Page 597 - SAIT Compendium 2016 Volume1

s 80 TAX ADMINISTRATION ACT 28 OF 2011 s 86
(e) involves a matter the resolution of which would be unduly time-consuming or resource intensive; or
(f) requests SARS to rule on the substance of a
‘transaction’ and disregard its form.
(2) The Commissioner may publish by public notice*
a list of additional considerations in respect of which the Commissioner may reject an ‘application’.
(3) If SARS requests additional information in respect of an ‘application’ and the ‘applicant’ fails or refuses to provide the information, SARS may reject the ‘application’ without a refund or rebate of any fees imposed under section 81.
81 Fees for advance rulings
(1) In order to defray the cost of the ‘advance ruling’ system, the Commissioner may by public notice† prescribe fees for the issuance of a ‘binding private ruling’ or ‘binding class ruling’, including—
(a) an ‘application’ fee; and (b) a cost recovery fee.
(2) Following the acceptance of an ‘application’ SARS must, if requested, provide the ‘applicant’ with an estimate of the cost recovery fee anticipated in connection with the ‘application’ and must notify the ‘applicant’ if it subsequently appears that this estimate may be exceeded.
(3) The fees imposed under this section constitute fees imposed by SARS within the meaning of section 5 (1) (h) of the SARS Act, and constitute funds of SARS within the meaning of section 24 of that Act.
(4) If there is more than one ‘applicant’ for a ruling in respect of a ‘proposed transaction’ SARS may, upon request by the ‘applicants’, impose a single prescribed fee in respect of the ‘application’.
82 Binding effect of advance rulings
(1) If an ‘advance ruling’ applies to a person in accordance with section 83, then SARS must interpret or apply the applicable tax Act to the person in accordance with the ruling.
(2) An ‘advance ruling’ does not have ‘binding effect’ upon SARS in respect of a person unless it applies to the person in accordance with section 83.
(3) A ‘binding general ruling’ may be cited by SARS or a person in any proceedings, including court proceedings. (4) A ‘binding private ruling’ or ‘binding class ruling’ may not be cited in any proceeding, including court proceedings, other than a proceeding involving an
‘applicant’ or a ‘class member’, as the case may be.
(5) A publication or other written statement issued by SARS does not have ‘binding effect’ unless it is an
‘advance ruling’.
83 Applicability of advance rulings
A ‘binding private ruling’ or ‘binding class ruling’ applies to a person only if—
(a) the provision or provisions of the Act at issue are the
subject of the ‘advance ruling’;
(b) the person’s set of facts or ‘transaction’ are the same
as the particular set of facts or ‘transaction’ speci ed
in the ruling;
(c) the person’s set of facts or ‘transaction’ falls entirely
within the effective period of the ruling;
(d) any assumptions made or conditions imposed by SARS in connection with the validity of the ruling have been satis ed or carried out;
(e) in the case of a ‘binding private ruling’, the person is an ‘applicant’ identi ed in the ruling; and
(f) in the case of a ‘binding class ruling’, the person is a ‘class member’ identi ed in the ruling.
84 Rulings rendered void
(1) A ‘binding private ruling’ or ‘binding class ruling’ is void ab initio if—
(a) the ‘proposed transaction’ as described in the ruling
is materially different from the ‘transaction’ actually
carried out;
(b) there is fraud, misrepresentation or non-disclosure of
a material fact; or
(c) an assumption made or condition imposed by SARS
is not satis ed or carried out.
(2) For purposes of this section, a fact described in
subsection (1) is considered material if it would have resulted in a different ruling had SARS been aware of it when the original ruling was made.
85 Subsequent changes in tax law
(1) Despite any provision to the contrary contained in a tax Act, an ‘advance ruling’ ceases to be effective if— (a) a provision of the tax Act that was the subject of
the ‘advance ruling’ is repealed or amended in a manner that materially affects the ‘advance ruling’, in which case the ‘advance ruling’ will cease to be effective from the date that the repeal or amendment is effective; or
(b) a court overturns or modi es an interpretation of the tax Act on which the ‘advance ruling’ is based, in which case the ‘advance ruling’ will cease to be effective from the date of judgment unless—
(i) the decision is under appeal;
(ii) the decision is fact-speci c and the general
interpretation upon which the ‘advance ruling’
was based is unaffected; or
(iii) the reference to the interpretation upon which
the ‘advance ruling’ was based was obiter
dicta.
(2) An ‘advance ruling’ ceases to be effective upon
the occurrence of any of the circumstances described in subsection (1), whether or not SARS publishes a notice of withdrawal or modi cation.
86 Withdrawal or modi cation of advance rulings
(1) SARS may withdraw or modify an ‘advance ruling’ at any time.
(2) If the ‘advance ruling’ is a ‘binding private ruling’ or ‘binding class ruling’, SARS must rst provide the ‘applicant’ with notice of the proposed withdrawal or modi cation and a reasonable opportunity to object to the decision.
(3) SARS must specify the date the decision to withdraw or modify the ‘advance ruling’ becomes effective, which date may not be earlier than the date—
(a) the decision is delivered to an ‘applicant’, unless the
circumstances in subsection (4) apply; or
(b) in the case of a ‘binding general ruling’, the decision
is published.
* See GN 103 in GG 36119 of 8 February 2013 (Additional considerations in terms of s. 80 (2) of the Act in respect of which an application for a binding private ruling or a binding class ruling may be rejected)
† See GN 102 in GG 36119 of 8 February 2013 (Application and cost recovery fees for binding private rulings and binding class rulings in terms of s. 81 (1) of Act 28 of 2011)
SAIT CompendIum oF TAx LegISLATIon VoLume 1 589
TAX ADMINISTRATION ACT