Page 580 - SAIT Compendium 2016 Volume1

s 11 TAX ADMINISTRATION ACT 28 OF 2011 s 15
(1) No SARS of cial may institute or defend civil proceedings on behalf of the Commissioner unless authorised to do so under this Act or by the Commissioner or by the person delegated by the Commissioner under section 6 (2).
[Sub-s. (1) substituted by s. 36 of Tax Administration Laws Amendment Act, 2015 – date of commencement: date of promulgation of Tax Administration Laws Amendment Act, 2015.]
(2) For purposes of subsection (1), a SARS of cial who, on behalf of the Commissioner, institutes litigation, or performs acts which are relied upon by the Commissioner in litigation, is regarded as duly authorised until proven to the contrary.
(3) A cost order in favour of SARS resulting from any civil proceedings under this Act constitutes funds of SARS within the meaning of section 24 of the SARS Act and must be paid to SARS despite any law to the contrary.
[Sub-s. (3) substituted by s. 40 of Act 21 of 2012 (date of commencement deemed to have been 1 October 2012) and by s. 33 (b) of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
(4) Unless the court otherwise directs, no legal proceedings may be instituted in the High Court against the Commissioner unless the applicant has given the Commissioner written notice of at least one week of the applicant’s intention to institute the legal proceedings.
[Sub-s. (4) added by s. 33 (c) of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
(5) The notice or any process by which the legal proceedings referred to in subsection (4) are instituted, must be served at the address speci ed by the Commissioner by public notice.*
[Sub-s. (5) added by s. 33 (c) of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
12 Right of appearance in proceedings
(1) Despite any law to the contrary, a senior SARS of cial may on behalf of SARS or the Commissioner in proceedings referred to in a tax Act, appear ex parte in a judge’s chambers in the tax court or in a High Court.
(2) A senior SARS of cial may appear in the tax court or a High Court only if the person—
(a) is an advocate duly admitted under—
(i) the Admission of Advocates Act, 1964 (Act 74 of 1964); or
(ii) a law providing for the admission of advocates in an area in the Republic which remained in force by virtue of paragraph 2 of Schedule 6 to the Constitution of the Republic of South Africa, 1996; or
(b) is an attorney duly admitted and enrolled under— (i) the Attorneys Act, 1979 (Act 53 of 1979); or
(ii) a law providing for the admission of attorneys in an area in the Republic which remained in force by virtue of paragraph 2 of Schedule 6 to the Constitution of the Republic of South Africa, 1996.
Part E
Powers and duties of Minister (ss. 13–14)
13 Powers and duties of Minister
(1) The powers conferred and the duties imposed upon the Minister by or under the provisions of a tax Act may—
(a) be exercised or performed by the Minister personally;
and
(b) except for the powers under sections 14 and 257, be
delegated by the Minister to the Deputy Minister or
Director-General of the National Treasury.
(2) The Director-General may in turn delegate the powers and duties delegated to the Director-General by the Minister to a person under the control, direction or
supervision of the Director-General.
14 Power of Minister to appoint Tax Ombud
(1) The Minister must appoint a person as Tax Ombud— (a) for a term of three years, which term may be renewed;
and
(b) under such conditions regarding remuneration and
allowances as the Minister may determine.
(2) The person appointed under subsection (1) or (3) may be removed by the Minister for misconduct,
incapacity or incompetence.
(3) During a vacancy in the of ce of Tax Ombud, the
Minister may designate a person in the of ce of the Tax Ombud to act as Tax Ombud.
(4) No person may be designated in terms of subsection (3) as acting Tax Ombud for a period longer than 90 days at a time.
(5) A person appointed as Tax Ombud—
(a) is accountable to the Minister;
(b) must have a good background in customer service as
well as tax law; and
(c) may not at any time during the preceding ve years
have been convicted (whether in the Republic or elsewhere) of—
(i) theft, fraud, forgery or uttering a forged document, perjury, 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).
Part F
Powers and duties of Tax Ombud (ss. 15–21)
15 Of ce of Tax Ombud
(1) The staff of the of ce of the Tax Ombud must be employed in terms of the SARS Act and be seconded to the of ce of the Tax Ombud at the request of the Tax Ombud in consultation with the Commissioner.
(2) When the Tax Ombud is absent or otherwise unable to perform the functions of of ce, the Tax Ombud may designate another person in the of ce of the Tax Ombud as acting Tax Ombud.
(3) No person may be designated in terms of subsection (2) as acting Tax Ombud for a period longer than 90 days at a time.
(4) The expenditure connected with the functions of the of ce of the Tax Ombud is paid out of the funds of SARS.
Prelex
Wording of sub-s. (1) in force until promulgation of Tax Administration Laws Amendment Act, 2015
(1) No SARS of cial other than the Commissioner or a SARS of cial duly authorised by the Commissioner may institute or defend civil proceedings on behalf of the Commissioner.
* See GN 223 in GG 37498 of 31 March 2014.
572 SAIT CompendIum oF TAx LegISLATIon VoLume 1