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.