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

Chapter 6 : Confidentiality of Information

69. Secrecy of taxpayer information and general disclosure

 

(1) A person who is a current or former SARS official must preserve the secrecy of taxpayer information and may not disclose taxpayer information to a person who is not a SARS official.

 

(2) Subsection (1) does not prohibit the disclosure of taxpayer information by a person who is a current or former SARS official—
(a) in the course of performance of duties under a tax Act or customs and excise legislation, such as—

[Section 69(2)(a) substituted by section 47 of the Tax Administration Laws Amendment Act, 2015 (Act No. 23 of 2015)]

(i) to the South African Police Service or the National Prosecuting Authority, if the information relates to, and constitutes material information for the proving of, a tax offence;
(ii) as a witness in civil or criminal proceedings under a tax Act; or
(iii) the taxpayer information necessary to enable a person to provide such information as may be required by SARS from that person;
(b) under any other Act which expressly provides for the disclosure of the information despite the provisions in this Chapter;
(c) by order of a High Court; or
(d) if the information is public information.

 

(3) An application to the High Court for the order referred to in subsection (2)(c) requires prior notice to SARS of at least 15 business days unless the court, based on urgency, allows a shorter period.

 

(4) SARS may oppose the application on the basis that the disclosure may seriously prejudice the taxpayer concerned or impair a civil or criminal tax investigation by SARS.

 

(5) The court may not grant the order unless satisfied that the following circumstances apply:
(a) the information cannot be obtained elsewhere;
(b) the primary mechanisms for procuring evidence under an Act or rule of court will yield or yielded no or disappointing results;
(c) the information is central to the case; and
(d) the information does not constitute biometric information.

 

(6) Subsection (1) does not prohibit the disclosure of information—
(a) to the taxpayer; or
(b) with the written consent of the taxpayer, to another person.

 

(7) Biometric information of a taxpayer may not be disclosed by SARS except under the circumstances described in subsection (2)(a)(i).

 

(8) The Commissioner may, despite the provisions of this section, disclose—
(a) the name and taxpayer reference number of a taxpayer;
(b) a list of—
(i) pension funds, pension preservation funds, provident funds, provident preservation funds and retirement annuity funds as defined in section 1(1) of the Income Tax Act; and
(ii) public benefit organisations approved for the purposes of sections 18A and 30 of the Income Tax Act;

[Section 69(8)(b) substituted by section 53 of the Tax Administration Laws Amendment Act, 2016 (Act No. 16 of 2016)]

(c) the name and tax practitioner registration number of a registered tax practitioner; and
(d) taxpayer information in an anonymised form.

(Subsection (8) substituted by section 48 of the Tax Administration Laws Amendment Act, 2014 (Act No. 44 of 2014)