Category: Tax Administration Act No. 28 of 2011

Section 23 (TAA) – Communication of changes in particulars

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23.    Communication of changes in particulars

 

A person who has been registered under section 22 must communicate to SARS within 21 business days any change that relates to-

 

(a)     postal address;

 

(b)     physical address;

 

(c)     representative taxpayer;

 

(d)     banking particulars used for transactions with SARS;

 

(e)     electronic address used for communication with SARS; or

 

(f)      such other details as the Commissioner may require by public notice.

Section 24 (TAA) – Taxpayer reference number

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24.    Taxpayer reference number

 

(1)     SARS may allocate a taxpayer reference number in respect of one or more taxes to each person registered under a tax Act or this Chapter.

 

(2)     SARS may register and allocate a taxpayer reference number to a person who is not registered.

 

(3)     A person who has been allocated a taxpayer reference number by SARS must include the relevant reference number in all returns or other documents submitted to SARS.

 

(4)     SARS may regard a return or other document submitted by a person to be invalid if it does not contain the reference number referred to in subsection (3) and must inform the person accordingly if practical.

“Financial reporting standards” definition of section 34 of TAA

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‘financial reporting standards’ means, in the case of a company required to submit financial statements in terms of the Companies Act, 2008 (Act No. 71 of 2008), financial reporting standards prescribed by that Act, or, in any other case, the International Financial Reporting Standards or appropriate financial reporting standards that provide a fair presentation of the financial results and position of the taxpayer;

Section 43 (TAA) – Referral for criminal investigation

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43.  Referral for criminal investigation

 

(1)     If at any time before or during the course of an audit it appears that a taxpayer may have committed a serious tax offence, the investigation of the offence must be referred to a senior SARS official responsible for criminal investigations for a decision as to whether a criminal investigation should be pursued.

 

(2)     Relevant material obtained under this Chapter from the taxpayer after the referral, must be kept separate from the criminal investigation.

 

(3)     If an investigation is referred under subsection (1) the relevant material and files relating to the case must be returned to the SARS official responsible for the audit if-

 

(a)     it is decided not to pursue a criminal investigation;

 

(b)     it is decided to terminate the investigation; or

 

(c)     after referral of the case for prosecution, a decision is made not to prosecute.

Section 57 (TAA) – Incriminating evidence

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57.    Incriminating evidence

 

(1)     A person may not refuse to answer a question during an inquiry on the grounds that it may incriminate the person.

 

(2)     Incriminating evidence obtained under this section is not admissible in criminal proceedings against the person giving the evidence, unless the proceedings relate to-

 

(a)     the administering or taking of an oath or the administering or making of a solemn declaration;

 

(b)     the giving of false evidence or the making of a false statement; or

 

(c)     the failure to answer questions lawfully put to the person, fully and satisfactorily.

Section 71 (TAA) – Disclosure in criminal, public safety or environmental matters

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71.    Disclosure in criminal, public safety or environmental matters

 

(1)     If so ordered by a judge under this section, a senior SARS official must disclose the information described in subsection (2) to-

 

(a)     the National Commissioner of the South African Police Service, referred to in section 6(1) of the South African Police Service Act, 1995 (Act No. 68 of 1995); or

 

(b)     the National Director of Public Prosecutions, referred to in section 5(2)(a) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998).

 

(2)     Subsection (1) applies to information which may reveal evidence-

 

(a)     that an offence (other than a tax offence) has been or may be committed in respect of which a court may impose a sentence of imprisonment exceeding five years;

 

(b)     that may be relevant to the investigation or prosecution of the offence; or

 

(c)     of an imminent and serious public safety or environmental risk.

 

(3)     A senior SARS official may, if of the opinion that-

 

(a)     SARS has information referred to in subsection (2);

 

(b)     the information will likely be material to the prosecution of the offence or avoidance of the risk; and

 

(c)     the disclosure of the information would not seriously impair a civil or criminal tax investigation,

 

make an ex parte application to a judge in chambers for an order authorising SARS to disclose the information under subsection (1).

 

(4)     The National Commissioner of the South African Police Service, the National Director of Public Prosecutions or a person acting under their respective direction and control, if-

 

(a)     carrying out an investigation relating to an offence or a public safety or environmental risk referred to in subsection (2); and

 

(b)     of the opinion that SARS may have information that is relevant to that investigation,

 

may make an ex parte application to a judge in chambers for an order requiring SARS to disclose the information referred to in subsection (2).

 

(5)     SARS must be given prior notice of at least 10 business days of an application under subsection (4) unless the judge, based on urgency, allows a shorter period and SARS may oppose the application on the basis that the disclosure would seriously impair or prejudice a civil or criminal tax investigation or other enforcement of a tax Act by SARS.

“Participant” definition of section 34 of TAA

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“participant”, in relation to an ‘arrangement’, means-

(a)     a “promoter”;

(b)     a person who directly or indirectly will derive or assumes that the person will derive a “tax benefit” or “financial benefit” by virtue of an “arrangement”; or

(c)     any other person who is party to an “arrangement” listed in a public notice referred to in section 35(2);

[Definition of “participant” substituted by section 40 of Act 44 of 2014 effective on 20 January 2015 and section 39 of Act 23 of 2015 effective on 8 January2016]

Section 44 (TAA) – Conduct of criminal investigation

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44.  Conduct of criminal investigation

(1)     During a criminal investigation, SARS must apply the information gathering powers in terms of this Chapter with due recognition of the taxpayer’s constitutional rights as a suspect in a criminal investigation.

(2)     In the event that a decision is taken to pursue the criminal investigation of a serious tax offence, SARS may make use of relevant material obtained prior to the referral referred to in section 43.

(3)   Relevant material obtained during a criminal investigation may be used for purposes of audit as well as in subsequent civil and criminal proceedings.

[Subsection (3) substituted by section 17 of Act 22 of 2018.]