121. Appointment of registrar of tax court
(1) The Commissioner appoints the ‘registrar’ of the tax court.
(2) A person appointed as ‘registrar’ and persons appointed in the ‘registrar’s’ office are SARS employees.
(3) The ‘registrar’ and other persons referred to in subsection (2) must perform their functions under this Act and the ‘rules’ independently, impartially and without fear, favour or prejudice.
120. Appointment of panel of tax court members
(1) The President of the Republic by proclamation in the Gazette must appoint the panel of members of a tax court for purposes of section 118(1)(b) and (c) for a term of office of five years from the date of the relevant proclamation.
(2) A person appointed in terms of subsection (1) must be a person of good standing who has appropriate experience.
(3) A person appointed in terms of subsection (1) is eligible for reappointment for a further period or periods as the President of the Republic may think fit.
(4) The President of the Republic may terminate the appointment of a member under this section at any time for misconduct, incapacity or incompetence.
(5) A member’s appointment lapses in the event that the tax court is abolished under section 116(1).
(6) A member of the tax court must perform the member’s functions independently, impartially and without fear, favour or prejudice.
119. Nomination of president of tax court
(1) The Judge-President of the Division of the High Court with jurisdiction in the area for which a tax court has been constituted must nominate and second a judge or an acting judge of the division to be the president of that tax court.
(2) The Judge-President must determine whether the secondment referred to in subsection (1) applies for a period, or for the hearing of a particular case.
(3) A judge 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 any matter upon which he or she may be called upon to adjudicate.
118. Constitution of tax court
(1) A tax court established under this Act consists of-
(a) a judge or an acting judge of the High Court, who is the president of the tax court;
(b) an accountant selected from the panel of members appointed in terms of section 120; and
(c) a representative of the commercial community selected from the panel of members appointed in terms of section 120.
(2) If the appeal involves-
(a) a complex matter that requires specific expertise and the president of the tax court so directs after considering any representations by a senior SARS official or the ‘appellant’, the representative of the commercial community referred to in subsection (1)(c) may be a person with the necessary experience in that field of expertise;
(b) the valuation of assets and the president of the tax court, a senior SARS official or the ‘appellant’ so requests, the representative of the commercial community referred to in subsection (1)(c) must be a sworn appraiser.
[Subsection (2) amended by section 51 of Act 39 of 2013, substituted by section 58 of Act 16 of 2016 effective on 19 January 2017]
(3) If an appeal to the tax court involves a matter of law only or is an interlocutory application or application in a procedural matter under the ‘rules’, the president of the court sitting alone must decide the appeal.
(4) The president of the court alone decides whether a matter for decision involves a matter of fact or a matter of law.
(5) The Judge-President of the Division of the High Court with jurisdiction in the area where the relevant tax court is situated, may direct that the tax court consist of three judges or acting judges of the High Court (one of whom is the president of the tax court) and the members of the court referred to in subsections (1)(b) and (c) and (2), where necessary, if-
(a) the amount in dispute exceeds R50 million; or
(b) SARS and the ‘appellant’ jointly apply to the Judge-President.
117. Jurisdiction of tax court
(1) The tax court for purposes of this Chapter has jurisdiction over tax appeals lodged under section 107.
(2) The place where an appeal is heard is determined by the ‘rules’.
(3) The court may hear and decide an interlocutory application or an application in a procedural matter relating to a dispute under this Chapter as provided for in the “rules”.
116. Establishment of tax court
(1) The President of the Republic may by proclamation in the Gazette establish a tax court or additional tax courts for areas that the President thinks fit and may abolish an existing tax court as circumstances may require.
(2) The tax court is a court of record.
Part D
Tax court
115. Referral of appeal to tax court
(1) If the ‘appellant’ or SARS is dissatisfied with the tax board’s decision or the Chairperson fails to deliver the decision under section 114(2) within the prescribed 60 business day period, the ‘appellant’ or SARS may within 21 business days, or within the further period as the Chairperson may on good cause shown allow, after the date of the notice referred to in section 114(3) or the expiry of the period referred to in section 114(2), require, in writing, that the appeal be referred to the tax court for hearing.
(2) The tax court must hear de novo a referral of an appeal from the tax board’s decision under subsection (1).
114. Decision of tax board
(1) The tax board, after hearing the ‘appellant’s’ appeal against an assessment or ‘decision’, must decide the matter in accordance with this Chapter.
(2) The Chairperson must prepare a written statement of the tax board’s decision that includes the tax board’s findings of the facts of the case and the reasons for its decision, within 60 business days after conclusion of the hearing.
(3) The clerk must by notice in writing submit a copy of the tax board’s decision to SARS and the ‘appellant’.
113. Tax board procedure
(1) Subject to the procedure provided for by the ‘rules’, the chairperson determines the procedures during the hearing of an appeal as the chairperson sees fit, and each party must have the opportunity to put the party’s case to the tax board.
(2) The tax board is not required to record its proceedings.
(3) The chairperson may, when the proceedings open, formulate the issues in the appeal.
(4) The chairperson may adjourn the hearing of an appeal to a convenient time and place.
(5) A senior SARS official must appear at the hearing of the appeal in support of the assessment or ‘decision’.
(6) At the hearing of the appeal the ‘appellant’ must-
(a) appear in person in the case of a natural person; or
(b) in any other case, be represented by the representative taxpayer.
(7) If a third party prepared the ‘appellant’s’ return involved in the assessment or ‘decision’, that third party may appear on the ‘appellant’s’ behalf.
(8) The ‘appellant’ may, together with the notice of appeal, or within the further period as the chairperson may allow, request permission to be represented at the hearing otherwise than as referred to in subsection (6).
(9) If neither the ‘appellant `nor anyone authorised to appear on the ‘appellant’s’ behalf appears before the tax board at the time and place set for the hearing, the tax board may confirm the assessment or ‘decision’ in respect of which the appeal has been lodged-
(a) at the request of the senior SARS official; and
[Para. (a) substituted by section 25 of Act 13 of 2017 effective on 18 December 2017]
(b) on proof that the ‘appellant’ was furnished with the notice of the sitting of the tax board.
(10) If the tax board confirms an assessment or ‘decision’ under subsection (9), the ‘appellant’ may not thereafter request that the appeal be referred to the tax court under section 115.
(11) If the senior SARS official fails to appear before the tax board at the time and place set for the hearing, the tax board may allow the ‘appellant’s’ appeal at the ‘appellant’s’ request.
(12) If the tax board allows the appeal under subsection (11), SARS may not thereafter refer the appeal to the tax court under section 115.
(13) Subsections (9), (10), (11) and (12) do not apply if the chairperson is satisfied that sound reasons exist for the non-appearance and the reasons are delivered by the ‘appellant’ or SARS to the clerk of the tax board within 10 business days after the date determined for the hearing or the longer period as may be allowed in exceptional circumstances.