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Income Tax Act, 1962 (Act 58 of 1962)

Chapter III: General Provisions

Part IA: Advance Tax Rulings

76G. Exclusions, refusals and rejections (Repealed)

 

 

[Repealed by the Tax Administration Act, 2011 (Act No. 28 of 2011)].

 

1) Notwithstanding any provision to the contrary in this Act, the Commissioner may reject an application for an advance tax ruling in any of the following circumstances—
a) the application requests or requires the rendering of an opinion, conclusion or determination regarding or in respect of any of the following:
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 to a class member in the case of an application for a binding class ruling);
iv) the constitutionality of any tax law; or
v) a proposed transaction that is hypothetical or not seriously contemplated;
b) the application relates to the duty of an employer to determine whether a person is an independent contractor, labour broker or a personal service provider;
c) the application is submitted for academic purposes;
d) the application presents, contains, or raises—
i) a frivolous or vexatious issue;
ii) alternative courses of action by the applicant (or requests or requires the rendering of an opinion, conclusion or determination regarding such alternative courses of action); or
iii) an issue that is the same as or substantially similar to an issue that is-
aa) currently before the Commissioner in connection with an audit, examination, investigation or other proceeding involving the applicant or any connected person in relation to the applicant (or, in the case of a binding class ruling, in relation to the applicant or any class member);
bb) the subject of draft legislation; or
cc) pending before the courts;
e) where the applicant has not complied with any registration requirements under any Act administered by the Commissioner, 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 any such Act;
f) where all returns required to be rendered by that applicant in terms of any Act administered by the Commissioner have been not been rendered, or where any taxes, duties or levies due to the Commissioner have not been paid and no arrangements acceptable to the Commissioner have been made for the submission of any outstanding returns or for the payment of any outstanding taxes, duties or levies; or
g) where the class members are identifiable and number less than 10 each class member has not fully complied with its relevant obligations under any Act administered by the Commissioner and has not made arrangements acceptable to the Commissioner to do so.

 

2) In addition to the exclusions and refusals set forth in subsections (1) of this section, the Commissioner may reject any application regarding or in respect of any of the following—
a) the application or interpretation of any general or specific antiavoidance provision, including but not limited to section 103 of this Act, as well as the application or interpretation of any anti-avoidance doctrine, principle or mechanism;
b) an issue—
i) that is of an inherently or distinctly factual nature;
ii) in respect of which material facts cannot be established at the time of the application;
iii) 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;
iv) which would be more appropriately dealt with by the competent authorities of the parties to an agreement for the avoidance of double taxation;
v) which is the same as or substantially similar to an issue upon which the applicant has already received a ruling;
vi) in which the tax treatment of the applicant is dependent upon the tax treatment of another party to the proposed transaction and that other party has not applied for a ruling; or
vii) in respect of a transaction that is part of another transaction which has a bearing on that issue and the details of that other transaction have not been disclosed; or
c) a matter the resolution of which would be unduly time-consuming or resource intensive.

 

3) In addition to the exclusions and refusals set forth in subsections (1) and (2) of this section, the Commissioner may publish lists of issues in respect of which applications may be rejected.

 

4) If the Commissioner requests additional information in respect of or in connection with an application and the applicant fails or refuses to provide that information, the Commissioner may reject that application without any refund or rebate of any applicable fees imposed under section 76F.