Page 144 - Juta's Indirect Tax

s 86 TAX ADMINISTRATION ACT 28 OF 2011 s 91
(4) SARS may withdraw or modify a ‘binding private ruling’ or a ‘binding class ruling’ retrospectively if the ruling was made in error and if—
(a) the ‘applicant’ or ‘class member’ has not yet
commenced the ‘proposed transaction’ or has not yet incurred signi cant costs in respect of the arrangement;
(b) a person other than the ‘applicant’ or ‘class member’ will suffer signi cant tax disadvantage if the ruling is not withdrawn or modi ed retrospectively and the ‘applicant’ will suffer comparatively less if the ruling is withdrawn or modi ed retrospectively; or
(c) the effect of the ruling will materially erode the South African tax base and it is in the public interest to withdraw or modify the ruling retrospectively.
87 Publication of advance rulings
(1) A person applying for a ‘binding private ruling’ or ‘binding class ruling’ must consent to the publication of the ruling in accordance with this section.
(2) A ‘binding private ruling’ or ‘binding class ruling’ must be published by SARS for general information in the manner and in the form that the Commissioner may prescribe, but without revealing the identity of an ‘applicant’, ‘class member’ or other person identi ed or referred to in the ruling.
(3) Prior to publication, SARS must provide the ‘applicant’ with a draft copy of the edited ruling for review and comment.
(4) SARS must consider, prior to publication, any comments and proposed edits and deletions submitted by the ‘applicant’, but is not required to accept them.
(5) An ‘applicant’ for a ‘binding class ruling’ may consent in writing to the inclusion of information identifying it or the ‘proposed transaction’ in order to facilitate communication with the ‘class members’.
(6) The application or interpretation of the relevant tax Act to a ‘transaction’ does not constitute information that may reveal the identity of an ‘applicant’, ‘class member’ or other person identi ed or referred to in the ruling.
(7) SARS must treat the publication of the withdrawal or modi cation of a ‘binding private ruling’ or ‘binding class ruling’ in the same manner and subject to the same requirements as the publication of the original ruling.
(8) Subsection (2) does not—
(a) require the publication of a ruling that is materially
the same as a ruling already published; or
(b) apply to a ruling that has been withdrawn before
SARS has had occasion to publish it.
(9) If an ‘advance ruling’ has been published, notice of
the withdrawal or modi cation thereof must be published in the manner and media as the Commissioner may deem appropriate.
88 Non-binding private opinions
(1) A ‘non-binding private opinion’ does not have ‘binding effect’ upon SARS.
(2) A ‘non-binding private opinion’ may not be cited in any proceedings including court proceedings, other than proceedings involving the person to whom the opinion was issued.
89 Binding general rulings
(1) A senior SARS of cial may issue a ‘binding general ruling’ that is effective for either—
(a) a particular tax period or other de nite period; or
(b) an inde nite period.
(2) A ‘binding general ruling’ must state— 136
(a) (b) (c)
that it is a ‘binding general ruling’ made under this section;
the provisions of a tax Act which are the subject of the ‘binding general ruling’; and
either—
(i) the tax period or other de nite period for which
it applies; or
(ii) in the case of a ‘binding general ruling’ for an
inde nite period, that it is for an inde nite period
and the date or tax period from which it applies. (3) A ‘binding general ruling’ may be issued as an interpretation note or in another form and may be issued
in the manner that the Commissioner prescribes.
(4) A publication or other written statement does not constitute and may not be considered or treated as a ‘binding general ruling’ unless it contains the information
prescribed by subsection (2).
90 Procedures and guidelines for advance rulings
The Commissioner may issue procedures and guidelines, in the form of ‘binding general rulings’, for implementation and operation of the ‘advance ruling’ system.
CHAPTER 8 ASSESSMENTS (ss. 91–100)
91 Original assessments
(1) If a tax Act requires a taxpayer to submit a return which does not incorporate a determination of the amount of a tax liability, SARS must make an original assessment based on the return submitted by the taxpayer or other information available or obtained in respect of the taxpayer.
(2) If a tax Act requires a taxpayer to submit a return which incorporates a determination of the amount of a tax liability, the submission of the return is an original self- assessment of the tax liability.
(3) If a tax Act requires a taxpayer to make a determination of the amount of a tax liability and no return is required, the payment of the amount of tax due is an original assessment.
(4) If a taxpayer does not or is not required to submit a return, SARS may make an assessment based on an estimate under section 95 if that taxpayer fails to pay the tax required under a tax Act.
(5) If a tax Act requires a taxpayer to submit a return— (a) the making of an assessment under subsection (4) does not detract from the obligation to submit a
return;
(b) the taxpayer in respect of whom the assessment has
been issued may, within 30 business days from the date of assessment, request SARS to issue a reduced assessment or additional assessment by submitting a complete and correct return; and
(c) an assessment under subsection (4) is not subject to objection or appeal unless the taxpayer submits the return and SARS does not issue a reduced or additional assessment.
[Sub-s. (5) substituted by s. 58 (a) of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
(6) A senior SARS of cial may extend the period referred to in subsection (5) (b) within which the return must be submitted, for a period not exceeding the period for which a penalty may be automatically increased under section 211 (2).
[Sub-s. (6) added by s. 58 (b) of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
Juta’s IndIrect tax 2016