Category: Section 163 (TAA) – Preservation order

Section 163

 

  1. Subsection (1) substituted by section 57 of Act 39 of 2013 effective on 1 October 2012.

 

  1. Paragraph (2)(a) substituted by section 57 of Act 39 of 2013 effective on 1 October 2012.

 

  1. Paragraph (2)(b) substituted by section 57 of Act 39 of 2013 effective on 1 October 2012.

 

  1. Words preceding paragraph (3)(a) substituted by section 57 of Act 39 of 2013 effective on 1 October 2012.

 

  1. Paragraph (4)(b) amended by section 57 of Act 39 of 2013 effective on 1 October 2012.

 

  1. Paragraph (4)(c) amended by section 57 of Act 39 of 2013 effective on 1 October 2012.

 

  1. Paragraph (4)(d) added by section 57 of Act 39 of 2013 effective on 1 October 2012.

 

  1. Paragraph (7)(b) substituted by section 57 of Act 39 of 2013 effective on 1 October 2012.
  1. Paragraph (2)(b) substituted by section 57 of Act 39/2013 with effect from 1 October 2012.

 

  1. Words preceding paragraph (3)(a) substituted by section 57 of Act 39/2013 with effect from 1 October 2012.

 

  1. Paragraph (4)(b) amended by section 57 of Act 39/2013 with effect from 1 October 2012.

 

  1. Paragraph (4)(c) amended by section 57 of Act 39/2013 with effect from 1 October 2012.

 

  1. Paragraph (4)(d) added by section 57 of Act 39/2013 with effect from 1 October 2012.

 

  1. Paragraph (7)(b) substituted by section 57 of Act 39/2013 with effect from 1 October 2012.

Section 163 (TAA) – Preservation order

Posted on by admin_kmos

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.