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Income Tax Act, 1962 (Act 58 of 1962)

Chapter III: General Provisions

Part III: Objections and Appeals

83. Appeals to tax court against assessment (Repealed)

 

 

[Repealed by the Tax Administration Act, 2011 (Act No. 28 of 2011)].

 

1) Any person entitled to object to an assessment, may, subject to the provisions of section 83A, appeal against such assessment  to the tax court established in terms of the provisions of this section in the manner and under the terms and within the period prescribed by this Act and the rules promulgated in terms of section 107A.

 

1A) The period prescribed in the rules within which appeal must be noted may be extended by the Commissioner where the Commissioner is satisfied that reasonable grounds exist for the delay in noting the appeal: Provided that any decision by the Commissioner in the exercise of his or her discretion under this subsection shall be subject to objection and appeal.

 

1B) No notice of appeal shall be of any force or effect whatsoever which is not delivered at the Commissioner’s office within the period prescribed for noting an appeal, or within such extended period as contemplated in subsection (1A).

 

1C) The Commissioner may alter any assessment against which an appeal has been noted, as contemplated in subsection (1), where the Commissioner has conceded that appeal or resolved a dispute in terms of the alternative dispute resolution procedures prescribed in the rules contemplated in section 107A(2), in whole or in part, at any stage before-
a) the matter is heard by the tax board contemplated in section 83A, or the tax court contemplated in subsection (2); or
b) any appeal against a judgment of the tax court is heard, as contemplated in section 86A.

 

2) There shall be a court to be known as the tax court which shall be a court of record.

 

3) The President of the Republic may, by proclamation in the Gazette, establish a tax court or courts for area or areas as he may think fit, and may from time to time by proclamation abolish any existing court or courts or establish additional courts as circumstances may require.

 

4) Subject to subsection (4B), every tax court established in terms of this Act shall consist of a judge or an acting judge of the High Court, who shall be the President of the court, an accountant and a representative of the commercial community who shall be of good standing and who have appropriate experience,

: Provided that -

a) in the case relating to the business of mining such third member shall, if the President of the court, the Commissioner or the appellant so desires, be a qualified mining engineer;
b) where any such appeal relates to the valuation of immovable property, or of both movable and immovable property, such third member shall, if the President of the court, the Commissioner or the appeallant so desires, be a person appointed by the Commissioner from amongst persons approved by the President of the Republic, and who shall be a person appointed and carrying on business as a sworn appraiser who has skills or knowledge relating to the purpose for which the property is utilised; and
c) when an appeal before the court involves a matter of law only or constitutes an application for condonation, the court shall consist of the President of the court sitting alone.

 

4A) Any question as to whether a matter for decision involves a matter of fact or a matter of law, as contemplated in subsection (4)(c), shall be decided by the President of the court sitting alone.

 

4B) The Judge President of the Provincial Division of the High Court having jurisdiction in the area where the tax court to hear the appeal is situated, may, where-
a) the amount which is the subject of the dispute exceeds R50 million; or
b) the Commissioner and the appellant agree thereto and have jointly applied to that Judge President,

direct that the tax court hearing that appeal shall consist of three judges or acting judges of the High Court, one of whom shall be the President of the tax court, and the members of the court, as contemplated in subsection (4).

 

4C) If at any stage during the hearing of an appeal, or after hearing of the appeal but before judgment has been handed down—
a) one of the judges dies, retires or becomes otherwise incapable of acting in that capacity, the hearing of an appeal shall be heard de novo, unless the court consists of three judges, as contemplated in subsection (4B), and the remaining judges constitute the majority of judges before whom the hearing was commenced, in which case the hearing shall proceed before the remaining judges and members; or
b) one of the members dies, retires or becomes otherwise incapable of acting in that capacity, the hearing of an appeal shall proceed before the President and remaining members.

 

4D) The judgement of the remaining judges and members contemplated in subsection (4C), shall be the judgement of the court.

