Category: Chapter 10 (TAA) – Tax liability and payment

Section 160 (TAA) – Right to recovery of taxpayer

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160. Taxpayer’s right to recovery

[Heading of section 160 substituted by section 27 of Act 13 of 2017 effective on 18 December 2017]

(1)     A representative taxpayer, withholding agent or responsible third party who, as such, pays a tax is entitled-

(a)     to recover the amount so paid from the person on whose behalf it is paid; or

(b)     to retain out of money or assets in that person’s possession or that may come to that person in that representative capacity, an amount equal to the amount so paid.

(2)     Unless otherwise provided for in a tax Act, a taxpayer in respect of whom an amount has been paid to SARS by a withholding agent under a tax Act or by a responsible third party under section 179, is not entitled to recover from the withholding agent or responsible third party the amount so  paid but is entitled to recover the amount of an unlawful or erroneous payment from SARS.

Section 161 (TAA) – Security by taxpayer

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161.    Security by taxpayer

 

(1)     A senior SARS official may require security from a taxpayer to safeguard the collection of tax by SARS, if the taxpayer-

 

(a)     is a representative taxpayer, withholding agent or responsible third party who was previously held liable in the taxpayer’s personal capacity under a tax Act;

 

(b)     has been convicted of a tax offence;

 

(c)     has frequently failed to pay amounts of tax due;

 

(d)     has frequently failed to carry out other obligations imposed under any tax Act which constitutes non-compliance referred to in Chapter 15; or

 

(e)     is under the management or control of a person who is or was a person contemplated in paragraphs (a) to (d).

 

(2)     If security is required, SARS must by written notice to the taxpayer require the taxpayer to furnish to or deposit with SARS, within such period that SARS may allow, security for the payment of any tax which has or may become payable by the taxpayer in terms of a tax Act.

 

(3)     The security must be of the nature, amount and form that the senior SARS official directs.

 

(4)     If the security is in the form of cash deposit and the taxpayer fails to make such deposit, it may-

 

(a)     be collected as if it were an outstanding tax debt of the taxpayer recoverable under this Act; or

 

(b)     be set-off against any refund due to the taxpayer.

 

(5)     A senior SARS official may, in the case of a taxpayer which is not a natural person and cannot provide the security required under subsection (1), require of any or all of the members, shareholders or trustees who control or are involved in the management of the taxpayer to enter into a contract of suretyship in respect of the taxpayer’s liability for tax which may arise from time to time.

Section 162 (TAA) – Determination of time and manner of payment of tax

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162.    Determination of time and manner of payment of tax

 

(1)     Tax must be paid by the day and at the place notified by SARS, the Commissioner by public notice or as specified in a tax Act, and must be paid as a single amount or in terms of an instalment payment agreement under section 167.

 

(2)     The Commissioner may by public notice prescribe the method of payment of tax, including electronically.

 

(3)     Despite sections 96(1)(f) and 167, a senior SARS official may, if there are reasonable grounds to believe that-

 

(a)     a taxpayer will not pay the full amount of tax;

 

(b)     a taxpayer will dissipate the taxpayer’s assets; or

 

(c)     that recovery may become difficult in the future,

 

require the taxpayer to-

 

(i)      pay the full amount immediately upon receipt of the notice of assessment or a notice described in section 167(6) or within the period as the official deems appropriate under the circumstances; or

 

(ii)     provide such security as the official deems necessary.

Section 163 (TAA) – Preservation order

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163.    Preservation order

 

(1)     A senior SARS official may, in order to prevent any realisable assets from being disposed of or removed which may frustrate the collection of the full amount of tax that is due or payable or the official on reasonable grounds is satisfied may be due or payable, authorise an ex parte application to the High Court for an order for the preservation of any assets of a taxpayer or other person prohibiting any person, subject to the conditions and exceptions as may be specified in the preservation order, from dealing in any manner with the assets to which the order relates.

