Category: Tax Administration Act No. 28 of 2011

Section 100 (TAA) – Finality of assessment or decision

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100.    Finality of assessment or decision

(1)     An assessment or a decision referred to in section 104(2) is final if, in relation to the assessment or decision-

(a)     it is an assessment described-

(i)      in section 95(1)(a) or (c), and no return or response described in section 95(6) has been received by SARS; or

[Subparagraph (i) substituted by section 30 of Act 24 of 2020]

(ii)     in section 95(3);

(b)     no objection has been made, or an objection has been withdrawn;

(c)     after the decision of an objection, no notice of appeal has been filed or a notice has been filed and is withdrawn;

[Paragraph (c) substituted by section 33 of Act 33 of 2019]

(d)     the dispute has been settled under Part F of Chapter 9;

(e)     an appeal has been determined by the tax board and there is no referral to the tax court under section 115;

(f)      an appeal has been determined by the tax court and there is no right of further appeal; or

(g)     an appeal has been determined by a higher court and there is no right of further appeal.

(2)     Subsection (1) does not prevent SARS from making an additional assessment, but in respect of an amount of tax that has been dealt with in a disputed assessment referred to in-

(a)     subsection (1)(d), (e) and (f), if the relevant period under section 99(1)(a), (b) or (c) has expired, SARS may only make an additional assessment under the circumstances referred to in section 99(2)(a) and (b); and

[Paragraph (a) substituted by section 56 of Act 16 of 2016 effective on 19 January 2017]

(b)     subsection (1)(g), SARS may not make an additional assessment.

Section 86 (TAA) – Withdrawal or modification of advance rulings

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86.    Withdrawal or modification of advance rulings

(1)     SARS may withdraw or modify an ‘advance ruling’ at any time.

(2)     If the ‘advance ruling’ is a ‘binding private ruling’ or ‘binding class ruling’, SARS must first provide the ‘applicant’ with notice of the proposed withdrawal or modification and a reasonable opportunity to make representations prior to the decision whether to withdraw or modify the ‘advance ruling’.

[Subsection (2) substituted by section 26 of Act 24 of 2020]

(3)     SARS must specify the date the decision to withdraw or modify the ‘advance ruling’ becomes effective, which date may not be earlier than the date-

(a)     the decision is delivered to an ‘applicant’, unless the circumstances in subsection (4) apply; or

(b)     in the case of a ‘binding general ruling’, the decision is published.

(4)     SARS may withdraw or modify a ‘binding private ruling’ or a ‘binding class ruling’ retrospectively if the ruling was made in error and if-

(a)     the ‘applicant’ or ‘class member’ has not yet commenced the ‘proposed transaction’ or has not yet incurred significant costs in respect of the arrangement;

(b)     a person other than the ‘applicant’ or ‘class member’ will suffer significant tax disadvantage if the ruling is not withdrawn or modified retrospectively and the ‘applicant’ will suffer comparatively less if the ruling is withdrawn or modified retrospectively; or

(c)     the effect of the ruling will materially erode the South African tax base and it is in the public interest to withdraw or modify the ruling retrospectively.

“Class” definition of section 75 of TAA

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‘class’ means-

 

(a)     shareholders, members, beneficiaries or the like in respect of a company, association, pension fund, trust, or the like; or

 

(b)     a group of persons, that may be unrelated and-

 

(i)      are similarly affected by the application of a tax Act to a ‘proposed transaction’; and

 

(ii)     agree to be represented by an ‘applicant’;

Section 87 (TAA) – Publication of advance rulings

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87.    Publication of advance rulings

 

(1)     A person applying for a ‘binding private ruling’ or ‘binding class ruling’ must consent to the publication of the ruling in accordance with this section.

 

(2)     A ‘binding private ruling’ or ‘binding class ruling’ must be published by SARS for general information in the manner and in the form that the Commissioner may prescribe, but without revealing the identity of an ‘applicant’, ‘class member’ or other person identified or referred to in the ruling.

 

(3)     Prior to publication, SARS must provide the ‘applicant’ with a draft copy of the edited ruling for review and comment.

 

(4)     SARS must consider, prior to publication, any comments and proposed edits and deletions submitted by the ‘applicant’, but is not required to accept them.

 

(5)     An ‘applicant’ for a ‘binding class ruling’ may consent in writing to the inclusion of information identifying it or the ‘proposed transaction’ in order to facilitate communication with the ‘class members’.

 

(6)     The application or interpretation of the relevant tax Act to a ‘transaction’ does not constitute information that may reveal the identity of an ‘applicant’, ‘class member’ or other person identified or referred to in the ruling.

 

(7)     SARS must treat the publication of the withdrawal or modification of a ‘binding private ruling’ or ‘binding class ruling’ in the same manner and subject to the same requirements as the publication of the original ruling.

 

(8)     Subsection (2) does not-

 

(a)     require the publication of a ruling that is materially the same as a ruling already published; or

 

(b)     apply to a ruling that has been withdrawn before SARS has had occasion to publish it.

 

(9)     If an ‘advance ruling’ has been published, notice of the withdrawal or modification thereof must be published in the manner and media as the Commissioner may deem appropriate.