CHAPTER 6
CONFIDENTIALITY OF INFORMATION
Category: Chapter 6 – Confidentiality of information (TAA)
Section 67 (TAA) – General prohibition of disclosure
67. General prohibition of disclosure
(1) This Chapter applies to-
(a) SARS confidential information as referred to in section 68(1); and
(b) taxpayer information, which means any information provided by a taxpayer or obtained by SARS in respect of the taxpayer, including biometric information.
(2) An oath or solemn declaration undertaking to comply with the requirements of this Chapter in the prescribed form, must be taken before a magistrate, justice of the peace or commissioner of oaths by-
(a) a SARS official and the Tax Ombud, before commencing duties or exercising any powers under a tax Act; and
(b) a person referred to in section 70 who performs any function referred to in that section, before the disclosure described in that section may be made.
(3) In the event of the disclosure of SARS confidential information or taxpayer information contrary to this Chapter, the person to whom it was so disclosed may not in any manner disclose, publish or make it known to any other person who is not a SARS official.
(4) A person who receives information under section 68, 69, 70 or 71, must preserve the secrecy of the information and may only disclose the information to another person if the disclosure is necessary to perform the functions specified in those sections.
(5) The Commissioner may, for purposes of protecting the integrity and reputation of SARS as an organisation and after giving the taxpayer at least 24 hours’ notice, disclose taxpayer information to the extent necessary to counter or rebut false allegations or information disclosed by the taxpayer, the taxpayer’s duly authorised representative or other person acting under the instructions of the taxpayer and published in the media or in any other manner.
Section 68 (TAA) – SARS confidential information and disclosure
68. SARS confidential information and disclosure
(1) SARS confidential information means information relevant to the administration of a tax Act that is-
(a) personal information about a current or former SARS official, whether deceased or not;
(b) information subject to legal professional privilege vested in SARS;
(c) information that was supplied in confidence by a third party to SARS the disclosure of which could reasonably be expected to prejudice the future supply of similar information, or information from the same source;
(d) information related to investigations and prosecutions described in section 39 of the Promotion of Access to Information Act;
(e) information related to the operations of SARS, including an opinion, advice, report, recommendation or an account of a consultation, discussion or deliberation that has occurred, if-
(i) the information was given, obtained or prepared by or for SARS for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law; and
(ii) the disclosure of the information could reasonably be expected to frustrate the deliberative process in SARS or between SARS and other organs of state by-
(aa) inhibiting the candid communication of an opinion, advice, report or recommendation or conduct of a consultation, discussion or deliberation; or
(bb) frustrating the success of a policy or contemplated policy by the premature disclosure thereof;
(f) information about research being or to be carried out by or on behalf of SARS, the disclosure of which would be likely to prejudice the outcome of the research;
(g) information, the disclosure of which could reasonably be expected to prejudice the economic interests or financial welfare of the Republic or the ability of the government to manage the economy of the Republic effectively in the best interests of the Republic, including a contemplated change or decision to change a tax or a duty, levy, penalty, interest and similar moneys imposed under a tax Act or the Customs and Excise Act;
(h) information supplied in confidence by or on behalf of another state or an international organisation to SARS;
(i) a computer program, as defined in section 1(1) of the Copyright Act, 1978 (Act No. 98 of 1978), owned by SARS;
(j) information relating to the security of SARS buildings, property, structures or systems; and
(k) information relating to the verification or audit selection procedure or method used by SARS, the disclosure of which could reasonably be expected to jeopardise the effectiveness thereof.
(2) A person who is a current or former SARS official-
(a) may not disclose SARS confidential information to a person who is not a SARS official;
(b) may not disclose SARS confidential information to a SARS official who is not authorised to have access to the information; and
(c) must take the precautions that may be required by the Commissioner to prevent a person referred to in paragraph (a) or (b) from obtaining access to the information.