 

(2)

 

(a)     SARS may, in anticipation of the application under subsection (1) seize the assets pending the outcome of an application for a preservation order, which application must commence within 24 hours from the time of seizure of the assets or the further period that SARS and the taxpayer or other person may agree on.

 

(b)     Until a preservation order is made in respect of the seized assets, SARS must take reasonable steps to preserve and safeguard the assets including appointing a curator bonis in whom the assets vest.

 

(3)     A preservation order may be made if required to secure the collection of the tax referred to in subsection (1) and in respect of-

 

(a)     realisable assets seized by SARS under subsection (2);

 

(b)     the realisable assets as may be specified in the order and which are held by the person against whom the preservation order is being made;

 

(c)     all realisable assets held by the person, whether it is specified in the order or not; or

 

(d)     all assets which, if transferred to the person after the making of the preservation order, would be realisable assets.

 

(4)     The court to which an application for a preservation order is made may-

 

(a)     make a provisional preservation order having immediate effect;

 

(b)     simultaneously grant a rule nisi calling upon the taxpayer or other person upon a business day mentioned in the rule to appear and to show cause why the preservation order should not be made final;

 

(c)     upon application by the taxpayer or other person, anticipate the return day for the purpose of discharging the provisional preservation order if 24 hours’ notice of the application has been given to SARS; and

 

(d)     upon application by SARS, confirm the appointment of the curator bonis under subsection (2)(a) or appoint a curator bonis in whom the seized assets vest.

 

(5)     A preservation order must provide for notice to be given to the taxpayer and a person from whom the assets are seized.

 

(6)     For purposes of the notice or rule required under subsection (4)(b) or (5), if the taxpayer or other person has been absent for a period of 21 business days from his or her usual place of residence or business within the Republic, the court may direct that it will be sufficient service of that notice or rule if a copy thereof is affixed to or near the outer door of the building where the court sits and published in the Gazette, unless the court directs some other mode of service.

 

(7)     The court, in granting a preservation order, may make any ancillary orders regarding how the assets must be dealt with, including-

 

(a)     authorising the seizure of all movable assets;

 

(b)     if not appointed under subsection (4)(d), appointing a curator bonis in whom the assets vest;

 

(c)     realising the assets in satisfaction of the tax debt;

 

(d)     making provision as the court may think fit for the reasonable living expenses of a person against whom the preservation order is being made and his or her legal dependants, if the court is satisfied that the person has disclosed under oath all direct or indirect interests in assets subject to the order and that the person cannot meet the expenses concerned out of his or her unrestrained assets; or

 

(e)     any other order that the court considers appropriate for the proper, fair and effective execution of the order.

 

(8)     The court making a preservation order may also make such further order in respect of the discovery of any facts including facts relating to any asset over which the taxpayer or other person may have effective control and the location of the assets as the court may consider necessary or expedient with a view to achieving the objects of the preservation order.

 

(9)     The court which made a preservation order may on application by a person affected by that order vary or rescind the order or an order authorising the seizure of the assets concerned or other ancillary order if it is satisfied that-

 

(a)     the operation of the order concerned will cause the applicant undue hardship; and

 

(b)     the hardship that the applicant will suffer as a result of the order outweighs the risk that the assets concerned may be destroyed, lost, damaged, concealed or transferred.

 

(10)   A preservation order remains in force-

  

(a)     pending the setting aside thereof on appeal, if any, against the preservation order; or

 

(b)     until the assets subject to the preservation order are no longer required for purposes of the satisfaction of the tax debt.

 

(11)   In order to prevent any realisable as sets that were not seized under subsection(2) from being disposed of or removed contrary to a preservation order under this section, a senior SARS official may seize the assets if the official has reasonable grounds to believe that the assets will be so disposed of or removed.

 

(12)   Assets seized under this section must be dealt with in accordance with the directions of the High Court which made the relevant preservation order.

Section 164 (TAA) – Payment of tax pending objection or appeal

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164.    Payment of tax pending objection or appeal

 

(1)     Unless a senior SARS official otherwise directs in terms of subsection (3)-

 

(a)     the obligation to pay tax; and

 

(b)     the right of SARS to receive and recover tax,

 

will not be suspended by an objection or appeal or pending the decision of a court of law pursuant to an appeal under section 133.

