Category: Tax Administration Act No. 28 of 2011

Section 67 (TAA) – General prohibition of disclosure

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67.    General prohibition of disclosure

 

(1)     This Chapter applies to-

 

(a)     SARS confidential information as referred to in section 68(1); and

 

(b)     taxpayer information, which means any information provided by a taxpayer or obtained by SARS in respect of the taxpayer, including biometric information.

 

(2)     An oath or solemn declaration undertaking to comply with the requirements of this Chapter in the prescribed form, must be taken before a magistrate, justice of the peace or commissioner of oaths by-

 

(a)     a SARS official and the Tax Ombud, before commencing duties or exercising any powers under a tax Act; and

 

(b)     a person referred to in section 70 who performs any function referred to in that section, before the disclosure described in that section may be made.

 

(3)     In the event of the disclosure of SARS confidential information or taxpayer information contrary to this Chapter, the person to whom it was so disclosed may not in any manner disclose, publish or make it known to any other person who is not a SARS official.

 

(4)     A person who receives information under section 68, 69, 70 or 71, must preserve the secrecy of the information and may only disclose the information to another person if the disclosure is necessary to perform the functions specified in those sections, unless the information has been received in terms of section 46 of the Promotion of Access to Information Act, 2000 (Act 2 of 2000).

[Subsection (4) substituted by section 19 of Act 43 of 2024]

 

(5)     The Commissioner may, for purposes of protecting the integrity and reputation of SARS as an organisation and after giving the taxpayer at least 24 hours’ notice, disclose taxpayer information to the extent necessary to counter or rebut false allegations or information disclosed by the taxpayer, the taxpayer’s duly authorised representative or other person acting under the instructions of the taxpayer and published in the media or in any other manner.

Section 68 (TAA) – SARS confidential information and disclosure

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68.    SARS confidential information and disclosure

 

(1)     SARS confidential information means information relevant to the administration of a tax Act that is-

 

(a)     personal information about a current or former SARS official, whether deceased or not;

 

(b)     information subject to legal professional privilege vested in SARS;

 

(c)     information that was supplied in confidence by a third party to SARS the disclosure of which could reasonably be expected to prejudice the future supply of similar information, or information from the same source;

 

(d)     information related to investigations and prosecutions described in section 39 of the Promotion of Access to Information Act;

 

(e)     information related to the operations of SARS, including an opinion, advice, report, recommendation or an account of a consultation, discussion or deliberation that has occurred, if-

 

(i)      the information was given, obtained or prepared by or for SARS for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law; and

 

(ii)     the disclosure of the information could reasonably be expected to frustrate the deliberative process in SARS or between SARS and other organs of state by-

 

(aa)   inhibiting the candid communication of an opinion, advice, report or recommendation or conduct of a consultation, discussion or deliberation; or

 

(bb)   frustrating the success of a policy or contemplated policy by the premature disclosure thereof;

 

(f)      information about research being or to be carried out by or on behalf of SARS, the disclosure of which would be likely to prejudice the outcome of the research;

 

(g)     information, the disclosure of which could reasonably be expected to prejudice the economic interests or financial welfare of the Republic or the ability of the government to manage the economy of the Republic effectively in the best interests of the Republic, including a contemplated change or decision to change a tax or a duty, levy, penalty, interest and similar moneys imposed under a tax Act or the Customs and Excise Act;

  

(h)     information supplied in confidence by or on behalf of another state or an international organisation to SARS;

 

(i)      a computer program, as defined in section 1(1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by SARS;

 

(j)      information relating to the security of SARS buildings, property, structures or systems; and

 

(k)     information relating to the verification or audit selection procedure or method used by SARS, the   disclosure of which could reasonably be expected to jeopardise the effectiveness thereof.

 

(2)     A person who is a current or former SARS official-

 

(a)     may not disclose SARS confidential information to a person who is not a SARS official;

 

(b)     may not disclose SARS confidential information to a SARS official who is not authorised to have access to the information; and

 

(c)     must take the precautions that may be required by the Commissioner to prevent a person referred to in paragraph (a) or (b) from obtaining access to the information.

