Page 155 - Juta's Indirect Tax

s 153 TAX ADMINISTRATION ACT 28 OF 2011 s 161
153 Representative taxpayer
(1) In this Act, a “representative taxpayer” means a person who is responsible for paying the tax liability of another person as an agent, other than as a withholding agent, and includes a person who—
(a) is a representative taxpayer in terms of the Income Tax Act;
(b) is a representative employer in terms of the Fourth Schedule to the Income Tax Act; or
(c) is a representative vendor in terms of section 46 of the Value-Added Tax Act.
(2) Every person who becomes or ceases to be a representative taxpayer (except a public of cer of a company) under a tax Act, must notify SARS accordingly in such form as the Commissioner may prescribe, within 21 business days after becoming or ceasing to be a representative taxpayer, as the case may be.
(3) A taxpayer is not relieved from any liability, responsibility or duty imposed under a tax Act by reason of the fact that the taxpayer’s representative—
(a) failed to perform such responsibilities or duties; or (b) is liable for the tax payable by the taxpayer.
154 Liability of representative taxpayer
(1) A representative taxpayer is, as regards—
(a) the income to which the representative taxpayer is
entitled;
(b) moneys to which the representative taxpayer is
entitled or has the management or control;
(c) transactions concluded by the representative taxpayer;
and
(d) anything else done by the representative taxpayer,
in such capacity—
(i) subject to the duties, responsibilities and liabilities of the taxpayer represented;
(ii) entitled to any abatement, deduction, exemption, right to set off a loss, and other items that could be claimed by the person represented; and
(iii) liable for the amount of tax speci ed by a tax Act. (2) A representative taxpayer may be assessed in respect of any tax under sub-section (1), but such assessment is regarded as made upon the representative taxpayer in such
capacity only.
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.
156 Withholding agent
In this Act, “withholding agent” means a person who must under a tax Act withhold an amount of tax and pay it to SARS.
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. Juta’s IndIrect tax 2016
(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.
158 Responsible third party
In this Act, “responsible third party” means a person who becomes otherwise liable for the tax liability of another person, other than as a representative taxpayer or as a withholding agent, whether in a personal or representative capacity.
159 Personal liability of responsible third party
A responsible third party is personally liable to the extent described in Part D of Chapter 11.
160 Right to recovery of taxpayer
(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.
[Sub-s. (2) substituted by s. 55 of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
161 Security by taxpayer
(1) A senior SARS of cial 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 of cial 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
[Para. (a) substituted by s. 56 of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
(b) be set off against any refund due to the taxpayer.
(5) A senior SARS of cial may, in the case of a taxpayer which is not a natural person and cannot provide
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