Section 6 (SDL) – Payment of levy to Commissioner and refund

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6       Payment of levy to Commissioner and refund

(1)     Subject to section 7, every employer must, not later than seven days, or such longer period as the Commissioner determines, after the end of each month in respect of which the levy is payable, pay the levy to the Commissioner.

[Subsection (1) substituted by section 271 read with paragraph 150(a) of Schedule 1 of Act 28 of 2011 and by section 18 of Act 13 of 2017]

(1A)   Notwithstanding the provisions of subsection (1), if an employer is a micro business that is registered in terms of the Sixth Schedule to the Income Tax Act, the employer may pay the levy to the Commissioner within the periods as prescribed in paragraph 11(4A) of the Sixth Schedule to that Act.

[Subsection (1A) inserted by section 23(1)(a) of Act 39 of 2013 effective on 1 March, 2014 and applicable in respect of tax periods commencing on or after that date]

(2)     An employer must together with payment of the levy in terms of subsection (1) or (1A), submit a return.

[Subsection (2) substituted by section 271 read with paragraph 150(b) of Schedule 1 of Act 28 of 2011 and by section 23(1)(b) of Act 39 of 2013 effective on 1 March, 2014 and applicable in respect of tax periods commencing on or after that date]

(2A)    Every employer shall—

(a)     by such date or dates as prescribed by the Commissioner by notice in the Gazette; and

(b)     if the employer ceases to carry on any business or other undertaking in respect of which the employer has paid or becomes liable to pay a levy as prescribed in terms of section 3, or otherwise ceases to be an employer, within 14 days after the date on which the employer has so ceased to carry on that business or undertaking or to be an employer, as the case may be,

or within such longer time as the Commissioner may approve, render to the Commissioner such return as the Commissioner may prescribe.

[Subsection (2A) inserted by section 43 of Act 18 of 2009]

(3)     . . . . . .

[Subsection (3) deleted by section 30(a) of Act 23 of 2015]

(4)     If the Director-General has allocated in accordance with section 8 the full amount or any portion of an amount, refunded in terms of section 190 of the Tax Administration Act, the Director-General must, when necessary, withhold the amount so allocated from future payments due to the SETA or National Skills Fund, as the case may be, in terms of this Act.

[Subsection (4) substituted by section 30(b) of Act 23 of 2015]

(5)     The Commissioner must, before the seventh day of each month, or such longer period as the Commissioner and Director-General may agree, notify the Director-General of—

(a)     the names of employers in each SETA and the amount of levies, interest and penalties collected from and refunds made to those employers; and

(b)     the names of employers which do not fall within the jurisdiction of any SETA and the amount of levies, interest and penalties collected from and refunds made to those employers,

during the previous month.

[Subsection (5) amended by section 76 of Act 19 of 2001]

(6)     The Commissioner may refuse to authorise a refund under section 190 of the Tax Administration Act, if the employer has failed to submit a return, as required in terms of subsection (2), until the employer has submitted such return.

[Subsection (6) added by section 22 of Act 24 of 2020]

Section 7 (SDL) – Payment of levy to SETA and refund

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7        Payment of levy to SETA and refund

(1)     Subject to subsection (2), the Minister may, in consultation with the Minister of Finance and by notice in the Gazette, determine that all employers that fall within the jurisdiction of any SETA specified in that notice, must pay the levy to—

(a)     that SETA; or

(b)     a body nominated by the SETA and approved by the Minister to collect the levy on behalf of that SETA.

(2)     Before making a determination contemplated in subsection (1), the Minister and the Minister of Finance must be satisfied that—

(a)     sufficient grounds exist for the SETA to collect the levy from the employers in its jurisdiction;

(b)     the SETA, or the body nominated by the SETA to collect the levy on its behalf, has demonstrated the required competence to collect the levy; and

(c)     the costs pertaining to such collection will not exceed two per cent of the total amount of the levies collected.

(3)     The Minister may withdraw the notice contemplated in subsection (1) if he or she is satisfied that the SETA has not complied in the prescribed manner with section 10(1)(a), (b), (g)(iii) and (h)(ii) of the Skills Development Act.

