Section 41 (VAT) – Liability in respect of certain past supplies or importations

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41. Liability for tax in respect of certain past supplies or importations

Notwithstanding anything to the contrary in this Act (other than the provisions of section 41B)-

(a)     no amount of tax otherwise properly chargeable and payable by any person or not deductible by him under this Act, shall be recoverable by the Commissioner in respect of any past supply of goods or services or any past importation of goods if, in terms of a general written ruling by the Commissioner or a general oral ruling given by him prior to 9 July 1993 which had not been withdrawn by him at the time at which the said person became contractually obliged to supply or receive such goods or services, as the case may be, no tax was payable or a deduction was allowed in respect of such supply or importation;

[Paragraph (a) substituted by section 36 of Act 97 of 1993 and section 98 of Act 30 of 1998]

(b)     no further amount of tax shall be recoverable by the Commissioner in respect of or in relation to any past supply of goods or services or any past importation of goods if, in terms of a general written ruling by the Commissioner or a general oral ruling given by him prior to 9 July 1993 which had not been withdrawn by him at the time of such supply or importation, the tax payable or deductible in respect of such supply or importation had been calculated and paid or had been deducted in accordance with such ruling, as the case may be;

[Paragraph (b) substituted by section 36 of Act 97 of 1993 and section 98 of Act 30 of 1998]

(c)     where any written decision or, prior to 9 July 1993 an oral decision has been given by the Commissioner-

(i)      to the effect that any person is required or not required to be registered as a vendor in terms of the provisions of this Act; or

(ii)     as to the taxable or non-taxable nature of any supply of goods or services by any person or of the importation of goods by any person (including any decision as to the applicability of any exemption or rate of zero per cent) or as to the deductibility or non-deductibility in terms of section 16(3) of tax in respect of the supply to any person of goods or services or the importation by any person of goods,

and such decision is subsequently withdrawn, such withdrawal shall, as respects any contractual obligation incurred in accordance with the decision given by the Commissioner by the person concerned before such withdrawal to supply or receive the goods or services concerned, not affect the liability or non-liability of that person for the payment of tax in accordance with such decision or his entitlement or otherwise to a deduction of tax, as determined in accordance with such decision, as the case may be, provided such decision was accepted by the said person and all the material facts were known to the Commissioner when the decision was given:

[Paragraph (c) amended by section 36 of Act 97 of 1993 and substituted by section 98 of Act 30 of 1998]

: Provided further that paragraphs (a), (b) and (c) shall not apply to-

(i)      a written decision or a general written ruling issued by the Commissioner prior to 1 January 2007 in respect of supplies which are or will be made or goods imported on or after 1 January 2007, except to the extent that the Commissioner prescribes in writing that the written decision or the general written ruling has binding effect on or after that date; or

(ii)     a written decision or a general written ruling issued by the Commissioner on or after 1 January 2007.

[Further proviso added by section 16 of Act 9 of 2007 with effect from 1 January 2007]

[Section 41 amended by section 39(1)(a) of Act 21 of 2006, by section 16(1) of Act 9 of 2007 and by section 11 of Act 22 of 2018]

41A.    ……….

[Section 41A inserted by section 40 of Act 21 of 2006 with effect from 1 January 2007 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 40D (VAT) – Liability for tax and limitation of refunds in respect of National Housing Programmes

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40D.  Liability for tax and limitation of refunds in respect of National Housing Programmes

(1)     This section applies in respect of the supply of services deemed to be made by the vendor in terms of section 8(23) which services were supplied before 1 April 2017.

(2)     Where the Commissioner issued any assessment relating to tax periods ending before 1 April 2017 for an amount of tax or additional tax in respect of any supply of services as contemplated in subsection (1) in respect of application of the provisions as contemplated in section 11(2)(s) in respect of that supply, the Commissioner must, on written application by the vendor, amend that assessment to the extent that the amount of tax, additional tax, penalty or interest that arose as a result of that assessment has not yet been paid on that date: Provided that the assessment does not result in a refund to the vendor.

(3)     The Commissioner may not make any assessment for tax periods ending before 1 April 2017 in respect of the deemed supply of services contemplated in subsection (1).

(4)     If the vendor has charged tax at the rate referred to in section 7(1) instead of the rate of tax in terms of section 11(2)(s) in respect of the supply contemplated in subsection (1), the Commissioner may not refund any such tax or any penalty or interest that arose as a result of the late payment of such tax, paid by the vendor to the Commissioner.