(3) A person who is a SARS official or former SARS official may disclose SARS confidential information if-
(a) the information is public information;
(b) authorised by the Commissioner;
(c) disclosure is authorised under any other Act which expressly provides for the disclosure of the information despite the provisions in this Chapter;
(d) access has been granted for the disclosure of the information in terms of the Promotion of Access to Information Act; or
(e) required by order of a High Court.
Section 69 (TAA) – Secrecy of taxpayer information and general disclosure
69. Secrecy of taxpayer information and general disclosure
(1) A person who is a current or former SARS official must preserve the secrecy of taxpayer information and may not disclose taxpayer information to a person who is not a SARS official.
(2) Subsection (1) does not prohibit the disclosure of taxpayer information by a person who is a current or former SARS official-
(a) in the course of performance of duties under a tax Act or customs and excise legislation such as-
[Words preceding subparagraph (i) substituted by section 47 of Act 23 of 2015 effective on 8 January 2016]
(i) to the South African Police Service or the National Prosecuting Authority, if the information relates to, and constitutes material information for the proving of, a tax offence;
(ii) as a witness in civil or criminal proceedings under a tax Act; or
(iii) the taxpayer information necessary to enable a person to provide such information as may be required by SARS from that person;
(b) under any other Act which expressly provides for the disclosure of the information despite the provisions in this Chapter;
(c) by order of a High Court; or
(d) if the information is public information.
(3) An application to the High Court for the order referred to in subsection (2)(c) requires prior notice to SARS of at least 15 business days unless the court, based on urgency, allows a shorter period.
(4) SARS may oppose the application on the basis that the disclosure may seriously prejudice the taxpayer concerned or impair a civil or criminal tax investigation by SARS.
(5) The court may not grant the order unless satisfied that the following circumstances apply:
(a) the information cannot be obtained elsewhere;
(b) the primary mechanisms for procuring evidence under an Act or rule of court will yield or yielded no or disappointing results;
(c) the information is central to the case; and
(d) the information does not constitute biometric information.
(6) Subsection (1) does not prohibit the disclosure of information-
(a) to the taxpayer; or
(b) with the written consent of the taxpayer, to another person.
(7) Biometric information of a taxpayer may not be disclosed by SARS except under the circumstances described in subsection (2)(a)(i).
(8) The Commissioner may, despite the provisions of this section, disclose-
(a) the name and taxpayer reference number of a taxpayer;
(b) a list of-
(i) pension funds, pension preservation funds, provident funds, provident preservation funds and retirement annuity funds as defined in section 1(1) of the Income Tax Act; and
(ii) organisations approved under sections 18A and 30 of the Income Tax Act and the type of approval;
[Subparagraph (ii) substituted by section 26 of Act 18 of 2023]
[Pararagraph (b) substituted by section 53 of Act 16 of 2016]
(c) the name and tax practitioner registration number of a registered tax practitioner; and
(d) taxpayer information in an anonymised form.
Section 70 (TAA) – Disclosure to other entities
70. Disclosure to other entities
(1) A senior SARS official may provide to the Director-General of the National Treasury taxpayer information or SARS confidential information in respect of-
(a) a taxpayer which is an-
(i) institution referred to in section 3(1) of the Public Finance Management Act, 1999 (Act No. 1 of 1999); or
(ii) entity referred to in section 3 of the Local Government: Municipal Finance Management Act, 2003 (Act No. 56 of 2003),
to the extent necessary for the Director-General to perform the functions and exercise the powers of the National Treasury under those Acts; and
(b) a class of taxpayers to the extent necessary for the purposes of tax policy design or revenue estimation.
