Section 64 (VAT) – Prices deemed to include tax

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64. Prices deemed to include tax

 

(1)     Any price charged by any vendor in respect of any taxable supply of goods or services shall for the purposes of this Act be deemed to include any tax payable in terms of section 7(1)(a) in respect of such supply; whether or not the vendor has included tax in such price.

 

(2)     The amount of any deposit payable to or refundable by a vendor in respect of a returnable container shall be deemed to include tax.

[Section 64 substituted by section 36 of Act 136 of 1992]

Section 61 (VAT) – Recovery of tax from recipient

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61. Recovery of tax from recipient

(1)     Where in respect of any supply made by a vendor, the vendor has, in consequence of any fraudulent action or any misrepresentation by the recipient of the supply, incorrectly applied a rate of zero per cent or treated such supply as being exempt from tax, the Commissioner may, notwithstanding anything to the contrary contained in this Act, raise an assessment upon the recipient for the amount of tax payable, together with any interest and penalty that has become payable in terms of Chapter 12, 15 or 16 of the Tax Administration Act, as the case may be, in respect of such amount.

[Subsection (1) substituted by section 28 of Act 37 of 1996 and substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(2)     ……….

[Subsection (2) deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(3)     This section shall not be construed as preventing the Commissioner from recovering the amounts of unpaid tax, penalty and interest from the vendor, but in the event of such amounts being recovered from the recipient the vendor shall be absolved from liability for the payment of the amounts due.


62. ……….

[Section 62 amended by section 103 of Act 30 of 1998 and section 105 of Act 53 of 1999 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

63. ……….

[Section 63 amended by section 29 of Act 37 of 1996 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 58 (VAT) – Offences

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58  Offences

(1)     Any person who-

(a)     being an auctioneer or supplier of goods or services wilfully—

(i)      declares to any person to whom goods or services are supplied by such auctioneer or supplier that tax has been included in, or will be added to, the price or amount chargeable in respect of such supply, where in fact no tax is payable in terms of this Act;

(ii)     includes in, or adds to, the price or amount charged to the recipient in relation to such supply any tax, where in fact no tax is payable in terms of this Act; or

(iii)    includes in, or adds to, the price or amount charged to the recipient in relation to such supply any tax in excess of the tax properly leviable under this Act in respect of the value of such supply; or

(b)     wilfully fails to comply with the provisions of paragraph (i) of the proviso to section 20(1) or item (A) of the proviso to section 21(3),

is guilty of an offence and is liable, upon conviction, to a fine or to imprisonment for a period not exceeding two years.

(2)      Any person who-

(a)     wilfully or negligently fails to comply with the provisions of section 14, 28(1) or (2) or 29;

(b)     wilfully or negligently contravenes the provisions of section 65; or

(c)     being an agent or an auctioneer as contemplated in section 54, wilfully or negligently fails to comply with any of the requirements of section 54(3) or the proviso to section 54(5),

is guilty of an offence and is liable, upon conviction, to a fine or to imprisonment for a period not exceeding two years.

[Section 58 amended section 41 of Act 136 of 1991, by section 39 of Act 97 of 1993, by section 25 of Act 46 of 1996, by section 102 of Act 53 of 1999, by section 72 of Act 19 of 2001, by section 173 of Act 60 of 2001, by section 119 of Act 74 of 2002, by section 43 of Act 34 of 2004, by section 42 of Act 32 of 2005, by section 41 of Act 18 of 2009, by section 142(1) of Act 24 of 2011 and by section 271 read with paragraph 142 of Schedule 1 of Act 28 of 2011 and substituted by section 21 of Act 24 of 2020]

59. ……….

[Section 59 amended by section 40 of Act 97 of 1993 and section 103 of Act 53 of 1999 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

60. ……….

