Category: Tax Administration Act No. 28 of 2011

Section 3 (TAA) – Administration of tax Acts

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3.    Administration of tax Acts

(1)     SARS is responsible for the administration of this Act under the control or direction of the Commissioner.

(2)     Administration of a tax Act means to-

(a)     obtain full information in relation to-

(i)      anything that may affect the liability of a person for tax in respect of a previous, current or future tax period;

(ii)     a taxable event; or

(iii)    the obligation of a person (whether personally or on behalf of another person) to comply with a tax Act;

(b)     ascertain whether a person has filed or submitted correct returns, information or documents in compliance with the provisions of a tax Act;

(c)     establish the identity of a person for purposes of determining liability for tax;

(d)     determine the liability of a person for tax;

(e)     collect tax debts and refund tax overpaid;

(f)      investigate whether a tax offence has been committed, and, if so-

(i)      to lay criminal charges; and

(ii)     to provide the assistance that is reasonably required for the investigation and prosecution of the tax offence;

(g)     enforce SARS’ powers and duties under a tax Act to ensure that an obligation imposed by or under a tax Act is complied with;

(h)     perform any other administrative function necessary to carry out the provisions of a tax Act;

[Paragraph (h) amended by section 34 of Act 23 of 2015 effective on 8 January 2016] 

(i)      give effect to the obligation of the Republic to provide assistance under an international tax agreement; and

[Paragraph (i) amended by section 34 of Act 23 of 2015 effective on 8 January 2016] 

(j)      give effect to an international tax standard.

[Paragraph (j) added by section 34 of Act 23 of 2015 effective on 8 January 2016] 

(3)     If SARS, in accordance with-

(a)     an international tax agreement-

(i)      received a request for, is obliged to exchange or wishes to spontaneously exchange information, SARS may disclose or obtain the information for transmission to the competent authority of the other country as if it were relevant material required for purposes of a tax Act and must treat the information obtained as taxpayer information;

(ii)     received a request for the conservancy or the collection of an amount alleged to be due by a person under the tax laws of the requesting country, SARS may deal with the request under the provisions of section 185; or

(iii)    received a request for the service of a document which emanates from the requesting country, SARS may effect service of the document as if it were a notice, document or other communication required under a tax Act to be issued, given, sent or served by SARS; or

(b)     an international tax standard, obtained information of a person, SARS may retain the information as if it were relevant material required for purposes of a tax Act and must treat the information obtained as taxpayer information.

[Subsection (3) amended by sectoin 37 of Act 21 of 2012, substituted by section 38 of Act 44 of 2014 effective on 1 October 2012 and section 34 of Act 23 of 2015 effective on 8 January 2016]

Section 4 (TAA) – Application of Act

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4.    Application of Act

 

(1)     This Act applies to every person who is liable to comply with a provision of a tax Act (whether personally or on behalf of another person) and binds SARS.

 

(2)     If this Act is silent with regard to the administration of a tax Act and it is specifically provided for in the relevant tax Act, the provisions of that tax Act apply.

 

(3)     In the event of any inconsistency between this Act and another tax Act, the other Act prevails.

Section 15 (TAA) – Office of Tax Ombud

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15.    Office of Tax Ombud

(1)     The Tax Ombud must appoint the staff of the office of the Tax Ombud who must be employed in terms of the SARS Act.

[Subsection (1) substituted by section 50 of Act 16 of 2016 effective on 19 January 2017]

(2)     When the Tax Ombud is absent or otherwise unable to perform the functions of office, the Tax Ombud may designate another person in the office of the Tax Ombud as acting Tax Ombud.

(3)     No person may be designated in terms of subsection (2) as acting Tax Ombud for a period longer than 90 days at a time.

(4)     The expenditure connected with the functions of the office of the Tax Ombud is paid in accordance with a budget approved by the Minister for the office.

[Subsection (4) substituted by section 50 of Act 16 of 2016 effective on 19 January 2017]

Section 5 (TAA) – Practice generally prevailing

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5.  Practice generally prevailing

 

(1)     A practice generally prevailing is a practice set out in an official publication regarding the application or interpretation of a tax Act.

 

(2)     Despite any provision to the contrary contained in a tax Act, a practice generally prevailing set out in an official publication, other than a binding general ruling, ceases to be a practice generally prevailing if-

 

(a)     the provision of the tax Act that is the subject of the official publication is repealed or amended to an extent material to the practice, from the date the repeal or amendment becomes effective;

 

(b)     a court overturns or modifies an interpretation of the tax Act which is the subject of the official publication to an extent material to the practice from the date of judgment, unless-

 

(i)      the decision is under appeal;

 

(ii)     the decision is fact-specific and the general interpretation upon which the official publication was based is unaffected; or

 

(iii)    the reference to the interpretation upon which the official publication was based was obiter dicta; or

 

(c)     the official publication is withdrawn or modified by the Commissioner, from the date of the official publication of the withdrawal or modification.

 

(3)     A binding general ruling ceases to be a practice generally prevailing in the circumstances described in section 85 or 86.

Section 16 (TAA) – Mandate of Tax Ombud

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16.    Mandate of Tax Ombud

(1)     The mandate of the Tax Ombud is to-

(a)     review and address any complaint by a taxpayer regarding a service matter or a procedural or administrative matter arising from the application of the provisions of a tax Act by SARS; and

(b)     review, at the request of the Minister or at the initiative of the Tax Ombud with the approval of the Minister, any systemic and emerging issue related to a service matter or the application of the provisions of this Act or procedural or administrative provisions of a tax Act.

[Subsection (1) substituted by section 51 of Act 16 of 2016 effective on 19 January 2017]

(2)     In discharging his or her mandate, the Tax Ombud must-

(a)     review a complaint and, if necessary, resolve it through mediation or conciliation;

(b)     act independently in resolving a complaint;

(c)     follow informal, fair and cost-effective procedures in resolving a complaint;

(d)     provide information to a taxpayer about the mandate of the Tax Ombud and the procedures to pursue a complaint;

(e)     facilitate access by taxpayers to complaint resolution mechanisms within SARS to address complaints; and

(f)      identify and review systemic and emerging issues related to service matters or the application of the provisions of this Act or procedural or administrative provisions of a tax Act that impact negatively on taxpayers.