(2) A senior SARS official may disclose to-
(a) the Statistician-General the taxpayer information as may be required for the purpose of carrying out the Statistician-General’s duties to publish statistics in an anonymous form;
(b) the Chairperson of the Board administering the National Student Financial Aid Scheme, the name and address of the employer of a person to whom a loan or bursary has been granted under that scheme, for use in performing the Chairperson’s functions under the National Student Financial Aid Scheme Act, 1999 (Act No. 56 of 1999);
(c) a commission of inquiry established by the President of the Republic of South Africa under a law of the Republic, the information to which the Commission is authorised by law to have access;
(d) to an employer (as defined in the Fourth Schedule to the Income Tax Act) of an employee (as defined in the Fourth Schedule), but only the income tax reference number, identity number, physical and postal address of that employee and such other non-financial information in relation to that employee, as that employer may require in order to comply with its obligations in terms of a tax Act; and
(e) a recognised controlling body (as defined in section 239) of a registered tax practitioner, such information in relation to the tax practitioner as may be required to verify that sections 240A(2)(a) and 240A(3) are being given effect to.
(f) the Department of Labour, the name and contact details of all employers registered for employees’ tax and eligible to receive the employment tax incentive in terms of section 2 of the Employment Tax Incentive Act, 2013.
(3) A senior SARS official may disclose to-
(a) the Governor of the South African Reserve Bank, or other person to whom the Minister delegates powers, functions and duties under the Regulations issued under section 9 of the Currency and Exchange Act, 1933 (Act 9 of 1933), the information as may be required to exercise a power or perform a function or duty under the South African Reserve Bank Act, 1989 (Act 90 of 1989), or those Regulations;
[Paragraph (a) substituted by section 25 of Act 24 of 2020]
(b) the Financial Sector Conduct Authority, the information as may be required for the purpose of carrying out the Financial Sector Conduct Authority’s duties and functions under the Financial Sector Regulation Act, 2017 (Act 9 of 2017);
[Paragraph (b) substituted by section 18(1) of Act 22 of 2018 effective on 1 April 2018.]
(c) the Financial Intelligence Centre, the information as may be required for the purpose of carrying out the Centre’s duties and functions under the Financial Intelligence Centre Act, 2001 (Act 38 of 2001);
[Paragraph (c) amended by section 27(a) of Act 18 of 2023]
(d) the National Credit Regulator, the information as may be required for the purpose of carrying out the Regulator’s duties and functions under the National Credit Act, 2005 (Act 34 of 2005); and
[Paragraph (d) amended by section 27(b) of Act 18 of 2023]
(e) the Companies and Intellectual Property Commission, the information as may be required for the purpose of carrying out the Commission’s duties and functions under the Companies Act, 2008 (Act 71 of 2008);
[Paragraph (e) added by section 27(c) of Act 18 of 2023]
(f) the Directorate for Nonprofit Organisations, the information as may be required for the purpose of carrying out the Directorate’s duties and functions under the Nonprofit Organisations Act, 1997 (Act 71 of 1997); and
[Paragraph (f) added by section 27(c) of Act 18 of 2023]
(g) the Master as defined in section 1 of the Trust Property Control Act, 1988 (Act 57 of 1988), the information as may be required for the purpose of carrying out the Master’s duties and functions under that Act.
[Paragraph (g) added by section 27(c) of Act 18 of 2023]
(4) A senior SARS official may disclose to an organ of state or institution listed in a regulation issued by the Minister under section 257, information to which the organ of state or institution is otherwise lawfully entitled to and for the purposes only of verifying the correctness of the following particulars of a taxpayer:
(a) name and taxpayer reference number;
(b) any identifying number;
(c) physical and postal address and other contact details;
(d) employer’s name, address and contact details; and
(e) other non-financial information as the organ of state or institution may require for purposes of verifying paragraphs (a) to (d).
(5) The information disclosed under subsection (1), (2) or (3) may only be disclosed by SARS or the persons or entities referred to in subsection (1), (2) or (3) to the extent that it is-
(a) necessary for the purpose of exercising a power or performing a regulatory function or duty under the legislation referred to in subsection (1), (2) or (3); and
(b) relevant and proportionate to what the disclosure is intended to achieve as determined under the legislation.
