‘non-binding private opinion’ means informal guidance issued by SARS in respect of the tax treatment of a particular set of facts and circumstances or ‘transaction’, but which does not have a ‘binding effect’ within the meaning of section 88;
Category: Tax Administration Act No. 28 of 2011
Section 89 (TAA) – Binding general rulings
89. Binding general rulings
(1) A senior SARS official may issue a ‘binding general ruling’ that is effective for either-
(a) a particular tax period or other definite period; or
(b) an indefinite period.
(2) A ‘binding general ruling’ must state-
(a) that it is a ‘binding general ruling’ made under this section;
(b) the provisions of a tax Act which are the subject of the ‘binding general ruling’; and
(c) either-
(i) the tax period or other definite period for which it applies; or
(ii) in the case of a ‘binding general ruling’ for an indefinite period, that it is for an indefinite period and the date or tax period from which it applies.
(3) A ‘binding general ruling’ may be issued as an interpretation note or in another form and may be issued in the manner that the Commissioner prescribes.
(4) A publication or other written statement does not constitute and may not be considered or treated as a ‘binding general ruling’ unless it contains the information prescribed by subsection (2).
“Appellant” definition of section 101 of TAA
‘appellant’, except in Part E of this Chapter, means a person who has noted an appeal against an assessment or ‘decision’ under section 107;
Section 114 (TAA) – Decision of tax board
114. Decision of tax board
(1) The tax board, after hearing the ‘appellant’s’ appeal against an assessment or ‘decision’, must decide the matter in accordance with this Chapter.
(2) The Chairperson must prepare a written statement of the tax board’s decision that includes the tax board’s findings of the facts of the case and the reasons for its decision, within 60 business days after conclusion of the hearing.
(3) The clerk must by notice in writing submit a copy of the tax board’s decision to SARS and the ‘appellant’.
Section 115 (TAA) – Referral of appeal to tax court
115. Referral of appeal to tax court
(1) If the ‘appellant’ or SARS is dissatisfied with the tax board’s decision or the Chairperson fails to deliver the decision under section 114(2) within the prescribed 60 business day period, the ‘appellant’ or SARS may within 21 business days, or within the further period as the Chairperson may on good cause shown allow, after the date of the notice referred to in section 114(3) or the expiry of the period referred to in section 114(2), require, in writing, that the appeal be referred to the tax court for hearing.
(2) The tax court must hear de novo a referral of an appeal from the tax board’s decision under subsection (1).
Part D – Tax court (TAA)
Part D
Tax court
Section 116 (TAA) – Establishment of tax court
116. Establishment of tax court
(1) The President of the Republic may by proclamation in the Gazette establish a tax court or additional tax courts for areas that the President thinks fit and may abolish an existing tax court as circumstances may require.
(2) The tax court is a court of record.
Section 117 (TAA) – Jurisdiction of tax court
117. Jurisdiction of tax court
(1) The tax court for purposes of this Chapter has jurisdiction over tax appeals lodged under section 107.
(2) The place where an appeal is heard is determined by the ‘rules’.
(3) The court may hear and decide an interlocutory application or an application in a procedural matter relating to a dispute under this Chapter as provided for in the “rules”.
Section 118 (TAA) – Constitution of tax court
118. Constitution of tax court
(1) A tax court established under this Act consists of-
(a) a judge or an acting judge of the High Court, who is the president of the tax court;
(b) an accountant selected from the panel of members appointed in terms of section 120; and
(c) a representative of the commercial community selected from the panel of members appointed in terms of section 120.
(2) If the appeal involves-
(a) a complex matter that requires specific expertise and the president of the tax court so directs after considering any representations by a senior SARS official or the ‘appellant’, the representative of the commercial community referred to in subsection (1)(c) may be a person with the necessary experience in that field of expertise;
(b) the valuation of assets and the president of the tax court, a senior SARS official or the ‘appellant’ so requests, the representative of the commercial community referred to in subsection (1)(c) must be a sworn appraiser.
[Subsection (2) amended by section 51 of Act 39 of 2013, substituted by section 58 of Act 16 of 2016 effective on 19 January 2017]
(3) If an appeal to the tax court involves a matter of law only or is an interlocutory application or application in a procedural matter under the ‘rules’, the president of the court sitting alone must decide the appeal.
(4) The president of the court alone decides whether a matter for decision involves a matter of fact or a matter of law.
(5) The Judge-President of the Division of the High Court with jurisdiction in the area where the relevant tax court is situated, may direct that the tax court consist of three judges or acting judges of the High Court (one of whom is the president of the tax court) and the members of the court referred to in subsections (1)(b) and (c) and (2), where necessary, if-
(a) the amount in dispute exceeds R50 million; or
(b) SARS and the ‘appellant’ jointly apply to the Judge-President.
Section 119 (TAA) – Nomination of president of tax court
119. Nomination of president of tax court
(1) The Judge-President of the Division of the High Court with jurisdiction in the area for which a tax court has been constituted must nominate and second a judge or an acting judge of the division to be the president of that tax court.
(2) The Judge-President must determine whether the secondment referred to in subsection (1) applies for a period, or for the hearing of a particular case.
(3) A judge will not solely on account of his or her liability to tax be regarded as having a personal interest or a conflict of interest in any matter upon which he or she may be called upon to adjudicate.