Category: Tax Administration Act No. 28 of 2011

Section 111 (TAA) – Appointment of chairpersons

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111.    Appointment of chairpersons

(1)     The Minister must, in consultation with the Judge­President of the Division of the High Court with jurisdiction in the area where the tax board is to sit, by public notice appoint legal practitioners to a panel from which a chairperson of the tax board must be nominated from time to time.

[Subsection (1) substituted by section 35 of Act 33 of 2019]

(2)     The persons appointed under subsection (1)-

(a)     hold office for five years from the date the notice of appointment is published in the public notice;

(b)     are eligible for re-appointment as the Minister thinks fit; and

(c)     must be persons of good standing who have appropriate experience.

[Subsection (2) substituted by section 53 of Act 23 of 2015 effective on 8 January 2016]

(3)     The Minister may terminate an appointment made under this section at any time for misconduct, incapacity or incompetence.

(4)     A member of the panel must be appointed as chairperson of a tax board.

(5)     A chairperson 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.

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

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

Section 112 (TAA) – Clerk of tax board

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112.    Clerk of tax board

 

(1)     The Commissioner must appoint a clerk of the tax board.

 

(2)     The clerk acts as convenor of the tax board.

 

(3)     If no chairperson is available in the jurisdiction within which the tax board is to be convened, the clerk may convene the tax board with a chairperson from another jurisdiction.

 

(4)     The clerk of the tax board must, within the period and in the manner provided in the ‘rules’, submit a notice to the members of the tax board and the ‘appellant’ specifying the time and place for the hearing.

Section 127 (TAA) – Non-attendance by witness or failure to give evidence

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127.    Non-attendance by witness or failure to give evidence

 

(1)     A person subpoenaed under section 126 is liable to the fine or imprisonment specified in subsection (2), if the person without just cause fails to-

 

(a)     give evidence at the hearing of an appeal;

 

(b)     remain in attendance throughout the proceedings unless excused by the president of the tax court; or

 

(c)     produce a document or thing in the person’s possession or under the person’s control according to the subpoena.

 

(2)     The president of the tax court may impose a fine or, in default of payment, imprisonment for a period not exceeding three months, on a person described in subsection (1) upon being satisfied by-

 

(a)     oath or solemn declaration; or

 

(b)     the return of the person by whom the subpoena was served,

 

that the person has been duly subpoenaed and that the person’s reasonable expenses have been paid or offered.

 

(3)     The president of the tax court may, in addition to imposing a fine or imprisonment under subsection (2), issue a warrant for the person to be apprehended and brought to give evidence or to produce the document or thing in accordance with the subpoena.

 

(4)     A fine imposed under subsection (2) is enforceable as if it were a penalty imposed by a High Court in similar circumstances and any laws applicable in respect of a penalty imposed by a High Court apply with the necessary changes in respect of the fine.

 

(5)     The president of the tax court may, on good cause shown, remit the whole or any part of the fine or imprisonment imposed under subsection (2).

 

(6)     The president of the tax court may order the costs of a postponement or adjournment resulting from the default of a witness, or a portion of the costs, to be paid out of a fine imposed under subsection (2).

Section 113 (TAA) – Tax board procedure

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113.    Tax board procedure

(1)     Subject to the procedure provided for by the ‘rules’, the chairperson determines the procedures during the hearing of an appeal as the chairperson sees fit, and each party must have the opportunity to put the party’s case to the tax board.

(2)     The tax board is not required to record its proceedings.

(3)     The chairperson may, when the proceedings open, formulate the issues in the appeal.

(4)     The chairperson may adjourn the hearing of an appeal to a convenient time and place.

(5)     A senior SARS official must appear at the hearing of the appeal in support of the assessment or ‘decision’.

(6)     At the hearing of the appeal the ‘appellant’ must-

(a)     appear in person in the case of a natural person; or

(b)     in any other case, be represented by the representative taxpayer.

(7)     If a third party prepared the ‘appellant’s’ return involved in the assessment or ‘decision’, that third party may appear on the ‘appellant’s’ behalf.

(8)     The ‘appellant’ may, together with the notice of appeal, or within the further period as the chairperson may allow, request permission to be represented at the hearing otherwise than as referred to in subsection (6).

(9)     If neither the ‘appellant `nor anyone authorised to appear on the ‘appellant’s’ behalf appears before the tax board at the time and place set for the hearing, the tax board may confirm the assessment or ‘decision’ in respect of which the appeal has been lodged-

(a)     at the request of the senior SARS official; and

[Para. (a) substituted by section 25 of Act 13 of 2017 effective on 18 December 2017]

(b)     on proof that the ‘appellant’ was furnished with the notice of the sitting of the tax board.

