Category: Tax Administration Act No. 28 of 2011

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.

Section 84 (TAA) – Rulings rendered void

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84.    Rulings rendered void

 

(1)     A ‘binding private ruling’ or ‘binding class ruling’ is void ab initio if-

 

(a)     the ‘proposed transaction’ as described in the ruling is materially different from the ‘transaction’ actually carried out;

 

(b)     there is fraud, misrepresentation or non-disclosure of a material fact; or

 

(c)     an assumption made or condition imposed by SARS is not satisfied or carried out.

 

(2)     For purposes of this section, a fact described in subsection (1) is considered material if it would have resulted in a different ruling had SARS been aware of it when the original ruling was made.

Section 99 (TAA) – Period of limitations for issuance of assessments

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99.    Period of limitations for issuance of assessments

(1)     An assessment may not be made in terms of this Chapter-

[Words preceding paragraph (a) substituted by section 51 of Act 23 of 2015 effective on 8 January 2016]

(a)     three years after the date of assessment of an original assessment by SARS;

(b)     in the case of self-assessment for which a return is required, five years after the date of assessment of an original assessment-

(i)      by way of self-assessment by the taxpayer; or

(ii)     if no return is received, by SARS;

(c)     in the case of a self-assessment for which no return is required, after the expiration of five years from the-

(i)      date of the last payment of the tax for the tax period; or

(ii)     effective date, if no payment was made in respect of the tax for the tax period;

(d)     in the case of-

(i)      an additional assessment if the-

(aa)   amount which should have been assessed to tax under the preceding assessment was, in accordance with the practice generally prevailing at the date of the preceeding  assessment, not assessed to tax; or

(bb)   full amount of tax which should have been assessed under the preceding assessment was, in accordance with the practice, not assessed;

(ii)     a reduced assessment, if the preceding assessment was made in accordance with the practice generally prevailing at the date of that assessment; or

(iii)    a tax for which no return is required, if the payment was made in accordance with the practice generally prevailing at the date of that payment; or

(e)     in respect of a dispute that has been resolved under Chapter 9.

(2)     Subsection (1) does not apply to the extent that-

(a)     in the case of assessment by SARS, the fact that the full amount of tax chargeable was not assessed, was due to-

(i)      fraud;

(ii)     misrepresentation; or

(iii)    non-disclosure of material facts;

(b)     in the case of self-assessment, the fact that the full amount of tax chargeable was not assessed, was due to-

(i)      fraud;

(ii)     intentional or negligent misrepresentation;

(iii)    intentional or negligent non-disclosure of material facts; or

(iv)    the failure to submit a return or, if no return is required, the failure to make the required payment of tax;

(c)     SARS and the taxpayer so agree prior to the expiry of the limitations period;

[Paragraph (c) amended by section 51 of Act 23 of 2015 effective on 8 January 2016]

(d)     it is necessary to give effect to-

(i)      the resolution of a dispute under Chapter 9; or

[Subparagraph (i) amended by section 55 of Act 16 of 2016 effective on 19 January 2017]

(ii)     ……….

[Subparagraph (ii) deleted by section 55 of Act 16 of 2016 effective on 19 January 2017]

(iii)    an assessment referred to in section 93(1)(d) if SARS becomes aware of the error referred to in that subsection before expiry of the period for the assessment under subsection (1); or

[Paragraph (d) amended by section 47 of Act 39 of 2013 effective on 1 October 2012, substituted by section 51 of Act 23 of 2015 effective on 8 January 2016]

(iv)    a reduced or additional assessment under section 95(6); or

[Subparagraph (iv) inserted by section 20 of Act 21 of 2021]

(e)     SARS receives a request for a reduced assessment under section 93(1)(e).

[Paragraph (e) added by section 51 of Act 23 of 2015 effective on 8 January 2016]

(3)     The Commissioner may, by prior notice of at least 30 days to the taxpayer, extend a period under subsection (1) or an extended period under this section, before the expiry thereof, by a period approximate to a delay arising from:

(a)     failure by a taxpayer to provide all the relevant material requested within the period under section 46(1) or the extended period under section 46(5); or

(b)     resolving an information entitlement dispute, including legal proceedings.

[Subsection (3) added by section 51 of Act 23 of 2015 effective on 8 January 2016]

(4)     The Commissioner may, by prior notice of at least 60 days to the taxpayer, extend a period under subsection (1), before the expiry thereof, by three years in the case of an assessment by SARS or two years in the case of self-assessment, where an audit or investigation under Chapter 5 relates to-

(i)      the application of the doctrine of substance over form;

(ii)     the application of Part IIA of Chapter III of the Income Tax Act, section 73 of the Value-Added Tax Act or any other general anti-avoidance provision under a tax Act;

(iii)    the taxation of hybrid entities or hybrid instruments; or

(iv)    section 31 of the Income Tax Act.

[Subsection (4) added by section 51 of Act 23 of 2015 effective on 8 January 2016]

Section 85 (TAA) – Subsequent changes in tax law

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85.    Subsequent changes in tax law

 

(1)     Despite any provision to the contrary contained in a tax Act, an ‘advance ruling’ ceases to be effective if-

 

(a)     a provision of the tax Act that was the subject of the ‘advance ruling’ is repealed or amended in a manner that materially affects the ‘advance ruling’, in which case the ‘advance ruling’ will cease to be effective from the date that the repeal or amendment is effective; or

 

(b)     a court overturns or modifies an interpretation of the tax Act on which the ‘advance ruling’ is based, in which case the ‘advance ruling’ will cease to be effective from the date of judgment unless-

 

(i)      the decision is under appeal;

 

(ii)     the decision is fact-specific and the general interpretation upon which the ‘advance ruling’ was based is unaffected; or

 

(iii)    the reference to the interpretation upon which the ‘advance ruling’ was based was obiter dicta.

 

(2)     An ‘advance ruling’ ceases to be effective upon the occurrence of any of the circumstances described in subsection (1), whether or not SARS publishes a notice of withdrawal or modification.