 

(2)     A taxpayer may request a senior SARS official to suspend the payment of tax or a portion thereof due under an assessment if the taxpayer intends to dispute or disputes the liability to pay that tax under Chapter 9.

 

(3)     A senior SARS official may suspend payment of the disputed tax or a portion thereof having regard to relevant factors, including-

 

(a)     whether the recovery of the disputed tax will be in jeopardy or there will be a risk of dissipation of assets;

 

(b)     the compliance history of the taxpayer with SARS;

 

(c)     whether fraud is prima facie involved in the origin of the dispute;

 

(d)     whether payment will result in irreparable hardship to the taxpayer not justified by the prejudice to SARS or the fiscus if the disputed tax is not paid or recovered; or

 

(e)     whether the taxpayer has tendered adequate security for the payment of the disputed tax and accepting it is in the interest of SARS or the fiscus.

 

(4)     If payment of tax was suspended under subsection (3) and subsequently-

 

(a)     no objection is lodged;

 

(b)     an objection is disallowed and no appeal is lodged; or

 

(c)     an appeal to the tax board or court is unsuccessful and no further appeal is noted,

 

the suspension is revoked with immediate effect from the date of the expiry of the relevant prescribed time period or any extension of the relevant time period under this Act.

 

(5)     A senior SARS official may deny a request in terms of subsection (2) or revoke a decision to suspend payment in terms of subsection (3) with immediate effect if satisfied that-

 

(a)     after the lodging of the objection or appeal, the objection or appeal is frivolous or vexatious;

 

(b)     the taxpayer is employing dilatory tactics in conducting the objection or appeal;

 

(c)     on further consideration of the factors referred to in subsection (3), the suspension should not have been given; or

 

(d)     there is a material change in any of the factors referred to in subsection (3), upon which the decision to suspend payment of the amount involved was based.

 

(6)     During the period commencing on the day that-

 

(a)     SARS receives a request for suspension under subsection (2); or

 

(b)     a suspension is revoked under subsection (5),

and ending 10 business days after notice of SARS’ decision or revocation has been issued to the taxpayer, no recovery proceedings may be taken unless SARS has a reasonable belief that there is a risk of dissipation of assets by the person concerned.

 

(7)     If an assessment or a decision referred to in section 104(2) is altered in accordance with-

 

(a)     an objection or appeal;

 

(b)     a decision of a court of law pursuant to an appeal under section 133; or

 

(c)     a decision by SARS to concede the appeal to the tax board or the tax court or other court of law,

 

a due adjustment must be made, amounts paid in excess refunded with interest at the prescribed rate, the interest being calculated from the date that excess was received by SARS to the date the refunded tax is paid, and amounts short-paid are recoverable with interest calculated as provided in section 187(1).

 

(8)     The provisions of section 191 apply with the necessary changes in respect of an amount refundable and interest payable by SARS under this section.

Section 166 (TAA) – Allocation of payments

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166.    Allocation of payments

 

(1)     Despite anything to the contrary contained in a tax Act, SARS may allocate any payment made in terms of a tax Act against an amount of penalty or interest or the oldest amount of an outstanding tax debt at the time of the payment, other than amounts-

 

(a)     for which payment has been suspended under this Act; or

 

(b)     that are payable in terms of an instalment payment agreement under section 167.

 

(2)     SARS may apply the first-in-first-out principle described in subsection (1) in respect of a specific tax type or a group of tax types in the manner that may be prescribed by the Commissioner by public notice.

 

(3)     In the event that a payment in subsection (1) is insufficient to extinguish all tax debts of the same age, the amount of the payment may be allocated among these tax debts in the manner prescribed by the Commissioner by public notice.

 

(4)     The age of a tax debt for purposes of subsection (1) is determined according to the duration from the date the debt became payable in terms of the applicable Act.