Page 154 - Juta's Indirect Tax

s 145 TAX ADMINISTRATION ACT 28 OF 2011 s 152
(c) the pursuit of the matter through the courts will signi cantly promote taxpayer compliance with a tax Act and the case is suitable for this purpose.
146 Circumstances where settlement is appropriate
The Commissioner may, if it is to the best advantage of the state, ‘settle’ a ‘dispute’, in whole or in part, on a basis that is fair and equitable to both the person concerned and to SARS, having regard to—
(a) whether the ‘settlement’ would be in the interest of
good management of the tax system, overall fairness,
and the best use of SARS’ resources;
(b) SARS’ cost of litigation in comparison to the possible
bene ts with reference to the prospects of success in
court;
[Para. (b) substituted by s. 55 of Tax Administration Laws Amendment Act, 2015 – date of commencement: date of promulgation of Tax Administration Laws Amendment Act, 2015.]
(c) whether there are any—
(i) complex factual issues in contention; or
(ii) evidentiary dif culties,
which are suf cient to make the case problematic in outcome or unsuitable for resolution through the alternative ‘dispute’ resolution procedures or the courts;
(d) a situation in which a participant or a group of participants in a tax avoidance arrangement has accepted SARS’ position in the ‘dispute’, in which case the ‘settlement’ may be negotiated in an appropriate manner required to unwind existing structures and arrangements; or
(e) whether ‘settlement’ of the ‘dispute’ is a cost- effective way to promote compliance with a tax Act by the person concerned or a group of taxpayers.
147 Procedure for settlement
(1) A person participating in a ‘settlement’ procedure must disclose all relevant facts during the discussion phase of the process of ‘settling’ a ‘dispute’.
(2) A ‘settlement’ is conditional upon full disclosure of material facts known to the person concerned at the time of ‘settlement’.
(3) A dispute ‘settled’ in whole or in part must be evidenced by an agreement in writing between the parties in the prescribed format and must include details on— (a) how each particular issue is ‘settled’;
(b) relevant undertakings by the parties;
(c) treatment of the issue in future years;
(d) withdrawal of objections and appeals; and (e) arrangements for payment.
(4) The agreement must be signed by a senior SARS of cial.
(5) SARS must, if the ‘dispute’ is not ultimately ‘settled’, explain to the person concerned the further rights of objection and appeal.
(6) The agreement and terms of a ‘settlement’ agreement must remain con dential, unless their disclosure is
146
authorised by law or SARS and the person concerned agree otherwise.
148 Finality of settlement agreement
(1) The settlement agreement represents the nal agreed position between the parties and is in full and nal ‘settlement’ of all or the speci ed aspects of the ‘dispute’ in question between the parties.
(2) SARS must adhere to the terms of the agreement, unless material facts were not disclosed as required by section 147 (1) or there was fraud or misrepresentation of the facts.
(3) If the person concerned fails to pay the amount due pursuant to the agreement or otherwise fails to adhere to the agreement, a senior SARS of cial may—
(a) regard the agreement as void and proceed with the
matter in respect of the original disputed amount; or (b) enforce collection of the ‘settlement’ amount under the collection provisions of this Act in full and nal
‘settlement’ of the ‘dispute’.
149 Register of settlements and reporting
(1) SARS must—
(a) maintain a register of all ‘disputes’ that are ‘settled’
under this Part; and
(b) document the process under which each ‘dispute’ is
‘settled’.
(2) The Commissioner must provide an annual summary
of ‘settlements’ to the Auditor-General and to the Minister. (3) The summary referred to in subsection (2) must be submitted by no later than the date on which the annual report for SARS is submitted to Parliament for the year
and must—
(a) be in a format which, subject to section 70 (5), does
not disclose the identity of the person concerned; and (b) contain details, arranged by main classes of taxpayers or sections of the public, of the number of ‘settlements’, the amount of tax forgone, and the
estimated savings in litigation costs.
150 Alteration of assessment or decision on settlement
(1) If a ‘dispute’ between SARS and the person aggrieved by an assessment or ‘decision’ is ‘settled’ under this Part, SARS may, despite anything to the contrary contained in a tax Act, alter the assessment or ‘decision’ to give effect to the ‘settlement’.
(2) An altered assessment or ‘decision’ referred to in subsection (1) is not subject to objection and appeal.
CHAPTER 10
TAX LIABILITY AND PAYMENT (ss. 151–168)
Part A Taxpayers (ss. 151–161)
Prelex
Wording of para. (b) in force until promulgation of Tax Administration Laws Amendment Act, 2015
(b) SARS’ cost of litigation in comparison to the
possible bene ts with reference to— (i) the prospects of success in court;
(ii) the prospects of the collection of the amounts due; and
(iii) the costs associated with collection;
151 Taxpayer
In this Act, “taxpayer” means— (a) a person chargeable to tax;
(b) a representative taxpayer;
(c) a withholding agent;
(d) a responsible third party; or
(e) a person who is the subject of a request to provide
assistance under an international tax agreement.
152 Person chargeable to tax
A person chargeable to tax is a person upon whom the liability for tax due under a tax Act is imposed and who is personally liable for the tax.
Juta’s IndIrect tax 2016