Category: Tax Administration Act No. 28 of 2011

Section 254 (TAA) – Defect does not affect delivery

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254.    Defect does not affect validity

 

(1)     A notice of assessment or other notice or document issued to a person under a tax Act is not to be considered invalid or ineffective by reason of a failure to comply with the requirements of section 251 or 252 if the person had effective knowledge of the fact of the notice or document and of its content.

 

(2)     A notice of assessment or other notice or document issued under a tax Act is not to be considered invalid or ineffective by reason of defects if it is, in substance and effect, in conformity with this Act, and the person assessed or affected by the notice or document is designated in it according to common understanding.

Section 269 (TAA) – Continuation of authority, rights and obligations

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269.    Continuation of authority, rights and obligations

 

(1)     Rules, notices and regulations issued under the provisions of a tax Act repealed by this Act that are in force immediately before the commencement date of this Act, remain in force as if they were issued under the equivalent provisions of this Act, to the extent consistent with this Act, until new rules, notices and regulations are issued under such provisions.

 

(2)     Forms prescribed under the authority of a tax Act before the commencement date of this Act, and in use immediately before the date of commencement of this Act, are considered to have been prescribed under the authority of this Act, to the extent consistent with this Act.

 

(3)     Rulings and opinions issued under the provisions of a tax Act repealed by this Act and in force immediately before the commencement date of this Act, which have not been revoked, are regarded as having been issued under the authority of this Act to the extent relevant to and consistent with this Act.

 

(4)     An order of a court under the authority of a tax Act and in force immediately before the commencement date of this Act, continues to have the same force and effect as if the provisions had not been repealed or amended, subject to any further order of the court.

 

(5)     A right or entitlement enjoyed by, or obligation imposed on, a person under the repealed or amended provisions of a tax Act, that had not been exercised or complied with before the commencement date of this Act, is a valid right or entitlement of, or obligation imposed on, that person in terms of any comparable provision of this Act, as from the date that the right, entitlement or obligation first arose, subject to the provisions of this Act.

 

(6)     The commission of an offence before the commencement date of this Act which is a statutory offence under the provisions of a tax Act repealed by this Act, may be investigated by SARS, in the manner referred to in Chapter 5, and prosecuted as if the statutory offence remained in force.

Section 240A (TAA) – Recognition of controlling bodies

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240A.    Recognition of controlling bodies

(1)     The Commissioner must recognise as a ‘recognised controlling body’-

(a)       . . . . . . 

[Paragraph (a) deleted by section 28 of Act 16 of 2022]

(b)     the Legal Practice Council established under the Legal Practice Act, 2014 (Act 28 of 2014);

[Paragraph (b) substituted by section 44(a) of Act 33 of 2019]

(c)       . . . . . .

[Paragraph (c) deleted by section 44(b) of Act 33 of 2019]

(d)     a statutory body that the Minister is satisfied is similar to the statutory bodies in this subsection and the details of which are published in the Gazette.

(2)     The Commissioner may recognise a ‘controlling body’, for natural persons who provide advice with respect to the application of a tax Act or complete returns, as a ‘recognised controlling body’ if the body-

(a)     in respect of such persons, maintains relevant and effective-

(i)      minimum qualification and experience requirements;

(ii)     continuing professional education requirements;

(iii)    codes of ethics and conduct; and

(iv)    disciplinary codes and procedures;

(b)     is approved in terms of section 30B of the Income Tax Act for purposes of section 10(1)(d)(iv) of the Act; and

(c)     has at least 1 000 members when applying for recognition or reasonable prospects of having 1 000 members within a year of applying.

(3)     A body must within the prescribed time period and in the prescribed form and manner, if recognised under-

(a)     subsection (1), submit a list of its members to whom the provisions under section 240(1) apply; and

(b)     subsection (2), submit a report on its members and compliance with this Chapter.

(4)     The Minister may appoint a panel of retired judges or persons of similar stature and competence one or more of whom may decide, on behalf of a body recognised under subsection (2), complaints lodged under section 241–

(a)     at the request of the body; or

(b)     if the Minister is satisfied that the body’s disciplinary process is ineffective.

(5)     The costs of the panel in deciding complaints will be borne equally by such a body and SARS.

(6)     If a body recognised under subsection (2) no longer meets the listed requirements, the Commissioner must notify it that if it does not take corrective steps within the period specified in the notice, its recognition will be withdrawn at the end of the period.

