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Tax Administration Act, 2011 (Act No. 28 of 2011)

Chapter 5 : Information Gathering

Part A : General rules for inspection, verification, audit and criminal investigation

42A. Procedure where legal professional privilege is asserted


(1) For purposes of Parts B, C and D, if a person alleges the existence of legal professional privilege in respect of relevant material required by SARS, during an inquiry or during the conduct of a search and seizure by SARS, the person must provide the following information to SARS and, if applicable, the presiding officer designated under section 51 or the attorney referred to in section 64:
(a) a description and purpose of each item of the material in respect of which the privilege is asserted;
(b) the author of the material and the capacity in which the author was acting;
(c) the name of the person for whom the author referred to in paragraph (b) was acting in providing the material;
(d) confirmation in writing confirmation in writing that the person referred to in paragraph (c) is claiming privilege in respect of each item of the material;
(e) if the material is not in possession of the person referred to in paragraph (d), from whom did the person asserting privilege obtain the material; and
(f) if the person asserting privilege is not the person referred to in paragraph (d), under what circumstances and instructions regarding the privilege did the person obtain the material.


(2) A person must submit the information required under Part B to SARS at the place, in the format and within the time specified by SARS, unless SARS extends the period based on reasonable grounds submitted by the person.


(3) If SARS disputes the assertion of privilege upon receipt of the information—
(a) SARS must make arrangements with a practitioner from the panel appointed under section 111 to take receipt of the material;
(b) the person asserting privilege must seal and hand over the material in respect of which privilege is asserted to the practitioner;
(c) the practitioner must within 21 business days after being handed the material make a determination of whether the privilege applies and may do so in the manner the practitioner deems fit, including considering representations made by the parties;
(d) if a determination of whether the privilege applies is not made by the practitioner or a party is not satisfied with the determination, the practitioner must retain the relevant material pending final resolution of the dispute by the parties or an order of court; and
(e) any application to a High Court must be instituted within 30 days of the expiry of the period of 21 business days, failing which the material must be handed to the party in whose favour the determination, if any, was made.


(4) The appointed practitioner—
(a) is not regarded as acting on behalf of either party;
(b) must personally take responsibility for the safekeeping of the material;
(c) must give grounds for the determination under subsection (3)(d); and
(d) must be compensated in the same manner as if acting as chairperson of the tax board.


[Section 42A inserted by section 41 of the Tax Administration Laws Amendment Act, 2015 (Act No. 23 of 2015)]