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Income Tax Act, 1962 (Act No. 58 of 1962)RulesRules prescribing the procedures to be observed in lodging objections and noting appeals against assessments, the procedures for alternative dispute resolution and the conduct and hearing of appeals before a tax courtPart A : Objections, Appeals and Alternative Dispute Resolution7. Alternative Dispute Resolution |
Access
| (1) |
Where—
| (a) | the taxpayer has indicated in his or her notice of appeal that he or she wishes to make use of alternative dispute resolution, the Commissioner must inform the taxpayer by notice within 20 days of receipt of the notice of appeal whether or not he or she is of the opinion that the matter is appropriate for alternative dispute resolution and may be resolved by way of the procedures contemplated in this rule; or |
| (b) | the taxpayer has not indicated in his or her notice of appeal that he or she wishes to make use of alternative dispute resolution, and the Commissioner is of the opinion that the matter is appropriate for alternative dispute resolution and may be resolved by way of the procedures contemplated in this rule, he or she must inform the taxpayer accordingly by notice within ten days of receipt of the notice of appeal, and the taxpayer must deliver a notice stating whether or not he or she agrees thereto within ten days of the date of the notice by the Commissioner. |
Terms and agreement on alternative dispute resolution
(2)
| (a) | The terms governing the alternative dispute resolution proceedings are set out in Schedule A to these rules. |
| (b) | Where the Commissioner and the taxpayer agree to alternative dispute resolution as contemplated in subrule (1), a dispute may be resolved in accordance with the alternative dispute resolution procedures contemplated in this rule, which will only take place if the taxpayer accepts the terms set out in Schedule A. |
Period of dispute resolution
(3)
| (a) | The period within which the alternative dispute resolution proceedings in terms of this rule is conducted commences 20 days after the date of receipt by the Commissioner of the notice of appeal contemplated in rule 6, and ends on the date of termination of the proceedings in the manner provided for in the terms governing the alternative dispute resolution procedures. |
| (b) | The period contemplated in subrule (3)(a) interrupts the periods applicable for purposes of the procedures contemplated in rules 8 to 29 hereafter. |
| (c) | The parties must finalise the alternative dispute resolution proceedings not later than 90 days after the date of receipt by the Commissioner of the notice of appeal, or such further period as the Commissioner may agree to. |
The facilitator
(4)
| (a) | The Commissioner may appoint any person, including a person employed by SARS, to facilitate the proceedings in terms of this rule. |
| (b) | Any person appointed to facilitate the proceedings in terms of this rule will be bound to the code of ethics set out in Schedule B to these rules. |
| (c) | The person appointed to facilitate the proceedings in terms of this rule may, if the Commissioner and the taxpayer agree thereto at the commencement of the proceedings, be requested to make a recommendation at the conclusion of the proceedings if no agreement or settlement as contemplated in subrule (7)(a) or (7)(b) below is ultimately reached between the parties, which recommendation will be admissible during any subsequent proceedings including court proceedings. |
Proceedings
(5)
| (a) | The proceedings in terms of this rule will be conducted in accordance with the terms set out in Schedule A. |
| (b) | During the proceedings contemplated in this rule, the taxpayer or his or her representative taxpayer: |
| (i) | may be accompanied by any representative of his or her choice; and |
| (ii) | must be personally present unless the facilitator, in exceptional circumstances, allows the taxpayer or his or her representative taxpayer to be represented in their absence by a representative of their choice. |
Reservation of rights
(6)
| (a) | The taxpayer and the Commissioner may participate in the proceedings contemplated in this rule with full reservation of their respective rights in terms of the procedures contemplated in rules 8 to 29. |
| (b) | Subject to section 4 of the Act and subrule (4)(c), the proceedings in terms of this rule shall not be one of record, and any representation made or document tendered in the course of the proceedings— |
| (i) | is made or tendered without prejudice; and |
| (ii) | may not be tendered in any subsequent proceedings as evidence by any other party, except: |
| (aa) | with the knowledge and consent of the party who made the representation or tendered the document during the proceedings in terms of this rule; |
| (bb) | where such representation or document is already known to, or in the possession of, that party; or |
| (cc) | where such representation or document is obtained by that party otherwise than in terms of the proceedings in terms of this rule. |
| (c) | No person may— |
| (i) | subject to the circumstances listed in paragraph (b)(ii)(aa) to (cc) above, subpoena any person involved in the alternative dispute resolution proceedings in whatever capacity to compel disclosure of any representation made or document tendered in the course of the proceedings; or |
| (ii) | subpoena the facilitator of the alternative dispute resolution proceedings to compel disclosure of any representation made or document tendered in the course of the proceedings. |
Agreement or settlement
| (7) |
| (a) | A dispute which is subject to the procedures in terms of this rule, may be resolved by agreement whereby either the Commissioner or the taxpayer accepts, either in whole or in part, the other party’s interpretation of the facts or the law applicable to those facts or both. |
| (b) | Where— |
| (i) | the Commissioner and the taxpayer are, despite all reasonable efforts, unable to resolve the dispute as contemplated in paragraph (a); and |
| (ii) | the Commissioner personally or any person designated by the Commissioner for purposes of the regulations issued under section 107B of the Act, is of the opinion that the circumstances of the matter comply with the requirements contemplated in those regulations, |
the parties may attempt to settle the matter in accordance with those regulations within the process contemplated in this rule.
| (c) | Where an agreement contemplated in paragraph (a) or a settlement contemplated in paragraph (b) is concluded, the Commissioner must issue an assessment to give effect to that agreement or settlement, as the case may be, within a period of 60 days after the date of the conclusion thereof. |
| (d) | Where the proceedings are terminated in the manner provided for in the terms governing the alternative dispute resolution procedures, the taxpayer will, unless he or she informs the Commissioner otherwise, be deemed to pursue his or her appeal in the manner contemplated in rules 8 to 29. |
Reporting requirement
(8)
| (a) | Any agreement in terms of subrule (7)(a) whereby a dispute which is subject to the procedures in terms of this rule is resolved in whole or in part, must be reported internally in the manner as may be required by the Commissioner. |
| (b) | Any settlement of a dispute in terms of subrule (7)(b) in accordance with the regulations issued in terms of section 107B of the Act, must be reported in the manner prescribed by the Minister of Finance in those regulations. |