[Subsection (5) substituted by section 48 of Act 23 of 2015 effective on 8 January 2016]
(6) SARS must allow the Auditor-General to have access to information in the possession of SARS that relates to the performance of the Auditor-General’s duties under section 4 of the Public Audit Act, 2004 (Act No. 25 of 2004).
(7) Despite subsections (1) to (5), a senior SARS official may not disclose information under this section if satisfied that the disclosure would seriously impair a civil or criminal tax investigation.
Section 71 (TAA) – Disclosure in criminal, public safety or environmental matters
71. Disclosure in criminal, public safety or environmental matters
(1) If so ordered by a judge under this section, a senior SARS official must disclose the information described in subsection (2) to-
(a) the National Commissioner of the South African Police Service, referred to in section 6(1) of the South African Police Service Act, 1995 (Act No. 68 of 1995); or
(b) the National Director of Public Prosecutions, referred to in section 5(2)(a) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998).
(2) Subsection (1) applies to information which may reveal evidence-
(a) that an offence (other than a tax offence) has been or may be committed in respect of which a court may impose a sentence of imprisonment exceeding five years;
(b) that may be relevant to the investigation or prosecution of the offence; or
(c) of an imminent and serious public safety or environmental risk.
(3) A senior SARS official may, if of the opinion that-
(a) SARS has information referred to in subsection (2);
(b) the information will likely be material to the prosecution of the offence or avoidance of the risk; and
(c) the disclosure of the information would not seriously impair a civil or criminal tax investigation,
make an ex parte application to a judge in chambers for an order authorising SARS to disclose the information under subsection (1).
(4) The National Commissioner of the South African Police Service, the National Director of Public Prosecutions or a person acting under their respective direction and control, if-
(a) carrying out an investigation relating to an offence or a public safety or environmental risk referred to in subsection (2); and
(b) of the opinion that SARS may have information that is relevant to that investigation,
may make an ex parte application to a judge in chambers for an order requiring SARS to disclose the information referred to in subsection (2).
(5) SARS must be given prior notice of at least 10 business days of an application under subsection (4) unless the judge, based on urgency, allows a shorter period and SARS may oppose the application on the basis that the disclosure would seriously impair or prejudice a civil or criminal tax investigation or other enforcement of a tax Act by SARS.
Section 72 (TAA) – Self-incrimination
72. Self-incrimination
(1) A taxpayer may not refuse to comply with his or her obligations in terms of legislation to complete and file a return or an application on the grounds that to do so might incriminate him or her, and an admission by the taxpayer contained in a return, application, or other document submitted to SARS by a taxpayer is admissible in criminal proceedings against the taxpayer for a tax offence, unless a competent court directs otherwise.
(2) An admission by the taxpayer of the commission of a tax offence obtained from a taxpayer under Chapter 5 is not admissible in criminal proceedings against the taxpayer, unless a competent court directs otherwise.
Section 73 (TAA) – Disclosure to taxpayer of own record
73. Disclosure to taxpayer of own record
(1) A taxpayer or the taxpayer’s duly authorised representative is entitled to obtain-
(a) a copy, certified by SARS, of the recorded particulars of an assessment or decision referred to in section 104(2) relating to the taxpayer;
(b) access to information submitted to SARS by the taxpayer or by a person on the taxpayer’s behalf;
(c) information, other than SARS confidential information, on which the taxpayer’s assessment is based; and
(d) other information relating to the tax affairs of the taxpayer.
(2) A request for information under subsection (1)(d) must be made under the Promotion of Access to Information Act.
Section 74 (TAA) – Publication of names of offenders
74. Publication of names of offenders
(1) The Commissioner may publish for general information the particulars specified in subsection (2), relating to a tax offence committed by a person, if-
(a) the person was convicted of the offence; and
(b) all appeal or review proceedings relating to the offence have been completed or were not instituted within the period allowed.
(2) The publication referred to in subsection (1) may specify-
(a) the name and area of residence of the offender;
(b) any particulars of the offence that the Commissioner thinks fit; and
(c) the particulars of the fine or sentence imposed.