Page 615 - SAIT Compendium 2016 Volume1

s 184 TAX ADMINISTRATION ACT 28 OF 2011 s 186
(a) before the person is held liable for the tax debt of the taxpayer in terms of section 155, 157, 179, 180, 181, 182 or 183, if this will not place the collection of tax in jeopardy; or
(b) as soon as practical after the person is held liable for the tax debt of the taxpayer in terms of section 155, 157, 179, 180, 181, 182 or 183.
[S. 184 substituted by s. 51 (1) of Act 44 of 2014 – date of commencement: 20 January 2015.]
Part E
Assisting foreign governments (s. 185)
185 Tax recovery on behalf of foreign governments
(1) If SARS has, in accordance with an international tax agreement, received—
(a) a request for conservancy of an amount alleged to be
due by a person under the tax laws of the other country where there is a risk of dissipation or concealment of assets by the person, a senior SARS of cial may authorise an application for a preservation order under section 163 as if the amount were a tax payable by the person under a tax Act; or
[Para. (a) substituted by s. 58 (1) of Tax Administration Laws Amendment Act, 2015 – date of commencement deemed to have been 1 October 2012.]
(b) fails to respond to the notice; or
(c) denies liability but a senior SARS of cial, based
on the statements in the certi cate described in subsection (2) or, if necessary, after consultation with the competent authority of the other country, is satis ed that—
(i) the liability for the amount is not disputed in terms of the laws of the other country;
(ii) although the liability for the amount is disputed in terms of the laws of the other country, such dispute has been entered into solely to delay or frustrate collection of the amount alleged to be due; or
(iii) there is a risk of dissipation or concealment of assets by the person,
the of cial may, by notice, require the person to pay the amount for which the person has admitted liability or the amount speci ed, on a date speci ed, for transmission to the competent authority in the other country.
(5) If the person fails to comply with the notice under subsection (4), SARS may recover the amount in the certi cate for transmission to the foreign authority as if it were a tax payable by the person under a tax Act.
(6) No steps taken in assistance in collection by any other country under an international tax agreement for the collection of an amount alleged to be due by a person under a tax Act, including a judgment given against a person in the other country for the amount in pursuance of the agreement, may affect the person’s right to have the liability for the amount determined in the Republic in accordance with the relevant law.
Part F
Remedies with respect to foreign assets (s. 186)
186 Compulsory repatriation of foreign assets of taxpayer
(1) To collect an outstanding tax debt, a senior SARS of cial may apply for an order referred to in subsection (2), if—
[Words preceding para. (a) substituted by s. 70 of Act 39 of 2013 – date of commencement deemed to have been 1 October 2012.]
(a) the taxpayer concerned does not have suf cient assets located in the Republic to satisfy the tax debt in full; and
(b) the senior SARS of cial believes that the taxpayer— (i) has assets outside the Republic; or
(ii) has transferred assets outside the Republic for no consideration or for consideration less than the fair market value,
which may fully or partly satisfy the tax debt.
(2) A senior SARS of cial may apply to the High Court for an order compelling the taxpayer to repatriate assets located outside the Republic within a period prescribed by
the court in order to satisfy the tax debt.
(3) In addition to issuing the order described in
subsection (2), the court may—
(a) limit the taxpayer’s right to travel outside the
Republic and require the taxpayer to surrender his or
her passport to SARS;
(b) withdraw a taxpayer’s authorisation to conduct
business in the Republic, if applicable; (c) require the taxpayer to cease trading; or (d) issue any other order it deems t.
(4) An order made under subsection (2) applies until the tax debt has been satis ed or the assets have been repatriated and utilised in satisfaction of the tax debt.
Prelex
Wording of para. (a) in force from 1 October 2012 until its retrospective substitution by s. 58 (1) of the Tax Administration Laws Amendment Act, 2015, which is also deemed to have come into operation on 1 October 2012
(a) a request for conservancy of an amount alleged to
be due by a person under the tax laws of the other country where there is a risk of dissipation or concealment of assets by the person, a senior SARS of cial may apply for a preservation order under section 163 as if the amount were a tax payable by the person under a tax Act; or
(b) a request for the collection from a person of an amount alleged to be due by the person under the tax laws of the other country, a senior SARS of cial may, by notice, call upon the person to state, within a period speci ed in the notice, whether or not the person admits liability for the amount or for a lesser amount.
(2) A request described in subsection (1) must be in the prescribed form and must include a formal certi cate issued by the competent authority of the other country stating—
(a) the amount of the tax due;
(b) whether the liability for the amount is disputed in
terms of the laws of the other country;
(c) if the liability for the amount is so disputed, whether
such dispute has been entered into solely to delay or frustrate collection of the amount alleged to be due; and
(d) whether there is a risk of dissipation or concealment of assets by the person.
(3) In any proceedings, a certi cate referred to in subsection (2) is—
(a) conclusive proof of the existence of the liability
alleged; and
(b) prima facie proof of the other statements contained
therein.
(4) If, in response to the notice issued under subsection
(1) (b), the person— (a) admits liability;
SAIT CompendIum oF TAx LegISLATIon VoLume 1 607
TAX ADMINISTRATION ACT