Category: PART III – REGISTRATION (VAT)

Section 26 (VAT) – Liabilities not affected by person ceasing to be vendor

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26. Liabilities not affected by person ceasing to be vendor

 

The obligations and liabilities under this Act or the Tax Administration Act of any person in respect of anything done, or omitted to be done, by that person while that person is a vendor shall not be affected by the fact that that person ceases to be a vendor, or by the fact that, being registered as a vendor, the Commissioner cancels that person’s registration as a vendor.

[Section 26 substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 25 (VAT) – Vendor to notify change of status

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25. Vendor to notify change of status

In addition to any requirement under the Tax Administration Act, every vendor shall within 21 days notify the Commissioner in writing of-

[Words preceding paragraph (a) substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(a)     any change in the constitution or nature of the principal enterprise or enterprises of that vendor;

[Paragraph (a) substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(b)     any change of address at or from which, or the name in which, any enterprise is carried on by that vendor;

(c)     any change whereby that vendor ceases to satisfy the conditions provided in section 15(2), where the Commissioner has given a direction in respect of that vendor in terms of that section;

(d)     any change whereby the provisions of section 27(3)(a) become applicable in the case of that vendor;

(dA) ……..

[Paragraph (dA) inserted by section 10(1) of Act 10 of 2005 and deleted by section 9 of Act 22 of 2018]

(e)     any change in the composition of the members of a partnership or joint venture;

[Paragraph (e) added by section 96 of Act 30 of 1998]

(f)      ……….

[Paragraph (f) inserted by section 94 of Act 53 of 1999 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(g)     any change whereby the provisions of section 27(4)(a)(iii) are no longer applicable in the case of that vendor;

[Paragraph (g) inserted by section 40 of Act 34 of 2004 and substituted by section 21 of Act 39 of 2013 effective on 1 March 2014]

(h)     any changes in the majority ownership of any company

[Paragraph (h) inserted by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 24 (VAT) – Cancellation of registration

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24. Cancellation of registration

(1)     Subject to the provisions of subsection (2), every vendor shall cease to be liable to be registered where the Commissioner is satisfied that the total value of the vendor’s taxable supplies in the period of 12 months commencing at the beginning of any tax period of the vendor will be not more than the amount referred to in section 23(1) or (1A).

[Subsection (1) substituted by section 71(1) of Act 34 of 2019 deemed effective on 1 April, 2019]

(2)     Every vendor who wishes to have his registration cancelled in the circumstances contemplated in subsection (1), may request the Commissioner in writing to cancel his registration, and if the Commissioner is satisfied as contemplated in subsection (1), the Commissioner shall cancel the vendor’s registration with effect from the last day of the tax period during which the Commissioner was so satisfied, or from such other date as may be determined by the Commissioner, and shall notify the vendor of the date on which the cancellation of the registration takes effect.

(3)     Every vendor who ceases to carry on all enterprises shall notify the Commissioner of that fact within 21 days of the date of such cessation and the Commissioner shall cancel the registration of such vendor with effect from the last day of the tax period during which all such enterprises ceased, or from such other date as may be determined by the Commissioner.

[Subsection (3) amended by section 93 of Act 53 of 1999]

(4)     Any notification by a vendor in terms of subsection (3) shall be made in writing to the Commissioner and shall state the date upon which that vendor ceased to carry on all enterprises and whether or not that vendor intends to carry on any enterprise within 12 months from that date.

(5)     Where the Commissioner is satisfied that a vendor-

(a)     no longer complies with the requirements for registration as contemplated in section 23(1) and (3) ; or

(b)     has failed to furnish the Commissioner with a return reflecting such information as may be required for the purposes of the calculation of tax in terms of section 14 or 16,

the Commissioner may cancel such vendor’s registration with effect from the last day of the tax period during which the Commissioner is so satisfied, or from such other date as may be determined by the Commissioner: Provided that where such person lodges an objection against the Commissioner’s decision under this subsection the cancellation of that person’s registration shall not take effect until such time as the Commissioner’s decision becomes final and conclusive.

