“withholding agent” has the meaning assigned under section 156.
Category: Tax Administration Act No. 28 of 2011
Section 10 (TAA) – Delegations by the Commissioner
10. Delegations by the Commissioner
(1) A delegation by the Commissioner under section 6(2)-
(a) must be in writing;
(b) becomes effective only when signed by the Commissioner;
(c) is subject to the limitations and conditions the Commissioner may determine in making the delegation;
(d) may either be to-
(i) a specific individual; or
(ii) the incumbent of a specific post; and
(e) may be amended or withdrawn by the Commissioner.
(2) A delegation does not divest the Commissioner of the responsibility for the exercise of the delegated power or the performance of the delegated duty.
Section 22 (TAA) – Registration requirements
22. Registration requirements
(1) A person-
(a) obliged to apply to; or
(b) who may voluntarily,
register with SARS under a tax Act must do so in terms of the requirements of this Chapter or, if applicable, the relevant tax Act.
(2) A person referred to in subsection (1) must-
(a) apply for registration within the period provided for in a tax Act or, if no such period is provided for, 21 business days of so becoming obliged or within the further period as SARS may approve in the prescribed form and manner;
(b) apply for registration for one or more taxes or under section 26(3) in the prescribed form and manner; and
[Paragraph (b) substituted by section 37 of Act 23 of 2015 effective on 8 January 2016]
(c) provide SARS with the further particulars and any documents as SARS may require for the purpose of registering the person for the tax or taxes or under section 26(3).
[Paragraph (c) substituted by section 37 of Act 23 of 2015 effective on 8 January 2016]
(3) A person registered or applying for registration under a tax Act may be required to submit biometric information in the prescribed form and manner if the information is required to ensure-
(a) proper identification of the person; or
(b) counteracting identity theft or fraud.
(4) A person who applies for registration in terms of this Chapter and has not provided all particulars and documents required by SARS, may be regarded not to have applied for registration until all the particulars and documents have been provided to SARS.
(5) Where a person that is obliged to register with SARS under a tax Act fails to do so, SARS may register the person for one or more tax types as is appropriate under the circumstances or for purposes of section 26(3).
[Subsection (5) substituted by section 37 of Act 23 of 2015 effective on 8 January 2016]
“Financial benefit” definition of section 34 of TAA
‘financial benefit’ means a reduction in the cost of finance, including interest, finance charges, costs, fees and discounts on a redemption amount;
Section 42 (TAA) – Keeping taxpayer informed
42. Keeping taxpayer informed
(1) A SARS official involved in or responsible for an audit under this Chapter must, in the form and in the manner as may be prescribed by the Commissioner by public notice, provide the taxpayer with a notice of commencement of an audit and, thereafter, a report indicating the stage of completion of the audit.
[Subsection (1) substituted by section 48(a) of Act 21 of 2012 and by section 16 of Act 22 of 2018.]
(2) Upon conclusion of the audit or a criminal investigation, and where-
(a) the audit or investigation was inconclusive, SARS must inform the taxpayer accordingly within 21 business days; or
(b) the audit identified potential adjustments of a material nature, SARS must within 21 business days, or the further period that may be required based on the complexities of the audit, provide the taxpayer with a document containing the outcome of the audit, including the grounds for the proposed assessment or decision referred to in section 104(2).
(3) Upon receipt of the document described in subsection (2)(b), the taxpayer must within 21 business days of delivery of the document, or the further period requested by the taxpayer that may be allowed by SARS based on the complexities of the audit, respond in writing to the facts and conclusions set out in the document.
(4) The taxpayer may waive the right to receive the document.
(5) Subsections (1) and (2)(b) do not apply if a senior SARS official has a reasonable belief that compliance with those subsections would impede or prejudice the purpose, progress or outcome of the audit.
(6) SARS may under the circumstances described in subsection (5) issue the assessment or make the decision referred to in section 104(2) resulting from the audit and the grounds of the assessment or decision must be provided to the taxpayer within 21 business days of the assessment or the decision, or the further period that may be required based on the complexities of the audit or the decision.
Section 56 (TAA) – Confidentiality of proceedings
56. Confidentiality of proceedings
(1) An inquiry under this Part is private and confidential.
(2) The presiding officer may, on request, exclude a person from the inquiry if the person’s attendance is prejudicial to the inquiry.
(3) Section 69 applies with the necessary changes to persons present at the questioning of a person, including the person being questioned.
(4) Subject to section 57(2), SARS may use evidence given by a person under oath or solemn declaration at an inquiry in a subsequent proceeding involving the person or another person.
Section 70 (TAA) – Disclosure to other entities
70. Disclosure to other entities
(1) A senior SARS official may provide to the Director-General of the National Treasury taxpayer information or SARS confidential information in respect of-
(a) a taxpayer which is an-
(i) institution referred to in section 3(1) of the Public Finance Management Act, 1999 (Act No. 1 of 1999); or
(ii) entity referred to in section 3 of the Local Government: Municipal Finance Management Act, 2003 (Act No. 56 of 2003),
to the extent necessary for the Director-General to perform the functions and exercise the powers of the National Treasury under those Acts; and
(b) a class of taxpayers to the extent necessary for the purposes of tax policy design or revenue estimation.