 [Section 60 amended by section 50 of Act 27 of 1997 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 55 (VAT) – Records

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55. Records

(1)     In addition to the records required under Part A of Chapter 4 of the Tax Administration Act, every vendor must, in particular, keep the following records and documents:

[Words preceding paragraph (a) substituted by section 271 of Act 271 of Act 28 of 2011 effective on 1 October 2012]

(a)     a record of all goods and services supplied by or to the vendor showing the goods and services, the rate of tax applicable to the supply and the suppliers or their agents, in sufficient detail to enable the goods and services, the rate of tax, the suppliers or the agents to be readily identified by the Commissioner, and all invoices, tax invoices, credit notes, debit notes, bank statements, deposit slips, stock lists and paid cheques relating thereto: Provided that a vendor’s records do not have to show the rate of tax where the vendor has been authorised by the Commissioner to calculate the tax payable by him in accordance with a method prescribed by regulation, as contemplated in section 16(1);

[Paragraph (a) substituted by section 38 of Act 97 of 1993 and section 102 of Act 30 of 1998]


(aA)  a record of all importations of goods and documents relating thereto as contemplated in section 16(2)(d);

[Paragraph (aA) inserted by section 35 of Act 136 of 1992]


(aB)  any documentary proof required to be obtained and retained in accordance with section 16(2)(f) or (g);

[Paragraph (aB) inserted by section 37 of Act 36 of 2007 and substituted by section 29 of Act 16 of 2016 effective on 19 January 2017]


(b)     the charts and codes of account, the accounting instruction manuals and the system and programme documentation which describe the accounting system used in each tax period in the supply of goods and services;


(c)     any list required to be prepared in accordance with section 15 (9); and


(d)     any documentary proof required to be obtained and retained in accordance with section 11(3).

[Subsection (1) amended by section 38 of Act 97 of 1993]

(2)     ……….

[Subsection (2) substituted by section 38 of Act 97 of 1993 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(3)     ……….

[Subsection (3) substituted by section 38 of Act 97 of 1993, amended by section 17 of Act 10 of 2006 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(4)     ……….

[Subsection (4) substituted by section 38 of Act 97 of 1993, amended by section 18 of Act 9 of 2007 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]


56. ……….

[Section 56 repealed by section 23 of Act 46 of 1996]

57. ………..

 [Section 57 substituted by section 24 of Act 46 of 1996, amended by section 47 of Act 27 of 1997, section 172 of Act 60 of 2001 and section 187 of Act 45 of 2003 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 54A (VAT) – Advance Tax Rulings

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54A.    Advance Tax Rulings

 

(1)     The provisions relating to advance tax rulings contained in Part IA of Chapter III of the Income Tax Act, 1962, apply mutatis mutandis for purposes of this Act.

 

(2)     Any procedures and guidelines issued by the Commissioner in terms of section 76S of the Income Tax Act, 1962, for implementation and operation of the advance tax ruling system apply mutatis mutandis for purposes of this Act.

[Section 54A inserted by section 42 of Act 34 of 2004, effective on 1 October 2006]

Section 54 (VAT) – Agents and auctioneers

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54. Agents and auctioneers

(1)     For the purposes of this Act, where an agent makes a supply of goods or services for and on behalf of any other person who is the principal of that agent, that supply shall be deemed to be made by that principal and not by that agent: Provided that, where that supply is a taxable supply and that agent is a vendor, the agent may, notwithstanding anything to the contrary in this Act, issue a tax invoice or a credit note or a debit note in relation to such supply as if the agent had made a taxable supply, and to the extent that that tax invoice or credit note or debit note relates to that supply, the principal shall not also issue a tax invoice or a credit note or a debit note, as the case may be:

Provided further that where an agent issues a tax invoice on behalf of a principal, such tax invoice must be issued within 21 days of the date of that supply by that agent.

[Further proviso added by section 102 of Act 43 of 2014 effective on 1 April 2015]

(2)     For the purposes of this Act, where any vendor makes a taxable supply of goods or services to an agent who is acting on behalf of another person who is the principal for the purposes of that supply, that supply shall be deemed to be made to that principal and not to such agent: Provided that such agent may nevertheless request that he be provided with a tax invoice and the vendor may issue a tax invoice or a credit note or debit note as if the supply were made to such agent.

