Page 587 - SAIT Compendium 2016 Volume1

s 42A TAX ADMINISTRATION ACT 28 OF 2011 s 46
(e) any application to a High Court must be instituted within 30 days of the expiry of the period of 21 business days, failing which the material must be handed to the party in whose favour the determination, if any, was made.
(4) The appointed practitioner—
(a) is not regarded as acting on behalf of either party; (b) must personally take responsibility for the safekeeping
of the material;
(c) must give grounds for the determination under
subsection (3) (d); and
(d) must be compensated in the same manner as if acting
as chairperson of the tax board.
[S. 42A inserted by s. 41 of Tax Administration Laws Amendment Act, 2015 – date of commencement: date of promulgation of Tax Administration Laws Amendment Act, 2015.]
43 Referral for criminal investigation
(1) If at any time before or during the course of an audit it appears that a taxpayer may have committed a serious tax offence, the investigation of the offence must be referred to a senior SARS of cial responsible for criminal investigations for a decision as to whether a criminal investigation should be pursued.
[Sub-s. (1) substituted by s. 49 of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
(2) Relevant material obtained under this Chapter from the taxpayer after the referral, must be kept separate from the criminal investigation.
[Sub-s. (2) substituted by s. 49 of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
(3) If an investigation is referred under subsection (1) the relevant material and les relating to the case must be returned to the SARS of cial responsible for the audit if— (a) it is decided not to pursue a criminal investigation; (b) it is decided to terminate the investigation; or
(c) after referral of the case for prosecution, a decision is
made not to prosecute.
44 Conduct of criminal investigation
(1) During a criminal investigation, SARS must apply the information gathering powers in terms of this Chapter with due recognition of the taxpayer’s constitutional rights as a suspect in a criminal investigation.
(2) In the event that a decision is taken to pursue the criminal investigation of a serious tax offence, SARS may make use of relevant material obtained prior to the referral referred to in section 43.
(3) Relevant information obtained during a criminal investigation may be used for purposes of audit as well as in subsequent civil and criminal proceedings.
Part B
Inspection, request for relevant material, audit and criminal investigation (ss. 45–49)
45 Inspection
(1) A SARS of cial may, for the purposes of the administration of a tax Act and without prior notice, arrive at a premises where the SARS of cial has a reasonable belief that a trade or enterprise is being carried on and conduct an inspection to determine only—
(a) the identity of the person occupying the premises; (b) whether the person occupying the premises is
registered for tax; or
(c) whether the person is complying with sections 29 and
30.
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(2) A SARS of cial may not enter a dwelling-house or domestic premises, except any part thereof used for the purposes of trade, under this section without the consent of the occupant.
46 Request for relevant material
(1) SARS may, for the purposes of the administration of a tax Act in relation to a taxpayer, whether identi ed by name or otherwise objectively identi able, require the taxpayer or another person to, within a reasonable period, submit relevant material (whether orally or in writing) that SARS requires.
(2) A senior SARS of cial may require relevant material in terms of subsection (1)—
(a) in respect of taxpayers in an objectively identi able
class of taxpayers; or
(b) held or kept by a connected person, as referred to
in paragraph (d) (i) of the de nition of ‘connected person’ in the Income Tax Act, in relation to the taxpayer, located outside the Republic.
[Sub-s. (2) substituted by s. 42 (a) of Tax Administration Laws Amendment Act, 2015 – date of commencement: date of promulgation of Tax Administration Laws Amendment Act, 2015.]
(3) A request by SARS for relevant material from a person other than the taxpayer is limited to material maintained or kept or that should reasonably be maintained or kept by the person in respect of the taxpayer.
[Sub-s. (3) substituted by s. 50 (a) of Act 21 of 2012 (date of commencement deemed to have been 1 October 2012) and by s. 42 (a) of Tax Administration Laws Amendment Act, 2015 – date of commencement: date of promulgation of Tax Administration Laws Amendment Act, 2015.]
(4) A person or taxpayer receiving from SARS a request for relevant material under this section must submit the relevant material to SARS at the place, in the format (which must be reasonably accessible to the person or taxpayer) and—
(a) within the time speci ed in the request; or
(b) if the material is held by a connected person referred to
in subsection (2) (b), within 90 days from the date of the request, which request must set out the consequences referred to in subsection (9) of failing to do so.
[Sub-s. (4) substituted by s. 46 of Act 44 of 2014 (date of commencement deemed to have been 1 October 2012) and by s. 42 (a) of Tax Administration Laws Amendment Act, 2015 – date of commencement: date of promulgation of Tax Administration Laws Amendment Act, 2015.]
(5) If reasonable grounds for an extension are submitted by the person or taxpayer, SARS may extend the period within which the relevant material must be submitted.
[Sub-s. (5) substituted by s. 50 (b) of Act 21 of 2012 (date of commencement deemed to have been 1 October 2012) and by s. 42 (a) of Tax Administration Laws Amendment Act, 2015 – date of commencement: date of promulgation of Tax Administration Laws Amendment Act, 2015.]
Prelex
Wording of sub-ss. (2), (3), (4) and (5) in force until promulgation of Tax Administration Laws Amendment Act, 2015
(2) A senior SARS of cial may require relevant material in terms of subsection (1) in respect of taxpayers in an objectively identi able class of taxpayers.
TAX ADMINISTRATION ACT