Page 166 - Juta's Indirect Tax

s 202 TAX ADMINISTRATION ACT 28 OF 2011 s 208
Act, including existing or future tax bene ts, such as
carryovers of losses, deductions, credits and rebates. (2) In determining the position without the ‘compro-
mise’, a senior SARS of cial must have regard to—
(a) the value of the ‘debtor’s’ present assets;
(b) future prospects of the ‘debtor’, including
arrangements which have been implemented or are proposed which may have the effect of diverting income or assets that may otherwise accrue to or be acquired by the ‘debtor’ or a connected person in relation to the ‘debtor’;
(c) past transactions of the ‘debtor’; and
(d) the position of any connected person in relation to the
‘debtor’.
203 Circumstances where not appropriate to compromise tax debt
A senior SARS of cial may not ‘compromise’ any amount of a tax debt under section 200 if—
(a) the ‘debtor’ was a party to an agreement with SARS
to ‘compromise’ an amount of tax debt within the period of three years immediately before the request for the ‘compromise’;
(b) the tax affairs of the ‘debtor’ (other than the outstanding tax debt) are not up to date;
(c) another creditor has communicated its intention to initiate or has initiated liquidation or sequestration proceedings;
(d) the ‘compromise’ will prejudice other creditors (unless the affected creditors consent to the ‘compromise’) or if other creditors will be placed in a position of advantage relative to SARS;
(e) it may adversely affect broader taxpayer compliance; or
(f) the ‘debtor’ is a company or a trust and SARS has not rst explored action against or recovery from the personal assets of the persons who may be liable for the debt under Part D of Chapter 11.
204 Procedure for compromise of tax debt
(1) To ‘compromise’ a tax debt, a senior SARS of cial and the ‘debtor’ must sign an agreement setting out—
(a) the amount payable by the ‘debtor’ in full satisfaction
of the debt;
(b) the undertaking by SARS not to pursue recovery of
the balance of the tax debt; and
(c) the conditions subject to which the tax debt is
‘compromised’ by SARS.
(2) The conditions referred to in subsection (1) (c) may
include a requirement that the ‘debtor’ must—
(a) comply with subsequent obligations imposed in terms
of a tax Act;
(b) pay the tax debt in the manner prescribed by SARS;
or
(c) give up speci ed existing or future tax bene ts,
such as carryovers of losses, deductions, credits and rebates.
205 SARS not bound by compromise of tax debt
SARS is not bound by a ‘compromise’ if—
(a) the ‘debtor’ fails to disclose a material fact to which
the ‘compromise’ relates;
(b) the ‘debtor’ supplies materially incorrect information
to which the ‘compromise’ relates;
(c) the ‘debtor’ fails to comply with a provision or
condition contained in the agreement referred to in section 204; or
(d) the ‘debtor’ is liquidated or the ‘debtor’s’ estate is sequestrated before the ‘debtor’ has fully complied with the conditions contained in the agreement referred to in section 204.
Part E
Records and reporting (ss. 206–207)
206 Register of tax debts written off or compromised
(1) SARS must maintain a register of the tax debts ‘written off’ or ‘compromised’ in terms of this Chapter.
(2) The register referred to in subsection (1) must contain—
(a) the details of the ‘debtor’, including name, address and taxpayer reference number;
(b) the amount of the tax debt ‘written off’ or ‘compromised’ and the periods to which the tax debt relates; and
(c) the reason for ‘writing off’ or ‘compromising’ the tax debt.
207 Reporting by Commissioner of tax debts written off or compromised
(1) The amount of tax debts ‘written off’ or ‘compromised’ during a nancial year must be disclosed in the annual nancial statements of SARS relating to administered revenue for that year.
(2) The Commissioner must on an annual basis provide to the Auditor-General and to the Minister a summary of the tax debts which were ‘written off’ or ‘compromised’ in whole or in part during the period covered by the summary, which must—
(a) be in a format which, subject to section 70 (5), does
not disclose the identity of the ‘debtor’ concerned; (b) be submitted within 60 business days following the
end of the scal year; and
[Para. (b) substituted by s. 56 of Act 44 of 2014 – date of commencement deemed to have been 1 October 2012.]
(c) contain details of the number of tax debts ‘written off’ or ‘compromised’ and the amount of revenue forgone, which must be re ected in respect of main classes of taxpayers or sections of the public.
[Para. (c) substituted by s. 56 of Act 44 of 2014 – date of commencement deemed to have been 1 October 2012.]
CHAPTER 15 ADMINISTRATIVE NON-COMPLIANCE PENALTIES (ss. 208–220)
Part A General (ss. 208–209)
208 De nitions
In this Chapter, unless the context indicates otherwise, the following terms, if in single quotation marks, have the following meanings:
‘administrative non-compliance penalty’ or ‘penalty’ means a ‘penalty’ imposed by SARS in accordance with this Chapter or a tax Act other than this Act, and excludes an understatement penalty referred to in Chapter 16;
[De nition of ‘administrative non-compliance penalty’ or ‘penalty’ substituted by s. 57 of Act 44 of 2014 – date of commencement deemed to have been 1 October 2012.]
‘ rst incidence’ means an incidence of non-compliance by a person if no ‘penalty assessment’ under this Chapter was issued during the preceding 36 months, whether involving an incidence of non-compliance of the same
158
Juta’s IndIrect tax 2016