Page 590 - SAIT Compendium 2016 Volume1

s 56 TAX ADMINISTRATION ACT 28 OF 2011 s 62
56 Con dentiality of proceedings
(1) An inquiry under this Part is private and con dential.
(2) The presiding of cer may, on request, exclude a person from the inquiry if the person’s attendance is prejudicial to the inquiry.
(3) Section 69 applies with the necessary changes to persons present at the questioning of a person, including the person being questioned.
(4) Subject to section 57 (2), SARS may use evidence given by a person under oath or solemn declaration at an inquiry in a subsequent proceeding involving the person or another person.
57 Incriminating evidence
(1) A person may not refuse to answer a question during an inquiry on the grounds that it may incriminate the person.
(2) Incriminating evidence obtained under this section is not admissible in criminal proceedings against the person giving the evidence, unless the proceedings relate to— (a) the administering or taking of an oath or the
administering or making of a solemn declaration;
(b) the giving of false evidence or the making of a false
statement; or
(c) the failure to answer questions lawfully put to the
person, fully and satisfactorily.
58 Inquiry not suspended by civil or criminal proceedings
Unless a court orders otherwise, an inquiry relating to a person referred to in section 51 (1) (a) must proceed despite the fact that a civil or criminal proceeding is pending or contemplated against or involves the person, a witness or potential witness in the inquiry, or another person whose affairs may be investigated in the course of the inquiry.
Part D
Search and seizure (ss. 59–66)
59 Application for warrant
(1) A senior SARS of cial may, if necessary or relevant to administer a tax Act, authorise an application for a warrant under which SARS may enter a premises where relevant material is kept to search the premises and any person present on the premises and seize relevant material.
(2) SARS must apply ex parte to a judge for the warrant, which application must be supported by information supplied under oath or solemn declaration, establishing the facts on which the application is based.
(3) Despite subsection (2), SARS may apply for the warrant referred to in subsection (1) and in the manner referred to in subsection (2), to a magistrate, if the matter relates to an audit or investigation where the estimated tax in dispute does not exceed the amount determined in the notice issued under section 109 (1) (a).
60 Issuance of warrant
(1) A judge or magistrate may issue the warrant referred to in section 59 (1) if satis ed that there are reasonable grounds to believe that—
(a) a person failed to comply with an obligation imposed
under a tax Act, or committed a tax offence; and
(b) relevant material likely to be found on the premises speci ed in the application may provide evidence of
the failure to comply or commission of the offence. (2) A warrant issued under subsection (1) must contain
(a) the alleged failure to comply or offence that is the basis for the application;
(b) the person alleged to have failed to comply or to have committed the offence;
(c) the premises to be searched; and
(d) the fact that relevant material as de ned in section 1 is
likely to be found on the premises.
(3) The warrant must be exercised within 45 business
days or such further period as a judge or magistrate deems appropriate on good cause shown.
61 Carrying out search
(1) A SARS of cial exercising a power under a warrant referred to in section 60 must produce the warrant, and if the owner or person in control of the premises is not present, the SARS of cial must af x a copy of the warrant to the premises in a prominent and visible place.
[Sub-s. (1) substituted by s. 52 of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
(2) Subject to section 63, a SARS of cial’s failure to produce a warrant entitles a person to refuse access to the of cial.
(3) The SARS of cial may—
(a) open or cause to be opened or removed in conducting
a search, anything which the of cial suspects to
contain relevant material;
(b) seize any relevant material;
(c) seize and retain a computer or storage device in
which relevant material is stored for as long as it is
necessary to copy the material required;
(d) make extracts from or copies of relevant material, and require from a person an explanation of relevant
material; and
(e) if the premises listed in the warrant is a vessel,
aircraft or vehicle, stop and board the vessel, aircraft or vehicle, search the vessel, aircraft or vehicle or a person found in the vessel, aircraft or vehicle, and question the person with respect to a matter dealt with in a tax Act.
(4) The SARS of cial must make an inventory of the relevant material seized in the form, manner and at the time that is reasonable under the circumstances and provide a copy thereof to the person.
(5) The SARS of cial must conduct the search with strict regard for decency and order, and may search a person if the of cial is of the same gender as the person being searched.
(6) The SARS of cial may, at any time, request such assistance from a police of cer as the of cial may consider reasonably necessary and the police of cer must render the assistance.
(7) No person may obstruct a SARS of cial or a police of cer from executing the warrant or without reasonable excuse refuse to give such assistance as may be reasonably required for the execution of the warrant.
(8) If the SARS of cial seizes relevant material, the of cial must ensure that the relevant material seized is preserved and retained until it is no longer required for— (a) the investigation into the non-compliance or the
offence described under section 60 (1) (a); or
(b) the conclusion of any legal proceedings under a tax Act or criminal proceedings in which it is required to
be used.
62 Search of premises not identi ed in warrant
(1) If a senior SARS of cial has reasonable grounds to believe that—
(a) the relevant material referred to in section 60 (1) (b)
and included in a warrant is at premises not identi ed in the warrant and may be removed or destroyed;
the following:
582 SAIT CompendIum oF TAx LegISLATIon VoLume 1