Page 167 - Juta's Indirect Tax

s 208 TAX ADMINISTRATION ACT 28 OF 2011 s 212
or a different kind, and for purposes of this de nition a ‘penalty assessment’ that was fully remitted under section 218 must be disregarded;
‘penalty assessment’ means an assessment in respect of—
(a) a ‘penalty’ only; or
(b) tax and a ‘penalty’ which are assessed at the same time;
‘preceding year’ means the year of assessment immediately prior to the year of assessment during which a ‘penalty’ is assessed;
‘remittance request’ means a request for remittance of a ‘penalty’ submitted in accordance with section 215.
209 Purpose of Chapter
The purpose of this Chapter is to ensure—
(a) the widest possible compliance with the provisions of a tax Act and the effective administration of tax Acts;
and
(b) that an ‘administrative non-compliance penalty’ is
imposed impartially, consistently, and proportionately to the seriousness and duration of the non-compliance.
Part B
Fixed amount penalties (ss. 210–212)
210 Non-compliance subject to penalty
(1) If SARS is satis ed that non-compliance by a person referred to in subsection (2) exists, SARS must impose the appropriate ‘penalty’ in accordance with the Table in section 211.
(2) Non-compliance* is failure to comply with an obligation that is imposed by or under a tax Act and is listed in a public notice issued by the Commissioner, other than—
(a) the failure to pay tax subject to a percentage based penalty under Part C;
(b) non-compliance in respect of which an understatement penalty under Chapter 16 has been imposed; or
(c) the failure to disclose information subject to a reportable arrangement penalty under section 212.
[S. 210 substituted by s. 70 of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
211 Fixed amount penalty table
(1) For the non-compliance referred to in section 210, SARS must impose a ‘penalty’ in accordance with the following Table:
Table: Amount of Administrative Non-Compliance Penalty
(2) The amount of the ‘penalty’ in column 3 will increase automatically by the same amount for each month, or part thereof, that the person fails to remedy the non-compliance within one month after—
(a) the date of assessment of the penalty, if SARS is in possession of the current address of the person and is able to deliver the assessment, but is limited to 35 months from the date of the assessment; or
[Para. (a) substituted by s. 71 of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
(b) the date of the non-compliance if SARS is not in possession of the current address of the person and is unable to deliver the ‘penalty assessment’, but limited to 47 months after the date of non-compliance.
(3) The following persons, except those falling under item (viii) of the Table or those that did not trade during the year of assessment, are treated as falling under item (vii) of the Table:
(a) a company listed on a recognised stock exchange as referred to in paragraph 1 of the Eighth Schedule to the Income Tax Act;
(b) a company whose gross receipts or accruals for the ‘preceding year’ exceed R500 million;
(c) a company that forms part of a ‘group of companies’ as de ned in section 1 of the Income Tax Act, which group includes a company described in item (a) or (b); or
(d) a person or entity, exempt from income tax under the Income Tax Act but liable to tax under another tax Act, whose gross receipts or accruals exceed R30 million.
(4) SARS may, except in the case of persons referred to in subsection (3) (a) to (c), if the taxable income of the relevant person for the ‘preceding year’ is unknown or that person was not a taxpayer in that year—
(a) impose a ‘penalty’ in accordance with item (ii) of
column 1 of the Table; or
(b) estimate the amount of taxable income of the relevant
person for the ‘preceding year’ based on available relevant material and impose a ‘penalty’ in accordance with the applicable item in column 1 of the Table.
(5) Where, upon determining the actual taxable income or assessed loss of the person in respect of whom a ‘penalty’ was imposed under subsection (4), it appears that the person falls within another item in column 1 of the Table, the ‘penalty’ must be adjusted in accordance with the applicable item in that column with effect from the date of the imposition of the ‘penalty’ issued under subsection (4).
212 Reportable arrangement penalty
(1) A person referred to in paragraph (a) or (b) of the de nition of ‘participant’ who fails to disclose the information in respect of a ‘reportable arrangement’ as required by section 37 is liable to a ‘penalty’, for each month that the failure continues (up to 12 months), in the amount of—
[Words preceding para. (a) substituted by s. 62 (a) of Tax Administration Laws Amendment Act, 2015 – date of commencement: date of promulgation of Tax Administration Laws Amendment Act, 2015.]
1
2
3
Item
Assessed loss or taxable income for ‘preceding year’
‘Penalty’
(i)
Assessed loss
R250
(ii)
R0–R250 000
R250
(iii)
R250 001–R500 000
R500
(iv)
R500 001–R1 000 000
R1 000
(v)
R1 000 001–R5 000 000
R2 000
(vi)
R5 000 001–R10 000 000
R4 000
(vii)
R10 000 001–R50 000 000
R8 000
(viii)
Above R50 000 000
R16 000
Prelex
Words preceding para. (a) in force until promulgation of Tax Administration Laws Amendment Act, 2015
(1) A ‘participant’ who fails to disclose the information in respect of a reportable arrangement as required by section 37 is liable to a ‘penalty’, for each month that the failure continues (up to 12 months), in the amount of—
* See GN 597 in GG 38983 of 10 July 2015. Juta’s IndIrect tax 2016
159
TAX ADMINISTRATION ACT