No. 8 of 2010: Voluntary Disclosure Programme and Taxation Laws Second Amendment Act , 1991.
amend the Mineral and Petroleum Resources Royalty (Administration) Act, 2008, so as to amend certain provisions; and provide for matters connected therewith.
Definitions 5 1. For the purposes of this Part. unless the context otherwise indicates, any meaning ascribed to a word or expression in a relevant tax Act must bear the meaning so ascribed.
"default" means the submission of inaccurate or incomplete information to the Commissioner, or the failure to submit information ur the adoption of a tax 10 position. where such submission. non-submission.
the correct amount of tax not being paid by the taxpayer: or an incorrect refund being made by the Commissioner; "Income Tax Act" means the Income Tax Act, 1962 (Act No, 58 of 1962); 15 "return" means any return. declaration. bill of entry or other document in terms of which a tax determination 15 made; "'tax" means any tax.
a lower rate of tax than the maximum applicable to that class of taxpayer or transaction applies; or an amount qualiï¬es as a reduction of tax payable.
This Part is administered by the Commissioner.
Any power granted to the Commissioner under this Part may be exercised by the Commissioner personally or any official delegated by the Commissioner for that purpose.
The provisions of section 4 of the Income Tax Act apply, with the changes required by the context, to this Part.
a pending audit or investigation into the person's affairs; or an audit or investigation that has commenced, but has not yet been concluded.
the default in respect of which the person wishes to apply for voluntary disclosure relief would not otherwise have been detected during the audit or investigation; and the application would be in the interest of good management of the tax system and the best use of the Commissioner's resources.
a trustee or beneï¬ciary of the person, if the person is a trust; or a person acting for or on behalf of or as an agent or ï¬duciary of the person, has become aware of the pending audit or investigation, or that audit or investigation has commenced.
be made within the period prescribed by the Commissioner by notice in the Gazette; and be in respect of a default which occurred prior to 17 February 2010.
The Commissioner may issue a nonbinding private opinion as to a person's eligibility for relief under this Part, if the person provides sufficient information to do so, which information need not include the identity of any party to the default.
section 3(1), 100 per cent; or section 3(2), 50 per cent, relief in respect of interest otherwise payable, up to the date of assessment described in section 9.
The granting of the relief under section 6 must be evidenced by a written agreement between the Commissioner and the applicant who is liable for the outstanding tax.
treatment of the issue in future years or periods; and relevant undertakings by the parties.
regard any amount paid in terms of the voluntary disclosure agreement to constitute part payment of any further outstanding tax in respect of the relevant default; and pursue prosecution for any statutory offence under a tax Act or a related common law offence.
Any decision by the Commissioner under subsection (1) is subject to objection and appeal or internal review.
Where a voluntary disclosure agreement has been concluded under section 7, the Commissioner may, notwithstanding anything to the contrary contained in any tax Act, issue an assessment or make a determination for purposes of giving effect to the agreement.
Any assessment issued or determination made to give effect to an agreement under section 7 is not subject to objection and appeal or internal review.
The Commissioner must within 12 months after the expiry of the period prescribed under section 4(g), provide to the Auditor-General and to the Minister of Finance a summary of all voluntary disclosure agreements concluded in respect of applications received during the period.
not disclose the identity of the applicant concerned, and must be submitted at such time as may be agreed upon between the Commissioner and the Auditor-General or Minister of Finance, as the case may be; and contain details of the number of voluntary disclosure agreements, the amount of tax and interest assessed and the relief granted in terms of section 6(b) and (c), which must be reï¬ected in respect of main classes of taxpayers or segments of the public.
The Minister may make regulations regarding any ancillary or incidental administrative or procedural matter that is necessary to prescribe for the proper implementation or administration of this Part.
Amendment of section 3 of Act 40 of 1949, as amended by section 6 of Act 88 of 1974, section 1 of Act 99 of 1981, section 4 of Act 97 of 1993, section 10 of Act 37 of 1996, section 6 of Act 60 of 2001, section 3 of Act 74 of 2002, section 1 of Act 35 of 2007 and section 2 of Act 17 of 2009 12.