(4)     An employer must, not later than seven days after the end of each month in respect of which the levy is payable—

(a)     pay the levy; and

(b)     submit to the SETA or approved body and to the Commissioner a statement—

(i)      in such form as the SETA or approved body, as the case may be, and the Commissioner, respectively, may require; and

(ii)     reflecting the amount of the levy paid to the SETA or approved body and containing such other information as the SETA or approved body, as the case may be, and the Commissioner may require.

(5)     If the amount of a levy, interest or penalty paid by an employer to the SETA or approved body was not leviable or payable, or was in excess of the amount leviable or payable, in terms of this Act, that amount must be refunded to the employer by the SETA or approved body from the funds of the SETA—

(a)     within five years from the date on which the payment was made in terms of the Act; or

(b)     if that amount is claimed by the employer within the period referred to in paragraph (a), but not paid by the SETA or approved body within that period.

[Subsection (5) substituted by section 22 of Act 33 of 2019]

(6)     If any portion of the amount refunded in terms of subsection (5), has been paid over to the National Skills Fund in terms of section 3(a), the SETA must withhold that portion from future payments to the Fund in terms of this Act.

Section 8 (SDL) – Distribution of levies paid to Commissioner

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8       Distribution of levies paid to Commissioner

 

(1)     The levies, interest and penalties collected by the Commissioner, after deduction of refunds, must be paid into the National Revenue Fund.

 

(2)     Subject to section 6(4), the total amount of levies, interest and penalties paid into the National Revenue Fund in terms of subsection (1), is a direct charge against the National Revenue Fund for the credit of—

 

(a)     the SETA to the amount contemplated in subsection (3)(b);

 

(b)     the National Skills Fund to the amount contemplated in subsection (3)(a) and (c).

 

(3)     The Director-General must, within 14 days after receipt of a notice from the Commissioner in terms of section 6(5), allocate—

 

(a)     20 per cent of the levies, interest and penalties collected in respect of a SETA to the National Skills Fund;

 

(b)     80 per cent of the levies, interest and penalties collected in respect of a SETA to that SETA after he or she is satisfied that the SETA has complied in the prescribed manner with section 10(1)(a), (b), (g)(iii) and (h)(ii) of the Skills Development Act;

 

(c)     the levies, interest and penalties collected by the Commissioner from employers which do not fall within the jurisdiction of a SETA to the National Skills Fund.

 

(4)     The levies, interest and penalties allocated to a SETA in terms of subsection (3)(b) must be dealt with in accordance with section 14 of the Skills Development Act.

Section 9 (SDL) – Distribution of levies paid to SETA

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9       Distribution of levies paid to SETA

 

Subject to section 10(3), the executive officer of a SETA or its approved body, as the case may be, must—

 

(a)     not later than the 15th day of each month, pay 20 per cent of the levies collected by that SETA in terms of section 7(1), and of any interest and penalties collected in respect thereof, to the National Skills Fund;

 

(b)     deal with the balance of the levies, interest and penalties so collected in accordance with section 14 of the Skills Development Act.

Section 10 (SDL) – Collection costs

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10     Collection costs

 

(1)     Subject to subsection (2), the Director-General must, on a monthly basis as may be agreed between by the Commissioner and the Director-General, defray the costs of collection by the Commissioner from the levies paid into the National Skills Fund.

 

(2)     The total amount of collection costs referred to in subsection (1), excluding the start-up capital costs, may not exceed two per cent of the total amount of the levies calculated at the rate referred to in section 3(1)(b).

 

(3)     Subject to subsection (4), a SETA or its approved body may withhold from its payment to the National Skills Fund in accordance of section 3(a), the cost of collection of the SETA or approved body.

 

(4)     The total amount of collection costs referred to in subsection (3) may not exceed two per cent of the total amount of the levies collected.

Section 11 (SDL) – Interest on late payment

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11     Interest on late payment

 

(1)     If an employer fails to pay a levy or any portion thereof on the last day for payment thereof, as contemplated in section 6(1), (1A) or 7(4), interest is payable on the outstanding amount at the rate contemplated in paragraph (b) of the definition of “prescribed rate” in section 1 of the Income Tax Act, calculated from the day following that last day for payment to the day that payment is received by the Commissioner, SETA or approved body, as the case may be.

