105. Forum for dispute of assessment or decision
A taxpayer may only dispute an assessment or “decision” as described in section 104 in proceedings under this Chapter, unless a High Court otherwise directs.
[Section 105 substituted by section 52 of Act 23 of 2015 effective on 8 January 2016]
106. Decision on objection
(1) SARS must consider a valid objection in the manner and within the period prescribed under this Act and the ‘rules’.
(2) SARS may disallow the objection or allow it either in whole or in part.
(3) If the objection is allowed either in whole or in part, the assessment or ‘decision’ must be altered accordingly.
(4) SARS must, by notice, inform the taxpayer objecting or the taxpayer’s representative of the decision referred to in subsection (2), unless the objection is stayed under subsection (6) in which case notice of this must be given in accordance with the ‘rules’.
(5) The notice must state the basis for the decision and a summary of the procedures for appeal.
(6) If a senior SARS official considers that the determination of the objection or an appeal referred to in section 107, whether on a question of law only or on both a question of fact and a question of law, is likely to be determinative of all or a substantial number of the issues involved in one or more other objections or appeals, the official may-
(a) designate that objection or appeal as a test case; and
(b) stay the other objections or appeals by reason of the taking of a test case on a similar objection or appeal before the tax court,
in the manner, under the terms, and within the periods prescribed in the ‘rules’.
107. Appeal against assessment or decision
(1) After delivery of the notice of the decision referred to in section 106(4), a taxpayer objecting to an assessment or ‘decision’ may appeal against the assessment or ‘decision’ to the tax board or tax court in the manner, under the terms and within the period prescribed in this Act and the ‘rules’.
(2) A senior SARS official may extend the period within which an appeal must be lodged for-
(a) 21 business days, if satisfied that reasonable grounds exist for the delay; or
(b) up to 45 business days, if exceptional circumstances exist that justify an extension beyond 21 business days.
(3) A notice of appeal that does not satisfy the requirements of subsection (1) is not valid.
(4) If an assessment or ‘decision’ has been altered under section 106(3), the assessment or ‘decision’ as altered is the assessment or ‘decision’ against which the appeal is noted.
(5) By mutual agreement, SARS and the taxpayer making the appeal may attempt to resolve the dispute through alternative dispute resolution under procedures specified in the ‘rules’.
(6) Proceedings on the appeal are suspended while the alternative dispute resolution procedure is ongoing.
(7) SARS may concede an appeal in whole or in part before-
(a) the matter is heard by the tax board or the tax court; or
(b) an appeal against a judgment of the tax court or higher court is heard.
108. Establishment of tax board
(1) The Minister may by public notice-
(a) establish a tax board or boards for areas that the Minister thinks fit; and
(b) abolish an existing tax board or establish an additional tax board as circumstances may require.
(2) Tax boards are established under subsection (1) to hear appeals referred to in section 107 in the manner provided in this Part.
123. Death, retirement or incapability of judge or member
(1) If at any stage during the hearing of an appeal, or after hearing of the appeal but before judgment has been handed down, one of the judges dies, retires or becomes otherwise incapable of acting in that capacity, the hearing of an appeal must be heard de novo.
(2) If the tax court has been constituted under section 118(5), the hearing of the appeal referred to in subsection (1) must proceed before the remaining judges and members, if the remaining judges constitute the majority of judges before whom the hearing was commenced.
(3) If at any stage during or after the hearing of an appeal but before judgment has been handed down, a member of the tax court dies, retires or becomes incapable of acting in that capacity, the hearing of the appeal must proceed before the president of the tax court, any other judges, the remaining member, and, if the president deems it necessary, a replacement member.
(4) The judgment of the remaining judges and members referred to in subsection (1) or (3) is the judgment of the court.
109. Jurisdiction of tax board
(1) An appeal against an assessment or ‘decision’ must in the first instance be heard by a tax board, if-
(a) the tax in dispute does not exceed the amount the Minister determines by public notice; and
(b) a senior SARS official and the ‘appellant’ so agree.
(2) SARS must designate the places where tax boards hear appeals.
(3) The tax board must hear an appeal at the place referred to in subsection (2) which is closest to the ‘appellant’s’ residence or place of business, unless the ‘appellant’ and SARS agree that the appeal be heard at another place.
(4) In making a decision under subsection (1)(b), a senior SARS official must consider whether the grounds of the dispute or legal principles related to the appeal should rather be heard by the tax court.
(5) If the chairperson prior to or during the hearing, considering the grounds of the dispute or the legal principles related to the appeal, believes that the appeal should be heard by the tax court rather than the tax board, the chairperson may direct that the appeal be set down for hearing de novo before the tax court.
124. Sitting of tax court not public
(1) The tax court sittings for purposes of hearing an appeal under section 107 are not public.
(2) The president of the tax court may in exceptional circumstances, on request of any person, allow that person or any other person to attend the sitting but may do so only after taking into account any representations that the ‘appellant’ and a senior SARS official, referred to in section 12 appearing in support of the assessment or ‘decision’, wishes to make on the request.
110. Constitution of tax board
(1) A tax board consists of-
(a) the chairperson, who must be a legal practitioner from the panel appointed under section 111; and
[Paragraph (a) substituted by section 34 of Act 33 of 2019]
(b) if the chairperson, after considering any representations by a senior SARS official or the taxpayer, considers it necessary-
[Words preceding subpara. (i) substituted by section 24 of Act 13 of 2017 effective on 18 December 2017]
(i) an accountant who is a member of the panel referred to in section 120; and
(ii) a representative of the commercial community who is a member of the panel referred to in section 120.
(2) Sections 122, 123, 124, 126, 127, 128 and 129 apply, with the necessary changes, and under procedures determined in the ‘rules’, to the tax board and the chairperson.
125. Appearance at hearing of tax court
(1) A senior SARS official referred to in section 12 may appear at the hearing of an appeal in support of the assessment or ‘decision’.
(2) ……….
[Subsection (2) deleted by section 26 of Act 13 of 2017 effective on 18 December 2017]
111. Appointment of chairpersons
(1) The Minister must, in consultation with the JudgePresident of the Division of the High Court with jurisdiction in the area where the tax board is to sit, by public notice appoint legal practitioners to a panel from which a chairperson of the tax board must be nominated from time to time.
[Subsection (1) substituted by section 35 of Act 33 of 2019]
(2) The persons appointed under subsection (1)-
(a) hold office for five years from the date the notice of appointment is published in the public notice;
(b) are eligible for re-appointment as the Minister thinks fit; and
(c) must be persons of good standing who have appropriate experience.
[Subsection (2) substituted by section 53 of Act 23 of 2015 effective on 8 January 2016]
(3) The Minister may terminate an appointment made under this section at any time for misconduct, incapacity or incompetence.
(4) A member of the panel must be appointed as chairperson of a tax board.
(5) A chairperson will not solely on account of his or her liability to tax be regarded as having a personal interest or a conflict of interest in any matter upon which he or she may be called upon to adjudicate.
(6) A chairperson must withdraw from the proceedings as soon as the chairperson becomes aware of a conflict of interest which may give rise to bias which the chairperson may experience with the case concerned or other circumstances that may affect the chairperson’s ability to remain objective for the duration of the case.
(7) Either party may ask for withdrawal of the chairperson on the basis of conflict of interest or other indications of bias, under procedures provided in the ‘rules’.