Part D
Tax court
Category: Part D – Tax court (TAA)
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”.
Section 118 (TAA) – Constitution of tax court
118. Constitution of tax court
(1) A tax court established under this Act consists of-
(a) a judge or an acting judge of the High Court, who is the president of the tax court;
(b) an accountant selected from the panel of members appointed in terms of section 120; and
(c) a representative of the commercial community selected from the panel of members appointed in terms of section 120.
(2) If the appeal involves-
(a) a complex matter that requires specific expertise and the president of the tax court so directs after considering any representations by a senior SARS official or the ‘appellant’, the representative of the commercial community referred to in subsection (1)(c) may be a person with the necessary experience in that field of expertise;
(b) the valuation of assets and the president of the tax court, a senior SARS official or the ‘appellant’ so requests, the representative of the commercial community referred to in subsection (1)(c) must be a sworn appraiser.
[Subsection (2) amended by section 51 of Act 39 of 2013, substituted by section 58 of Act 16 of 2016 effective on 19 January 2017]
(3) If an appeal to the tax court involves a matter of law only or is an interlocutory application or application in a procedural matter under the ‘rules’, the president of the court sitting alone must decide the appeal.
(4) The president of the court alone decides whether a matter for decision involves a matter of fact or a matter of law.
(5) The Judge-President of the Division of the High Court with jurisdiction in the area where the relevant tax court is situated, may direct that the tax court consist of three judges or acting judges of the High Court (one of whom is the president of the tax court) and the members of the court referred to in subsections (1)(b) and (c) and (2), where necessary, if-
(a) the amount in dispute exceeds R50 million; or
(b) SARS and the ‘appellant’ jointly apply to the Judge-President.
Section 119 (TAA) – Nomination of president of tax court
119. Nomination of president of tax court
(1) The Judge-President of the Division of the High Court with jurisdiction in the area for which a tax court has been constituted must nominate and second a judge or an acting judge of the division to be the president of that tax court.
(2) The Judge-President must determine whether the secondment referred to in subsection (1) applies for a period, or for the hearing of a particular case.
(3) A judge 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.
Section 120 (TAA) – Appointment of panel of tax court members
120. Appointment of panel of tax court members
(1) The President of the Republic by proclamation in the Gazette must appoint the panel of members of a tax court for purposes of section 118(1)(b) and (c) for a term of office of five years from the date of the relevant proclamation.
(2) A person appointed in terms of subsection (1) must be a person of good standing who has appropriate experience.
(3) A person appointed in terms of subsection (1) is eligible for reappointment for a further period or periods as the President of the Republic may think fit.
(4) The President of the Republic may terminate the appointment of a member under this section at any time for misconduct, incapacity or incompetence.
(5) A member’s appointment lapses in the event that the tax court is abolished under section 116(1).
(6) A member of the tax court must perform the member’s functions independently, impartially and without fear, favour or prejudice.
Section 121 (TAA) – Appointment of registrar of tax court
121. Appointment of registrar of tax court
(1) The Commissioner appoints the ‘registrar’ of the tax court.
(2) A person appointed as ‘registrar’ and persons appointed in the ‘registrar’s’ office are SARS employees.
(3) The ‘registrar’ and other persons referred to in subsection (2) must perform their functions under this Act and the ‘rules’ independently, impartially and without fear, favour or prejudice.
Section 122 (TAA) – Conflict of interest of tax court members
122. Conflict of interest of tax court members
(1) A member of the court must withdraw from the proceedings as soon as the member becomes aware of a conflict of interest which may give rise to bias which the member may experience with the case concerned or other circumstances that may affect the member’s ability to remain objective for the duration of the case.
(2) Either party may ask for withdrawal of a member on the basis of conflict of interest or other indications of bias, under procedures provided in the ‘rules’.
(3) A member of the court 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 the case.
Section 123 (TAA) – Death, retirement or incapability of judge or member
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.
Section 124 (TAA) – Sitting of tax court not public
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.