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Income Tax Act, 1962 (Act 58 of 1962)

Chapter III: General Provisions

Part II: Assessments

79. Additional assessments (Repealed)

 

 

[Repealed by the Tax Administration Act, 2011 (Act No. 28 of 2011)].

 

1) If at any time the Commissioner is satisfied—
a) that any amount which was subject to tax and should have been assessed to tax under this Act has not been assessed to tax; or
b) that any amount of tax which was chargeable and should have been assessed under this Act has not been assessed; or
c) that, as respects any tax which is chargeable and has become payable under this Act otherwise than under an assessment, such tax has not been paid in respect of any amount upon which such tax is chargeable or an amount is owing in respect of such tax,

he shall raise an assessment or assessments in respect of the said amount or amounts, notwithstanding that an assessment or assessments may have been made upon the person concerned in respect of the year or years of assessment in respect of which the amount or amounts in question is or are assessable, and notwithstanding the provisions of sections 81, 83(18) and 83A(12),

: Provided that the Commissioner shall not raise an assessment under this subsection—

i) after the expiration of three years from the date of the assessment (if any) in terms of which any amount which should have been assessed to tax under such assessment was not so assessed or in terms of which the amount of tax assessed was less than the amount of such tax which was properly chargeable, unless-
aa) the Commissioner is satisfied that the fact that the amount which should have been assessed to tax was not so assessed or the fact that the full amount of tax chargeable was not assessed, was due to fraud or misrepresentation or non-disclosure of material facts; or
bb) the Commissioner and the taxpayer agree otherwise prior to the expiry of that three year period; or
ii) in respect of any tax referred to in paragraph (c), after the expiration of three years from the date of payment of any amount paid in respect of such tax unless-
aa) the Commissioner is satisfied that the fact that such tax was not paid in full was due to fraud or misrepresentation or non-disclosure of material facts; or
bb) the Commissioner and the taxpayer agree otherwise prior to the expiry of that three year period; or
iii) if the amount which should have been assessed to tax under the assessment referred to in paragraph (i) of this proviso was, in accordance with the practice generally prevailing at the date of the assessment, not assessed to tax, or the full amount of tax which should have been assessed under such assessment was, in accordance with such practice, not assessed; or
iv) in respect of any amount, if any previous assessment made on the person concerned has in respect of that amount been amended or reduced pursuant to-
aa) any decision made by the Tax Board constituted under this Act;
bb) any order, excluding any order made in terms of section 83(13)(a)(iii) made by the tax court constituted under this Act;
cc) the Commissioner conceding an appeal as prescribed in terms of the rules contemplated in section 107A(2) of this Act;
dd) a dispute being resolved in terms of the alternative dispute resolution procedures prescribed in the rules contemplated in section 107A(2) of this Act; or
ee) the settlement of a dispute in terms of Part IIIA of Chapter III of this Act;

unless the Commissioner is satisfied that the decision, order, concession or resolution of the dispute or the settlement in question was obtained by fraud or misrepresentation or non-disclosure of material facts;

v) in respect of any year of assessment of any taxpayer (other than a company) ending on or after 28 February 1983, if—
aa) the taxpayer's income for such year of assessment consisted solely of any amount or amounts of remuneration as defined in the Fourth Schedule;
bb) a period of at least three years has elapsed since the end of such year of assessment; and
cc) the taxpayer was not required under any provision of this Act to furnish a return of income for such year of assessment and did not render such a return during the period referred to in subparagraph (bb),

unless any amount of employees tax which should have been deducted or withheld from such remuneration under the provisions of the said Schedule was not so deducted or withheld or an amount of employees tax was deducted or withheld which was less than the amount of such tax which should have been so deducted or withheld, and the Commissioner is not satisfied that the omission or failure of the employer concerned to deduct or withhold such tax or the full amount of such tax was not due—

A) to any intent by the employer to assist or enable the taxpayer to evade tax or any of his obligations under this Act; or
B) to the fact that the employee has furnished false information to the employer and in consequence thereof, an incorrect amount of tax was withheld,

: Provided further that where the Commissioner has in respect of any year of assessment made an assessment upon any company for normal tax purposes he or she shall not after the expiration of three years from the date of the said assessment (or, where more than one such assessment has been made, from the date of the latest of such assessments), or such longer period as the company and the Commissioner may agree prior to the expiry of that three year period, make any assessment in respect of any amount of secondary tax on companies payable by the company in respect of any dividend declared during that year, unless the Commissioner is satisfied that the fact that an assessment in respect of the said amount was not previously made was due to fraud or misrepresentation or non-disclosure of material facts.

 

2) For the purposes of this section any amount referred to in subsection (1) (a) shall include an amount the incorporation of which in an assessment would result in the reduction of any loss or assessed capital loss ranking for set-off or in only a portion of such amount becoming chargeable with tax.

 

3) For the purposes of paragraph (ii) of the first proviso to subsection (1) the date of payment of any amount referred to in that paragraph shall be deemed to be the date of the official receipt acknowledging the receipt of such amount, and, where more than one such payment was made, the date from which the period of three years referred to in that paragraph shall be reckoned shall be the date of the official receipt acknowledging the latest of such payments.

 

4) The provisions of sections 76 and 78 shall apply to any assessments or additional assessments made by the Commissioner under the powers conferred by this section.