(2A)

(a)     For the purposes of this Act, where any goods are imported into the Republic by an agent who is acting on behalf of another person who is the principal for the purposes of that importation, that importation shall be deemed to be made by that principal and not by such agent: Provided that a bill of entry or other document prescribed in terms of the Customs and Excise Act in relation to that importation may nevertheless be held by such agent.

(b)     Notwithstanding the provisions of paragraph (a), where any goods are imported into the Republic by an agent who is acting on behalf of another person who is the principal for the purposes of that importation, and-

(i)      the agent is a registered vendor; and

(ii)     the principal is not a resident of the Republic and is not a registered vendor; and

(iii)    the goods are imported by the principal for the purposes of a supply made or to be made by him to a person in the Republic; and

(iv)    the agent obtains and retains documentary proof, as is acceptable to the Commissioner, that-

(aa)   he paid the tax on importation on behalf of that principal; and

(bb)   such agent and that principal agree in writing that the said tax has not and will not be reimbursed to such agent by that principal,

that importation shall for the purposes of this Act be deemed to be made by such agent and not by that principal.

[Paragraph (b) added by section 46 of Act 27 of 1997, the existing subsection (2A) becoming (2A)(a)]

[Subsection (2A) inserted by section 34 of Act 136 of 1992]

(2B)

(a)     For the purposes of this Act, where electronic services are supplied by an intermediary, who is acting on behalf of another person who is the principal for the purposes of that supply, and-

(i)      the intermediary is a vendor;

(ii)      . . . . . .

[Subparagraph (ii) deleted by section 47(1)(a) of Act 5 of 2026 effective on 1 April, 2026]

(iii)    the electronic services are supplied or to be supplied by the principal to a person in the Republic,

that supply shall be deemed to be made by such intermediary and not by that principal where the principal and intermediary agree, in writing, to treat that supply as if made by the intermediary.

(b)     Subject to the provisions of section 46, where the intermediary and principal agree to treat that supply as contemplated in paragraph (a) as if made by the intermediary, the principal and intermediary shall be held jointly and severally liable for performing the duties of the principal or intermediary under this Act and paying the tax imposed by this Act in respect of the taxable supplies made under such agreement.

[Subsection (2B) inserted by section 12(1) of Act 21 of 2018 and substituted by section 51(1) of Act 42 of 2024 effective on 1 April, 2025]

(2C)   For the purposes of this Act, where gold is supplied as contemplated in section 11(1)(f) or where gold or silver is exported from the Republic in the circumstances contemplated in paragraph (a) or (d) of the definition of “exported” in section 1(1) and, in the case of gold, in accordance with section 12 of the of the Precious Metals Act, 2005 (Act 37 of 2005), by an agent who is acting on behalf of another person who is the principal for the purposes of that supply and—

(Wording as per Act 17 of 2023 and Act 5 of 2026 where the words “of the” are duplicated after the phrase “section 12”.)

(a)     the agent is a registered vendor; and

(b)    the principal is a resident of the Republic and a registered vendor,

the agent must obtain and retain documentary proof as is acceptable to the Commissioner: Provided that the agent will-

(aa)   not be required to provide the principal with copies of the documentary evidence as prescribed; and

(bb)   be liable to account for output tax in the event that the agent is not in possession of the requisite documents, other than zero-rated tax invoices in circumstances where the principal supplied its gold or silver directly to the purchaser, to substantiate the application of the zero rate in respect of supplies made by the agent on behalf of a principal.

