CHAPTER 7
ADVANCE RULINGS
Author: admin_kmos
Section 74 (TAA) – Publication of names of offenders
74. Publication of names of offenders
(1) The Commissioner may publish for general information the particulars specified in subsection (2), relating to a tax offence committed by a person, if-
(a) the person was convicted of the offence; and
(b) all appeal or review proceedings relating to the offence have been completed or were not instituted within the period allowed.
(2) The publication referred to in subsection (1) may specify-
(a) the name and area of residence of the offender;
(b) any particulars of the offence that the Commissioner thinks fit; and
(c) the particulars of the fine or sentence imposed.
Section 73 (TAA) – Disclosure to taxpayer of own record
73. Disclosure to taxpayer of own record
(1) A taxpayer or the taxpayer’s duly authorised representative is entitled to obtain-
(a) a copy, certified by SARS, of the recorded particulars of an assessment or decision referred to in section 104(2) relating to the taxpayer;
(b) access to information submitted to SARS by the taxpayer or by a person on the taxpayer’s behalf;
(c) information, other than SARS confidential information, on which the taxpayer’s assessment is based; and
(d) other information relating to the tax affairs of the taxpayer.
(2) A request for information under subsection (1)(d) must be made under the Promotion of Access to Information Act.
Section 128 (TAA) – Contempt of tax court
128. Contempt of tax court
(1) If, during the sitting of a tax court, a person-
(a) wilfully insults a judge or member of the tax court;
(b) wilfully interrupts the tax court proceedings; or
(c) otherwise misbehaves in the place where the hearing is held,
the president of a tax court may impose upon that person a fine or, in default of payment, imprisonment for a period not exceeding three months.
(2) An order made under subsection (1) must be executed as if it were an order made by a Magistrate’s Court under similar circumstances, and the provisions of a law which apply in respect of such an order made by a Magistrate’s Court apply with the necessary changes in respect of an order made under subsection (1).
Section 127 (TAA) – Non-attendance by witness or failure to give evidence
127. Non-attendance by witness or failure to give evidence
(1) A person subpoenaed under section 126 is liable to the fine or imprisonment specified in subsection (2), if the person without just cause fails to-
(a) give evidence at the hearing of an appeal;
(b) remain in attendance throughout the proceedings unless excused by the president of the tax court; or
(c) produce a document or thing in the person’s possession or under the person’s control according to the subpoena.
(2) The president of the tax court may impose a fine or, in default of payment, imprisonment for a period not exceeding three months, on a person described in subsection (1) upon being satisfied by-
(a) oath or solemn declaration; or
(b) the return of the person by whom the subpoena was served,
that the person has been duly subpoenaed and that the person’s reasonable expenses have been paid or offered.
(3) The president of the tax court may, in addition to imposing a fine or imprisonment under subsection (2), issue a warrant for the person to be apprehended and brought to give evidence or to produce the document or thing in accordance with the subpoena.
(4) A fine imposed under subsection (2) is enforceable as if it were a penalty imposed by a High Court in similar circumstances and any laws applicable in respect of a penalty imposed by a High Court apply with the necessary changes in respect of the fine.
(5) The president of the tax court may, on good cause shown, remit the whole or any part of the fine or imprisonment imposed under subsection (2).
(6) The president of the tax court may order the costs of a postponement or adjournment resulting from the default of a witness, or a portion of the costs, to be paid out of a fine imposed under subsection (2).
Section 126 (TAA) – Subpoena of witness to tax court
126. Subpoena of witness to tax court
SARS, the ‘appellant’ or the president of a tax court may subpoena any witness in the manner prescribed in the ‘rules’, whether or not that witness resides within the tax court’s area of jurisdiction.
Section 125 (TAA) – Appearance at hearing of tax court
125. Appearance at hearing of tax court
(1) A senior SARS official referred to in section 12 may appear at the hearing of an appeal in support of the assessment or ‘decision’.
(2) ……….
[Subsection (2) deleted by section 26 of Act 13 of 2017 effective on 18 December 2017]
Section 124 (TAA) – Sitting of tax court not public
124. Sitting of tax court not public
(1) The tax court sittings for purposes of hearing an appeal under section 107 are not public.
(2) The president of the tax court may in exceptional circumstances, on request of any person, allow that person or any other person to attend the sitting but may do so only after taking into account any representations that the ‘appellant’ and a senior SARS official, referred to in section 12 appearing in support of the assessment or ‘decision’, wishes to make on the request.
Section 123 (TAA) – Death, retirement or incapability of judge or member
123. Death, retirement or incapability of judge or member
(1) If at any stage during the hearing of an appeal, or after hearing of the appeal but before judgment has been handed down, one of the judges dies, retires or becomes otherwise incapable of acting in that capacity, the hearing of an appeal must be heard de novo.
(2) If the tax court has been constituted under section 118(5), the hearing of the appeal referred to in subsection (1) must proceed before the remaining judges and members, if the remaining judges constitute the majority of judges before whom the hearing was commenced.
(3) If at any stage during or after the hearing of an appeal but before judgment has been handed down, a member of the tax court dies, retires or becomes incapable of acting in that capacity, the hearing of the appeal must proceed before the president of the tax court, any other judges, the remaining member, and, if the president deems it necessary, a replacement member.
(4) The judgment of the remaining judges and members referred to in subsection (1) or (3) is the judgment of the court.
Section 122 (TAA) – Conflict of interest of tax court members
122. Conflict of interest of tax court members
(1) A member of the court must withdraw from the proceedings as soon as the member becomes aware of a conflict of interest which may give rise to bias which the member may experience with the case concerned or other circumstances that may affect the member’s ability to remain objective for the duration of the case.
(2) Either party may ask for withdrawal of a member on the basis of conflict of interest or other indications of bias, under procedures provided in the ‘rules’.
(3) A member of the court will not solely on account of his or her liability to tax be regarded as having a personal interest or a conflict of interest in the case.