Section 10 (TAA) – Delegations by the Commissioner

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10.    Delegations by the Commissioner

 

(1)     A delegation by the Commissioner under section 6(2)-

 

(a)     must be in writing;

 

(b)     becomes effective only when signed by the Commissioner;

 

(c)     is subject to the limitations and conditions the Commissioner may determine in making the delegation;

 

(d)     may either be to-

 

(i)      a specific individual; or

 

(ii)     the incumbent of a specific post; and

 

(e)     may be amended or withdrawn by the Commissioner.

 

(2)     A delegation does not divest the Commissioner of the responsibility for the exercise of the delegated power or the performance of the delegated duty.

Section 9 (TAA) – Decision or notice by SARS

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9.    Decision or notice by SARS

(1)     A decision made by a SARS official or a notice to a specific person issued by SARS under a tax Act, excluding a decision given effect to in an assessment or a notice of assessment that is subject to objection and appeal, may in the discretion of a SARS official described in paragraph (a), (b) or (c) or at the request of the relevant person, be withdrawn or amended by-

(a)     the SARS official;

(b)     a SARS official to whom the SARS official reports; or

(c)     a senior SARS official.

[Subsection (1) substituted by section 22 of Act 13 of 2017 effective on 18 December 2017]

(2)     If all the material facts were known to the SARS official at the time the decision was made, a decision or notice referred to in subsection (1) may not be withdrawn or amended with retrospective effect, after three years from the later of the-

(a)     date of the written notice of that decision; or

(b)     date of assessment or the notice of assessment giving effect to the decision (if applicable).

(3)     A decision made by a SARS official or a notice to a specific person issued by SARS under a tax Act is regarded as made by a SARS official authorised to do so or duly issued by SARS, until proven to the contrary.

[Subsection (3) added by section 22 of Act 13 of 2017 effective on 18 December 2017]

Section 8 (TAA) – Identity cards

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8.    Identity cards

 

(1)     SARS may issue an identity card to each SARS official exercising powers and duties for purposes of the administration of a tax Act.

 

(2)     When a SARS official exercises a power or duty for purposes of the administration of a tax Act in person outside SARS premises, the official must produce the identity card upon request by a member of the public.

 

(3)     If the official does not produce the identity card, a member of the public is entitled to assume that the person is not a SARS official.

Section 7 (TAA) – Conflict of interest

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7.    Conflict of interest

 

The Commissioner or a SARS official may not exercise a power or become involved in a matter pertaining to the administration of a tax Act, if-

 

(a)     the power or matter relates to a taxpayer in respect of which the Commissioner or the official has or had, in the previous three years, a personal, family, social, business, professional, employment or financial relationship presenting a conflict of interest; or

 

(b)     other circumstances present a conflict of interest,

 

that will reasonably be regarded as giving rise to bias.

Section 6 (TAA) – Powers and duties

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6.    Powers and duties

(1)     The powers and duties of SARS under this Act may be exercised for purposes of the administration of a tax Act.

(2)     Powers and duties which are assigned to the Commissioner by this Act must be exercised by the Commissioner personally but he or she may delegate such powers and duties in accordance with section 10.

(3)     Powers and duties required by this Act to be exercised by a senior SARS official must be exercised by-

(a)     the Commissioner;

(b)     a SARS official who has specific written authority from the Commissioner to do so; or

(c)     a SARS official occupying a post designated by the Commissioner in writing for this purpose.

(4)     The execution of a task ancillary to a power or duty under subsection (2) or (3) may be done by a SARS official under the control of an official referred to in subsection (3)(a), (b) or (c).

[Subsection (4) amended by section 38 of Act 21 of 2012 effective on 1 October 2012, substituted by section 35 of Act 23 of 2015 effective on 8 January 2016]

(5)     Powers and duties not specifically required by this Act to be exercised by the Commissioner or by a senior SARS official, may be exercised by a SARS official.

(6)     The Commissioner may by public notice specify that a power or duty in a tax Act other than this Act must be exercised by the Commissioner personally or a senior SARS official.

