Section 109 (TAA) – Jurisdiction of tax board

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109.    Jurisdiction of tax board

(1)     An appeal against an assessment or ‘decision’ must in the first instance be heard by a tax board, if the tax in dispute does not exceed the amount the Minister determines by public notice, unless a senior SARS official and the ‘appellant’ agree that the matter be heard by the tax court.

[Subsection (1) substituted by section 24(a) of Act 43 of 2024]

(2)     SARS must designate the places where tax boards hear appeals.

(3)     The tax board must hear an appeal at the place referred to in subsection (2) which is closest to the ‘appellant’s’ residence or place of business, unless the ‘appellant’ and SARS agree that the appeal be heard at another place.

(4)     In making a decision under subsection (1), a senior SARS official must consider whether the grounds of the dispute or legal principles related to the appeal should rather be heard by the tax court.

[Subsection (4) substituted by section 24(b) of Act 43 of 2024]

(5)     If the chairperson prior to or during the hearing, considering the grounds of the dispute or the legal principles related to the appeal, believes that the appeal should be heard by the tax court rather than the tax board, the chairperson may direct that the appeal be set down for hearing de novo before the tax court.

Section 108 (TAA) – Establishment of tax board

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108.    Establishment of tax board

 

(1)     The Minister may by public notice-

 

(a)     establish a tax board or boards for areas that the Minister thinks fit; and

 

(b)     abolish an existing tax board or establish an additional tax board as circumstances may require.

 

(2)     Tax boards are established under subsection (1) to hear appeals referred to in section 107 in the manner provided in this Part.

Section 161 (TAA) – Security by taxpayer

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161.    Security by taxpayer

 

(1)     A senior SARS official may require security from a taxpayer to safeguard the collection of tax by SARS, if the taxpayer-

 

(a)     is a representative taxpayer, withholding agent or responsible third party who was previously held liable in the taxpayer’s personal capacity under a tax Act;

 

(b)     has been convicted of a tax offence;

 

(c)     has frequently failed to pay amounts of tax due;

 

(d)     has frequently failed to carry out other obligations imposed under any tax Act which constitutes non-compliance referred to in Chapter 15; or

 

(e)     is under the management or control of a person who is or was a person contemplated in paragraphs (a) to (d).

 

(2)     If security is required, SARS must by written notice to the taxpayer require the taxpayer to furnish to or deposit with SARS, within such period that SARS may allow, security for the payment of any tax which has or may become payable by the taxpayer in terms of a tax Act.

 

(3)     The security must be of the nature, amount and form that the senior SARS official directs.

 

(4)     If the security is in the form of cash deposit and the taxpayer fails to make such deposit, it may-

 

(a)     be collected as if it were an outstanding tax debt of the taxpayer recoverable under this Act; or

 

(b)     be set-off against any refund due to the taxpayer.

 

(5)     A senior SARS official may, in the case of a taxpayer which is not a natural person and cannot provide the security required under subsection (1), require of any or all of the members, shareholders or trustees who control or are involved in the management of the taxpayer to enter into a contract of suretyship in respect of the taxpayer’s liability for tax which may arise from time to time.

Section 160 (TAA) – Right to recovery of taxpayer

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160. Taxpayer’s right to recovery

[Heading of section 160 substituted by section 27 of Act 13 of 2017 effective on 18 December 2017]

(1)     A representative taxpayer, withholding agent or responsible third party who, as such, pays a tax is entitled-

(a)     to recover the amount so paid from the person on whose behalf it is paid; or

(b)     to retain out of money or assets in that person’s possession or that may come to that person in that representative capacity, an amount equal to the amount so paid.

(2)     Unless otherwise provided for in a tax Act, a taxpayer in respect of whom an amount has been paid to SARS by a withholding agent under a tax Act or by a responsible third party under section 179, is not entitled to recover from the withholding agent or responsible third party the amount so  paid but is entitled to recover the amount of an unlawful or erroneous payment from SARS.

Section 157 (TAA) – Personal liability of withholding agent

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157.    Personal liability of withholding agent

 

(1)     A withholding agent is personally liable for an amount of tax-

 

(a)     withheld and not paid to SARS; or

 

(b)     which should have been withheld under a tax Act but was not so withheld.

 

(2)     An amount paid or recovered from a withholding agent in terms of subsection (1) is an amount of tax which is paid on behalf of the relevant taxpayer in respect of his or her liability under the relevant tax Act.

Section 155 (TAA) – Personal liability of representative taxpayer

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155.    Personal liability of representative taxpayer

 

A representative taxpayer is personally liable for tax payable in the representative taxpayer’s representative capacity, if, while it remains unpaid-

 

(a)     the representative taxpayer alienates, charges or disposes of amounts in respect of which the tax is chargeable; or

 

(b)     the representative taxpayer disposes of or parts with funds or moneys, which are in the representative taxpayer’s possession or come to the representative taxpayer after the tax is payable, if the tax could legally have been paid from or out of the funds or moneys.