Page 348 - SAIT Compendium 2016 Volume1

Fourth Schedule INCOME TAX ACT 58 OF 1962 Fourth Schedule
submitted by any provisional taxpayer during such period, any additional provisional tax payable as a result of the Commissioner having made such increase shall, notwithstanding the provisions of paragraphs 21 and 23, be payable within such period as the Commissioner may determine.
[Sub-para. (1) substituted by s. 271 of Act 28 of 2011 – date of commencement: 1 October 2012.]
(2) . . .
26. . . .
[Sub-para. (2) deleted by s. 271 of Act 28 of 2011 – date of commencement: 1 October 2012.] CERTAIN MATTERS TO BE DECIDED BY THE COMMISSIONER (para. 26)
[Para. 26 repealed by s. 61 of Act 74 of 2002.]
PENALTY ON LATE PAYMENT OF PROVISIONAL TAX (para. 27)
27. (1) If any provisional taxpayer fails to pay any amount of provisional tax for which he or she is liable within the period allowed for payment thereof in terms of paragraph 21 or 23, or paragraph 25 (1), the Commissioner must, under Chapter 15 of the Tax Administration Act, impose a penalty, which is deemed to be a percentage based penalty imposed under Chapter 15 of the Tax Administration Act, equal to ten per cent of the amount not paid.
[Sub-para. (1) substituted by s. 48 of Act 32 of 2004, by s. 271 of Act 28 of 2011 (date of commencement: 1 October 2012) and by s. 25 of Act 21 of 2012 – date of commencement: 20 December 2012.]
(2) . . .
(3) . . .
[Sub-para. (2) deleted by s. 271 of Act 28 of 2011 – date of commencement: 1 October 2012.]
[Sub-para. (3) added by s. 43 (1) of Act 121 of 1984 and deleted by s. 29 of Act 65 of 1986.]
[NB: The repeal of para. 27 was proposed by s. 20 (1) of Act 61 of 2008, a provision that was to have come into operation on a date to be determined by the Minister. However, the said s. 20 was repealed by s. 271 of Act 28 of 2011 (see para. 95 of Schedule 1 to that Act) wef 1 October 2012.]
PART IV GENERAL (paras. 28–34)
EMPLOYEES’ TAX AND PROVISIONAL TAX TO BE SET OFF AGAINST TAX LIABILITY (para. 28) [Heading substituted by s. 55 (1) of Act 85 of 1974 and by s. 53 (a) of Act 94 of 1983.]
28. (1) There shall be set off against the liability of the taxpayer in respect of any taxes (as de ned in subparagraph (8) due by the taxpayer, the amounts of employees’ tax deducted or withheld by the taxpayer’s employer during any year of assessment for which the taxpayer’s liability for normal tax has been assessed by the Commissioner and the amounts of provisional tax paid by the taxpayer in respect of any such year, and if—
(a) the sum of the said amounts of employees’ tax and provisional tax exceeds the amount of the taxpayer’s total
liability for the said taxes, the excess amount shall be refunded to the taxpayer; or
(b) the taxpayer’s total liability for the aforesaid taxes exceeds the sum of the said amounts of employees’ tax and
provisional tax, the amount of the excess shall be payable by the taxpayer to the Commissioner.
[Sub-para. (1) amended by s. 30 of Act 95 of 1967 and substituted by s. 48 of Act 89 of 1969, by s. 48 (a) of Act 88 of 1971, by s. 55 (1) of Act 85 of 1974, by s. 53 (a) of Act 94 of 1983 and by s. 30 (1) (a) of Act 65 of 1986.]
(1)bis . . .
[Sub-para. (1)bis inserted by s. 29 (1) (a) of Act 90 of 1964, substituted by s. 48 (a) of Act 88 of 1971, by s. 23 (1) of Act
90 of 1972, by s. 55 (1) of Act 85 of 1974 and by s. 53 (a) of Act 94 of 1983 and deleted by s. 30 (1) (b) of Act 65 of 1986.] (2) The burden of proof that any amount of employees’ tax has been deducted or withheld by his employer shall be upon the taxpayer and any employees’ tax certi cate shall be prima facie evidence that the amount of employees’ tax
re ected therein has been deducted by the employer.
(3) If the Commissioner is satis ed that the amount or any portion of the amount of employees’ tax shown in any
employees’ tax certi cate has not been deducted or withheld by the employer and the amount of employees’ tax shown in such tax certi cate has been applied as provided in subparagraph (1), the employer and the employee shall be jointly and severally liable to pay to the Commissioner the amount which should not have been so applied and such amount shall be recoverable under this Act as if it were a tax.
(4) An employer who has under subparagraph (3) paid to the Commissioner an amount which has but should not have been applied under the provisions of subparagraph (1), may, if the amount was shown or included in the certi cate because of a bona de error, recover the amount so paid from the employee concerned, and in that case the provisions of subparagraph (3) of paragraph 5 shall mutatis mutandis apply.
(5) No employees’ tax certi cate shall be issued by the employer in respect of any amount recovered by him from the employee in terms of subparagraph (4) nor shall any such amount be included in any return rendered in terms of subparagraph (3) of paragraph 14.
(6) If the Commissioner is satis ed that the employee to whom an employees’ tax certi cate refers was directly or indirectly responsible for an incorrect amount being shown on such certi cate he may absolve the employer from the liability imposed upon him by subparagraph (3), and in that case the employee shall be solely liable under that subparagraph.
(7) If the Commissioner, purporting to act under the provisions of this paragraph, pays to any person by way of a refund any amount which was not properly payable to that person under those provisions or which was in excess of the amount due to such person by way of a refund under those provisions, such amount or the excess, as the case may be, shall forthwith be repaid by the person concerned to the Commissioner and shall be recoverable by the Commissioner under this Act as if it were a tax.
[Sub-para. (7) added by s. 29 (1) (b) of Act 90 of 1964.]
340 SAIT CompendIum oF TAx LegISLATIon VoLume 1