Author: admin_kmos

Section 112 (TAA) – Clerk of tax board

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112.    Clerk of tax board

 

(1)     The Commissioner must appoint a clerk of the tax board.

 

(2)     The clerk acts as convenor of the tax board.

 

(3)     If no chairperson is available in the jurisdiction within which the tax board is to be convened, the clerk may convene the tax board with a chairperson from another jurisdiction.

 

(4)     The clerk of the tax board must, within the period and in the manner provided in the ‘rules’, submit a notice to the members of the tax board and the ‘appellant’ specifying the time and place for the hearing.

Section 111 (TAA) – Appointment of chairpersons

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111.    Appointment of chairpersons

(1)     The Minister must, in consultation with the Judge-President of the Division of the High Court with jurisdiction in the area where the tax board is to sit, or the chief executive officer of the relevant recognised controlling bodies under section 240A of the Act, by public notice appoint legal practitioners or registered tax practitioners to a panel from which a chairperson of the tax board must be nominated from time to time.

[Subsection (1) substituted by section 35 of Act 33 of 2019 and by section 26 of Act 43 of 2024]

(2)     The persons appointed under subsection (1)-

(a)     hold office for five years from the date the notice of appointment is published in the public notice;

(b)     are eligible for re-appointment as the Minister thinks fit; and

(c)     must be persons of good standing who have appropriate experience.

[Subsection (2) substituted by section 53 of Act 23 of 2015 effective on 8 January 2016]

(3)     The Minister may terminate an appointment made under this section at any time for misconduct, incapacity or incompetence.

(4)     A member of the panel must be appointed as chairperson of a tax board.

(5)     A chairperson 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.

(6)     A chairperson must withdraw from the proceedings as soon as the chairperson becomes aware of a conflict of interest which may give rise to bias which the chairperson may experience with the case concerned or other circumstances that may affect the chairperson’s ability to remain objective for the duration of the case.

(7)     Either party may ask for withdrawal of the chairperson on the basis of conflict of interest or other indications of bias, under procedures provided in the ‘rules’.

Section 110 (TAA) – Constitution of tax board

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110.    Constitution of tax board

(1)     A tax board consists of-

(a)     the chairperson, who must be selected from the panel appointed under section 111; and

(b)     if the chairperson, after considering any legal representations by a senior SARS official or the taxpayer, considers it necessary-

(i)      an accountant who is a member of the panel referred to in section 120;

(ii)     a representative of the commercial community who is a member of the panel referred to in section 120; or

(iii)    a legal practitioner who is a member of the panel referred to in section 111.

[Subsection (1) amended by section 24 of Act 13 of 2017 and by section 34 of Act 33 of 2019 and substituted by section 25 of Act 43 of 2024]

(2)     Sections 122, 123, 124, 126, 127, 128 and 129 apply, with the necessary changes, and under procedures determined in the ‘rules’, to the tax board and the chairperson.

Section 109 (TAA) – Jurisdiction of tax board

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109.    Jurisdiction of tax board

(1)     An appeal against an assessment or ‘decision’ must in the first instance be heard by a tax board, if the tax in dispute does not exceed the amount the Minister determines by public notice, unless a senior SARS official and the ‘appellant’ agree that the matter be heard by the tax court.

[Subsection (1) substituted by section 24(a) of Act 43 of 2024]

(2)     SARS must designate the places where tax boards hear appeals.

(3)     The tax board must hear an appeal at the place referred to in subsection (2) which is closest to the ‘appellant’s’ residence or place of business, unless the ‘appellant’ and SARS agree that the appeal be heard at another place.

(4)     In making a decision under subsection (1), a senior SARS official must consider whether the grounds of the dispute or legal principles related to the appeal should rather be heard by the tax court.

[Subsection (4) substituted by section 24(b) of Act 43 of 2024]

(5)     If the chairperson prior to or during the hearing, considering the grounds of the dispute or the legal principles related to the appeal, believes that the appeal should be heard by the tax court rather than the tax board, the chairperson may direct that the appeal be set down for hearing de novo before the tax court.

Section 108 (TAA) – Establishment of tax board

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108.    Establishment of tax board

 

(1)     The Minister may by public notice-

 

(a)     establish a tax board or boards for areas that the Minister thinks fit; and

 

(b)     abolish an existing tax board or establish an additional tax board as circumstances may require.

 

(2)     Tax boards are established under subsection (1) to hear appeals referred to in section 107 in the manner provided in this Part.

Section 161 (TAA) – Security by taxpayer

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161.    Security by taxpayer

 

(1)     A senior SARS official may require security from a taxpayer to safeguard the collection of tax by SARS, if the taxpayer-

 

(a)     is a representative taxpayer, withholding agent or responsible third party who was previously held liable in the taxpayer’s personal capacity under a tax Act;

 

(b)     has been convicted of a tax offence;

 

(c)     has frequently failed to pay amounts of tax due;

 

(d)     has frequently failed to carry out other obligations imposed under any tax Act which constitutes non-compliance referred to in Chapter 15; or

 

(e)     is under the management or control of a person who is or was a person contemplated in paragraphs (a) to (d).

 

(2)     If security is required, SARS must by written notice to the taxpayer require the taxpayer to furnish to or deposit with SARS, within such period that SARS may allow, security for the payment of any tax which has or may become payable by the taxpayer in terms of a tax Act.

 

(3)     The security must be of the nature, amount and form that the senior SARS official directs.

 

(4)     If the security is in the form of cash deposit and the taxpayer fails to make such deposit, it may-

 

(a)     be collected as if it were an outstanding tax debt of the taxpayer recoverable under this Act; or

 

(b)     be set-off against any refund due to the taxpayer.

 

(5)     A senior SARS official may, in the case of a taxpayer which is not a natural person and cannot provide the security required under subsection (1), require of any or all of the members, shareholders or trustees who control or are involved in the management of the taxpayer to enter into a contract of suretyship in respect of the taxpayer’s liability for tax which may arise from time to time.

Section 160 (TAA) – Right to recovery of taxpayer

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160. Taxpayer’s right to recovery

[Heading of section 160 substituted by section 27 of Act 13 of 2017 effective on 18 December 2017]

(1)     A representative taxpayer, withholding agent or responsible third party who, as such, pays a tax is entitled-

(a)     to recover the amount so paid from the person on whose behalf it is paid; or

(b)     to retain out of money or assets in that person’s possession or that may come to that person in that representative capacity, an amount equal to the amount so paid.

(2)     Unless otherwise provided for in a tax Act, a taxpayer in respect of whom an amount has been paid to SARS by a withholding agent under a tax Act or by a responsible third party under section 179, is not entitled to recover from the withholding agent or responsible third party the amount so  paid but is entitled to recover the amount of an unlawful or erroneous payment from SARS.