[Section 40D inserted by section 85 of Act 17 of 2017 effective on 1 April 2017]

Section 40C (VAT) – Liability of bargaining councils or political parties for tax and limitations of refunds

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40C.  Liability of bargaining councils or political parties for tax and limitation of refunds

 

(1)     This section applies in respect of the supply of goods or services contemplated in section 12(l) or (m) before 1 January 2013, by any bargaining council or political party, as the case may be.

 

(2)     Where the Commissioner before 1 January 2013, issued an assessment to levy tax at the rate referred to in section 7(1) in respect of any supply of goods or services contemplated in subsection (1), the Commis­sioner must, on written application, reduce that assessment to the extent that the amount of tax, additional tax, penalty or interest in respect of that assessment was not yet paid on that date: Provided that the reduced assessment will not result in a refund to that bargaining council or political party.

 

(3)     The Commissioner may not after 1 January 2013 make any assessment in respect of any supply of goods or services contemplated in subsection (1).

 

(4)     If a bargaining council or political party charged tax at the rate referred to in section 7(1) in respect of any supply contemplated in subsection (1), the Commissioner may not refund any such tax or any penalty or interest that arose as a result of the late payment of such tax, received or accrued from that bargaining council or political party to the Commissioner.

[Section 40C inserted by section 151 of Act 22 of 2012 effective on 1 January 2013]

Section 39 (VAT) – Penalty for failure to pay tax when due

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39. Penalty for failure to pay tax when due

[Heading of section 39 substituted by section 271 of Act 28 of 2011 effective on 1 October 2012 except to the extent related to interest in respect of which the wording prior to the amendment applies]

 

(1)     If any person who is liable for the payment of tax and is required to make such payment in accordance with the provisions of section 14, 28(1) or 29, fails to pay any amount of such tax within the period for the payment of such tax specified in the said provisions, the Commissioner must, in accordance with Chapter 15 of the Tax Administration Act, impose a penalty equal to 10 per cent of the said amount of tax.

[Subsection (1) amended by section 30 of Act 136 of 1992 and section 3 of Act 61 of 1993 and substituted by section 271 of Act 28 of 2011 effective on 1 October 2012 except to the extent related to interest in respect of which the wording prior to the amendment applies]

 

 (2)    ………..

[Subsection (2) amended by section 3 of Act 61 of 1993 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012 except to the extent related to interest in respect of which the wording prior to the amendment applies]

 

(3)     If any person who is liable for the payment of tax in accordance with the provisions of section 8(2C) or 8(2D) fails to pay any amount of such tax within the period allowed for the payment of such tax in terms of that section, the person shall, in addition to such amount of tax, pay where payment of the said amount of tax is made on or after the first day of the month following the month during which the period allowed for payment of the tax ended, interest on the said amount of tax, calculated at the prescribed rate (but subject to the provisions of section 45A) for each month or part of a month in the period reckoned from the said first day.

[Subsection (3) amended by section 3 of Act 61 of 1993, deleted by section 105 of Act 32 of 2004 and inserted by section 114 of Act 60 of 2008 effective on 1 March 2009]

 

(4)     Where any importer of goods which are required to be entered under the Customs and Excise Act, fails to pay any amount of tax payable in respect of the importation of the goods on the date on which the goods are entered under the said Act for home consumption in the Republic or the date on which customs duty is payable in terms of the said Act in respect of the importation or, if such duty is not payable, the date on which it would be so payable if it had been payable, whichever date is later, the Commissioner must, in accordance with Chapter 15 of the Tax Administration Act, impose on that importer a penalty equal to 10 per cent of the said amount of tax.

[Subsection (4) substituted by section 37 of Act 136 of 1991, amended by section 3 of Act 61 of 1993, deleted by section 40 of Act 27 of 1997, inserted by section 184 of Act 45 of 2003 and substituted by section 271 of Act 28 of 2011 effective on 1 October 2012 except to the extent related to interest in respect of which the wording prior to the amendment applies]

 

(5)     Where any person who is liable for the payment of tax fails to pay any amount of such tax on the date on which in terms of the Customs and Excise Act, liability arises for the payment of the excise duty or environmental levy referred to in section 7(3)(a), the Commissioner must, in accordance with Chapter 15 of the Tax Administration Act, impose on that person a penalty equal to 10 per cent of the said amount of tax.

[Subsection (5) substituted by section 37 of Act 136 of 1991, amended by section 3 of Act 61 of 1993, deleted by section 166 of Act 60 of 2001, inserted by section 50 of Act 16 of 2004 and substituted by section 22 of Act 9 of 2005 and by section 271 of Act 28 of 2011 effective on 1 October 2012 except to the extent related to interest in respect of which the wording prior to the amendment applies.]