(2) A senior SARS official may disclose to-
(a) the Statistician-General the taxpayer information as may be required for the purpose of carrying out the Statistician-General’s duties to publish statistics in an anonymous form;
(b) the Chairperson of the Board administering the National Student Financial Aid Scheme, the name and address of the employer of a person to whom a loan or bursary has been granted under that scheme, for use in performing the Chairperson’s functions under the National Student Financial Aid Scheme Act, 1999 (Act No. 56 of 1999);
(c) a commission of inquiry established by the President of the Republic of South Africa under a law of the Republic, the information to which the Commission is authorised by law to have access;
(d) to an employer (as defined in the Fourth Schedule to the Income Tax Act) of an employee (as defined in the Fourth Schedule), but only the income tax reference number, identity number, physical and postal address of that employee and such other non-financial information in relation to that employee, as that employer may require in order to comply with its obligations in terms of a tax Act; and
(e) a recognised controlling body (as defined in section 239) of a registered tax practitioner, such information in relation to the tax practitioner as may be required to verify that sections 240A(2)(a) and 240A(3) are being given effect to.
(f) the Department of Labour, the name and contact details of all employers registered for employees’ tax and eligible to receive the employment tax incentive in terms of section 2 of the Employment Tax Incentive Act, 2013.
(3) A senior SARS official may disclose to-
(a) the Governor of the South African Reserve Bank, or other person to whom the Minister delegates powers, functions and duties under the Regulations issued under section 9 of the Currency and Exchange Act, 1933 (Act 9 of 1933), the information as may be required to exercise a power or perform a function or duty under the South African Reserve Bank Act, 1989 (Act 90 of 1989), or those Regulations;
[Paragraph (a) substituted by section 25 of Act 24 of 2020]
(b) the Financial Sector Conduct Authority, the information as may be required for the purpose of carrying out the Financial Sector Conduct Authority’s duties and functions under the Financial Sector Regulation Act, 2017 (Act 9 of 2017);
[Paragraph (b) substituted by section 18(1) of Act 22 of 2018 effective on 1 April 2018.]
(c) the Financial Intelligence Centre, the information as may be required for the purpose of carrying out the Centre’s duties and functions under the Financial Intelligence Centre Act, 2001 (Act 38 of 2001);
[Paragraph (c) amended by section 27(a) of Act 18 of 2023]
(d) the National Credit Regulator, the information as may be required for the purpose of carrying out the Regulator’s duties and functions under the National Credit Act, 2005 (Act 34 of 2005); and
[Paragraph (d) amended by section 27(b) of Act 18 of 2023]
(e) the Companies and Intellectual Property Commission, the information as may be required for the purpose of carrying out the Commission’s duties and functions under the Companies Act, 2008 (Act 71 of 2008);
[Paragraph (e) added by section 27(c) of Act 18 of 2023]
(f) the Directorate for Nonprofit Organisations, the information as may be required for the purpose of carrying out the Directorate’s duties and functions under the Nonprofit Organisations Act, 1997 (Act 71 of 1997); and
[Paragraph (f) added by section 27(c) of Act 18 of 2023]
(g) the Master as defined in section 1 of the Trust Property Control Act, 1988 (Act 57 of 1988), the information as may be required for the purpose of carrying out the Master’s duties and functions under that Act.
[Paragraph (g) added by section 27(c) of Act 18 of 2023]
(4) A senior SARS official may disclose to an organ of state or institution listed in a regulation issued by the Minister under section 257, information to which the organ of state or institution is otherwise lawfully entitled to and for the purposes only of verifying the correctness of the following particulars of a taxpayer:
(a) name and taxpayer reference number;
(b) any identifying number;
(c) physical and postal address and other contact details;
(d) employer’s name, address and contact details; and
(e) other non-financial information as the organ of state or institution may require for purposes of verifying paragraphs (a) to (d).
(5) The information disclosed under subsection (1), (2) or (3) may only be disclosed by SARS or the persons or entities referred to in subsection (1), (2) or (3) to the extent that it is-
(a) necessary for the purpose of exercising a power or performing a regulatory function or duty under the legislation referred to in subsection (1), (2) or (3); and
(b) relevant and proportionate to what the disclosure is intended to achieve as determined under the legislation.
[Subsection (5) substituted by section 48 of Act 23 of 2015 effective on 8 January 2016]
(6) SARS must allow the Auditor-General to have access to information in the possession of SARS that relates to the performance of the Auditor-General’s duties under section 4 of the Public Audit Act, 2004 (Act No. 25 of 2004).
(7) Despite subsections (1) to (5), a senior SARS official may not disclose information under this section if satisfied that the disclosure would seriously impair a civil or criminal tax investigation.
Section 24 (TAA) – Taxpayer reference number
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
‘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
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.