126. Subpoena of witness to tax court
SARS, the ‘appellant’ or the president of a tax court may subpoena any witness in the manner prescribed in the ‘rules’, whether or not that witness resides within the tax court’s area of jurisdiction.
Category: Chapter 9 – Dispute resolution (TAA)
Section 112 (TAA) – Clerk of tax board
112. Clerk of tax board
(1) The Commissioner must appoint a clerk of the tax board.
(2) The clerk acts as convenor of the tax board.
(3) If no chairperson is available in the jurisdiction within which the tax board is to be convened, the clerk may convene the tax board with a chairperson from another jurisdiction.
(4) The clerk of the tax board must, within the period and in the manner provided in the ‘rules’, submit a notice to the members of the tax board and the ‘appellant’ specifying the time and place for the hearing.
Section 127 (TAA) – Non-attendance by witness or failure to give evidence
127. Non-attendance by witness or failure to give evidence
(1) A person subpoenaed under section 126 is liable to the fine or imprisonment specified in subsection (2), if the person without just cause fails to-
(a) give evidence at the hearing of an appeal;
(b) remain in attendance throughout the proceedings unless excused by the president of the tax court; or
(c) produce a document or thing in the person’s possession or under the person’s control according to the subpoena.
(2) The president of the tax court may impose a fine or, in default of payment, imprisonment for a period not exceeding three months, on a person described in subsection (1) upon being satisfied by-
(a) oath or solemn declaration; or
(b) the return of the person by whom the subpoena was served,
that the person has been duly subpoenaed and that the person’s reasonable expenses have been paid or offered.
(3) The president of the tax court may, in addition to imposing a fine or imprisonment under subsection (2), issue a warrant for the person to be apprehended and brought to give evidence or to produce the document or thing in accordance with the subpoena.
(4) A fine imposed under subsection (2) is enforceable as if it were a penalty imposed by a High Court in similar circumstances and any laws applicable in respect of a penalty imposed by a High Court apply with the necessary changes in respect of the fine.
(5) The president of the tax court may, on good cause shown, remit the whole or any part of the fine or imprisonment imposed under subsection (2).
(6) The president of the tax court may order the costs of a postponement or adjournment resulting from the default of a witness, or a portion of the costs, to be paid out of a fine imposed under subsection (2).
Section 113 (TAA) – Tax board procedure
113. Tax board procedure
(1) Subject to the procedure provided for by the ‘rules’, the chairperson determines the procedures during the hearing of an appeal as the chairperson sees fit, and each party must have the opportunity to put the party’s case to the tax board.
(2) The tax board is not required to record its proceedings.
(3) The chairperson may, when the proceedings open, formulate the issues in the appeal.
(4) The chairperson may adjourn the hearing of an appeal to a convenient time and place.
(5) A senior SARS official must appear at the hearing of the appeal in support of the assessment or ‘decision’.
(6) At the hearing of the appeal the ‘appellant’ must-
(a) appear in person in the case of a natural person; or
(b) in any other case, be represented by the representative taxpayer.
(7) If a third party prepared the ‘appellant’s’ return involved in the assessment or ‘decision’, that third party may appear on the ‘appellant’s’ behalf.
(8) The ‘appellant’ may, together with the notice of appeal, or within the further period as the chairperson may allow, request permission to be represented at the hearing otherwise than as referred to in subsection (6).
(9) If neither the ‘appellant `nor anyone authorised to appear on the ‘appellant’s’ behalf appears before the tax board at the time and place set for the hearing, the tax board may confirm the assessment or ‘decision’ in respect of which the appeal has been lodged-
(a) at the request of the senior SARS official; and
[Para. (a) substituted by section 25 of Act 13 of 2017 effective on 18 December 2017]
(b) on proof that the ‘appellant’ was furnished with the notice of the sitting of the tax board.
(10) If the tax board confirms an assessment or ‘decision’ under subsection (9), the ‘appellant’ may not thereafter request that the appeal be referred to the tax court under section 115.
(11) If the senior SARS official fails to appear before the tax board at the time and place set for the hearing, the tax board may allow the ‘appellant’s’ appeal at the ‘appellant’s’ request.
(12) If the tax board allows the appeal under subsection (11), SARS may not thereafter refer the appeal to the tax court under section 115.
(13) Subsections (9), (10), (11) and (12) do not apply if the chairperson is satisfied that sound reasons exist for the non-appearance and the reasons are delivered by the ‘appellant’ or SARS to the clerk of the tax board within 10 business days after the date determined for the hearing or the longer period as may be allowed in exceptional circumstances.
Section 128 (TAA) – Contempt of tax court
128. Contempt of tax court
(1) If, during the sitting of a tax court, a person-
(a) wilfully insults a judge or member of the tax court;
(b) wilfully interrupts the tax court proceedings; or
(c) otherwise misbehaves in the place where the hearing is held,
the president of a tax court may impose upon that person a fine or, in default of payment, imprisonment for a period not exceeding three months.
(2) An order made under subsection (1) must be executed as if it were an order made by a Magistrate’s Court under similar circumstances, and the provisions of a law which apply in respect of such an order made by a Magistrate’s Court apply with the necessary changes in respect of an order made under subsection (1).
Section 114 (TAA) – Decision of tax board
114. Decision of tax board
(1) The tax board, after hearing the ‘appellant’s’ appeal against an assessment or ‘decision’, must decide the matter in accordance with this Chapter.
(2) The Chairperson must prepare a written statement of the tax board’s decision that includes the tax board’s findings of the facts of the case and the reasons for its decision, within 60 business days after conclusion of the hearing.
(3) The clerk must by notice in writing submit a copy of the tax board’s decision to SARS and the ‘appellant’.
Section 115 (TAA) – Referral of appeal to tax court
115. Referral of appeal to tax court
(1) If the ‘appellant’ or SARS is dissatisfied with the tax board’s decision or the Chairperson fails to deliver the decision under section 114(2) within the prescribed 60 business day period, the ‘appellant’ or SARS may within 21 business days, or within the further period as the Chairperson may on good cause shown allow, after the date of the notice referred to in section 114(3) or the expiry of the period referred to in section 114(2), require, in writing, that the appeal be referred to the tax court for hearing.
(2) The tax court must hear de novo a referral of an appeal from the tax board’s decision under subsection (1).
Part D – Tax court (TAA)
Part D
Tax court
Section 116 (TAA) – Establishment of tax court
116. Establishment of tax court
(1) The President of the Republic may by proclamation in the Gazette establish a tax court or additional tax courts for areas that the President thinks fit and may abolish an existing tax court as circumstances may require.
(2) The tax court is a court of record.
Section 117 (TAA) – Jurisdiction of tax court
117. Jurisdiction of tax court
(1) The tax court for purposes of this Chapter has jurisdiction over tax appeals lodged under section 107.
(2) The place where an appeal is heard is determined by the ‘rules’.
(3) The court may hear and decide an interlocutory application or an application in a procedural matter relating to a dispute under this Chapter as provided for in the “rules”.