 

(6)     ……….

[Subsection (6) amended by section 3 of Act 61 of 1993 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

 

(7)     ……….

[Subsection (7) substituted by section 23 of Act 20 of 1994 and section 40 of Act 27 of 9, amended by section 50 of Act 16 of 2004, section 105 of Act 32 of 2004 and section 114 of Act 60 of 2008, substituted by section 39 of Act 18 of 2009 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012 except to the extent related to interest in respect of which the wording prior to the amendment applies]

 

(8)     Notwithstanding anything to the contrary in this section, the Commissioner may prescribe, by notice in the Gazette, that any interest on any outstanding amount payable in terms of this Act, is calculated on the daily balance owing and compounded monthly from such date and for such period as the Commissioner may prescribe.

[Subsection (8) deleted by section 184 of Act 45 of 2003 and added by section 39 of Act 18 of 2009]

[Subsection (8) to be deleted by section 271 of Act 28 of 2011 with effect from a date determined by the President by proclamation in the Gazette]

 

40. ……….

[Section 40 amended by section 31 of Act 136 of 1992 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

 

40A.  ……….

[Section 40A inserted by section 23 of Act 9 of 2005 and repealed by section 100 of Act 43 of 2014 effective on 20 January 2015]

 

40B.    ……….

[Section 40B inserted by section 51 of Act 9 of 2006 and repealed by section 101 of Act 43 of 2014 effective on 20 January 2015]

Section 38 (VAT) – Manner in which tax shall be paid

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38. Manner in which tax shall be paid

 

(1)     Subject to the provisions of section 7(3)(d) and section 13(5) and (6), the tax payable under this Act must be paid in full within the time allowed by section 14 or section 28 or section 29, whichever is applicable.

[Subsection (1) substituted by section 165 of Act 60 of 2001and section 39 of Act 32 of 2005]

 

(2)     Where the Commissioner is satisfied that due to circumstances beyond the control of the person liable for the payment of the tax the amount of tax due cannot be accurately calculated within the time allowed by section 14 or section 28 or section 29, whichever is applicable, the Commissioner may in his or her discretion and subject to such conditions as he or she may impose, agree to accept a payment of a deposit by such person of an amount equal to the estimated liability of such person for such tax.

[Subsection (2) substituted by section 39 of Act 32 of 2005]

 

(3)     Such payment shall be deemed to be a provisional payment in respect of the liability of the said person for such tax, as finally determined, and when such liability is so determined any amount paid in excess shall be refundable to such person and any amount short-paid shall be recoverable from him.

Section 32 (VAT) – Objections to certain decisions

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32. Objections to certain decisions

[Heading of section 32 substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(1)     The following decisions of the Commissioner are subject to objection and appeal:

(a)     any decision given in writing by the Commissioner-

(i)      in terms of section 23(7) notifying that person of the Commissioner’s refusal to register that person in terms of this Act;

(ii)     in terms of section 24(6) or (7) notifying that person of the Commissioner’s decision to cancel any registration of that person in terms of this Act or of the Commissioner’s refusal to cancel such registration; or

(iii)  ……….

(iv)  refusing to approve a method for determining the ratio contemplated in section 17(1); or

(b)     ……….

(c)     any decision made by the Commissioner and served on that person in terms of section 50A(3) or (4).

[Subsection (1) amended by section 38 of Act 27 of 1997, section 97 of Act 30 of 1998, section 95 of Act 53 of 1999 and section 15 of Act 9 of 2007 and substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(2)     ……….

[Subsection (2) substituted by section 182 of Act 45 of 2003 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(3)     ……….

[Subsection (3) substituted by section 159 of Act 60 of 2001 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(4)     ……….

[Subsection (4) substituted by section 159 of Act 60 of 2001 and section 15 of Act 9 of 2007 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(5)     ……….

[Subsection (5) substituted by section 159 of Act 60 of 2001 and section 15 of Act 9 of 2007 and deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

33. ……….

[Section 33 amended by section 35 of Act 136 of 1991, section 160 of Act 60 of 2001, section 183 of Act 45 of 2003, section 34 of Act 36 of 2007, and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

34. ……….

[Section 34 amended by section 162 of Act 60 of 2001 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

35. ……….

[Section 35 substituted by section 163 of Act 60 of 2001 and repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

 36. ……….