Section 255 (TAA) – Rules for electronic communication

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255.    Rules for electronic communication

 

(1)     The Commissioner may by public notice make rules prescribing-

 

(a)     the procedures for submitting a return in electronic format, electronic record retention and  other electronic communications between SARS and other persons;

 

(b)     requirements for an electronic or digital signature of a return or communication; and

 

(c)     the procedures for electronic record retention by SARS.

 

(2)     SARS may, in the case of a return or other document submitted in electronic format, accept an electronic or digital signature of a person as a valid signature for purposes of a tax Act if a signature is required.

 

(3)     If in any proceedings under a tax Act, the question arises whether an electronic or digital signature of a person referred to in subsection (2) was used with the authority of the person, it must be assumed, in the absence of proof to the contrary, that the signature was so used.

Section 270 (TAA) – Application of Act to prior or continuing action

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270.    Application of Act to prior or continuing action

(1)     Subject to this Chapter, this Act applies to an act, omission or proceeding taken, occurring or instituted before the commencement date of this Act, but without prejudice to the action taken or proceedings conducted before the commencement date of the comparable provisions of this Act.

(2)     The following actions or proceedings taken or instituted under the provisions of a tax Act repealed by this Act but not completed by the commencement date of the comparable provisions of this Act, must be continued and concluded under the provisions of this Act as if taken or instituted under this Act:

(a)     a decision by a SARS official in terms of a statutory power to do so;

(b)     a request by a person for the withdrawal or amendment of a decision or notice by SARS, registration for tax, form of record keeping, information, taxpayer record, advance ruling, refund, reduced assessment, suspension of a disputed tax debt, deferral, write off, compromise or waiver of a tax debt and the remittance of interest or a penalty;

(c)     an inspection, verification, request for information, audit, criminal investigation, inquiry or search and seizure;

(d)     an objection, appeal to the tax board, tax court or higher court, alternative dispute resolution, settlement discussions or other related High Court application;

(e)     suspension of a disputed tax debt;

(f)      a deferment, write off or compromise of a tax debt; or

(g)     recovery of a tax debt, including the appointment of an agent to satisfy a tax debt, execution of a civil judgment or sequestration, liquidation or winding-up instituted by SARS or any other related court application.

(3)     A form, notice, demand or other document issued, given or received by a person or SARS under the provisions of a tax Act repealed by this Act, must be regarded as issued, given or received in terms of any comparable provision of this Act, as from the date that the form, notice, demand or other document was issued, given or received under the repealed provisions.

(4)     A record kept or retained by a person as required under the provisions of a tax Act repealed by this Act, must be regarded as kept or retained as required under the comparable provisions of this Act from the date that record was kept or retained under the repealed provisions of the tax Act.

(5)     If the period for an application, objection, appeal or prosecution had expired before the commencement date of this Act, nothing in this Act may be construed as enabling the application, objection, appeal or prosecution to be made under this Act by reason only of the fact that a longer period is specified in this Act.

(6)     Additional tax, penalty or interest may be imposed or levied as if the repeal of the legislation in Schedule 1 had not been effected and may be assessed and recovered under this Act, if-

(a)     additional tax, penalty or interest which but for the repeal would have been capable of being imposed, levied, assessed or recovered by the commencement date of this Act, has not been imposed, levied, assessed or recovered by the commencement date of this Act; or

(b)     an understatement penalty, administrative non-compliance penalty or interest under this Act cannot be imposed, levied, assessed or recovered in respect of an understatement as defined in section 221, non-compliance or failure to pay that occurred before the commencement date of this Act.

(6A)  For the purposes of subsection (6), “capable of being imposed” means that the verification, audit or investigation necessary to determine the additional tax, penalty or interest had been completed before the commencement date of this Act.

(6B)  If a return was due by the commencement date of this Act, the requirement under section 223(3)(b)(i) is regarded as having been met for the purposes of remittance of a substantial understatement penalty.

(6C)  A person who made a valid voluntary disclosure before the commencement date of this Act, qualifies for the relief referred to in section 229(b) if the audit or investigation of the person’s affairs has commenced before but only concluded after commencement date of this Act and the requirements of Part B of Chapter 16 have been met.

(6D)  If an understatement penalty is imposed as a result of an understatement, as defined in section 221, made in a return submitted before the commencement date of this Act, a taxpayer may object against the penalty under Chapter 9 (whether or not the taxpayer has previously objected against the assessment imposing the penalty) and if the return was required under-

(a)     the Income Tax Act, excluding returns required under the Fourth Schedule to that Act, a senior SARS official must, in considering the objection, reduce the penalty in whole or in part if satisfied that there were extenuating circumstances; or

(b)     the Value-Added Tax Act or the Fourth Schedule to the Income Tax Act, a senior SARS official must reduce the penalty in whole if the penalty was imposed under circumstances other than the circumstances referred to in item (vi) of the understatement penalty table in section 223(1).

