Part C
Tax board
Category: Part C – Tax board (TAA)
Section 108 (TAA) – Establishment of tax board
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.
Section 109 (TAA) – Jurisdiction of tax board
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.
Section 110 (TAA) – Constitution of tax board
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.
Section 111 (TAA) – Appointment of chairpersons
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’.
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 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 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).