Category: Tax Administration Act No. 28 of 2011

Section 63 (TAA) – Search without warrant

Posted on by admin_kmos

63.    Search without warrant

 

(1)     A senior SARS official may without a warrant exercise the powers referred to in section 61(3)-

 

(a)     if the owner or person in control of the premises so consents in writing; or

 

(b)     if the senior SARS official on reasonable grounds is satisfied that-

 

(i)      there may be an imminent removal or destruction of relevant material likely to be found on the premises;

 

(ii)     if SARS applies for a search warrant under section 59, a search warrant will be issued; and

 

(iii)    the delay in obtaining a warrant would defeat the object of the search and seizure.

 

(2)     A SARS official must, before carrying out the search, inform the owner or person in control of the premises-

 

(a)     that the search is being conducted under this section; and

 

(b)     of the alleged failure to comply with an obligation imposed under a tax Act or tax offence that is the basis for the search.

 

(3)     Section 61(4) to (8) applies to a search conducted under this section.

 

(4)     A SARS official may not enter a dwelling-house or domestic premises, except any part thereof used for purposes of trade, under this section without the consent of the occupant.

 

(5)     If the owner or person in control of the premises is not present, the SARS official must inform such person of the circumstances referred to in subsection (2) as soon as reasonably possible after the execution of the search and seizure.

Section 30 (TAA) – Form of records kept or retained

Posted on by admin_kmos

30.  Form of records kept or retained

 

(1)     The records, books of account, and documents referred to in section 29, must be kept or retained-

 

(a)     in their original form in an orderly fashion and in a safe place;

 

(b)     in the form, including electronic form, as may be prescribed by the Commissioner in a public notice; or

 

(c)     in a form specifically authorised by a senior SARS official in terms of subsection (2).

 

(2)     A senior SARS official may, subject to the conditions as the official may determine, authorise the retention of information contained in records, books of account or documents referred to in section 29 in a form acceptable to the official.

Section 37 (TAA) – Disclosure obligation

Posted on by admin_kmos

37.  Disclosure obligation

 

(1)     The information referred to in section 38 in respect of a “reportable arrangement” must be disclosed by a person who-

 

(a)     is a “participant” in an “arrangement” on the date on which it qualifies as a “reportable arrangement”, within 45 business days after that date; or

 

(b)     becomes a “participant” in an “arrangement” after the date on which it qualifies as a “reportable arrangement”, within 45 business days after becoming a “participant”.

 

(2)     ……….

 

(3)     A “participant” need not disclose the information if the “participant” obtains a written statement from any other “participant” that the other “participant” has disclosed the “reportable arrangement”.

 

(4)     ……….

 

(5)     SARS may grant extension for disclosure for a further 45 business days, if reasonable grounds exist for the extension.

Section 64 (TAA) – Legal professional privilege

Posted on by admin_kmos

64.    Legal professional privilege

(1)     If SARS foresees the need to search and seize relevant material that may be alleged to be subject to legal professional privilege, SARS must arrange for a legal practitioner from the panel appointed under section 111 to be present during the execution of the warrant.

[Subsection (1) substituted by section 31 of Act 33 of 2019]

(2)     A legal practitioner with whom SARS has made an arrangement in terms of subsection (1) may appoint a substitute legal practitioner to be present on the appointing legal practitioner’s behalf during the execution of a warrant.

[Subsection (2) substituted by section 31 of Act 33 of 2019]

(3)     If, during the carrying out of a search and seizure by SARS, a person alleges the existence of legal professional privilege in respect of relevant material and a legal practitioner is not present under subsection (1) or (2), SARS must seal the material, make arrangements with a legal practitioner from the panel appointed under section 111 to take receipt of the material and, as soon as is reasonably possible, hand over the material to the legal practitioner.