[Subsection (5) substituted by section 21 of Act 20 of 1994, section 93 of Act 53 of 1999 and section 179 of Act 31 of 2013 effective on 1 April 2014]

(6)    Where any person has been registered as a vendor in consequence of an application made by him under section 23(3) and subsequent to the registration of that person as a vendor it appears to the Commissioner that such person’s registration should be cancelled by reason of any of the circumstances referred to in section 23(7), the Commissioner may cancel such person’s registration with effect from a date determined by the Commissioner: Provided that where such person lodges an objection against the Commissioner’s decision under this subsection the cancellation of that person’s registration shall not take effect until such time as the Commissioner’s decision becomes final and conclusive.

(7)     The Commissioner shall give written notice to the person concerned of his decision to cancel such person’s registration in terms of this section or of his refusal to cancel such registration.

Section 23 (VAT) – Registration of persons making supplies in the course of enterprises

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23. Registration of persons making supplies in the course of enterprises

(1)     Every person who, on or after the commencement date, carries on any enterprise and is not registered, becomes liable to be registered-

(a)     at the end of any month where the total value of taxable supplies made by that person in the period of 12 months ending at the end of that month in the course of carrying on all enterprises has exceeded R1 million;

[Paragraph (a) amended by section 92 of Act 53 of 1999 and substituted by section 113 of Act 60 of 2008 effective on 1 March 2009]

(b)     at the commencement of any month where the total value of the taxable supplies in terms of a contractual obligation in writing to be made by that person in the period of 12 months reckoned from the commencement of the said month will exceed the above-mentioned amount:

[Paragraph (b) substituted by section 178 of Act 31 of 2013 effective on 1 April 2014]

Provided that the total value of the taxable supplies of the vendor within the period of 12 months referred to in paragraph (a) or the period of 12 months referred to in paragraph (b) shall not be deemed to have exceeded or be likely to exceed the amount contemplated in paragraph (a), where the Commissioner is satisfied that the said total value will exceed or is likely to exceed such amount solely as a consequence of-

[Words preceding item (i) substituted by section 24 of Act 4 of 2008]

(i)      any cessation of, or any substantial and permanent reduction in the size or scale of, any enterprise carried on by that person; or

(ii)     the replacement of any plant or other capital asset used in any enterprise carried on by that person; or

(iii)  abnormal circumstances of a temporary nature.

[Subsection (1) amended by section 92 of Act 53 of 1999]

(1A)  Every person who carries on any enterprise as contemplated in paragraph (b)(vi) or (vii) of the definition of “enterprise” in section 1 and is not registered becomes liable to be registered at the end of any month where the total value of taxable supplies made by that person has exceeded R1 million in any consecutive 12-month period: Provided that such person shall not be liable to register where the said total value of taxable supplies made by that person has exceeded R1 million in any consecutive 12-month period solely as a consequence of abnormal circumstances of a temporary nature.

[Subsection (1A) inserted by section 178(1)(b) of Act 31 of 2013 and substituted by section 11(1) of Act 21 of 2018 and by section 24 of Act 16 of 2022]

(2)     Every person who is not a resident of the Republic, and who in terms of subsection (1) or section 50A, becomes liable to be registered in accordance with Chapter 3 of the Tax Administration Act, shall be deemed not to have applied for registration, in addition to section 22(4) of the Tax Administration Act, until such person has-

(a)     appointed a representative vendor as contemplated in section 46 in the Republic and furnished the Commissioner with the particulars of such representative vendor;

(b)     opened a banking account with any bank, mutual bank or other similar institution, registered in terms of the Banks Act, 1990 (Act No. 94 of 1990), for the purposes of his or her enterprise carried on in the Republic and furnished the Commissioner with the particulars of such banking account.

