Page 586 - SAIT Compendium 2016 Volume1

s 38
(b)
(c)
(d) (e)
39
TAX ADMINISTRATION ACT 28 OF 2011 s 42A
a detailed description of the assumed ‘tax bene ts’ for all ‘participants’, including, but not limited to, tax deductions and deferred income;
the names, registration numbers, and registered addresses of all ‘participants’;
a list of all its agreements; and
any nancial model that embodies its projected tax treatment.
Reportable arrangement reference number
based on the complexities of the audit, respond in writing to the facts and conclusions set out in the document.
(4) The taxpayer may waive the right to receive the document.
(5) Subsections (1) and (2) (b) do not apply if a senior SARS of cial has a reasonable belief that compliance with those subsections would impede or prejudice the purpose, progress or outcome of the audit.
(6) SARS may under the circumstances described in subsection (5) issue the assessment or make the decision referred to in section 104 (2) resulting from the audit and the grounds of the assessment or decision must be provided to the taxpayer within 21 business days of the assessment or the decision, or the further period that may be required based on the complexities of the audit or the decision.
[Sub-s. (6) substituted by s. 48 (b) of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
42A Procedure where legal professional privilege is asserted
(1) For purposes of Parts B, C and D, if a person alleges the existence of legal professional privilege in respect of relevant material required by SARS, during an inquiry or during the conduct of a search and seizure by SARS, the person must provide the following information to SARS and, if applicable, the presiding of cer designated under section 51 or the attorney referred to in section 64:
(a) a description and purpose of each item of the material
in respect of which the privilege is asserted;
(b) the author of the material and the capacity in which
the author was acting;
(c) the name of the person for whom the author referred
to in paragraph (b) was acting in providing the
material;
(d) con rmation in writing that the person referred to in
paragraph (c) is claiming privilege in respect of each
item of the material;
(e) if the material is not in possession of the person
SARS must, after receipt of the information contemplated in section 38, issue a ‘reportable arrangement’ reference number to each ‘participant’ for administrative purposes only.
[S. 39 substituted by s. 45 (1) of Act 44 of 2014 – date of commencement: 20 January 2015.]
CHAPTER 5 INFORMATION GATHERING (ss. 40–66)
Part A
General rules for inspection, veri cation, audit and criminal investigation (ss. 40–44)
40 Selection for inspection, veri cation or audit
SARS may select a person for inspection, veri cation or audit on the basis of any consideration relevant for the proper administration of a tax Act, including on a random or a risk assessment basis.
41 Authorisation for SARS of cial to conduct audit or criminal investigation
(1) A senior SARS of cial may grant a SARS of cial written authorisation to conduct a eld audit or criminal investigation, as referred to in Part B.
(2) When a SARS of cial exercises a power or duty under a tax Act in person, the of cial must produce the authorisation. (3) If the of cial does not produce the authorisation, a member of the public is entitled to assume that the of cial
is not a SARS of cial so authorised.
42 Keeping taxpayer informed
(1) A SARS of cial involved in or responsible for an audit under this Chapter must, in the form and in the manner* as may be prescribed by the Commissioner by public notice, provide the taxpayer with a report indicating the stage of completion of the audit.
[Sub-s. (1) substituted by s. 48 (a) of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
(2) Upon conclusion of the audit or a criminal investigation, and where—
(a) the audit or investigation was inconclusive, SARS
must inform the taxpayer accordingly within 21
business days; or
(b) the audit identi ed potential adjustments of a material
nature, SARS must within 21 business days, or the further period that may be required based on the complexities of the audit, provide the taxpayer with a document containing the outcome of the audit, including the grounds for the proposed assessment or decision referred to in section 104 (2).
(3) Upon receipt of the document described in subsection (2) (b), the taxpayer must within 21 business days of delivery of the document, or the further period requested by the taxpayer that may be allowed by SARS
(f)
referred to in paragraph (d), from whom did the person asserting privilege obtain the material; and
if the person asserting privilege is not the person referred to in paragraph (d), under what circumstances and instructions regarding the privilege did the person obtain the material.
(2) A person must submit the information required under Part B to SARS at the place, in the format and within the time speci ed by SARS, unless SARS extends the period based on reasonable grounds submitted by the person.
(3) If SARS disputes the assertion of privilege upon receipt of the information—
(a) SARS must make arrangements with a practitioner
from the panel appointed under section 111 to take
receipt of the material;
(b) the person asserting privilege must seal and hand over
the material in respect of which privilege is asserted
to the practitioner;
(c) the practitioner must within 21 business days after
being handed the material make a determination of whether the privilege applies and may do so in the manner the practitioner deems t, including considering representations made by the parties;
(d) if a determination of whether the privilege applies is not made by the practitioner or a party is not satis ed with the determination, the practitioner must retain the relevant material pending nal resolution of the dispute by the parties or an order of court; and
* See GN 788 in GG 35733 of 1 October 2012.
578 SAIT CompendIum oF TAx LegISLATIon VoLume 1