[Subsection (3) substituted by section 31 of Act 33 of 2019]

(4)     A legal practitioner referred to in subsections (1), (2) and (3)-

(a)       is not regarded as acting on behalf of either party; and

(b)       must personally take responsibility-

(i)      in the case of a warrant issued under section 60, for the removal from the premises of relevant material in respect of which legal privilege is alleged;

(ii)     in the case of a search and seizure carried out under section 63, for the receipt of the sealed information; and

(iii)     if a substitute legal practitioner in terms of subsection (2), for the delivery of the information to the appointing legal practitioner for purposes of making the determination referred to in subsection (5).

[Subsection (4) substituted by section 31 of Act 33 of 2019]

(5)     The legal practitioner referred to in subsection (1) or (3) must, within 21 business days, make a determination of whether the privilege applies and may do so in the manner the legal practitioner deems fit, including considering representations made by the parties.

[Subsection (5) substituted by section 31 of Act 33 of 2019]

(6)     If a determination of whether the privilege applies is not made under subsection (5) or a party is not satisfied with the determination, the legal practitioner must retain the relevant material pending final resolution of the dispute by the parties or an order of court.

[Subsection (6) substituted by section 31 of Act 33 of 2019]

(7)     The legal practitioner from the panel appointed under section 111 and any legal practitioner acting on behalf of that legal practitioner referred to in subsection (1) must be compensated in the same manner as if acting as Chairperson of the tax board.

[Subsection (7) substituted by section 31 of Act 33 of 2019]

Section 31 (TAA) – Inspection of records

Posted on by admin_kmos

31.  Inspection of records

 

The records, books of account and documents referred to in section 29  whether in the form referred to in section 30(1) or in a form authorised under section 30(2), must at all reasonable times during the required periods under section 29, be open for inspection by a SARS official in the Republic for the purpose of-

 

(a)     determining compliance with the requirements of sections 29  and 30; or

 

(b)     an inspection, audit or investigation under Chapter 5.

Section 38 (TAA) – Information to be submitted

Posted on by admin_kmos

38.  Information to be submitted

 

The following information in relation to a “reportable arrangement”, must be submitted in the prescribed form and manner and by the date specified:

 

(a)     a detailed description of all its steps and key features, including, in the case of an ‘arrangement’ that is a step or part of a larger ‘arrangement’, all the steps and key features of the larger ‘arrangement’;

 

(b)     a detailed description of the assumed ‘tax benefits’ for all ‘participants’, including, but not limited to, tax deductions and deferred income;

 

(c)     the names, registration numbers, and registered addresses of all ‘participants’;

 

(d)     a list of all its agreements; and

 

(e)     any financial model that embodies its projected tax treatment.

Section 50 (TAA) – Authorisation for inquiry

Posted on by admin_kmos

50.    Authorisation for inquiry

 

(1)     A judge may, on application made ex parte and authorised by a senior SARS official grant an order in terms of which a person described in section 51(3) is designated to act as presiding officer at the inquiry referred to in this section.

 

(2)     An application under subsection (1) must be supported by information supplied under oath or solemn declaration, establishing the facts on which the application is based.

 

(3)     A senior SARS official may authorise a person to conduct an inquiry for the purposes of the administration of a tax Act.

Section 65 (TAA) – Person’s right to examine and make copies

Posted on by admin_kmos

65.    Person’s right to examine and make copies

 

(1)     The person to whose affairs relevant material seized relates, may examine and copy it.

 

(2)     Examination and copying must be made-

 

(a)     at the person’s cost in accordance with the fees prescribed in accordance with section 92(1)(b) of the Promotion of Access to Information Act;

 

(b)     during normal business hours; and

 

(c)     under the supervision determined by a senior SARS official.

Section 32 (TAA) – Retention period in case of audit, objection or appeal

Posted on by admin_kmos

32.  Retention period in case of audit, objection or appeal

 

Despite section 29(3), if-

 

(a)     records, books of account or documents are relevant to an audit or investigation under Chapter 5 which the person subject to the audit or investigation has been notified of or is aware of; or

 

(b)     a person lodges an objection or appeal against an assessment or decision under section 104(2),

 

the person must retain the records, books of account or documents relevant to the audit, investigation, objection or appeal until the audit or investigation is concluded or the assessment or the decision becomes final.