Part D
Search and seizure
Category: Chapter 5 – Information gathering (TAA)
Section 45 (TAA) – Inspection
45. Inspection
(1) A SARS official may, for the purposes of the administration of a tax Act and without prior notice, arrive at a premises where the SARS official has a reasonable belief that a trade or enterprise is being carried on and conduct an inspection to determine only-
(a) the identity of the person occupying the premises;
(b) whether the person occupying the premises is registered for tax; or
(c) whether the person is complying with sections 29 and 30.
(2) A SARS official may not enter a dwelling-house or domestic premises, except any part thereof used for the purposes of trade, under this section without the consent of the occupant.
Section 59 (TAA) – Application for warrant
59. Application for warrant
(1) A senior SARS official may, if necessary or relevant to administer a tax Act, authorise an application for a warrant under which SARS may enter a premises where relevant material is kept to search the premises and any person present on the premises and seize relevant material.
(2) SARS must apply ex parte to a judge for the warrant, which application must be supported by information supplied under oath or solemn declaration, establishing the facts on which the application is based.
(3) Despite subsection (2), SARS may apply for the warrant referred to in subsection (1) and in the manner referred to in subsection (2), to a magistrate, if the matter relates to an audit or investigation where the estimated tax in dispute does not exceed the amount determined in the notice issued under section 109(1)(a).
Section 46 (TAA) – Request for relevant material
46. Requeset for relevant material
(1) SARS may, for the purposes of the administration of a tax Act in relation to a taxpayer, whether identified by name or otherwise objectively identifiable, require the taxpayer or another person to, within a reasonable period, submit relevant material (whether orally or in writing) that SARS requires.
(2) A senior SARS official may require relevant material in terms of subsection (1) –
(a) in respect of taxpayers in an objectively identifiable class of taxpayers; or
(b) held or kept by a connected person, as referred to in paragraph (d)(i) of the definition of “connected person” in the Income Tax Act, in relation to the taxpayer, located outside the Republic.
[Subsection (2) substituted by section 42 of Act 23 of 2015 effective on 8 January 2016]
(3) A request by SARS for relevant material from a person other than the taxpayer is limited to material maintained or kept or that should reasonably be maintained or kept by the person in relation to the taxpayer.
[Subsection (3) substituted by section 50(a) of Act 21 of 2012, by section 42(a) of Act 23 of 2015 and by section 30 of Act 33 of 2019]
(4) A person or taxpayer receiving from SARS a request for relevant material under this section must submit the relevant material to SARS at the place, in the format (which must be reasonably accessible to the person or taxpayer) and-
(a) within the time specified in the request; or
(b) if the material is held by a connected person referred to in subsection (2)(b), within 90 days from the date of the request, which request must set out the consequences referred to in subsection (9) of failing to do so.
[Subsection (4) substituted by section 46 of Act 44 of 2014 effective on 1 October 2012 and section 42 of Act 23 of 2015 effective on 8 January 2016]
(5) If reasonable grounds for an extension are submitted by the person or taxpayer, SARS may extend the period within which the relevant material must be submitted.
[Subsection (5) substituted by section 50 of Act 21 of 2012 effective on 1 October 2012 and section 42 of Act 23 of 2015 effective on 8 January 2016]
(6) Relevant material required by SARS under this section must be referred to in the request with reasonable specificity.
(7) A senior SARS official may direct that relevant material-
(a) be provided under oath or solemn declaration; or
(b) if required for purposes of a criminal investigation, be provided under oath or solemn declaration and, if necessary, in accordance with the requirements of section 212 or 236 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).
(8) A senior SARS official may request relevant material that a person has available for purposes of revenue estimation.
(9) If a taxpayer fails to provide material referred to in subsection (2)(b), the material may not be produced by the taxpayer in any subsequent proceedings, unless a competent court directs otherwise on the basis of circumstances outside the control of the taxpayer and any connected person referred to in paragraph (d)(i) of the definition of “connected person” in the Income Tax Act, in relation to the taxpayer.
[Subsection (9) added by section 42 of Act 23 of 2015 effective on 8 January 2016]
Section 60 (TAA) – Issuance of warrant
60. Issuance of warrant
(1) A judge or magistrate may issue the warrant referred to in section 59(1) if satisfied that there are reasonable grounds to believe that-
(a) a person failed to comply with an obligation imposed under a tax Act, or committed a tax offence; and
(b) relevant material likely to be found on the premises specified in the application may provide evidence of the failure to comply or commission of the offence.
(2) A warrant issued under subsection (1) must contain the following:
(a) the alleged failure to comply or offence that is the basis for the application;
(b) the person alleged to have failed to comply or to have committed the offence;
(c) the premises to be searched; and
(d) the fact that relevant material as defined in section 1 is likely to be found on the premises.
(3) The warrant must be exercised within 45 business days or such further period as a judge or magistrate deems appropriate on good cause shown.
Section 47 (TAA) – Production of relevant material in person
47. Production of relevant material in person
(1) A senior SARS official may, by notice, require a person, whether or not chargeable to tax, an employee of the person or a person who holds an office in the person to attend in person at the time and place designated in the notice for the purpose of being interviewed by a SARS official concerning the tax affairs of the person, if the interview-
(a) is intended to clarify issues of concern to SARS-
(i) to render further verification or audit unnecessary; or
(ii) to expedite a current verification or audit; and
(b) is not for purposes of a criminal investigation.
