Category: Tax Administration Act No. 28 of 2011

Section 234 (TAA) – Criminal offence relating to non-compliance with tax Acts

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234    Criminal offences relating to non-compliance with tax Acts

(1)    Any person who wilfully-

(a)     submits a false certificate or statement under Chapter 4;

(b)     issues an erroneous, incomplete or false document required to be issued under a tax Act to SARS or another person;

(c)     fails to-

(i)      reply to or answer truly and fully any questions put to the person by a SARS official, as and when required in terms of this Act; or

(ii)     take an oath or make a solemn declaration as and when required in terms of this Act;

(d)     obstructs or hinders a SARS official in the discharge of the official’s duties;

(e)     refuses to give assistance required under section 49(1);

(f)      holds himself or herself out as a SARS official engaged in carrying out the provisions of this Act; or

(g)     dissipates that person’s assets or assists another person to dissipate that other person’s assets in order to impede the collection of any taxes, penalties or interest,

is guilty of an offence and is liable, upon conviction, to a fine or to imprisonment for a period not exceeding two years.

(2)     Any person who wilfully or negligently fails to-

(a)     register or notify SARS of a change in registered particulars as required in Chapter 3;

(b)     appoint a representative taxpayer or notify SARS of the appointment or change of a representative taxpayer as required under section 153 or 249;

(c)     register as a tax practitioner as required under section 240;

(d)     submit a return or document to SARS or issue a document to a person as required under a tax Act;

(e)     retain records as required under a tax Act;

(f)      furnish, produce or make available any information, document or thing, excluding information requested under section 46(8), as and when required under this Act;

(g)     attend and give evidence, as and when required under this Act;

(h)     comply with a directive or instruction issued by SARS to the person under a tax Act;

(i)      disclose to SARS any material facts which should have been disclosed under a tax Act or to notify SARS of anything which the person is required to so notify SARS of under a tax Act;

(j)      comply with the provisions of sections 179 to 182, if that person was given notice by SARS to transfer the assets or pay the amounts to SARS as referred to in those sections; or

(k)     in the event where that person becomes liable to make a payment for withholding any tax, deduct or withhold or pay to SARS the amount of tax, as and when required under a tax Act,

is guilty of an offence and is liable, upon conviction, to a fine or to imprisonment for a period not exceeding two years.

[Section 234 amended by section 77(a) and (b) of Act 21 of 2012 and by section 43 of Act 33 of 2019 and substituted by section 35 of Act 24 of 2020]

Section 245 (TAA) – Power of Minister to determine date for submission of returns and payment of tax

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245.    Power of Minister to determine date for submission of returns and payment of tax

 

(1)     Despite any other provision of a tax Act, if the date for the submission of a return or the payment of tax is the last day of the financial year of the Government, the Minister may by public notice prescribe any other date for submission of the return and payment of the tax, which date must not fall on a day more than two business days prior to the last day of that year.

 

(2)     The notice contemplated in subsection (1) must be published at least 21 business days prior to the date so prescribed by the Minister.

Section 235 (TAA) – Evasion of tax and obtaining undue refunds by fraud or theft

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235.    Evasion of tax and obtaining undue refunds by fraud or theft

(1)     A person who with intent to evade or to assist another person to evade tax or to obtain an undue refund under a tax Act-

(a)     makes or causes or allows to be made any false statement or entry in a return or other document, or signs a statement, return or other document so submitted without reasonable grounds for believing the same to be true;

(b)     gives a false answer, whether orally or in writing, to a request for information made under this Act;

(c)     prepares, maintains or authorises the preparation or maintenance of false books of account or other records or falsifies or authorises the falsification of books of account or other records;

(d)     makes use of, or authorises the use of, fraud or contrivance; or

(e)     makes any false statement for the purposes of obtaining any refund of or exemption from tax,

is guilty of an offence and, upon conviction, is subject to a fine or to imprisonment for a period not exceeding five years.

(2)     Any person who makes a statement in the manner referred to in subsection (1) may, unless the person proves that there is a reasonable possibility that he or she was ignorant of the falsity of the statement and that the ignorance was not due to negligence on his or her part, be regarded as being aware of the falsity of the statement.