[Subsection (2C) inserted by section 52(1) of Act 17 of 2023 and substituted by section 47(1)(b) of Act 5 of 2026 effective on 1 April, 2026]

(3)     Where-

(a)     a tax invoice or a credit note or debit note in relation to a supply has been issued-

(i)    by an agent as contemplated in subsection (1); or

(ii)   to an agent as contemplated in subsection (2); or

(b)     a bill of entry or other document prescribed in terms of the Customs and Excise Act in relation to the importation of goods is held by an agent as contemplated in subsection (2A),

the agent shall maintain sufficient records to enable the name, address and VAT registration number of the principal to be ascertained, and in respect of all-

(i)      supplies made on or after 1 January 2000 by or to the agent on behalf of the principal, the agent shall notify the principal in writing by means of a statement within 21 days of the end of the calendar month during which the supply was made or received of the particulars contemplated in paragraphs (e), (f) and (g) of section 20(4) in relation to such supplies; or

(ii)     goods imported by the agent on behalf of the principal, the agent shall notify the principal in writing by means of a statement within 21 days of the end of the calendar month during which the goods were imported of the full and proper description of the goods, the quantity or volume of the goods, the value of the goods imported and the amount of tax paid on importation of the goods, together with the receipt number of the payment of such tax.

[Words following paragraph (b) substituted by section 102 of Act 43 of 2014 effective on 1 April 2015]

[Subsection (3) substituted by section 34 of Act 136 of 1992 and amended by section 100 of Act 53 of 1999 and section 51 of Act 16 of 2004]

(4)     For the purposes of subsection (5), the expression “auctioneer” means a vendor carrying on an enterprise which comprises or includes the supply by him by auction, of goods as an auctioneer or agent for or on behalf of another person (hereinafter in this section referred to as a principal) and includes an agent, fresh produce agent and livestock agent as defined in section 1 of the Agricultural Produce Agents Act, 1992 (Act No. 12 of 1992).

[Subsection (4) substituted by section 40 of Act 136 of 1991 and section 100 of Act 53 of 1999]

(5)     Notwithstanding anything in the preceding provisions of this section, where the principal and the auctioneer agree to have a supply by auction of any goods, other than a taxable supply, treated as if that supply were made by the auctioneer and not by the principal, the supply shall be charged with tax as if it were made by the auctioneer in the course or furtherance of the auctioneer’s enterprise and the auctioneer may-

(a)     recover the amount of tax charged on that supply from that principal as a debt together with the costs of recovery in any court of competent jurisdiction; or

(b)     retain or deduct such amount and costs out of any money in the auctioneer’s hands belonging or payable to the principal:

Provided that the auctioneer or agent shall maintain the records contemplated in section 20(8) as if the principal made a supply of second-hand goods to him, not being a taxable supply.

[Subsection (5) amended by section 100 of Act 53 of 1999]

(6)     Notwithstanding anything in subsection (2), where any vendor makes a taxable supply (other than a supply that is charged with tax at the rate of zero per cent under section 11) of goods or services to an agent who is a vendor and is acting for or on behalf of another person who is the principal for the purposes of that supply, and-

(a)     the principal is not a resident of the Republic and is not a vendor; and

(b)

(i)      the supply is directly in connection with either the exportation, or the arranging of the exportation, of goods from the Republic to any country or place outside the Republic, or the importation, or the arranging of the importation, of goods to the Republic from any country or place outside the Republic, including, in either case, the transportation of those goods within the Republic as part of such exportation or importation, as the case may be; or

[Subparagraph (i) substituted by section 25 of Act 20 of 1994]

(ii)     the supply is of services which comprise the handling, pilotage, salvage or towage of any foreign-going ship or foreign-going aircraft while present in the Republic or is of services provided in connection with the operation or management of any foreign-going ship or foreign-going aircraft,

[Subparagraph (ii) substituted by section 25 of Act 20 of 1994]

this Act shall, where such agent and such principal agree, apply as if the supply were made to that agent and not to the principal.