[Subsection (2) substituted by section 37 of Act 27 of 1997, section 113 of Act 60 of 2008 and s, 271 of Act 28 of 2011 effective on 1 October 2012]

(2A)

(a)     Notwithstanding subsection (2), every person who is not a resident of the Republic and who in terms of subsection (1) or section 50A becomes liable to be registered in accordance with Chapter 3 of the Tax Administration Act, may be registered by the Commissioner as a branch of a registered vendor upon written application for a branch registration by that registered vendor: Provided that-

(i)      such resident vendor and a person who is not a resident forms part of the same “group of companies” as defined in section 1 of the Income Tax Act;

(ii)     where there is more than one holding company or subsidiary that is not a resident of the Republic, all those holding companies or subsidiaries may register under the same branch registration and will be deemed to constitute a single branch;

(iii)    the branch shall be treated as a separate person from the main registered vendor for the purposes of this Act;

(iv)    for the purposes of supplies made in the Republic between persons within the same branch registration, such supplies and acquisitions must be accounted for in that branch registration;

(v)     the Commissioner may effective on a date determined by the Commissioner, cancel the branch registration contemplated herein if-

(aa)   the main registered vendor has applied to the Commissioner in writing for such registration to be cancelled; or

(bb)   it appears to the Commissioner that the duties or obligations of such branch have not been satisfactorily performed or carried out,

and thereafter any activity carried on by such person who was part of the branch registration shall as from the said date, be deemed to be carried on separately by each person who is a non-resident;

(vi)    the Commissioner shall cancel the branch registration on the cancellation of the registration of the main registered vendor referred to herein and thereafter any activity carried on by such person that was part of the branch registration shall, as from the said date, be deemed to be carried on separately by each person who is a non-resident;

(vii)   where any person registered under such branch fails to do anything required to be done under this Act, the liability for the doing of that thing shall revert to the main registered vendor referred to herein;

(viii)   any decision or determination of the Commissioner made under section 15 or 27 in respect of the main registered vendor referred to herein shall, for the purposes of this Act, apply equally to the branch: Provided further that where a decision or determination is made by the Commissioner under section 27(2) which applies in respect of any such branch, this paragraph shall not be construed as preventing the Commissioner from making a separate decision or determination under section 27(4) in the circumstances contemplated in that subsection in respect of any other branch of the said main registered vendor; and

(ix)    notwithstanding the provisions of this section, any amount that is refundable under section 190 of the Tax Administration Act (including interest thereon) to the main registered vendor referred to herein or the branch may be set off against the outstanding tax debt of the main registered vendor referred to herein or the branch, as the case may be.

(b)     For the purposes of this Act, where a decision is made under this section, the main registered vendor and each person who is a non-resident falling under the branch registration shall be held jointly and severally liable for any tax due by such branch.

(c)     Where any person who is a non-resident elects and applies to register as a VAT vendor independently and not as part of the branch registration, the provisions of this section shall not apply to such person.

[Subsection (2A) added by section 32(1) of Act 20 of 2022 effective on 1 January, 2023]

(3)     Notwithstanding the provisions of subsections (1) and (2), every person who satisfies the Commissioner that, on or after the commencement date-

(a)     that person is a ‘municipality’ as defined in section 1 or is carrying on any enterprise as contemplated in paragraph (b)(ii), (iii) or (v) of the definition of ‘enterprise’ in section 1; or

[Paragraph (a) substituted by section 36 of Act 32 of 2005 and section 14 of Act 10 of 2006]

(b)     that person-

(i)      is carrying on any enterprise and the total value of taxable supplies made by that person in the course of carrying on all enterprises in the preceding period of 12 months has exceeded R50 000; or

(ii)     subject to the provisions of section 15(2B) and any regulation made by the Minister in terms of this Act, is carrying on any enterprise where the total value of taxable supplies made or to be made by that person has not exceeded R50 000 but can reasonably be expected to exceed that amount within 12 months from the date of registration,

other than any enterprise-

(AA)  as contemplated in paragraph (b)(ii) or (iii) of the definition of ‘enterprise’ in section 1; or

(BB)  that is a ‘municipality’ as defined in section 1;

 [Paragraph (b) substituted by section 14 of Act 10 of 2006, amended by section 93 of Act 17 of 2009 and substituted by section 178 of Act 31 of 2013 effective on 1 April 2014]

