Category: Tax Administration Act No. 28 of 2011

Section 120 (TAA) – Appointment of panel of tax court members

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120.    Appointment of panel of tax court members

 

(1)     The President of the Republic by proclamation in the Gazette must appoint the panel of members of a tax court for purposes of section 118(1)(b) and (c) for a term of office of five years from the date of the relevant proclamation.

 

(2)     A person appointed in terms of subsection (1) must be a person of good standing who has appropriate experience.

 

(3)     A person appointed in terms of subsection (1) is eligible for reappointment for a further period or periods as the President of the Republic may think fit.

 

(4)     The President of the Republic may terminate the appointment of a member under this section at any time for misconduct, incapacity or incompetence.

 

(5)     A member’s appointment lapses in the event that the tax court is abolished under section 116(1).

 

(6)     A member of the tax court must perform the member’s functions independently, impartially and without fear, favour or prejudice.

Section 121 (TAA) – Appointment of registrar of tax court

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121.    Appointment of registrar of tax court

 

(1)     The Commissioner appoints the ‘registrar’ of the tax court.

 

(2)     A person appointed as ‘registrar’ and persons appointed in the ‘registrar’s’ office are SARS employees.

 

(3)     The ‘registrar’ and other persons referred to in subsection (2) must perform their functions under this Act and the ‘rules’ independently, impartially and without fear, favour or prejudice.

Section 122 (TAA) – Conflict of interest of tax court members

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122.    Conflict of interest of tax court members

 

(1)     A member of the court must withdraw from the proceedings as soon as the member becomes aware of a conflict of interest which may give rise to bias which the member may experience with the case concerned or other circumstances that may affect the member’s ability to remain objective for the duration of the case.

 

(2)     Either party may ask for withdrawal of a member on the basis of conflict of interest or other indications of bias, under procedures provided in the ‘rules’.

 

(3)     A member of the court 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 the case.

Section 108 (TAA) – Establishment of tax board

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108.    Establishment of tax board

 

(1)     The Minister may by public notice-

 

(a)     establish a tax board or boards for areas that the Minister thinks fit; and

 

(b)     abolish an existing tax board or establish an additional tax board as circumstances may require.

 

(2)     Tax boards are established under subsection (1) to hear appeals referred to in section 107 in the manner provided in this Part.

Section 123 (TAA) – Death, retirement or incapability of judge or member

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123.    Death, retirement or incapability of judge or member

 

(1)     If at any stage during the hearing of an appeal, or after hearing of the appeal but before judgment has been handed down, one of the judges dies, retires or becomes otherwise incapable of acting in that capacity, the hearing of an appeal must be heard de novo.

 

(2)     If the tax court has been constituted under section 118(5), the hearing of the appeal referred to in subsection (1) must proceed before the remaining judges and members, if the remaining judges constitute the majority of judges before whom the hearing was commenced.

 

(3)     If at any stage during or after the hearing of an appeal but before judgment has been handed down, a member of the tax court dies, retires or becomes incapable of acting in that capacity, the hearing of the appeal must proceed before the president of the tax court, any other judges, the remaining member, and, if the president deems it necessary, a replacement member.

 

(4)     The judgment of the remaining judges and members referred to in subsection (1) or (3) is the judgment of the court.

Section 109 (TAA) – Jurisdiction of tax board

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109.    Jurisdiction of tax board

 

(1)     An appeal against an assessment or ‘decision’ must in the first instance be heard by a tax board, if-

 

(a)     the tax in dispute does not exceed the amount the Minister determines by public notice; and

 

(b)     a senior SARS official and the ‘appellant’ so agree.

 

(2)     SARS must designate the places where tax boards hear appeals.

 

(3)     The tax board must hear an appeal at the place referred to in subsection (2) which is closest to the ‘appellant’s’ residence or place of business, unless the ‘appellant’ and SARS agree that the appeal be heard at another place.

 

(4)     In making a decision under subsection (1)(b), a senior SARS official must consider whether the grounds of the dispute or legal principles related to the appeal should rather be heard by the tax court.

 

(5)     If the chairperson prior to or during the hearing, considering the grounds of the dispute or the legal principles related to the appeal, believes that the appeal should be heard by the tax court rather than the tax board, the chairperson may direct that the appeal be set down for hearing de novo before the tax court.

Section 124 (TAA) – Sitting of tax court not public

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124.    Sitting of tax court not public

 

(1)     The tax court sittings for purposes of hearing an appeal under section 107 are not public.

 

(2)     The president of the tax court may in exceptional circumstances, on request of any person, allow that person or any other person to attend the sitting but may do so only after taking into account any representations that the ‘appellant’ and a senior SARS official, referred to in section 12 appearing in support of the assessment or ‘decision’, wishes to make on the request.

Section 110 (TAA) – Constitution of tax board

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110.    Constitution of tax board

(1)     A tax board consists of-

(a)     the chairperson, who must be a legal practitioner from the panel appointed under section 111; and

[Paragraph (a) substituted by section 34 of Act 33 of 2019]

(b)     if the chairperson, after considering any representations by a senior SARS official or the taxpayer, considers it necessary-

[Words preceding subpara. (i) substituted by section 24 of Act 13 of 2017 effective on 18 December 2017]

(i)      an accountant who is a member of the panel referred to in section 120; and

(ii)     a representative of the commercial community who is a member of the panel referred to in section 120.

(2)     Sections 122, 123, 124, 126, 127, 128 and 129 apply, with the necessary changes, and under procedures determined in the ‘rules’, to the tax board and the chairperson.