[Paragraph (b) substituted by section 65 of Act 44 of 2014 and section 64 of Act 16 of 2016 effective on 19 January 2017]

(6E)   Until the date on which the whole of Chapter 12 and of Schedule 1 to this Act come into operation in respect of a tax type-

(a)     the accrual and payment of interest on an understatement penalty imposed under section 222 must be calculated in the manner that interest upon an additional tax penalty imposed under a tax Act, prior to the repeal of the penalty by this Act, was calculated in terms of the interest provisions of the relevant tax Act; and

(b)     the effective date referred to in section 187(3)(f) for tax understated before 1 October 2012 must be regarded as the commencement date of this Act.

[Subsection (6E) inserted by section 74 of Act 23 of 2015 and substituted by section 29 of Act 13 of 2017 effective on 18 December 2017]

(6F)   From the date on which the whole of Chapter 12 and of Schedule 1 to this Act come into operation, the accrual and payment of interest on an understatement penalty imposed under section 222 must be calculated in the manner prescribed by Chapter 12 in respect of an understatement penalty imposed after such date.

[Subsection (6F) inserted by section 74 of Act 23 of 2015 effective on 1 Octoober 2012]

(7)     Interest arising before the commencement date of this Act must be-

(a)     calculated in accordance with the relevant tax Act until the commencement date; and

(b)     regarded as interest payable under this Act from the commencement date of the comparable provisions of this Act.

Section 241 (TAA) – Complaint to controlling body

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241.    Complaint to controlling body

 

(1)     A senior SARS official may lodge a complaint with a ‘controlling body’ if a person who carries on a profession governed by the ‘controlling body’, did or omitted to do anything with respect to the affairs of a taxpayer, including that person’s affairs, that in the opinion of the official-

 

(a)     was intended to assist the taxpayer to avoid or unduly postpone the performance of an obligation imposed on the taxpayer under a tax Act;

 

(b)     by reason of negligence on the part of the person resulted in the avoidance or undue postponement of the performance of an obligation imposed on the taxpayer under a tax Act;

 

(c)     constitutes a contravention of a rule or code of conduct for the profession which may result in disciplinary action being taken against the person by the body;

 

(d)     constitutes conduct under subsection (2) by a registered tax practitioner.

 

(2)     A senior SARS official may lodge a complaint with a ‘recognised controlling body’ if a registered tax practitioner has, in the opinion of the official-

 

(a)     without exercising due diligence prepared or assisted in the preparation, approval or submission of any return, affidavit or other document relating to matters affecting the application of a tax Act;

 

(b)     unreasonably delayed the finalisation of any matter before SARS;

 

(c)     given an opinion contrary to clear law, recklessly or through gross incompetence, with regard to any matter relating to a tax Act;

 

(d)     been grossly negligent with regard to any work performed as a registered tax practitioner;

 

(e)     knowingly given false or misleading information in connection with matters affecting the application of a tax Act or participated in such activity; or

 

(f)      directly or indirectly attempted to influence a SARS official with regard to any matter relating to a tax Act by the use of threats, false accusations, duress, or coercion, or by offering gratification as defined in the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004).

Section 256 (TAA) – Tax compliance status

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256.    Tax compliance status

(1)     A taxpayer may apply, in the prescribed form and manner, to SARS for third party access to the taxpayer’s tax compliance status.

(2)     SARS must provide or decline to provide third party access to the taxpayer’s tax compliance status within 21 business days from the date the application is submitted or such longer period as may reasonably be required to confirm the correctness of the taxpayer’s tax compliance status.

(3)     The taxpayer’s tax compliance status may only be indicated as compliant if the taxpayer-

(a)       is registered for tax as required in terms of a tax Act;

(b)       does not have any outstanding tax debt, excluding a tax debt-

(i)     contemplated in section 167 or 204; or

(ii)     that has been suspended under section 164; or

(iii)    that may not be recovered for the period specified in section 164(6); or

(iv)    that does not exceed the amount referred to in section 169(4) or any higher amount that the Commissioner may determine by public notice; and

(c)     does not have any outstanding return, unless an arrangement with SARS has been made for the submission of the return.

