Category: Chapter 2 – General administration provisions (TAA)

Section 11 (TAA) – Legal proceedings involving Commissioner

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11.    Legal proceedings involving Commissioner

(1)     No SARS official may institute or defend civil proceedings on behalf of the Commissioner unless authorised to do so under this Act or by the Commissioner or by the person delegated by the Commissioner under section 6(2).

[Subsection (1) substituted by section 36 of Act 23 of 2015 effective on 8 January 2016]

(2)     For purposes of subsection (1), a SARS official who, on behalf of the Commissioner, institutes litigation, or performs acts which are relied upon by the Commissioner in litigation, is regarded as duly authorised until proven to the contrary.

(3)     An amount due or payable as a result of a cost order in favour of SARS recovered by the State Attorney resulting from any civil proceedings under this Act must be paid to the National Revenue Fund.

[Subsection (3) substituted by section 40 of Act 21 of 2012, section 33 of Act 39 of 2013 and section 48 of Act 16 of 2016 effective on 19 January 2017]

(4)     Unless the court otherwise directs, no legal proceedings may be instituted in the High Court against the Commissioner, unless the applicant has given the Commissioner written notice of at least 10 business days of the applicant’s intention to institute the legal proceedings.

[Subsection (4) added by section 33(c) of Act 39 of 2013 and substituted by section 27 of Act 33 of 2019]

(5)     The notice or any process by which the legal proceedings referred to in subsection (4) are instituted, must be served at the address specified by the Commissioner by public notice.

Section 12 (TAA) – Right of appearance in proceedings

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12.    Right of appearance in proceedings

(1)     Despite any law to the contrary, a senior SARS official may, on behalf of SARS or the Commissioner in proceedings referred to in a tax Act, appear ex parte in a judge’s chambers, in the tax court or in a High Court.

[Subsection (1) substituted by section 24 of Act 24 of 2020]

(2)     A senior SARS official may appear in the tax court or a High Court only if the person is a legal practitioner duly admitted and enrolled under the Legal Practice Act, 2014 (Act 28 of 2014).

[Subsection (2) substituted by section 28 of Act 33 of 2019]

Section 13 (TAA) – Powers and duties of Minister

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13.    Powers and duties of Minister

 

(1)     The powers conferred and the duties imposed upon the Minister by or under the provisions of a tax Act may-

 

(a)     be exercised or performed by the Minister personally; and

 

(b)     except for the powers under sections 14 and 257, be delegated by the Minister to the Deputy Minister or Director-General of the National Treasury.

 

(2)     The Director-General may in turn delegate the powers and duties delegated to the Director-General by the Minister to a person under the control, direction or supervision of the Director-General.

Section 2 (TAA) – Purpose of Act

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2.    Purpose of Act

 

The purpose of this Act is to ensure the effective and efficient collection of tax by-

 

(a)     aligning the administration of the tax Acts to the extent practically possible;

 

(b)     prescribing the rights and obligations of taxpayers and other persons to whom this Act applies;

 

(c)     prescribing the powers and duties of persons engaged in the administration of a tax Act; and

 

(d)     generally giving effect to the objects and purposes of tax administration.

Section 14 (TAA) – Power of Minister to appoint Tax Ombud

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14.    Power of Minister to appoint Tax Ombud

(1)     The Minister must appoint a person as Tax Ombud-

(a)     for a term of five years, which term may be renewed; and

[Paragraph (a) substituted by section 49 of Act 16 of 2016 effective on 19 January 2017]

(b)     under such conditions regarding remuneration and allowances as the Minister may determine.

(2)     The person appointed under subsection (1) or (3) may be removed by the Minister for misconduct, incapacity or incompetence.

(3)     During a vacancy in the office of Tax Ombud, the Minister may designate a person in the office of the Tax Ombud to act as Tax Ombud.

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

(5)     A person appointed as Tax Ombud-

(a)     is accountable to the Minister;

(b)     must have a good background in customer service as well as tax law; and

(c)     may not at any time during the preceding five years have been convicted (whether in the Republic or elsewhere) of-

(i)      theft, fraud, forgery or uttering a forged document, perjury, an offence under the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004); or

(ii)     any other offence involving dishonesty,

for which the person has been sentenced to a period of imprisonment exceeding two years without the option of a fine or to a fine exceeding the amount prescribed in the Adjustment of Fines Act, 1991 (Act No. 101 of 1991).

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]