[Subsection (1) substituted by section 43 of Act 23 of 2015 effective on 8 January 2016]
(2) The senior SARS official issuing the notice may require the person interviewed to produce relevant material under the control of the person during the interview.
(3) Relevant material required by SARS under subsection (2) must be referred to in the notice with reasonable specificity.
(4) A person may decline to attend an interview, if the distance between the place designated in the notice and the usual place of business or residence of the person exceeds the distance prescribed by the Commissioner by public notice.
Section 61 (TAA) – Carrying out search
61. Carrying out search
(1) A SARS official exercising a power under a warrant referred to in section 60 must produce the warrant, and if the owner or person in control of the premises is not present, the SARS official must affix a copy of the warrant to the premises in a prominent and visible place.
(2) Subject to section 63, a SARS official’s failure to produce a warrant entitles a person to refuse access to the official.
(3) The SARS official may-
(a) open or cause to be opened or removed in conducting a search, anything which the official suspects to contain relevant material;
(b) seize any relevant material;
(c) seize and retain a computer or storage device in which relevant material is stored for as long as it is necessary to copy the material required;
(d) make extracts from or copies of relevant material, and require from a person an explanation of relevant material; and
(e) if the premises listed in the warrant is a vessel, aircraft or vehicle, stop and board the vessel, aircraft or vehicle, search the vessel, aircraft or vehicle or a person found in the vessel, aircraft or vehicle, and question the person with respect to a matter dealt with in a tax Act.
(4) The SARS official must make an inventory of the relevant material seized in the form, manner and at the time that is reasonable under the circumstances and provide a copy thereof to the person.
(5) The SARS official must conduct the search with strict regard for decency and order, and may search a person if the official is of the same gender as the person being searched.
(6) The SARS official may, at any time, request such assistance from a police officer as the official may consider reasonably necessary and the police officer must render the assistance.
(7) No person may obstruct a SARS official or a police officer from executing the warrant or without reasonable excuse refuse to give such assistance as may be reasonably required for the execution of the warrant.
(8) If the SARS official seizes relevant material, the official must ensure that the relevant material seized is preserved and retained until it is no longer required for-
(a) the investigation into the non-compliance or the offence described under section 60(1)(a);or
(b) the conclusion of any legal proceedings under a tax Act or criminal proceedings in which it is required to be used.
Section 48 (TAA) – Field audit or criminal investigation
48. Field audit or criminal investigation
(1) A SARS official named in an authorisation referred to in section 41 may require a person, with prior notice of at least 10 business days, to make available at the person’s premises specified in the notice relevant material that the official may require to audit or criminally investigate in connection with the administration of a tax Act in relation to the person or another person.
(2) The notice referred to in subsection (1) must-
(a) state the place where and the date and time that the audit or investigation is due to start (which must be during normal business hours); and
(b) indicate the initial basis and scope of the audit or investigation.
(3) SARS is not required to give the notice if the person waives the right to receive the notice.
(4) If a person at least five business days before the date listed in the notice advances reasonable grounds for varying the notice, SARS may vary the notice accordingly, subject to conditions SARS may impose with regard to preparatory measures for the audit or investigation.
(5) A SARS official may not enter a dwelling-house or domestic premises, except any part thereof used for the purposes of trade, under this section without the consent of the occupant.
Section 62 (TAA) – Search of premises not identified in warrant
62. Search of premises not identified in warrant
(1) If a senior SARS official has reasonable grounds to believe that-
(a) the relevant material referred to in section 60(1)(b) and included in a warrant is at premises not identified in the warrant and may be removed or destroyed;
(b) a warrant cannot be obtained in time to prevent the removal or destruction of the relevant material; and
(c) the delay in obtaining a warrant would defeat the object of the search and seizure,
a SARS official may enter and search the premises and exercise the powers granted in terms of this Part, as if the premises had been identified in the warrant.
(2) A SARS official may not enter a dwelling-house or domestic premises, except any part thereof used for purposes of trade, under this section without the consent of the occupant.
Section 49 (TAA) – Assistance during field audit or criminal investigation
49. Assistance during field audit or criminal investigation
(1) The person on whose premises an audit or criminal investigation is carried out and any other person on the premises, must provide such reasonable assistance as is required by SARS to conduct the audit or investigation, including-
(a) making available appropriate facilities, to the extent that such facilities are available;
(b) answering questions relating to the audit or investigation including, if so required, in the manner referred to in section 46(7); and
[Paragraph (b) substituted by section 44 of Act 23 of 2015 effective on 8 January 2016]
(c) submitting relevant material as required.
(2) No person may without just cause-
(a) obstruct a SARS official from carrying out the audit or investigation; or
(b) refuse to give the accessor assistance as maybe required under subsection(1).
(3) The person may recover from SARS after completion of the audit or criminal investigation (or, at the person’s request, on a monthly basis) the costs for the use of photocopying facilities in accordance with the fees prescribed in section 92(1)(b) of the Promotion of Access to Information Act.