Section 61 (TAA) – Carrying out search

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61.    Carrying out search

 

(1)     A SARS official exercising a power under a warrant referred to in section 60 must produce the warrant, and if the owner or person in control of the premises is not present, the SARS official must affix a copy of the warrant to the premises in a prominent and visible place.

 

(2)     Subject to section 63, a SARS official’s failure to produce a warrant entitles a person to refuse access to the official.

 

(3)     The SARS official may-

 

(a)     open or cause to be opened or removed in conducting a search, anything which the official suspects to contain relevant material;

 

(b)     seize any relevant material;

 

(c)     seize and retain a computer or storage device in which relevant material is stored for as long as it is necessary to copy the material required;

 

(d)     make extracts from or copies of relevant material, and require from a person an explanation of relevant material; and

 

(e)     if the premises listed in the warrant is a vessel, aircraft or vehicle, stop and board the vessel, aircraft or vehicle, search the vessel, aircraft or vehicle or a person found in the vessel, aircraft or vehicle, and question the person with respect to a matter dealt with in a tax Act.

 

(4)     The SARS official must make an inventory of the relevant material seized in the form, manner and at the time that is reasonable under the circumstances and provide a copy thereof to the person.

 

(5)     The SARS official must conduct the search with strict regard for decency and order, and may search a person if the official is of the same gender as the person being searched.

 

(6)     The SARS official may, at any time, request such assistance from a police officer as the official may consider reasonably necessary and the police officer must render the assistance.

 

(7)     No person may obstruct a SARS official or a police officer from executing the warrant or without reasonable excuse refuse to give such assistance as may be reasonably required for the execution of the warrant.

 

(8)     If the SARS official seizes relevant material, the official must ensure that the relevant material seized is preserved and retained until it is no longer required for-

 

(a)     the investigation into the non-compliance or the offence described under section 60(1)(a);or

 

(b)     the conclusion of any legal proceedings under a tax Act or criminal proceedings in which it is required to be used.

Section 60 (TAA) – Issuance of warrant

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60.    Issuance of warrant

 

(1)     A judge or magistrate may issue the warrant referred to in section 59(1) if satisfied that there are reasonable grounds to believe that-

 

(a)     a person failed to comply with an obligation imposed under a tax Act, or committed a tax offence; and

 

(b)     relevant material likely to be found on the premises specified in the application may provide evidence of the failure to comply or commission of the offence.

 

(2)     A warrant issued under subsection (1) must contain the following:

 

(a)     the alleged failure to comply or offence that is the basis for the application;

 

(b)     the person alleged to have failed to comply or to have committed the offence;

 

(c)     the premises to be searched; and

 

(d)     the fact that relevant material as defined in section 1 is likely to be found on the premises.

 

(3)     The warrant must be exercised within 45 business days or such further period as a judge or magistrate deems appropriate on good cause shown.

Section 59 (TAA) – Application for warrant

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59.    Application for warrant

 

(1)     A senior SARS official may, if necessary or relevant to administer a tax Act, authorise an application for a warrant under which SARS may enter a premises where relevant material is kept to search the premises and any person present on the premises and seize relevant material.

 

(2)     SARS must apply ex parte to a judge for the warrant, which application must be supported by information supplied under oath or solemn declaration, establishing the facts on which the application is based.

 

(3)     Despite subsection (2), SARS may apply for the warrant referred to in subsection (1) and in the manner referred to in subsection (2), to a magistrate, if the matter relates to an audit or investigation where the estimated tax in dispute does not exceed the amount determined in the notice issued under section 109(1)(a).

Section 58 (TAA) – Inquiry not suspended by civil or criminal proceedings

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58.    Inquiry not suspended by civil or criminal proceedings

 

Unless a court orders otherwise, an inquiry relating to a person referred to in section 51(1)(a) must proceed despite the fact that a civil or criminal proceeding is pending or contemplated against or involves the person, a witness or potential witness in the inquiry, or another person whose affairs may be investigated in the course of the inquiry.

Section 57 (TAA) – Incriminating evidence

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57.    Incriminating evidence

 

(1)     A person may not refuse to answer a question during an inquiry on the grounds that it may incriminate the person.

 

(2)     Incriminating evidence obtained under this section is not admissible in criminal proceedings against the person giving the evidence, unless the proceedings relate to-

 

(a)     the administering or taking of an oath or the administering or making of a solemn declaration;

 

(b)     the giving of false evidence or the making of a false statement; or

 

(c)     the failure to answer questions lawfully put to the person, fully and satisfactorily.

Section 56 (TAA) – Confidentiality of proceedings

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56.    Confidentiality of proceedings

 

(1)     An inquiry under this Part is private and confidential.

 

(2)     The presiding officer may, on request, exclude a person from the inquiry if the person’s attendance is prejudicial to the inquiry.

 

(3)     Section 69 applies with the necessary changes to persons present at the questioning of a person, including the person being questioned.

 

(4)     Subject to section 57(2), SARS may use evidence given by a person under oath or solemn declaration at an inquiry in a subsequent proceeding involving the person or another person.

Section 53 (TAA) – Notice to appear

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53.    Notice to appear

 

(1)     The presiding officer may, by notice in writing, require a person, whether or not chargeable to tax, to-

 

(a)     appear before the inquiry, at the time and place designated in the notice, for the purpose of being examined under oath or solemn declaration, and

 

(b)     produce any relevant material in the custody of the person.

 

(2)     If the notice requires the production of relevant material, it is sufficient if the relevant material is referred to in the notice with reasonable specificity.