Page 174 - Juta's Indirect Tax

s 240 TAX ADMINISTRATION ACT 28 OF 2011 s 240A
(b) provides the advice in anticipation of or in the course of any litigation to which the Commissioner is a party or where the Commissioner is a complainant;
(c) provides the advice as an incidental or subordinate part of providing goods or other services to another person; or
(d) provides the advice or completes or assists in completing a return—
(i) to or in respect of the employer by whom that person is employed on a full-time basis or to or in respect of the employer and connected persons in relation to the employer; or
(ii) under the supervision of a registered tax practitioner who has assigned or approved the assignment of those functions to the person.
[Sub-s. (2) amended by s. 82 (1) (c) and (d) of Act 21 of 2012 (date of commencement: 20 December 2012) and substituted by s. 81 (1) (a) of Act 39 of 2013 – date of commencement deemed to have been 20 December 2012 as well.]
(2A) A tax practitioner who has assigned or approved the assignment of functions to a person under subsection (2) (d) (ii) is regarded as accountable for the actions of that person in performing those functions for the purposes of a complaint to a recognised controlling body under section 241 (2).
[Sub-s. (2A) inserted by s. 81 (1) (b) of Act 39 of 2013 – date of commencement deemed to have been 20 December 2012.]
(3) A person may not register as a tax practitioner under subsection (1) or SARS may deregister a registered tax practitioner if the person or the registered tax practitioner, as the case may be—
[Words preceding para. (a) substituted by s. 60 (a) of Act 44 of 2014 – date of commencement deemed to have been 1 October 2012.]
(a) during the preceding ve years has been removed from a related profession by a ‘controlling body’ for serious misconduct;
[Para. (a) substituted by s. 82 (1) (e) of Act 21 of 2012 – date of commencement: 20 December 2012.]
(b) during the preceding ve years has been convicted (whether in the Republic or elsewhere) of—
(i) theft, fraud, forgery or uttering a forged document, perjury or an offence under the Prevention and Combating of Corrupt Activities Act, 2004 (Act 12 of 2004); or
(ii) any other offence involving dishonesty,
for which the person has been sentenced to a period of imprisonment exceeding two years without the option of a ne or to a ne exceeding the amount prescribed in the Adjustment of Fines Act, 1991 (Act 101 of 1991); or
(c) during the preceding ve years has been convicted of a serious tax offence.
[Para. (c) added by s. 60 (b) of Act 44 of 2014 – date of commencement deemed to have been 1 October 2012.]
(4) If prosecution for a serious tax offence has been instituted but not nalised against a person or registered tax practitioner and if the person or registered tax practitioner continues with the commission of a serious tax offence after the criminal proceedings have been instituted, a senior SARS of cial may—
(a) not register the person as a registered tax practitioner; or
(b) suspend the registration of the registered tax practitioner,
for the duration of the criminal proceedings commencing on the date that prosecution is instituted and ending on the
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date that the person or registered tax practitioner is nally acquitted.
[Sub-s. (4) added by s. 60 (c) of Act 44 of 2014 – date of commencement deemed to have been 1 October 2012.]
240A Recognition of controlling bodies
(1) The Commissioner must recognise as a ‘recognised controlling body’—
(a) the Independent Regulatory Board for Auditors
established in terms of section 3 of the Auditing
Professions Act, 2005 (Act 26 of 2005);
(b) a Law Society established in terms of Chapter 3 of the
Attorneys Act, 1979 (Act 53 of 1979);
(c) the General Council of the Bar of South Africa, a
Bar Council and a Society of Advocates referred to in section 7 of the Admission of Advocates Act, 1964 (Act 74 of 1964); and
(d) a statutory body that the Minister is satis ed is similar to the statutory bodies in this subsection and the details of which are published in the Gazette.
(2) The Commissioner may recognise a ‘controlling body’, for natural persons that provide advice with respect to the application of a tax Act or complete returns, as a ‘recognised controlling body’ if the body—
(a) in respect of such persons, maintains relevant and effective—
[Words preceding sub-para. (i) substituted by s. 82 (1) (a) of Act 39 of 2013 – date of commencement deemed to have been 20 December 2012.]
(b) (c)
(i)minimum quali cation and experience requirements;
(ii) continuing professional education requirements; (iii) codes of ethics and conduct; and
(iv) disciplinary codes and procedures;
is approved in terms of section 30B of the Income Tax Act for purposes of section 10(1)(d)(iv) of the Act; and has at least 1 000 members when applying for recognition or reasonable prospects of having 1 000 members within a year of applying.
(3) A body must within the prescribed time period and in the prescribed form and manner, if recognised under— (a) subsection (1), submit a list of its members to whom
the provisions under section 240 (1) apply; and
(b) subsection (2), submit a report on its members and
compliance with this Chapter.
[Sub-s. (3) substituted by s. 82 (1) (b) of Act 39 of 2013 – (date of commencement deemed to have been 20 December 2012) and by s. 61 (1) (a) of Act 44 of 2014 – date of commencement deemed to have been 20 December 2012.]
(4) The Minister may appoint a panel of retired judges or persons of similar stature and competence one or more of whom may decide, on behalf of a body recognised under subsection (2), complaints lodged under section 241—
(a) at the request of the body; or
(b) if the Minister is satis ed that the body’s disciplinary
process is ineffective.
(5) The costs of the panel in deciding complaints will be
borne equally by such a body and SARS.
(6) If a body recognised under subsection (2) no longer
meets the listed requirements, the Commissioner must notify it that if it does not take corrective steps within the period speci ed in the notice, its recognition will be withdrawn at the end of the period.
[S. 240A inserted by s. 83 (1) of Act 21 of 2012 – date of commencement: 20 December 2012.]
Juta’s IndIrect tax 2016