(c)     that person intends to carry on any enterprise from a specified date, where that enterprise will be supplied to him as a going concern and the total value of taxable supplies made by the supplier of the going concern from carrying on that enterprise or part of the enterprise which will be supplied has exceeded R50 000 in the preceding period of 12 months; or

[Paragraph (c) substituted by section 93 of Act 17 of 2009 effective on 1 March 2010]

(d)     that person is continuously and regularly carrying on an activity of a nature set out in any regulation made by the Minister in terms of this Act and in consequence of the nature of that activity is likely to make taxable supplies only after a period of time,

[Paragraph (d) substituted by section 93 of Act 17 of 2009 effective on 1 March 2010 and section 178 of Act 31 of 2013 effective on 1 April 2014]

may apply to the Commissioner in the approved form for registration.

[Words following paragraph (d) substituted by section 271 of Act 28 of 2011 effective on 1 October 20112]

[Subsection (3) substituted by section 92 of Act 53 of 1999]

(4)     Where any person has-

(a)     applied for registration in accordance with Chapter 3 of the Tax Administration Act or subsection (2) or (3) and the Commissioner is satisfied that that person is eligible to be registered in terms of this Act, that person shall be a vendor for the purposes of this Act with effect from such date as the Commissioner may determine; or

[Paragraph (a) substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(b)     not applied for registration in terms of Chapter 3 of the Tax Administration Act and the Commissioner is satisfied that that person is liable to be registered in terms of this Act, that person shall be a vendor for the purposes of this Act with effect from the date on which that person first became liable to be registered in terms of this Act: Provided that the Commissioner may, having regard to the circumstances of the case, determine that person to be a vendor from such later date as the Commissioner may consider equitable:

[Paragraph (b) substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

Provided that where that person is a public entity listed in Schedule 1 or Part A or C of Schedule 3 to the Public Finance Management Act, 1999 (Act No. 1 of 1999), which was liable to be registered as a vendor for any supplies made on or before 31 March 2005, but did not register before 1 April 2005, the Commissioner must not register that person in respect of those supplies.

[Proviso inserted by section 9 of Act 10 of 2005]

(5)     Notwithstanding anything in this Act to the contrary, where any enterprise is carried on by any association not for gain in branches or divisions, or separate enterprises are carried on by that association, that association may apply in writing to the Commissioner for any such branch, division or separate enterprise to be deemed to be a separate person for the purposes of this section, and if every such branch, division or separate enterprise maintains an independent system of accounting and can be separately identified by reference to the nature of the activities carried on or the location of that branch, division or separate enterprise, every such branch, division or separate enterprise shall be deemed to be a separate person, and not a part of the association, and, where any such branch, division or separate enterprise is deemed to be a separate person under this subsection, any enterprise carried on by that branch or division or any separate enterprise carried on by the association shall, to that extent, be deemed not to be carried on by the association concerned.

(6)     The provisions of this Act relating to the determination of the value of any supply of goods or services, whether such supply is made before or on or after the commencement date, shall apply for the purposes of this section, but no regard shall be had to any tax charged in respect of any such supply: Provided that any supply of services contemplated in section 11(2) (n) shall for the purposes of this section be deemed not to be a taxable supply.

(7)     Where the Commissioner is satisfied that any person who has applied for registration in terms of subsection (3) is not eligible to be registered in terms of this Act or should not be registered by reason of the fact that such person-

(a)     has no fixed place of abode or business; or

(b)     does not keep proper accounting records relating to any enterprise carried on by him; or

(c)     has not opened a banking account with any bank, mutual bank or other similar institution for the purposes of any enterprise carried on by him; or

[Paragraph (c) substituted by section 20 of Act 20 of 1994]

(d)     has previously been registered as a vendor in respect of any enterprise, whether in terms of this Act or in terms of the Sales Tax Act, 1978 (Act No. 103 of 1978), but failed to perform his duties under either of the said Acts in relation to such enterprise,

the Commissioner may refuse to register the said person as a vendor in terms of this Act and shall give written notice to that person of such refusal.