[Section 36 substituted by section 2 of Act 61 of 1993, amended by section 18 of Act 140 of 1993, section 22 of Act 20 of 1994, s.33 of Act 37 of 1996, section 39 of Act 27 of 1997 and section 164 of Act 60 of 2001, substituted by section 38 of Act 18 of 2009 effective on 1 February 2011 – substitution repealed by section 271 (Schedule 1 paragraph 196) of Act 28 of 2011 effective on 1 October 2012 – and repealed by section 271 (Schedule 1 paragraph 127) of Act 28 of 2011 effective on 1 October 2012]

37. ……….

[Section 37 repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]

Section 31 (VAT) – Assessments

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31. Assessments

(1)     The Commissioner may make an assessment of the amount of tax payable by-

(a)     ………

(b)     ………

(c)     ………


(d)     any person, not being a vendor, that supplies goods or services and represents that tax is charged on that supply; or

(e)     any vendor that supplies goods or services and such supply is not a taxable supply or such supply is a taxable supply in respect of which tax is chargeable at a rate of zero per cent, and in either case that vendor represents that tax is charged on such supply at a rate in excess of zero per cent;

(f)     any person who holds himself or herself out as a person entitled to a refund or who produces, furnishes, authorises, or makes use of any tax invoice or document or debit note and has obtained any undue tax benefit or refund under the provisions of any regulation referred to in paragraph (d) of the definition of ‘exported’ in section 1, to which such person is not entitled.

[Paragraph (f) substituted by section 28 of Act 44 of 2014 effective on 20 January 2015]

[Subsection (1) amended by section 180 of Act 45 of 2003, section 41 of Act 34 of 2004, section 38 of Act 32 of 2005 and section 87 of Act 20 of 2006 and substituted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(2)     For the purposes of subsection (1), the person liable for the payment of any amount of tax assessable by the Commissioner shall be-

(a)     ……….

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

(b)     where the provisions of section 29 are applicable-

(i)      the seller referred to in that section, unless the provisions of subparagraph (ii) are applicable; or

(ii)   the owner referred to in that section, if the said seller holds a written statement contemplated in section 8(1)(b) furnished by the said owner and that written statement is incorrect; or

(c)     where subsection (1) (d) is applicable, the person referred to in that provision; or

(d)     where subsection (1) (e) is applicable, the vendor referred to in that provision.

(3)     ……….

[Subsection (3) deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(4)     The Commissioner must give a notice of assessment, and-

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

(a)     where the assessment is made on a seller referred to in subsection 2 (b) (i), send a copy of that notice of assessment to the owner referred to in that subsection; or

(b)     where the assessment is made on an owner referred to in subsection (2) (b) (ii), send a copy of that notice of assessment to the seller referred to in that subsection.

(5)     ……….

[Subsection (5) deleted by section 271 of Act 28 of 2011 effective on 1 October 2012]

(6)     For the purposes of this section, Part II, Part VI and sections 58, 59, 60 and 61–

(a)     the person referred to in subsection (1) (d) shall be deemed to be a vendor; and

(b)     any tax represented to be charged on any supply referred to in subsection (1) (d) or (1) (e) shall be deemed to be tax payable by the vendor concerned and the amount thereof as assessed under this section shall be paid within the period allowed by the Commissioner.

Section 29 (VAT) – Special returns

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29. Special records and payments

Where goods are deemed by section 8(1) to be supplied in the course of an enterprise the person selling the goods (hereinafter referred to as the seller), whether or not the seller is a vendor, shall, within the period of 30 days after the date on which the sale was made-

(a)     obtain and retain the following information in the manner prescribed by the Commissioner:


(i)      the name and address of the seller and, if registered as a vendor, his or her VAT registration number;


(ii)     the name and address of the person whose goods are sold (hereinafter referred to as the owner) and, if the owner is registered under this Act, the VAT registration number of the owner;


(iii)    the date of the sale;


(iv)    the description and quantity of the goods sold; and


(v)     the selling price of the goods and the amount of tax charged in respect of the supply of goods under the sale, being the tax leviable in respect of such supply under section 7(1)(a);

[Paragraph (a) amended by section 49 of Act 16 of 2004 and by section 271 read with paragraph 122 of Schedule 1 of Act 28 of 2011 and substituted by section 10(b) of Act 22 of 2018]

(b)     pay to the Commissioner the amount of tax so charged; and


(c)     send or deliver to the owner a copy of the document reflecting the information referred to in paragraph (a),

[Paragraph (c) substituted by section 10(c) of Act 22 of 2018]

and the seller and the owner shall exclude from any return which the seller or owner is required to furnish under section 28 the tax charged on the supply of goods under the sale contemplated in this section.

[Section 29 amended by section 10(a) and(d) of Act 22 of 2018]

30. ……….

[Section 30 repealed by section 271 of Act 28 of 2011 effective on 1 October 2012]