Author: admin_kmos

Section 118 (TAA) – Constitution of tax court

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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.

Section 117 (TAA) – Jurisdiction of tax court

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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”.

Section 115 (TAA) – Referral of appeal to tax court

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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).

Section 114 (TAA) – Decision of tax board

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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’.

Section 113 (TAA) – Tax board procedure

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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.

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.