Page 596 - SAIT Compendium 2016 Volume1

s 79
(d)
(e)
(f)
(g) (h)
(i)
(j) (k)
(l) (m)
(n)
TAX ADMINISTRATION ACT 28 OF 2011 s 80
a complete description of the impact the ‘proposed transaction’ may have upon the tax liability of the ‘applicant’ or any ‘class member’ or, if relevant, any connected person in relation to the ‘applicant’ or any ‘class member’;
a complete description of any ‘transaction’ entered into by the ‘applicant’ or ‘class member’ prior to submitting the ‘application’ or that may be undertaken after the completion of the ‘proposed transaction’ which may have a bearing on the tax consequences of the ‘proposed transaction’ or may be considered to be part of a series of ‘transactions’ involving the ‘proposed transaction’;
the proposed ruling being sought, including a draft of the ruling;
the relevant statutory provisions or legal issues;
the reasons why the ‘applicant’ believes that the proposed ruling should be granted;
a statement of the ‘applicant’s’ interpretation of the relevant statutory provisions or legal issues, as well as an analysis of relevant authorities either considered by the ‘applicant’ or of which the ‘applicant’ is aware, as to whether those authorities support or are contrary to the proposed ruling being sought;
a statement, to the best of the ‘applicant’s’ knowledge, as to whether the ruling requested is referred to in section 80;
a description of the information that the ‘applicant’ believes should be deleted from the nal ruling before publication in order to protect the con dentiality of the ‘applicant’ or ‘class members’;
the ‘applicant’s’ consent to the publication of the ruling by SARS in accordance with section 87;
in the case of an ‘application’ for a ‘binding class ruling’—
(i) a description of the ‘class members’; and
(ii) the impact the ‘proposed transaction’ may have upon the tax liability of the ‘class members’ or, if relevant, any connected person in relation to the
‘applicant’ or to any ‘class member’;
a statement con rming that the ‘applicant’ complied with any registration requirements under a tax Act, with regard to any tax for which the ‘applicant’ is liable, unless the ‘application’ concerns a ruling to determine if the ‘applicant’ must register under a tax Act; and
(8) An ‘applicant’ may withdraw an ‘application’ for a ruling at any time.
(9) A co-applicant to a ‘binding private ruling’ referred to in subsection (2) may withdraw from an ‘application’ at any time.
(10) A withdrawal does not affect the liability to pay fees under section 81.
80 Rejection of application for advance ruling
(1) SARS may reject an ‘application’ for an ‘advance ruling’ if the ‘application’—
(a) requests or requires the rendering of an opinion,
conclusion or determination regarding— (i) the market value of an asset;
(ii) the application or interpretation of the laws of a foreign country;
(iii) the pricing of goods or services supplied by or rendered to a connected person in relation to the ‘applicant’ or a ‘class member’;
(iv) the constitutionality of a tax Act;
(v) a ‘proposed transaction’ that is hypothetical or
not seriously contemplated;
(vi) a matter which can be resolved by SARS issuing
a directive under the Fourth Schedule or the
Seventh Schedule to the Income Tax Act;
[Sub-para. (vi) substituted by s. 57 of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
(vii)whether a person is an independent contractor, labour broker or personal service provider; or
(viii) a matter which is submitted for academic purposes;
(b) contains—
(i) a frivolous or vexatious issue;
(ii) an alternative course of action by the ‘applicant’ or a ‘class member’ that is not seriously contemplated; or
(iii) an issue that is the same as or substantially similar to an issue that is—
(aa) currently before SARS in connection with
an audit, investigation or other proceeding involving the ‘applicant’ or a ‘class member’ or a connected person in relation to the ‘applicant’ or a ‘class member’;
(bb) the subject of a policy document or draft legislation that has been published; or
(cc) subject to dispute resolution under Chapter
9;
(c) involves the application or interpretation of a general
or speci c anti-avoidance provision or doctrine; (d) involves an issue—
(i) that is of a factual nature;
(ii) the resolution of which would depend upon
assumptions to be made regarding a future event or other matters which cannot be reasonably determined at the time of the ‘application’;
(iii) which would be more appropriately dealt with by the competent authorities of the parties to an agreement for the avoidance of double taxation;
(iv) in which the tax treatment of the ‘applicant’ is dependent upon the tax treatment of another party to the ‘proposed transaction’ who has not applied for a ruling;
(v) in respect of a ‘transaction’ that is part of another ‘transaction’ which has a bearing on the issue, the details of which have not been disclosed; or
(vi) which is the same as or substantially similar to an issue upon which the ‘applicant’ has already received an unfavourable ruling;
[Para. (n) added by s. 56 (b) of Act 21 of 2012 – date of commencement deemed to have been 1 October 2012.]
(o) a statement con rming that all returns required to be rendered by that ‘applicant’ in terms of a tax Act have been rendered and any tax has been paid or arrangements acceptable to SARS have been made for the submission of any outstanding returns or for the payment of any outstanding tax debt.
[Para. (o) added by s. 56 (b) of Act 21 of 2012 (date of commencement deemed to have been 1 October 2012) and substituted by s. 44 of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
(5) SARS may request additional information from an ‘applicant’ at any time.
(6) An ‘application’ must be accompanied by the ‘application’ fee prescribed under section 81.
(7) SARS must provide an ‘applicant’ with a reasonable opportunity to make representations if, based upon the ‘application’ and any additional information received, it appears that the content of the ruling to be made would differ materially from the proposed ruling sought by the ‘applicant’.
588 SAIT CompendIum oF TAx LegISLATIon VoLume 1