Section 53 (VAT) – Death or insolvency of vendor

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53. Death or insolvency of vendor

(1)


(a)     Where, after the death of any vendor or the sequestration of his estate, any enterprise previously carried on by the vendor continues to be carried on by or on behalf of the executor or trustee of his estate or anything is done in connection with the termination of the enterprise, the estate of the vendor, as represented by the executor or trustee, as the case may be, shall for the purposes of this Act be deemed to be a vendor in respect of the enterprise.

(b)     Where the provisions of paragraph (a) are applicable, the deceased vendor and his estate or the vendor whose estate is sequestrated and his estate, as the case may be, shall, as respects the enterprise in question, be deemed for the purposes of this Act to be one and the same person.

(2)     Where a mortgagee is in possession of any land or other property previously mortgaged by the mortgagor, being a vendor, and the mortgagee carries on any enterprise of the mortgagor in relation to such land or other property, the mortgagee shall, from the date on which the mortgagee took possession of that land or other property, until such time as the mortgagee ceases to be in possession of that land or other property, be deemed, to the extent that the mortgagee carries on such enterprise, to be a vendor.

Section 52 (VAT) – Pooling arrangements

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52. Pooling arrangements

(1)     Any pool managed by any body for the sale of agricultural, pastoral or other farming products, being a pool contemplated in section 17 of the Marketing of Agricultural Products Act, 1996 (Act No. 47 of 1996) may on written application by such body, for the purposes of this Act be deemed to be an enterprise or part of an enterprise carried on by that body separately from the members of such body: Provided that such body may-

(i)      elect in writing that the pool be treated as a separate enterprise for the purposes of this Act and may apply for such pool to be registered separately in terms of section 50; and

(ii)   notwithstanding the provisions of section 54(1) and (2), if it makes an election in writing, be treated for the purposes of this Act as a principal and not as an agent of its members.

[Subsection (1) amended by section 45 of Act 27 of 1997 and substituted by section 171 of Act 60 of 2001]

(2)     Notwithstanding the provisions of section 54, any rental pool scheme operated and managed by any person for the benefit of some or all of-

(a)     the owners of time-sharing interests in a property time-sharing scheme as defined in section 1 of the Property Timesharing Control Act, 1983 (Act 75 of 1983);

(b)     the owners of sectional title interests in a sectional title scheme as defined in section 1 of the Sectional Title Act, 1986 (Act No. 95 of 1986); or

(c)     the shareholders in a Shareblock Company as defined in section 1 of the Shareblocks Control Act, 1980 (Act No 59 of 1980), is regarded for the purposes of this Act as a separate enterprise carried on by such person separately from the owners and shall be registered separately under section 50: Provided that-

(i)    the owners or shareholders must elect in writing that the rental pool be treated separately; and

(ii)     such a rental pool scheme is, notwithstanding the provisions of section 54(1) and (2), treated for the purposes of this Act as a principal and not as an agent of the owners or shareholders.

[Subsection (2) substituted by section 171 of Act 60 of 2001]

(3)

(a)     Any pool managed by any person for the benefit of the members of the pool, not being a pool contemplated in subsections (1) and (2), may on written application by such person or pool, for the purposes of this Act, be deemed to be an enterprise carried on by that person separately from the members of such pool: Provided that—

(i)      the pooling arrangement is established as a manner of compliance with the provisions of the laws of the Republic or regulations or rules promulgated by a professional body;

(ii)     such person or pool must elect in writing that the pool be treated as a separate enterprise for the purposes of this Act and must apply for such pool to be registered separately in terms of section 50; and

(iii)    notwithstanding the provisions of section 54(1) and (2), the pool shall be treated for the purposes of this Act as a principal and not as an agent of the members of such pool.

(b)     Failure to comply with the provisions of this Act will result in the pooling arrangement and members of such pooling arrangement being held jointly and severally liable for any VAT loss suffered by the fiscus.

[Section 52 substituted by section 39 of Act 136 of 1991. Subsection (3) added by section 33(1) of Act 20 of 2022 effective on 1 January, 2023]

[Section 52 substituted by section 39 of Act 136 of 1991]