Category: Tax Administration Act No. 28 of 2011

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 selected from the panel appointed under section 111; and

 

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

 

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

 

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

 

(iii)    a legal practitioner who is a member of the panel referred to in section 111.

[Subsection (1) amended by section 24 of Act 13 of 2017 and by section 34 of Act 33 of 2019 and substituted by section 25 of Act 43 of 2024]

 

(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.

Section 111 (TAA) – Appointment of chairpersons

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111.    Appointment of chairpersons

 

(1)     The Minister must, in consultation with the Judge-President of the Division of the High Court with jurisdiction in the area where the tax board is to sit, or the chief executive officer of the relevant recognised controlling bodies under section 240A of the Act, by public notice appoint legal practitioners or registered tax 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 and by section 26 of Act 43 of 2024]

 

(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 154 (TAA) – Liability of representative taxpayer

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154.    Liability of representative taxpayer

 

(1)     A representative taxpayer is, as regards-

 

(a)     the income to which the representative taxpayer is entitled;

 

(b)     moneys to which the representative taxpayer is entitled or has the management or control;

 

(c)     transactions concluded by the representative taxpayer; and

 

(d)     anything else done by the representative taxpayer,

 

in such capacity-

 

(i)      subject to the duties, responsibilities and liabilities of the taxpayer represented;

 

(ii)     entitled to any abatement, deduction, exemption, right to set off a loss, and other items that could be claimed by the person represented; and

 

(iii)    liable for the amount of tax specified by a tax Act.

 

(2)     A representative taxpayer may be assessed in respect of any tax under subsection (1), but such assessment is regarded as made upon the representative taxpayer in such capacity only.

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”.