''(2) Pending the completion of the declarations referred to in section [fourteen] 14, or the determination of the amount of duty payable under this Act, a deposit on account of the duty payable [may be made manually or electronically, to the office of the South African Revenue Service to which the duty is payable in terms of subsection (3)] must be made by way of an electronic payment.'
must be made by way of an electronic payment.''.
Subsection (1) comes into operation on 1 January 2011 and applies to any payments made on or after that date.
Amendment of section 14 of Act 40 of 1949, as amended by section 6 of Act 88 of 1974, section 1 of Act 34 of 2004 and section 1 of Act 36 of 2007 13.
''(1) Declarations appropriate to the manner of the acquisition of property in any particular case shall[, in substance as near as possible to the wording of the forms prescribed by the Commissioner, be completed and submitted in such manner (including electronically) and at such place] be submitted electronically, in the form and manner and containing such information as may be prescribed by the Commissioner, by the parties to the transaction whereby the property has been acquired and, if the Commissioner so directs, also by the agent, auctioneer, broker or other person who acted for or on behalf of either party to the transaction or, if the property has been acquired otherwise than by way of a transaction, by the person who acquired the property.'
''(3) An estate agent as contemplated in section 1 of the Estate Agency Affairs Act, 1976 (Act No. 112 of 1976), who is entitled to any remuneration or other payment in respect of services rendered in connection with a transaction in terms of which a person acquired property contemplated in paragraphs (d), (e) or (f) of the deï¬nition of 'property', must within six months of the date of acquisition of that property submit details of that transaction to the Commissioner in a form and in such manner as prescribed by the Commissioner.'
''(4) Any person required to complete a declaration in terms of this section must [sign the declaration and furnish it to the Commissioner] affix an electronic or digital signature as a valid signature to such declaration, and [the person signing the declarations] such person is deemed for all purposes in connection with this Act to know and understand the meaning of all statements made in that declaration.'
''(6) The [Minister may make] rules and regulations made by the Minister in terms of section 66(7B) of the Income Tax Act, prescribing the procedures for submitting any declaration in electronic format and the requirements for an electronic or digital signature, apply mutatis mutandis to [contemplated in] subsection (5).'
''(6) The rules and regulations made by the Minister in terms of section 66(7B) of the Income Tax Act, prescribing the procedures for submitting any delcaration in electronic format and the requirements for an electronic or digital signature, apply mutatis mutandis to subsection [(5)] (4).'
''(7) Where in any proceedings or prosecution under this Act or in any dispute to which the State, the Minister or the Commissioner is a party, the question arises whether an electronic or digital signature of a person affixed to any declaration as contemplated in subsection [(6)] (4) was used with or without the consent and authority of that person, it shall, in the absence of proof to the contrary, for the purposes of this Act be presumed that such signature was so used with the consent and authority of that person.''.
Subsection (1)(a), (b), (c), (d), (e), (g) and (h) come into operation on 1 January 2011 and applies to any payments made on or after that date.
Subsection (1)(f) is deemed to have come into operation on 8 January 2008.
Amendment of section 3 of Act 58 of 1962, as amended by section 3 of Act 141 of 1992, section 3 of Act 21 of 1994, section 3 of Act 21 of 1995, section 20 of Act 30 of 1998, section 3 of Act 59 of 2000, section 6 of Act 5 of 2001, section 4 of Act 19 of 2001, section 18 of Act 60 of 2001, section 7 of Act 74 of 2002, section 13 of Act 45 of 2003, section 4 of Act 16 of 2004, section 2 of Act 21 of 2006, section 1 of Act 9 of 2007 and section 3 of Act 36 of 2007, section 1 of Act 4 of 2008 and section 2 of Act 61 of 2008 14.
''(h) paragraphs 12(5)(c)(i), 29(2A), 29(7), 31(2), 65(1)(d) and 66(1)(e) of the Eighth Schedule.''.
Subsection (1)(a), in so far as it relates to section 30B of the Income Tax Act, 1962, comes into operation on the date of promulgation of this Act.
Amendment of section 76E of Act 58 of 1962, as inserted by section 12 of Act 34 of 2004 15.
a statement conï¬rming that all returns required to be rendered by that applicant in terms any Act administered by the Commissioner have been rendered and any taxes, duties or levies due to the Commissioner have been paid or arrangements acceptable to the Commissioner have been made for the submission of any outstanding returns or for the payment of any outstanding taxes, duties or levies.'
