Part D
Search and seizure
Category: Tax Administration Act No. 28 of 2011
Section 25 (TAA) – Submission of return
25. Submission of return
(1) A person required under a tax Act or by the Commissioner to submit or who voluntarily submits a return must do so-
(a) in the prescribed form and manner; and
(b) by the date specified in the tax Act or, in its absence, by the date specified by the Commissioner in the public notice requiring the submission.
(2) A return must contain the information prescribed by a tax Act or the Commissioner and be a full and true return.
(3) A return must be signed by the taxpayer or by the taxpayer’s duly authorised representative and the person signing the return is regarded for all purposes in connection with a tax Act to be cognisant of the statements made in the return.
(4) Non-receipt by a person of a return form does not affect the obligation to submit a return.
(5) SARS may, prior to the issue of an original assessment by SARS, request a person to submit an amended return to correct an undisputed error in a return.
(6) SARS may extend the time period for filing a return in a particular case, in accordance with procedures and criteria in policies published by the Commissioner.
(7) The Commissioner may also extend the filing deadline generally or for specific classes of persons by public notice.
(8) An extension under subsection (6) or (7) does not affect the deadline for paying the tax.
“Promoter” definition of section 34 of TAA
“promoter”, in relation to an “arrangement”, means a person who is principally responsible for organising, designing, selling, financing or managing the “arrangement”;
Section 45 (TAA) – Inspection
45. Inspection
(1) A SARS official may, for the purposes of the administration of a tax Act and without prior notice, arrive at a premises where the SARS official has a reasonable belief that a trade or enterprise is being carried on and conduct an inspection to determine only-
(a) the identity of the person occupying the premises;
(b) whether the person occupying the premises is registered for tax; or
(c) whether the person is complying with sections 29 and 30.
(2) A SARS official may not enter a dwelling-house or domestic premises, except any part thereof used for the purposes of trade, under this section without the consent of the occupant.
Section 59 (TAA) – Application for warrant
59. Application for warrant
(1) A senior SARS official may, if necessary or relevant to administer a tax Act, authorise an application for a warrant under which SARS may enter a premises where relevant material is kept to search the premises and any person present on the premises and seize relevant material.
(2) SARS must apply ex parte to a judge for the warrant, which application must be supported by information supplied under oath or solemn declaration, establishing the facts on which the application is based.
(3) Despite subsection (2), SARS may apply for the warrant referred to in subsection (1) and in the manner referred to in subsection (2), to a magistrate, if the matter relates to an audit or investigation where the estimated tax in dispute does not exceed the amount determined in the notice issued under section 109(1)(a).
Section 26 (TAA) – Third party returns
26. Third party returns
(1) The Commissioner may by public notice, at the time and place and by the due date specified, require a person who employs, pays amounts to, receives amounts on behalf of or otherwise transacts with another person, or has control over assets of another person, to submit a return by the date specified in the notice.
(2) A person required under subsection (1) to submit a return must do so in the prescribed form and manner and the return must-
(a) contain the information prescribed by the Commissioner;
(b) be a full and true return; and
(c) for purposes of providing the information required in the return, comply with the due diligence requirements as may be prescribed in a tax Act, an international tax agreement, an international tax standard or by the Commissioner in a public notice consistent with the international tax agreement or the international tax standard.
[Paragraph (c) substituted by section 38 of Act 23 of 2015 effective on 8 January 2016]
(3) The Commissioner may, by public notice, require a person to apply to register as a person required to submit a return under this section, an international tax agreement or an international tax standard.
[Subsection (3) added by section 38 of Act 23 of 2015 effective on 8 January 2016]
(4) If, in order to submit a return under subsection (1) and to comply with the requirements of this section, a person requires information, a document or thing from another person, the other person must provide the information, document or thing so required within a reasonable time.
