARS, the fact that the full amount of tax chargeable was not assessed, was due to-

(i)      fraud;

(ii)     misrepresentation; or

(iii)    non-disclosure of material facts;

(b)     in the case of self-assessment, the fact that the full amount of tax chargeable was not assessed, was due to-

(i)      fraud;

(ii)     intentional or negligent misrepresentation;

(iii)    intentional or negligent non-disclosure of material facts; or

(iv)    the failure to submit a return or, if no return is required, the failure to make the required payment of tax;

(c)     SARS and the taxpayer so agree prior to the expiry of the limitations period;

[Paragraph (c) amended by section 51 of Act 23 of 2015 effective on 8 January 2016]

(d)     it is necessary to give effect to-

(i)      the resolution of a dispute under Chapter 9; or

[Subparagraph (i) amended by section 55 of Act 16 of 2016 effective on 19 January 2017]

(ii)     ……….

[Subparagraph (ii) deleted by section 55 of Act 16 of 2016 effective on 19 January 2017]

(iii)    an assessment referred to in section 93(1)(d) if SARS becomes aware of the error referred to in that subsection before expiry of the period for the assessment under subsection (1); or

[Paragraph (d) amended by section 47 of Act 39 of 2013 effective on 1 October 2012, substituted by section 51 of Act 23 of 2015 effective on 8 January 2016]

(iv)    a reduced or additional assessment under section 95(6); or

[Subparagraph (iv) inserted by section 20 of Act 21 of 2021]

(e)     SARS receives a request for a reduced assessment under section 93(1)(e).

[Paragraph (e) added by section 51 of Act 23 of 2015 effective on 8 January 2016]

(3)     The Commissioner may, by prior notice of at least 30 days to the taxpayer, extend a period under subsection (1) or an extended period under this section, before the expiry thereof, by a period approximate to a delay arising from:

(a)     failure by a taxpayer to provide all the relevant material requested within the period under section 46(1) or the extended period under section 46(5); or

(b)     resolving an information entitlement dispute, including legal proceedings.

[Subsection (3) added by section 51 of Act 23 of 2015 effective on 8 January 2016]

(4)     The Commissioner may, by prior notice of at least 60 days to the taxpayer, extend a period under subsection (1), before the expiry thereof, by three years in the case of an assessment by SARS or two years in the case of self-assessment, where an audit or investigation under Chapter 5 relates to-

(i)      the application of the doctrine of substance over form;

(ii)     the application of Part IIA of Chapter III of the Income Tax Act, section 73 of the Value-Added Tax Act or any other general anti-avoidance provision under a tax Act;

(iii)    the taxation of hybrid entities or hybrid instruments; or

(iv)    section 31 of the Income Tax Act.

[Subsection (4) added by section 51 of Act 23 of 2015 effective on 8 January 2016]