(4)     An indication of the tax compliance status of a taxpayer must include at least—

(a)     the date of the tax compliance status of the taxpayer;

(b)     the name and taxpayer reference number of the taxpayer;

(c)     the taxpayer’s tax compliance status as at the date referred to in paragraph (a); and

(d)     an indication that the taxpayer is a newly registered taxpayer until-

(i)      the taxpayer, on the date referred to in paragraph (a), has-

(aa)   reached the first date on which the taxpayer is required to submit a return or make a payment under a tax Act in respect of a tax for which the taxpayer is registered; or

(bb)   submitted the return or made the payment, prior to the date referred to in item (aa); or

(ii)     a period of one year from the date the taxpayer was registered for a tax in terms of a tax Act has lapsed,

whichever occurs first.

[Subsection (4) substituted by section 29(a) of Act 16 of 2022]

(5)     Despite the provisions of Chapter 6, SARS may indicate the taxpayer’s tax compliance status as at a current date, or a previous date as prescribed by the Minister in a regulation under section 257(2A), to—

(a)     an organ of state; or

(b)     a person to whom the taxpayer has provided third party access to the taxpayer’s tax compliance status.

(6)     A senior SARS official may revoke access to the taxpayer’s tax compliance status in terms of subsection (5), if-

(a)     the access was provided-

(i)      in error; or

(ii)     on the basis of fraud, misrepresentation or non-disclosure of material facts; or

(b)     the correctness of the taxpayer’s current tax compliance status is questioned due to suspicion of fraud, misrepresentation or non-disclosure of material facts,

and SARS has given the taxpayer prior notice and an opportunity to respond to the allegations of at least 10 business days prior to the revocation.

[Subsection (6) substituted by section 29(b) of Act 16 of 2022]

(7)     A taxpayer’s tax compliance status will be indicated as non­compliant by SARS for the period commencing on the date that the taxpayer no longer complies with a requirement under subsection (3), or such later date as the Commissioner may prescribe, and ending on the date that the taxpayer remedies the non­compliance.

[Section 256 substituted by section 89(1) of Act 21 of 2012, amended by section 85 of Act 39 of 2013, substituted by section 64(1) of Act 44 of 2014, amended by section 72 of Act 23 of 2015 and substituted by section 46 of Act 33 of 2019]

Section 242 (TAA) – Disclosure of information regarding complaint and remedies of taxpayer

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242.    Disclosure of information regarding complaint and remedies of taxpayer

 

(1)     Despite section 69, the senior SARS official lodging a complaint under section 241 may disclose the taxpayer information as in the opinion of the official is necessary to lay before the ‘controlling body’ to which the complaint is made.

 

(2)     Before a complaint is lodged or information is disclosed, SARS must deliver to the taxpayer concerned and the person against whom the complaint is to be made notification of the intended complaint and information to be disclosed.

 

(3)     The taxpayer or that person may, within 21 business days after the date of the notification, lodge with SARS an objection to the lodging of the complaint or disclosure of the information.

 

(4)     If on the expiry of that period of 21 business days no objection has been lodged or, if an objection has been lodged and SARS is not satisfied that the objection should be sustained, a senior SARS official may thereupon lodge the complaint as referred to in section 241.

Section 257 (TAA) – Regulations by Minister

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257.    Regulations by Minister

(1)     The Minister may make regulations regarding-

(a)     any ancillary or incidental administrative or procedural matter that it is necessary to prescribe for the proper implementation or administration of this Act; and

(b)     any matter which under this Act is required or permitted to be prescribed.

(2)     The Minister may, after consultation with the Tax Ombud, make regulations regarding-

(a)     the proceedings of the Tax Ombud; and

(b)     the limitations on the mandate of the Tax Ombud, having regard to-

(i)      the factual or legal complexity of any complaint dealt with by the Tax Ombud;

(ii)     the nature of the taxpayer whose complaint is dealt with by the Tax Ombud; and

(iii)    the maximum amount involved in the dispute between the taxpayer and SARS.

(2A)  For purposes of a confirmation of tax compliance status of a taxpayer under section 256, the Minister may make regulations regarding-

(a)     the circumstances when a confirmation or an update of or a change in the tax compliance status of a taxpayer may be required from a person or SARS;

(b)     the period of validity of a confirmation of tax compliance status of a taxpayer; or

(c)     any procedure to further regulate the issue or withdrawal of a confirmation of tax compliance status of a taxpayer.

[Subsection (2A) inserted by section 90 of Act 21 of 2012 effective on 1 October 2012, substituted by section 73 of Act 23 of 2015 effective on 8 January 2016]

(3)     For purposes of the regulations referred to in paragraph (e) of the definition of “biometric information” in section 1, the Minister must publish the draft regulations in the Gazette for public comment and submit the draft regulations to Parliament for parliamentary scrutiny at least 30 days before the draft regulations are published.