76N     Termination of advance pricing agreement

(1)     A party to an advance pricing agreement may choose to terminate the agreement prospectively by informing, in writing, the other parties to the agreement of the grounds for the termination.

(2)     The Commissioner may, in writing, terminate an advance pricing agreement prospectively if-

(a)     there is an amendment to the legislation on which the agreement is based, unless the general interpretation upon which the agreement was based is unaffected by the amendment;

(b)     there is a change to the agreement for the avoidance of double taxation on which the agreement is based, unless the general interpretation upon which the agreement was based is unaffected by the change; or

(c)     a court overturns or modifies an interpretation of the legislation on which the agreement is based, unless-

(i)      the judgment is under appeal;

(ii)     the judgment is fact-specific and the general interpretation upon which the agreement was based is unaffected; or

(iii)    the reference to the interpretation upon which the agreement was based was obiter dicta; or

(d)     the applicant that is party to the agreement failed to comply with the terms and conditions of the agreement.

(3)     The Commissioner may, in writing, terminate an advance pricing agreement retrospectively if-

(a)     it was issued in error, and if-

(i)      the applicant that is party to the advance pricing agreement has not yet commenced an affected transaction in the agreement or has not yet incurred significant costs in respect of the affected transaction;

(ii)     a person, other than the applicant that is party to the advance pricing agreement, will suffer a significant tax disadvantage if the agreement is not terminated; or

(iii)     the effect of the agreement will materially erode the tax base of the Republic;

(b)     any of the critical assumptions is breached and the breach is not remedied within a period acceptable to the Commissioner;

(c)     an affected transaction was carried out in a materially different manner from that disclosed in the advance pricing agreement application; or

(d)     there is fraud, misrepresentation or non-disclosure of a material fact by the applicant that is party to the advance pricing agreement.

(4)     A party to an advance pricing agreement must, in writing, inform other parties to the agreement within 30 days of becoming aware of a condition in subsection (2) or (3) that may result in the termination of the agreement.

(5)     A party that chooses to terminate an advance pricing agreement must first provide the other parties to the agreement with notice, in writing, of the proposed termination of the agreement, the grounds for the proposed termination and provide a reasonable opportunity to the other parties to make representations prior to the decision to terminate the agreement.

(6)     The Commissioner must, in writing, inform all parties to an advance pricing agreement of the effective date from which the agreement has been terminated.

[Section 76N inserted by section 10 of Act 18 of 2023]