Section 5 (TAA) – Practice generally prevailing

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5.  Practice generally prevailing

 

(1)     A practice generally prevailing is a practice set out in an official publication regarding the application or interpretation of a tax Act.

 

(2)     Despite any provision to the contrary contained in a tax Act, a practice generally prevailing set out in an official publication, other than a binding general ruling, ceases to be a practice generally prevailing if-

 

(a)     the provision of the tax Act that is the subject of the official publication is repealed or amended to an extent material to the practice, from the date the repeal or amendment becomes effective;

 

(b)     a court overturns or modifies an interpretation of the tax Act which is the subject of the official publication to an extent material to the practice from the date of judgment, unless-

 

(i)      the decision is under appeal;

 

(ii)     the decision is fact-specific and the general interpretation upon which the official publication was based is unaffected; or

 

(iii)    the reference to the interpretation upon which the official publication was based was obiter dicta; or

 

(c)     the official publication is withdrawn or modified by the Commissioner, from the date of the official publication of the withdrawal or modification.

 

(3)     A binding general ruling ceases to be a practice generally prevailing in the circumstances described in section 85 or 86.

Section 4 (TAA) – Application of Act

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4.    Application of Act

 

(1)     This Act applies to every person who is liable to comply with a provision of a tax Act (whether personally or on behalf of another person) and binds SARS.

 

(2)     If this Act is silent with regard to the administration of a tax Act and it is specifically provided for in the relevant tax Act, the provisions of that tax Act apply.

 

(3)     In the event of any inconsistency between this Act and another tax Act, the other Act prevails.

Section 3 (TAA) – Administration of tax Acts

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3.    Administration of tax Acts

(1)     SARS is responsible for the administration of this Act under the control or direction of the Commissioner.

(2)     Administration of a tax Act means to-

(a)     obtain full information in relation to-

(i)      anything that may affect the liability of a person for tax in respect of a previous, current or future tax period;

(ii)     a taxable event; or

(iii)    the obligation of a person (whether personally or on behalf of another person) to comply with a tax Act;

(b)     ascertain whether a person has filed or submitted correct returns, information or documents in compliance with the provisions of a tax Act;

(c)     establish the identity of a person for purposes of determining liability for tax;

(d)     determine the liability of a person for tax;

(e)     collect tax debts and refund tax overpaid;

(f)      investigate whether a tax offence has been committed, and, if so-

(i)      to lay criminal charges; and

(ii)     to provide the assistance that is reasonably required for the investigation and prosecution of the tax offence;

(g)     enforce SARS’ powers and duties under a tax Act to ensure that an obligation imposed by or under a tax Act is complied with;

(h)     perform any other administrative function necessary to carry out the provisions of a tax Act;

[Paragraph (h) amended by section 34 of Act 23 of 2015 effective on 8 January 2016] 

(i)      give effect to the obligation of the Republic to provide assistance under an international tax agreement; and

[Paragraph (i) amended by section 34 of Act 23 of 2015 effective on 8 January 2016] 

(j)      give effect to an international tax standard.

[Paragraph (j) added by section 34 of Act 23 of 2015 effective on 8 January 2016] 

(3)     If SARS, in accordance with-

(a)     an international tax agreement-

(i)      received a request for, is obliged to exchange or wishes to spontaneously exchange information, SARS may disclose or obtain the information for transmission to the competent authority of the other country as if it were relevant material required for purposes of a tax Act and must treat the information obtained as taxpayer information;

(ii)     received a request for the conservancy or the collection of an amount alleged to be due by a person under the tax laws of the requesting country, SARS may deal with the request under the provisions of section 185; or

(iii)    received a request for the service of a document which emanates from the requesting country, SARS may effect service of the document as if it were a notice, document or other communication required under a tax Act to be issued, given, sent or served by SARS; or

(b)     an international tax standard, obtained information of a person, SARS may retain the information as if it were relevant material required for purposes of a tax Act and must treat the information obtained as taxpayer information.

[Subsection (3) amended by sectoin 37 of Act 21 of 2012, substituted by section 38 of Act 44 of 2014 effective on 1 October 2012 and section 34 of Act 23 of 2015 effective on 8 January 2016]