 

5)
a) The members of any tax court other than judges shall be appointed by the President of the Republic by proclamation in the Gazette and shall hold office for five years from the date of the relevant proclamation,

: Provided that the appointment of any such member may at any time be terminated by the President of the Republic for any reason which he considers good and sufficient, and shall lapse in the event of the abolition of the court in terms of sub-section (3);

b) Any person so appointed shall be eligible for re-appointment for such further period or periods as the President of the Republic may think fit;
c) The members appointed under this section as on the date that the amendments to this section are introduced by the Second Revenue Laws Amendment Act, 2001, come into operation, shall be deemed to have been appointed under the provisions of this sub-section, until the expiry of the term of office of that member, as contemplated in subsection (5)(a).

 

6) The Judge-President of the Provincial Division of the High Court having jurisdiction in the area for which a tax court has been constituted shall nominate and second a judge or an acting judge of that division to be the President of that tax court, and that secondment shall be for such period or for the hearing of such cases as the said Judge-President shall determine.

 

7) Any court established under the provisions of this Act may hear and determine any appeal lodged under the provisions of this Act, or any other Act administered by the Commissioner which provides that the objection and appeal procedures contained in this Part shall apply, whether or not the appellant is resident or carries on business within the area for which that court is established and whether or not the dispute arose within that area.

 

8) If an assessment has been altered, the assessment as altered, shall be deemed to be the assessment against which the appeal is made.

 

9) [Deleted by Second Revenue Laws Amendment Act, No. 60 of 2001].

 

10) [Deleted by Second Revenue Laws Amendment Act, No. 60 of 2001].

 

11) The sittings of the tax court shall not be public, and the court shall at any time on the application of the appellant exclude or require to withdraw from such sitting, all or any persons whomsoever whose attendance is not necessary for the hearing of the appeal under consideration.

 

12) The Commissioner or any person authorised by him may appear in support of the assessment on the hearing of any appeal, and the appellant and any person who is interested in such appeal may appear in person or by his counsel, attorney or agent.

 

13) Subject to the provisions of this Act, the court may—
a) in the case of any assessment under appeal-
i) confirm the assessment; or
ii) order that assessment to be altered, or
iii) if it thinks fit, refer the assessment back to the Commissioner for further investigation and assessment;
b) in the case of any appeal against the amount of any additional tax imposed by the Commissioner, reduce, confirm or increase the amount of the additional tax so imposed, subject to the maximum amount chargeable in terms of this Act.
c) in the case of any other decision of the Commissioner which is subject to appeal, confirm or amend such decision, and
d) hear any interlocutory application and decide on procedural matters as provided for in the rules of the tax court contemplated in section 107A

 

14) Any altered assessment made by the Commissioner as a result of a referral of an assessment back to the Commissioner, as contemplated in subsection (13)(a)(iii), shall be subject to objection and appeal as provided in this Part and the rules promulgated in terms of section 107A.

 

15) [Deleted by Second Revenue Laws Amentment Act, No. 60 of 2001].

 

16) [Deleted by Second Revenue Laws Amentment Act, No. 60 of 2001].

 

17) Where-
a) the claim of the Commissioner is held to be unreasonable;
b) the grounds of appeal of the appellant are held to be frivolous;
c) the decision of the tax Board contemplated in section 83A is substantially confirmed;
d) the hearing of the appeal is postponed at the request of one of the parties; or
e) the appeal has been withdrawn or conceded by one of the parties after a date of hearing has been allocated by the Registrar,

the tax court may, on application by the aggrieved party, grant an order for costs in favour of that aggrieved party, which costs shall be determined in accordance with the fees prescribed by the rules of the High Court.

 

18) Any decision of the court under this section shall, subject to the provisions of sections 86A, be final.

 

19) The President of the court may indicate which judgments or decisions of the court must be published for general information, in such form as does not reveal the identity of the appellant.

 

20) There shall be a registrar of the tax court, who shall be appointed by the Commissioner.

 

21) A person appointed as registrar shall become an employee of the South African Revenue Service.

 

22) The registrar shall exercise his or her functions in terms of the Act and the rules independently and impartially.

 

23) Any reference in this Part and the rules to ‘day’ means any day other than a Saturday, Sunday or public holiday: Provided that the days between 16 December of a year and 15 January of the following year, both inclusive, shall not be taken into account in determining days or the period allowed for complying with any provision in this Part or the rules.