[Subsection (4) added by section 38 of Act 23 of 2015 effective on 8 January 2016]
“Reportable arrangement” definition of section 34 of TAA
“reportable arrangement” means an “arrangement” referred to in section 35(1) or 35(2) that is not an excluded “arrangement” referred to in section 36;
Section 46 (TAA) – Request for relevant material
46. Requeset for relevant material
(1) SARS may, for the purposes of the administration of a tax Act in relation to a taxpayer, whether identified by name or otherwise objectively identifiable, require the taxpayer or another person to, within a reasonable period, submit relevant material (whether orally or in writing) that SARS requires.
(2) A senior SARS official may require relevant material in terms of subsection (1) –
(a) in respect of taxpayers in an objectively identifiable class of taxpayers; or
(b) held or kept by a connected person, as referred to in paragraph (d)(i) of the definition of “connected person” in the Income Tax Act, in relation to the taxpayer, located outside the Republic.
[Subsection (2) substituted by section 42 of Act 23 of 2015 effective on 8 January 2016]
(3) A request by SARS for relevant material from a person other than the taxpayer is limited to material maintained or kept or that should reasonably be maintained or kept by the person in relation to the taxpayer.
[Subsection (3) substituted by section 50(a) of Act 21 of 2012, by section 42(a) of Act 23 of 2015 and by section 30 of Act 33 of 2019]
(4) A person or taxpayer receiving from SARS a request for relevant material under this section must submit the relevant material to SARS at the place, in the format (which must be reasonably accessible to the person or taxpayer) and-
(a) within the time specified in the request; or
(b) if the material is held by a connected person referred to in subsection (2)(b), within 90 days from the date of the request, which request must set out the consequences referred to in subsection (9) of failing to do so.
[Subsection (4) substituted by section 46 of Act 44 of 2014 effective on 1 October 2012 and section 42 of Act 23 of 2015 effective on 8 January 2016]
(5) If reasonable grounds for an extension are submitted by the person or taxpayer, SARS may extend the period within which the relevant material must be submitted.
[Subsection (5) substituted by section 50 of Act 21 of 2012 effective on 1 October 2012 and section 42 of Act 23 of 2015 effective on 8 January 2016]
(6) Relevant material required by SARS under this section must be referred to in the request with reasonable specificity.
(7) A senior SARS official may direct that relevant material-
(a) be provided under oath or solemn declaration; or
(b) if required for purposes of a criminal investigation, be provided under oath or solemn declaration and, if necessary, in accordance with the requirements of section 212 or 236 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).
(8) A senior SARS official may request relevant material that a person has available for purposes of revenue estimation.
(9) If a taxpayer fails to provide material referred to in subsection (2)(b), the material may not be produced by the taxpayer in any subsequent proceedings, unless a competent court directs otherwise on the basis of circumstances outside the control of the taxpayer and any connected person referred to in paragraph (d)(i) of the definition of “connected person” in the Income Tax Act, in relation to the taxpayer.
[Subsection (9) added by section 42 of Act 23 of 2015 effective on 8 January 2016]
Section 60 (TAA) – Issuance of warrant
60. Issuance of warrant
(1) A judge or magistrate may issue the warrant referred to in section 59(1) if satisfied that there are reasonable grounds to believe that-
(a) a person failed to comply with an obligation imposed under a tax Act, or committed a tax offence; and
(b) relevant material likely to be found on the premises specified in the application may provide evidence of the failure to comply or commission of the offence.
(2) A warrant issued under subsection (1) must contain the following:
(a) the alleged failure to comply or offence that is the basis for the application;
(b) the person alleged to have failed to comply or to have committed the offence;
(c) the premises to be searched; and
(d) the fact that relevant material as defined in section 1 is likely to be found on the premises.
(3) The warrant must be exercised within 45 business days or such further period as a judge or magistrate deems appropriate on good cause shown.
Section 27 (TAA) – Other returns required
27. Other returns required
(1) A senior SARS official may require a person to submit further or more detailed returns regarding any matter for which a return under section 25 or 26 is required or prescribed by a tax Act.
(2) A person required under subsection (1) to submit a return must do so in the prescribed form and manner and the return must contain the information prescribed by the official and must be a full and true return.