Page 594 - SAIT Compendium 2016 Volume1

s 70 TAX ADMINISTRATION ACT 28 OF 2011 s 73
to and for the purposes only of verifying the correctness of the following particulars of a taxpayer:
(a) name and taxpayer reference number;
(b) any identifying number;
(c) physical and postal address and other contact details; (d) employer’s name, address and contact details; and (e) other non- nancial information as the organ of state
or institution may require for purposes of verifying
paragraphs (a) to (d).
(5) The information disclosed under subsection (1), (2)
or (3) may only be disclosed by SARS or the persons or entities referred to in subsection (1), (2) or (3) to the extent that it is—
(a) necessary for the purpose of exercising a power or
performing a regulatory function or duty under the
legislation referred to in subsection (1), (2) or (3); and (b) relevant and proportionate to what the disclosure is intended to achieve as determined under the
legislation.
[Sub-s. (5) substituted by s. 48 of Tax Administration Laws Amendment Act, 2015 – date of commencement: date of promulgation of Tax Administration Laws Amendment Act, 2015.]
(a) SARS has information referred to in subsection (2); (b) the information will likely be material to the prosecution of the offence or avoidance of the risk;
and
[Para. (b) substituted by s. 54 of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
(c) the disclosure of the information would not seriously impair a civil or criminal tax investigation,
make an ex parte application to a judge in chambers for an order authorising SARS to disclose the information under subsection (1).
(4) The National Commissioner of the South African Police Service, the National Director of Public Prosecutions or a person acting under their respective direction and control, if—
(a) carrying out an investigation relating to an offence or a public safety or environmental risk referred to in subsection (2); and
(b) of the opinion that SARS may have information that is relevant to that investigation,
may make an ex parte application to a judge in chambers for an order requiring SARS to disclose the information referred to in subsection (2).
(5) SARS must be given prior notice of at least 10 business days of an application under subsection (4) unless the judge, based on urgency, allows a shorter period and SARS may oppose the application on the basis that the disclosure would seriously impair or prejudice a civil or criminal tax investigation or other enforcement of a tax Act by SARS.
72 Self-incrimination
(1) A taxpayer may not refuse to comply with his or her obligations in terms of legislation to complete and le a return or an application on the grounds that to do so might incriminate him or her, and an admission by the taxpayer contained in a return, application, or other document submitted to SARS by a taxpayer is admissible in criminal proceedings against the taxpayer for a tax offence, unless a competent court directs otherwise.
(2) An admission by the taxpayer of the commission of a tax offence obtained from a taxpayer under Chapter 5 is not admissible in criminal proceedings against the taxpayer, unless a competent court directs otherwise.
[S. 72 substituted by s. 55 of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
73 Disclosure to taxpayer of own record
(1) A taxpayer or the taxpayer’s duly authorised representative is entitled to obtain—
(a) a copy, certi ed by SARS, of the recorded particulars
of an assessment or decision referred to in section 104
(2) relating to the taxpayer;
(b) access to information submitted to SARS by the
taxpayer or by a person on the taxpayer’s behalf;
(c) information, other than SARS con dential inform- ation, on which the taxpayer’s assessment is based;
and
[Para. (c) substituted by s. 43 (b) of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
(d) other information relating to the tax affairs of the taxpayer.
[Para. (d) added by s. 43 (c) of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
(2) A request for information under subsection (1) (d) must be made under the Promotion of Access to Information Act.
[Sub-s. (2) substituted by s. 43 (d) of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
Prelex
Wording of sub-s. (5) in force until promulgation of Tax Administration Laws Amendment Act, 2015
(5) The information disclosed under subsection (2) or (3) may only be disclosed by SARS or the persons or entities referred to in subsection (2) or (3) to the extent that it is—
(a) necessary for the purpose of exercising a power or
performing a regulatory function or duty under the
legislation referred to in subsection (2) or (3); and
(b) relevant and proportionate to what the disclosure is intended to achieve as determined under the
legislation.
(6) SARS must allow the Auditor-General to have access to information in the possession of SARS that relates to the performance of the Auditor-General’s duties under section 4 of the Public Audit Act, 2004 (Act 25 of 2004).
(7) Despite subsections (1) to (5), a senior SARS of cial may not disclose information under this section if satis ed that the disclosure would seriously impair a civil or criminal tax investigation.
71 Disclosure in criminal, public safety or environmental matters
(1) If so ordered by a judge under this section, a senior SARS of cial must disclose the information described in subsection (2) to—
(a) the National Commissioner of the South African
Police Service, referred to in section 6 (1) of the South African Police Service Act, 1995 (Act 68 of 1995); or
(b) the National Director of Public Prosecutions, referred to in section 5 (2) (a) of the National Prosecuting Authority Act, 1998 (Act 32 of 1998).
(2) Subsection (1) applies to information which may reveal evidence—
(a) that an offence (other than a tax offence) has been or
may be committed in respect of which a court may impose a sentence of imprisonment exceeding ve years;
(b) that may be relevant to the investigation or prosecution of the offence; or
(c) of an imminent and serious public safety or environmental risk.
(3) A senior SARS of cial may, if of the opinion that—
586 SAIT CompendIum oF TAx LegISLATIon VoLume 1