5.

(1)     Subject to the provisions of subparagraph (6), if an employer is personally liable for the payment of employees’ tax under Chapter 10 of the Tax Administration Act, the employer shall pay that amount to the Commissioner not later than the date on which payment should have been made if the employees’ tax had in fact been deducted or withheld in terms of paragraph 2.

[Subparagraph (1) substituted by section 19(a) of Act 18 of 2009, by section 271 read with paragraph 79 of Schedule 1 of Act 28 of 2011, by section 38 of Act 20 of 2021 and by section 5 of Act 16 of 2022]

(1A)  The liability of the employer as contemplated in paragraph 2 must be deemed to have been discharged if the employer made payment of the outstanding employees’ tax in terms of subparagraph (1).

(2)     Where the employer has failed to deduct or withhold employees’ tax in terms of paragraph 2 and the Commissioner is satisfied that the failure was not due to an intent to postpone payment of the tax or to evade the employer’s obligations under this Schedule, the Commissioner may, if he is satisfied that there is a reasonable prospect of ultimately recovering the tax from the employee, absolve the employer from his liability under sub–paragraph (1) of this paragraph.

(3)     An employer who has not been absolved from liability as provided in sub–paragraph (2) shall have a right of recovery against the employee in respect of the amount paid by the employer in terms of sub–paragraph (1) in respect of that employee, and such amount may in addition to any other right of recovery be deducted from future remuneration which may become payable by the employer to that employee, in such manner as the Commissioner may determine.

(4)     Until such time as an employee pays to his employer any amount which is due to the employer in terms of sub–paragraph (3), such employee shall not be entitled to receive from the employer an employees’ tax certificate in respect of that amount.

(5)     Any amount which an employer is required to pay in terms of sub–paragraph (1) and which the employer does not recover from the employee shall, insofar as the employer only is concerned, for the purposes of section 23(d), be deemed to be a penalty due and payable by that employer.

(6)     The provisions of sub–paragraph (1) shall not apply in respect of any amount or any portion of any amount of employees’ tax which an employer has failed to deduct or withhold and in respect of which the provisions of sub–paragraph (3) of paragraph 28 apply.