Page 151 - Juta's Indirect Tax

s 123 TAX ADMINISTRATION ACT 28 OF 2011 s 130
proceed before the president of the tax court, any other judges, the remaining member, and, if the president deems it necessary, a replacement member.
(4) The judgment of the remaining judges and members referred to in subsection (1) or (3) is the judgment of the court.
124 Sitting of tax court not public
(1) The tax court sittings for purposes of hearing an appeal under section 107 are not public.
(2) The president of the tax court may in exceptional circumstances, on request of any person, allow that person or any other person to attend the sitting but may do so only after taking into account any representations that the ‘appellant’ and a senior SARS of cial, referred to in section 12 appearing in support of the assessment or ‘decision’, wishes to make on the request.
125 Appearance at hearing of tax court
(1) A senior SARS of cial referred to in section 12 may appear at the hearing of an appeal in support of the assessment or ‘decision’.
(2) The ‘appellant’ or the ‘appellant’s’ representative may appear at the hearing of an appeal in support of the appeal.
126 Subpoena of witness to tax court
SARS, the ‘appellant’ or the president of a tax court may subpoena any witness in the manner prescribed in the ‘rules’, whether or not that witness resides within the tax court’s area of jurisdiction.
127 Non-attendance by witness or failure to give evidence
(1) A person subpoenaed under section 126 is liable to the ne or imprisonment speci ed in subsection (2), if the person without just cause fails to—
(a) give evidence at the hearing of an appeal;
(b) remain in attendance throughout the proceedings
unless excused by the president of the tax court; or (c) produce a document or thing in the person’s possession or under the person’s control according to
the subpoena.
(2) The president of the tax court may impose a ne
or, in default of payment, imprisonment for a period not exceeding three months, on a person described in subsection (1) upon being satis ed by—
(a) oath or solemn declaration; or
(b) the return of the person by whom the subpoena was served,
that the person has been duly subpoenaed and that the person’s reasonable expenses have been paid or offered.
(3) The president of the tax court may, in addition to imposing a ne or imprisonment under subsection (2), issue a warrant for the person to be apprehended and brought to give evidence or to produce the document or thing in accordance with the subpoena.
(4) A ne imposed under subsection (2) is enforceable as if it were a penalty imposed by a High Court in similar circumstances and any laws applicable in respect of a penalty imposed by a High Court apply with the necessary changes in respect of the ne.
(5) The president of the tax court may, on good cause shown, remit the whole or any part of the ne or imprisonment imposed under subsection (2).
(6) The president of the tax court may order the costs of a postponement or adjournment resulting from the default of a witness, or a portion of the costs, to be paid out of a ne imposed under subsection (2).
Juta’s IndIrect tax 2016
128 Contempt of tax court
(1) If, during the sitting of a tax court, a person—
(a) wilfully insults a judge or member of the tax court; (b) wilfully interrupts the tax court proceedings; or
(c) otherwise misbehaves in the place where the hearing
is held,
the president of a tax court may impose upon that person a ne or, in default of payment, imprisonment for a period not exceeding three months.
(2) An order made under subsection (1) must be executed as if it were an order made by a Magistrate’s Court under similar circumstances, and the provisions of a law which apply in respect of such an order made by a Magistrate’s Court apply with the necessary changes in respect of an order made under subsection (1).
129 Decision by tax court
(1) The tax court, after hearing the ‘appellant’s’ appeal lodged under section 107 against an assessment or ‘decision’, must decide the matter on the basis that the burden of proof as described in section 102 is upon the taxpayer.
(2) In the case of an assessment or ‘decision’ under appeal or an application in a procedural matter referred to in section 117 (3), the tax court may—
[Words preceding para. (a) substituted by s. 52 (a) of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
(a) con rm the assessment or ‘decision’;
(b) order the assessment or ‘decision’ to be altered; or
(c) refer the assessment back to SARS for further
examination and assessment.
(3) In the case of an appeal against an understatement
penalty imposed by SARS under a tax Act, the tax court must decide the matter on the basis that the burden of proof is upon SARS and may reduce, con rm or increase the understatement penalty.
[Sub-s. (2) substituted by s. 52 (b) of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
(4) If SARS alters an assessment as a result of a referral under subsection (2) (c), the assessment is subject to objection and appeal.
(5) Unless a tax court otherwise directs, a decision by the tax court in a test case designated under section 106 (6) is determinative of the issues in an objection or appeal stayed by reason of the test case under section 106 (6) (b) to the extent determined under the ‘rules’.
[Sub-s. (5) added by s. 52 (c) of Act 39 of 2013) – date of commencement deemed to have been 1 October 2012.]
130 Order for costs by tax court
(1) The tax court may, in dealing with an appeal under this Chapter and on application by an aggrieved party, grant an order for costs in favour of the party, if—
(a) the SARS grounds of assessment or ‘decision’ are
held to be unreasonable;
(b) the ‘appellant’s’ grounds of appeal are held to be
unreasonable;
(c) the tax board’s decision is substantially con rmed;
(d) the hearing of the appeal is postponed at the request
of the other party; or
(e) the appeal is withdrawn or conceded by the
other party after the ‘registrar’ allocates a date of
hearing.
(2) The costs awarded by the tax court under this section
must be determined in accordance with the fees prescribed by the rules of the High Court.
[Sub-s. (2) substituted by s. 53 (a) of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
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