Page 591 - SAIT Compendium 2016 Volume1

s 62
(b)
(c)
TAX ADMINISTRATION ACT 28 OF 2011 s 67
a warrant cannot be obtained in time to prevent the removal or destruction of the relevant material; and the delay in obtaining a warrant would defeat the object of the search and seizure,
(i) in the case of a warrant issued under section 60, for the removal from the premises of relevant material in respect of which legal privilege is alleged;
(ii) in the case of a search and seizure carried out under section 63, for the receipt of the sealed information; and
(iii) if a substitute attorney in terms of subsection (2), for the delivery of the information to the appointing attorney for purposes of making the determination referred to in subsection (5).
(5) The attorney referred to in subsection (1) or (3) must within 21 business days make a determination of whether the privilege applies and may do so in the manner the attorney deems t, including considering representations made by the parties.
(6) If a determination of whether the privilege applies is not made under subsection (5) or a party is not satis ed with the determination, the attorney must retain the relevant material pending nal resolution of the dispute by the parties or an order of court.
(7) The attorney from the panel appointed under section 111 and any attorney acting on behalf of that attorney referred to in subsection (1) must be compensated in the same manner as if acting as Chairperson of the tax board.
65 Person’s right to examine and make copies
(1) The person to whose affairs relevant material seized relates, may examine and copy it.
(2) Examination and copying must be made—
(a) at the person’s cost in accordance with the fees prescribed in accordance with section 92 (1) (b) of
the Promotion of Access to Information Act;
(b) during normal business hours; and
(c) under the supervision determined by a senior SARS
of cial.
66 Application for return of seized relevant material or costs of damages
(1) A person may request SARS to—
(a) return some or all of the seized material; and
(b) pay the costs of physical damage caused during the
conduct of a search and seizure.
(2) If SARS refuses the request, the person may apply
to a High Court for the return of the seized material or payment of compensation for physical damage caused during the conduct of the search and seizure.
(3) The court may, on good cause shown, make the order as it deems t.
(4) If the court sets aside the warrant issued in terms of section 60 (1) or orders the return of the seized material, the court may nevertheless authorise SARS to retain the original or a copy of any relevant material in the interests of justice.
CHAPTER 6 CONFIDENTIALITY OF INFORMATION (ss. 67–74)
67 General prohibition of disclosure
(1) This Chapter applies to—
(a) SARS con dential information as referred to in
a SARS of cial may enter and search the premises and
exercise the powers granted in terms of this Part, as if the premises had been identi ed in the warrant.
(2) A SARS of cial may not enter a dwelling-house or domestic premises, except any part thereof used for purposes of trade, under this section without the consent of the occupant.
63 Search without warrant
(1) A senior SARS of cial may without a warrant exercise the powers referred to in section 61 (3)—
(a) if the owner or person in control of the premises so
consents in writing; or
(b) if the senior SARS of cial on reasonable grounds is
satis ed that—
(i) there may be an imminent removal or destruction
of relevant material likely to be found on the
premises;
(ii) if SARS applies for a search warrant under
section 59, a search warrant will be issued; and (iii) the delay in obtaining a warrant would defeat the
object of the search and seizure.
(2) A SARS of cial must, before carrying out the search,
inform the owner or person in control of the premises— (a) that the search is being conducted under this section;
and
(b) of the alleged failure to comply with an obligation
imposed under a tax Act or tax offence that is the
basis for the search.
(3) Section 61 (4) to (8) applies to a search conducted
under this section.
(4) A SARS of cial may not enter a dwelling-house
or domestic premises, except any part thereof used for purposes of trade, under this section without the consent of the occupant.
(5) If the owner or person in control of the premises is not present, the SARS of cial must inform such person of the circumstances referred to in subsection (2) as soon as reasonably possible after the execution of the search and seizure.
[Sub-s. (5) added by s. 53 of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
64 Legal professional privilege
(1) If SARS foresees the need to search and seize rele- vant material that may be alleged to be subject to legal professional privilege, SARS must arrange for an attorney from the panel appointed under section 111 to be present during the execution of the warrant.
(2) An attorney with whom SARS has made an arrange- ment in terms of subsection (1) may appoint a substitute attorney to be present on the appointing attorney’s behalf during the execution of a warrant.
(3) If, during the carrying out of a search and seizure by SARS, a person alleges the existence of legal professional privilege in respect of relevant material and an attorney is not present under subsection (1) or (2), SARS must seal the material, make arrangements with an attorney from the panel appointed under section 111 to take receipt of the material and, as soon as is reasonably possible, hand over the material to the attorney.
(4) An attorney referred to in subsections (1), (2) and (3)—
(a) is not regarded as acting on behalf of either party; and (b) must personally take responsibility—
(b)
section 68 (1); and
“taxpayer information”, which means any information provided by a taxpayer or obtained by SARS in respect of the taxpayer, including biometric information.
(2) An oath or solemn declaration undertaking to comply with the requirements of this Chapter in the
SAIT CompendIum oF TAx LegISLATIon VoLume 1 583
TAX ADMINISTRATION ACT