Category: Tax Administration Act No. 28 of 2011

Section 96 (TAA) – Notice of assessment

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96.    Notice of assessment

 

(1)     SARS must issue to the taxpayer assessed a notice of the assessment made by SARS stating-

 

(a)     the name of the taxpayer;

 

(b)     the taxpayer’s taxpayer reference number, or if one has not been allocated, any other form of identification;

 

(c)     the date of the assessment;

 

(d)     the amount of the assessment;

 

(e)     the tax period in relation to which the assessment is made;

 

(f)      the date for paying the amount assessed; and

 

(g)     a summary of the procedures for lodging an objection to the assessment.

 

(2)     In addition to the information provided in terms of subsection (1) SARS must give the person assessed-

 

(a)     in the case of an assessment described in section 95 or an assessment that is not fully based on a return submitted by the taxpayer, a statement of the grounds for the assessment; and

 

(b)     in the case of a jeopardy assessment, the grounds for believing that the tax would otherwise be in jeopardy.

Section 106 (TAA) – Decision on objection

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106.    Decision on objection

 

(1)     SARS must consider a valid objection in the manner and within the period prescribed under this Act and the ‘rules’.

 

(2)     SARS may disallow the objection or allow it either in whole or in part.

 

(3)     If the objection is allowed either in whole or in part, the assessment or ‘decision’ must be altered accordingly.

 

(4)     SARS must, by notice, inform the taxpayer objecting or the taxpayer’s representative of the decision referred to in subsection (2), unless the objection is stayed under subsection (6) in which case notice of this must be given in accordance with the ‘rules’.

 

(5)     The notice must state the basis for the decision and a summary of the procedures for appeal.

 

(6)     If a senior SARS official considers that the determination of the objection or an appeal referred to in section 107, whether on a question of law only or on both a question of fact and a question of law, is likely to be determinative of all or a substantial number of the issues involved in one or more other objections or appeals, the official may-

 

(a)     designate that objection or appeal as a test case; and

 

(b)     stay the other objections or appeals by reason of the taking of a test case on a similar objection or appeal before the tax court,

 

in the manner, under the terms, and within the periods prescribed in the ‘rules’.

Section 82 (TAA) – Binding effect of advance rulings

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82.    Binding effect of advance rulings

 

(1)     If an ‘advance ruling’ applies to a person in accordance with section 83, then SARS must interpret or apply the applicable tax Act to the person in accordance with the ruling.

 

(2)     An ‘advance ruling’ does not have ‘binding effect’ upon SARS in respect of a person unless it applies to the person in accordance with section 83.

 

(3)     A ‘binding general ruling’ may be cited by SARS or a person in any proceedings, including court proceedings.

 

(4)     A ‘binding private ruling’ or ‘binding class ruling’ may not be cited in any proceeding, including court proceedings, other than a proceeding involving an ‘applicant’ or a ‘class member’, as the case may be.

 

(5)     A publication or other written statement issued by SARS does not have ‘binding effect’ unless it is an ‘advance ruling’.

Section 97 (TAA) – Recording of assessments

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97.    Recording of assessments

(1)     The particulars of an assessment and the amount of tax payable thereon must be recorded and kept by SARS.

(2)     A notice of assessment issued by SARS is regarded as made by a SARS official authorised to do so or duly issued by SARS, until proven to the contrary.

(3)     The record of an assessment is not open to public inspection.

(4)     The record of an assessment, including the return or records on which it was based, whether in electronic format or otherwise, may be destroyed by SARS after seven years from the date of assessment or the expiration of a further period that may be required-

(a)     by the Auditor-General;

(b)     as a result of the application of section 99(2)(c); or

(c)     for purposes of a verification, audit or criminal investigation under Chapter 5 or a dispute under Chapter 9.

[Subsection (4) substituted by section 54 of Act 16 of 2016 effective on 19 January 2017]

Section 107 (TAA) – Appeal against assessment or decision

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107.    Appeal against assessment or decision

 

(1)     After delivery of the notice of the decision referred to in section 106(4), a taxpayer objecting to an assessment or ‘decision’ may appeal against the assessment or ‘decision’ to the tax board or tax court in the manner, under the terms and within the period prescribed in this Act and the ‘rules’.

 

(2)     A senior SARS official may extend the period within which an appeal must be lodged for-

 

(a)     21 business days, if satisfied that reasonable grounds exist for the delay; or

 

(b)     up to 45 business days, if exceptional circumstances exist that justify an extension beyond 21 business days.

 

(3)     A notice of appeal that does not satisfy the requirements of subsection (1) is not valid.

 

(4)     If an assessment or ‘decision’ has been altered under section 106(3), the assessment or ‘decision’ as altered is the assessment or ‘decision’ against which the appeal is noted.

 

(5)     By mutual agreement, SARS and the taxpayer making the appeal may attempt to resolve the dispute through alternative dispute resolution under procedures specified in the ‘rules’.

 

(6)     Proceedings on the appeal are suspended while the alternative dispute resolution procedure is ongoing.

 

(7)     SARS may concede an appeal in whole or in part before-

 

(a)      the matter is heard by the tax board or the tax court; or

  

(b)     an appeal against a judgment of the tax court or higher court is heard.

Section 83 (TAA) – Applicability of advance rulings

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83.    Applicability of advance rulings

 

A ‘binding private ruling’ or ‘binding class ruling’ applies to a person only if-

 

(a)     the provision or provisions of the Act at issue are the subject of the ‘advance ruling’;

 

(b)     the person’s set of facts or ‘transaction’ are the same as the particular set of facts or ‘transaction’ specified in the ruling;

 

(c)     the person’s set of facts or ‘transaction’ falls entirely within the effective period of the ruling;

 

(d)     any assumptions made or conditions imposed by SARS in connection with the validity of the ruling have been satisfied or carried out;

 

(e)     in the case of a ‘binding private ruling’, the person is an ‘applicant’ identified in the ruling; and

 

(f)      in the case of a ‘binding class ruling’, the person is a ‘class member’ identified in the ruling.

Section 98 (TAA) – Withdrawal of assessments

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98.    Withdrawal of assessments

(1)     SARS may, despite the fact that no objection has been lodged or appeal noted, withdraw an assessment which-

(a)     was issued to the incorrect taxpayer;

(b)     was issued in respect of the incorrect tax period; or

[Paragraph (b) amended by section 46 of Act 39 of 2013 effective on 1 October 2012 and section 50 of Act 23 of 2015 effective on 8 January 2016] 

(c)     was issued as a result of an incorrect payment allocation.

[Paragraph (c) amended by section 46 of Act 39 of 2013 effective on 1 October 2012 and section 50 of Act 23 of 2015 effective on 8 January 2016] 

(d)     ……….

[Paragraph (d) added by section 46 of Act 39 of 2013 effective on 1 October 2012, deleted by section 50 of Act 23 of 2015 effective on 8 January 2016]

(2)     An assessment withdrawn under this section is regarded not to have been issued, unless a senior SARS official agrees in writing with the taxpayer as to the amount of tax properly chargeable for the relevant tax period and accordingly issues a revised original, additional or reduced assessment, as the case may be, which assessment is not subject to objection or appeal.