Category: Tax Administration Act No. 28 of 2011

Section 91 (TAA) – Original assessments

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91.    Original assessments

 

(1)     If a tax Act or the Commissioner requires a taxpayer to submit a return or the taxpayer voluntarily submits a return, which does not incorporate a determination of the amount of a tax liability, SARS must make an original assessment based on the return submitted by the taxpayer or other information available or obtained in respect of the taxpayer.

[Subsection (1) substituted by section 21(a) of Act 43 of 2024]

 

(2)     If a tax Act or the Commissioner requires a taxpayer to submit a return or the taxpayer voluntarily submits a return, which incorporates a determination of the amount of a tax liability, the submission of the return is an original self-assessment of the tax liability.

[Subsection (2) substituted by section 21(b) of Act 43 of 2024]

 

(3)     If a tax Act requires a taxpayer to make a determination of the amount of a tax liability and no return is required, the payment of the amount of tax due is an original assessment.

 

(4)     If a taxpayer is not required to or does not submit a return, SARS may make an original assessment based on an estimate under section 95 of the Act.

[Subsection (4) substituted by section 32 of Act 33 of 2019, deleted by section 27 of Act 24 of 2020 and added by section 21(c) of Act 43 of 2024]

 

(5)     . . . . . .

[Subsection (5) substituted by section 58(a) of Act 21 of 2012 and deleted by section 27 of Act 24 of 2020]

 

(6)     . . . . . .

[Subsection (6) added by section 58(b) of Act 21 of 2012 and deleted by section 27 of Act 24 of 2020]

Section 102 (TAA) – Burden of proof

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102.    Burden of proof

(1)     A taxpayer bears the burden of proving-

(a)     that an amount, transaction, event or item is exempt or otherwise not taxable;

(b)     that an amount or item is deductible or may be set off;

[Para. (b) substituted by section 23 of Act 13 of 2017 effective on 18 December 2017]

(c)     the rate of tax applicable to a transaction, event, item or class of taxpayer;

(d)     that an amount qualifies as a reduction of tax payable;

(e)     that a valuation is correct; or

(f)      whether a ‘decision’ that is subject to objection and appeal under a tax Act, is incorrect.

(2)     The burden of proving whether an estimate under section 95 is reasonable or the facts on which SARS based the imposition of an understatement penalty under Chapter 16, is upon SARS.

Section 74 (TAA) – Publication of names of offenders

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74.    Publication of names of offenders

 

(1)     The Commissioner may publish for general information the particulars specified in subsection (2), relating to a tax offence committed by a person, if-

 

(a)     the person was convicted of the offence; and

 

(b)     all appeal or review proceedings relating to the offence have been completed or were not instituted within the period allowed.

 

(2)     The publication referred to in subsection (1) may specify-

 

(a)     the name and area of residence of the offender;

 

(b)     any particulars of the offence that the Commissioner thinks fit; and

 

(c)     the particulars of the fine or sentence imposed.

Section 103 (TAA) – Rules for dispute resolution

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103.    Rules for dispute resolution

 

(1)     The Minister may, after consultation with the Minister of Justice and Constitutional Development, by public notice make ‘rules’ governing the procedures to lodge an objection and appeal against an assessment or ‘decision’, and the conduct and hearing of an appeal before a tax board or tax court.

 

(2)     The ‘rules’ may provide for alternative dispute resolution procedures under which SARS and the person aggrieved by an assessment or ‘decision’ may resolve a dispute.

 

(3)     The Commissioner may prescribe the form of a document required to be completed and delivered under the “rules”.

Section 78 (TAA) – Private rulings and class rulings

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78.    Private rulings and class rulings

 

(1)     SARS may issue a ‘binding private ruling’ upon ‘application’ by a person in accordance with section 79.

 

(2)     SARS may issue a ‘binding class ruling’ upon ‘application’ by a person in accordance with section 79.

 

(3)     SARS may make a ‘binding private ruling’ or ‘binding class ruling’ subject to the conditions and assumptions as may be prescribed in the ruling.

 

(4)     SARS must issue the ruling to the ‘applicant’ at the address shown in the ‘application’ unless the ‘applicant’ provides other instructions, in writing, before the ruling is issued.

 

(5)     A ‘binding private ruling’ or ‘binding class ruling’ may be issued in the prescribed form and manner, must be signed by a senior SARS official and must contain the following:

 

(a)     a statement identifying it as a ‘binding private ruling’ or as a ‘binding class ruling’ made under this section;

 

(b)     the name, tax reference number (if applicable), and postal address of the ‘applicant’;

 

(c)     in the case of a ‘binding class ruling’, a list or a description of the affected ‘class members’;

 

(d)     the relevant statutory provisions or legal issues;

 

(e)     a description of the ‘proposed transaction’;

 

(f)      any assumptions made or conditions imposed by SARS in connection with the validity of the ruling;

 

(g)     the specific ruling made; and

 

(h)     the period for which the ruling is valid.

 

(6)     In the case of a ‘binding class ruling’, the ‘applicant’ alone is responsible for communicating with the affected ‘class members’ regarding the ‘application’ for the ruling, the issuance, withdrawal or modification of the ruling, or any other information or matter pertaining to the ruling.

Section 93 (TAA) – Reduced assessments

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93.    Reduced assessments

(1)     SARS may make a reduced assessment if-

(a)     the taxpayer successfully disputed the assessment under Chapter 9;

(b)     necessary to give effect to a settlement under Part F of Chapter 9;

(c)     necessary to give effect to a judgment pursuant to an appeal under Part E of Chapter 9 and there is no right of further appeal;

[Paragraph (c) amended by section 49 of Act 23 of 2015 effective on 8 January 2016]

(d)     SARS is satisfied that there is a readily apparent undisputed error in the assessment by-

(i)     SARS; or

(ii)     the taxpayer in a return;

[Paragraph (d) substituted by section 49 of Act 23 of 2015 and amended by section 18 of Act 21 of 2021]

(e)     a senior SARS official is satisfied that an assessment was based on-

(i)      the failure to submit a return or submission of an incorrect return by a third party under section 26 or by an employer under a tax Act;

(ii)     a processing error by SARS; or

(iii)    a return fraudulently submitted by a person not authorised by the taxpayer; or

[Paragraph (e) inserted by section 49 of Act 23 of 2015 and amended by section 28(a) of Act 24 of 2020. Subparagraph (iii) amended by section 18 of Act 21 of 2021]

(f)      the taxpayer in respect of whom an assessment has been issued under section 95(1), requests SARS to issue a reduced assessment under section 95(6).

[Paragraph (f) added by section 28(b) of Act 24 of 2020]

(2)     SARS may reduce an assessment despite the fact that no objection has been lodged or appeal noted.