[Subsection (2) substituted by section 68 of Act 23 of 2015 effective on 8 January 2016]

(3)     Only a senior SARS official may lay a complaint with the South African Police Service or the National Prosecuting Authority regarding an offence under this section.

Section 246 (TAA) – Public officers of companies

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246.    Public officers of companies

(1)     Every company carrying on business or having an office in the Republic must at all times be represented by an individual residing in the Republic.

(2)     The individual representative under subsection (1) must be-

(a)     approved by SARS and-

(i)      must be a person who is a senior official of the company; or

(ii)     if no senior official resides in the Republic, may be another suitable person;

(b)     appointed by the company or by an agent or legal practitioner who has authority to appoint such a representative for the purposes of a tax Act;

[Paragraph (b) substituted by section 45 of Act 33 of 2019]

(c)     called the public officer of the company; and

(d)     appointed within one month after the company begins to carry on business or acquires an office in the Republic.

(3)     If a public officer is not appointed as required under this section, the public officer is the director, company secretary or other officer of the company that SARS designates for that purpose.

(4)     A company that has not appointed a public officer is subject to a tax Act as if a tax Act did not require the public officer to be appointed.

(5)     A public officer is responsible for all acts, matters, or things that the public officer’s company must do under a tax Act, and in case of default, the public officer is subject to penalties for the company’s defaults.

(6)     A public officer’s company is regarded as having done everything done by the public officer in the officer’s representative capacity.

(7)     If SARS is of the opinion that a person is no longer suitable to represent the company as public officer SARS may withdraw its approval under subsection (2)(a).


(8)     A person who is disqualified in terms of section 6 of the Trust Property Control Act, 1988 (Act 57 of 1988), section 25A of the Nonprofit Organisations Act, 1997 (Act 71 of 1997), or section 69 of the Companies Act, 2008 (Act 78 of 2008), may not be appointed as a public officer under this section

[Subsection (8) added by section 30 of Act 18 of 2023]

Section 236 (TAA) – Criminal offences relating to secrecy provisions

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236.    Criminal offences relating to secrecy provisions

A person who contravenes the provisions of section 67(2), (3) or (4), 68(2), 69(1) or (6) or 70(5) is guilty of an offence and, upon conviction, is subject to a fine or to imprisonment for a period not exceeding two years.

[Section 236 substituted by section 69 of Act 23 of 2015 effective on 8 January 2016]

Section 247 (TAA) – Company address for notices and documents

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247.    Company address for notices and documents

 

(1)     A company referred to in section 246(1) must, within the period referred to in section 246(2)(d), appoint a place within the Republic approved by SARS at which SARS may serve, deliver or send the company a notice or other document provided for under a tax Act.

 

(2)     Every notice, process, or proceeding which under a tax Act may be given to, served upon or taken against a company referred to in section 246(1), may be given to, served upon, or taken against its public officer, or if at any time there is no public officer, any officer or person acting or appearing to act in the management of the business or affairs of the company or as agent for the company.

Section 262 (TAA) – Appointment of chairperson of tax board

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262.    Appointment of chairpersons of tax board

A legal practitioner appointed to the panel of persons who may serve as chairpersons of the tax board under a tax Act, who is on that panel immediately before the commencement date of this Act, is regarded as appointed under the provisions of section 111 until the earlier of-

(a)     the expiry of the legal practitioner’s appointment under the provisions previously in force; or

(b)     termination of the legal practitioner’s appointment under section 111(3).

[Section 262 substituted by section 47 of Act 33 of 2019]

Section 237 (TAA) – Criminal offences relating to filing return without authority

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237.    Criminal offences relating to filing return without authority

 

A person who-

 

(a)     submits a return or other document to SARS under a forged signature;

 

(b)     uses an electronic or digital signature of another person in an electronic communication to SARS without the person’s consent and authority; or

 

(c)     otherwise submits to SARS a communication on behalf of another person without the person’s consent and authority,

 

is guilty of an offence and, upon conviction, is subject to a fine or to imprisonment for a period not exceeding two years.