(10)   If the tax board confirms an assessment or ‘decision’ under subsection (9), the ‘appellant’ may not thereafter request that the appeal be referred to the tax court under section 115.

(11)   If the senior SARS official fails to appear before the tax board at the time and place set for the hearing, the tax board may allow the ‘appellant’s’ appeal at the ‘appellant’s’ request.

(12)   If the tax board allows the appeal under subsection (11), SARS may not thereafter refer the appeal to the tax court under section 115.

(13)   Subsections (9), (10), (11) and (12) do not apply if the chairperson is satisfied that sound reasons exist for the non-appearance and the reasons are delivered by the ‘appellant’ or SARS to the clerk of the tax board within 10 business days after the date determined for the hearing or the longer period as may be allowed in exceptional circumstances.

Section 128 (TAA) – Contempt of tax court

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128.    Contempt of tax court

 

(1)     If, during the sitting of a tax court, a person-

 

(a)     wilfully insults a judge or member of the tax court;

 

(b)     wilfully interrupts the tax court proceedings; or

 

(c)     otherwise misbehaves in the place where the hearing is held,

 

the president of a tax court may impose upon that person a fine or, in default of payment, imprisonment for a period not exceeding three months.

 

(2)     An order made under subsection (1) must be executed as if it were an order made by a Magistrate’s Court under similar circumstances, and the provisions of a law which apply in respect of such an order made by a Magistrate’s Court apply with the necessary changes in respect of an order made under subsection (1).

Section 129 (TAA) – Decision by tax court

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129.    Decision by tax court

(1)     The tax court, after hearing the ‘appellant’s’ appeal lodged under section 107 against an assessment or ‘decision’, must decide the matter on the basis that the burden of proof as described in section 102 is upon the taxpayer.

(2)     In the case of an assessment or “decision” under appeal or an application in a procedural matter referred to in section 117(3), the tax court may-

(a)     confirm the assessment or ‘decision’;

(b) order the assessment or ‘decision’ to be altered;

[Paragraph (b) amended by section 19(a) of Act 22 of 2018.]

(c) refer the assessment back to SARS for further examination and assessment; or

[Paragraph (c) amended by section 19(b) of Act 22 of 2018.]

(d) make an appropriate order in a procedural matter.

[Subsection (2) amended by section 52(a) of Act 39 of 2013 effective on 1 October, 2012. Paragraph (d) added by section 19(c) of Act 22 of 2018.]

(3)     In the case of an appeal against an understatement penalty imposed by SARS under a tax Act, the tax court must decide the matter on the basis that the burden of proof is upon SARS and may reduce, confirm or increase the understatement penalty.

(4)     If SARS alters an assessment as a result of a referral under subsection (2)(c), the assessment is subject to objection and appeal.

(5)     Unless a tax court otherwise directs, a decision by the tax court in a test case designated under section 106(6) is determinative of the issues in an objection or appeal stayed by reason of the test case under section 106(6)(b) to the extent determined under the “rules”.

Section 155 (TAA) – Personal liability of representative taxpayer

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155.    Personal liability of representative taxpayer

 

A representative taxpayer is personally liable for tax payable in the representative taxpayer’s representative capacity, if, while it remains unpaid-

 

(a)     the representative taxpayer alienates, charges or disposes of amounts in respect of which the tax is chargeable; or

 

(b)     the representative taxpayer disposes of or parts with funds or moneys, which are in the representative taxpayer’s possession or come to the representative taxpayer after the tax is payable, if the tax could legally have been paid from or out of the funds or moneys.

Section 130 (TAA) – Order for costs by tax court

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130.    Order for costs by tax court

 

(1)     The tax court may, in dealing with an appeal under this Chapter and on application by an aggrieved party, grant an order for costs in favour of the party, if-

 

(a)     the SARS grounds of assessment or ‘decision’ are held to be unreasonable;

 

(b)     the ‘appellant’s’ grounds of appeal are held to be unreasonable;

 

(c)     the tax board’s decision is substantially confirmed;

 

(d)     the hearing of the appeal is postponed at the request of the other party; or

 

(e)     the appeal is withdrawn or conceded by the other party after the ‘registrar’ allocates a date of hearing.

 

(2)     The costs awarded by the tax court under this section must be determined in accordance with the fees prescribed by the rules of the High Court.

 

(3)     The tax court may make an order as to costs provided for in the “rules” in-

 

(a)     a test case designated under section 106(5); or

 

(b)     an interlocutory application or an application in a procedural matter referred to in section 117(3).