[Subsection (1) substituted by section 23 of Act 33 of 2019]

 

(2)     The Commissioner may prescribe by notice in the Gazette that any interest payable in terms of this section be calculated on the daily balance owing and compounded monthly, and such method of determining interest will apply from such date as the Commissioner may prescribe.

[Section 11 substituted by section 123 of Act 74 of 2002 and by section 45 of Act 18 of 2009]

Section 12 (SDL) – Penalties on default

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12     Penalties on default

 

(1)     Subject to subsection (2), if any levy remains unpaid after the last day for payment thereof as contemplated in section 6(1), (1A) or 7(4), the Commissioner must, under Chapter 15 of the Tax Administration Act, impose a penalty of 10 per cent of that unpaid amount.

[Subsection (1) substituted by section 113 of Act 53 of 1999, by section 271 read with paragraph 153(a) of Schedule 1 of Act 28 of 2011 and by section 24 of Act 33 of 2019]

 

(2)     The Commissioner or the executive officer of the SETA or approved body, as the case may be, may remit the penalty or any portion thereof imposed by subsection (1) in accordance with the provisions of Chapter 15 of the Tax Administration Act.

 

 

13     . . . . . .

[Section 13 amended by section 93(1) of Act 30 of 2000, by section 70(1)(c) of Act 59 of 2000, by section 70(1)(e) of Act 59 of 2000 and repealed by section 271 read with paragraph 154 of Schedule 1 of Act 28 of 2011]

Section 14 (SDL) – Recovery of levy

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CHAPTER 2
RECOVERY OF LEVY BY SETA

 

14     Recovery of levy

 

(1)     A levy payable by an employer in terms of section 7(1) to a SETA or its approved body is regarded to be a debt due to the SETA.

 

(2)     If an employer—

 

(a)     fails to submit a statement in respect of the amount of levies due as contemplated in section 7(4)(b); or

 

(b)     submits a statement reflecting an amount which, in the opinion of the executive officer of the SETA or approved body, as the case may be, is less than the amount which is due in terms of this Act,

 

the executive officer of the SETA or approved body, as the case may be, may estimate the amount of the levy due and issue an assessment for the outstanding amount.

 

(3)     If any amount of the levy payable by an employer to a SETA in accordance with section 7(1), or any interest or penalty in respect thereof, remains unpaid on the last day for payment thereof as contemplated in sections 7(4)(a), 11 and 12, respectively, the SETA or approved body, as the case may be, may, despite any law to the contrary, recover the outstanding amount by action in a magistrate’s court having jurisdiction in the area in which the person liable for the levy, interest or penalty carries on business.

Section 15 (SDL) – Appointment of inspectors

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15     Appointment of inspectors


(1)     A labour inspector appointed in terms of section 63 of the Basic Conditions of Employment Act, 1997 (Act 75 of 1997), is regarded to be an inspector for the purposes of this Act in so far as it relates to the collection of levies by a SETA or its approved body.


(2)     The Director-General must, by a signed certificate, designate any person appointed in the prescribed manner and against the prescribed criteria as an agent of a SETA or its approved body as an inspector for the purposes of this Act in so far as it relates to the collection of levies by the SETA or approved body, as the case may be.


(3)     An inspector has the same powers afforded to a senior SARS official, a SARS official or SARS under Chapter 5 of the Tax Administration Act.

[Subsection (3) added by section 271 read with paragraph 155 of Schedule 1 of Act 28 of 2011]

16     . . . . . .

[Section 16 repealed by section 271 read with paragraph 156 of Schedule 1 of Act 28 of 2011]


17     . . . . . .

[Section 17 repealed by section 271 read with paragraph 156 of Schedule 1 of Act 28 of 2011]

Section 18 (SDL) – Co-operation with inspectors

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18      Co-operation with inspectors

 

(1)     Any person who is questioned by an inspector referred to in section 15 must answer all relevant questions lawfully put to that person, truthfully and to the best of his or her ability.

 

(2)     An employer must provide any facility and assistance at his or her premises that is reasonably required by an inspector to perform his or her functions effectively.