 

(3)     A person who is a SARS official or former SARS official may disclose SARS confidential information if-

 

(a)     the information is public information;

 

(b)     authorised by the Commissioner;

 

(c)     disclosure is authorised under any other Act which expressly provides for the disclosure of the information despite the provisions in this Chapter;

 

(d)     access has been granted for the disclosure of the information in terms of the Promotion of Access to Information Act; or

 

(e)     required by order of a High Court.

Section 41 (TAA) – Authorisation for SARS official to conduct audit or criminal investigation

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41.  Authorisation for SARS official to conduct audit or criminal investigation

 

(1)     A senior SARS official may grant a SARS official written authorisation to conduct a field audit or criminal investigation, as referred to in Part B.

 

(2)     When a SARS official exercises a power or duty under a tax Act in person, the official must produce the authorisation.

 

(3)     If the official does not produce the authorisation, a member of the public is entitled to assume that the official is not a SARS official so authorised.

Section 69 (TAA) – Secrecy of taxpayer information and general disclosure

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69.    Secrecy of taxpayer information and general disclosure

(1)     A person who is a current or former SARS official must preserve the secrecy of taxpayer information and may not disclose taxpayer information to a person who is not a SARS official.

(2)     Subsection (1) does not prohibit the disclosure of taxpayer information by a person who is a current or former SARS official-

(a)     in the course of performance of duties under a tax Act or customs and excise legislation such as-

[Words preceding subparagraph (i) substituted by section 47 of Act 23 of 2015 effective on 8 January 2016]

(i)      to the South African Police Service or the National Prosecuting Authority, if the information relates to, and constitutes material information for the proving of, a tax offence;

(ii)     as a witness in civil or criminal proceedings under a tax Act; or

(iii)    the taxpayer information necessary to enable a person to provide such information as may be required by SARS from that person;

(b)     under any other Act which expressly provides for the disclosure of the information despite the provisions in this Chapter;


(bA)   where access has been granted for the disclosure of the information in terms of section 46 of the Promotion of Access to Information Act, 2000 (Act 2 of 2000);

[Paragraph (bA) inserted by section 20 of Act 43 of 2024]

(c)     by order of a High Court; or

(d)     if the information is public information.

(3)     An application to the High Court for the order referred to in subsection (2)(c) requires prior notice to SARS of at least 15 business days unless the court, based on urgency, allows a shorter period.

(4)     SARS may oppose the application on the basis that the disclosure may seriously prejudice the taxpayer concerned or impair a civil or criminal tax investigation by SARS.

(5)     The court may not grant the order unless satisfied that the following circumstances apply:

(a)     the information cannot be obtained elsewhere;

(b)     the primary mechanisms for procuring evidence under an Act or rule of court will yield or yielded no or disappointing results;

(c)     the information is central to the case; and

(d)     the information does not constitute biometric information.

(6)     Subsection (1) does not prohibit the disclosure of information-

(a)     to the taxpayer; or

(b)     with the written consent of the taxpayer, to another person.

(7)     Biometric information of a taxpayer may not be disclosed by SARS except under the circumstances described in subsection (2)(a)(i).

(8)     The Commissioner may, despite the provisions of this section, disclose-

(a)     the name and taxpayer reference number of a taxpayer;

(b)     a list of-

(i)      pension funds, pension preservation funds, provident funds, provident preservation funds and retirement annuity funds as defined in section 1(1) of the Income Tax Act; and

(ii)     organisations approved under sections 18A and 30 of the Income Tax Act and the type of approval;

[Subparagraph (ii) substituted by section 26 of Act 18 of 2023]

[Pararagraph (b) substituted by section 53 of Act 16 of 2016] 

(c)     the name and tax practitioner registration number of a registered tax practitioner; and

(d)     taxpayer information in an anonymised form.