''(c) where the class members are identiï¬able and number less than 10, a statement conï¬rming that each class member has fully complied with its relevant obligations under any Act administered by the Commissioner or has made arrangements acceptable to the Commissioner to do so.''.
Amendment of section 76G of Act 58 of 1962, as inserted by section 12 of Act 34 of 2004 and amended by section 4 of Act 9 of 2007 and section 8 of Act 61 of 2008 16.
where all returns required to be rendered by that applicant in terms of any Act administered by the Commissioner have been not been rendered, or where any taxes, duties or levies due to the Commissioner have not been paid and no arrangements acceptable to the Commissioner have been made for the submission of any outstanding returns or for the payment of any outstanding taxes, duties or levies; or where the class members are identiï¬able and number less than 10 each class member has not fully complied with its relevant obligations under any Act administered by the Commissioner and has not made arrangements acceptable to the Commissioner to do so.''.
Amendment of section 89quat of Act 58 of 1962, as inserted by section 34 of Act 121 of 1984 and amended by section 22 of Act 65 of 1986, section 18 of Act 70 of 1989, section 15 of Act 140 of 1993, section 42 of Act 113 of 1993, section 33 of Act 21 of 1995, section 24 of Act 36 of 1996, section 50 of Act 59 of 2000, section 29 of Act 5 of 2001, section 49 of Act 74 of 2002, section 17 of Act 34 of 2004 and section 18 of Act 4 of 2008 17.
the interest payable in terms of subsection (2) is a result of circumstances beyond the control of the taxpayer, the Commissioner may[, subject to the provisions of section 103(6),] direct that interest shall not be paid in whole or in part by the taxpayer [on so much of the said normal tax as is attributable to the inclusion of such amount or the disallowance of such deduction, allowance, disregarding or exclusion].
Subsection (1) comes into operation on 1 November 2010 and applies to years of assessment ending on or after that date.
Amendment of paragraph 1 of Fourth Schedule to Act 58 of 1962, as added by section 19 of Act 6 of 1963 and amended by section 22 of Act 72 of 1963, section 44 of Act 89 of 1969, section 24 of Act 52 of 1970, section 37 of Act 88 of 1971, section 47 of Act 85 of 1974, section 6 of Act 30 of 1984, section 38 of Act 121 of 1984, section 20 of Act 70 of 1989, section 44 of Act 101 of 1990, section 44 of Act 129 of 1991, section 33 of Act 141 of 1992, section 48 of Act 113 of 1993, section 16 of Act 140 of 1993, section 37 of Act 21 of 1995, section 34 of Act 36 of 1996, section 44 of Act 28 of 1997, section 52 of Act 30 of 1998, section 52 of Act 30 of 2000, section 53 of Act 59 of 2000, section 19 of Act 19 of 2001, section 32 of Act 30 of 2002, section 46 of Act 32 of 2004, section 49 of Act 31 of 2005, section 28 of Act 9 of 2006, section 39 of Act 20 of 2006, section 54 of Act 8 of 2007, section 64 of Act 35 of 2007, section 43 of Act 3 of 2008, section 66 of Act 60 of 2008 and section 17 of Act 18 of 2009 18.
''(dd) a person exempt from payment of provisional tax in terms of paragraph 18.''.
Subsection (1)(a), (b) and (c) come into operation for years of assessment commencing on or after 1 March 2011.
Amendment of paragraph 11A of Fourth Schedule to Act 58 of 1962, as inserted by section 45 of Act 89 of 1969 and amended by section 47 of Act 28 of 1997, section 19 of Act 34 of 2004, section 51 of Act 31 of 2005 and section 67 of Act 35 of 2007 19.
is not resident nor has a representative employer; or is unable to deduct or withhold the full amount of employees' tax during the year of assessment during which the gain arises, by reason of the fact that the amount to be deducted or withheld from that employee by way of employees' tax exceeds the amount from which the deduction or withholding can be made, that person and that employer must deduct or withhold from the remuneration payable by them to that employee during that year of assessment an aggregate amount equal to the employees' tax payable in respect of that gain and shall be jointly and severally liable for that employees' tax.''.
Amendment of paragraph 11B of Fourth Schedule to Act 58 of 1962, as amended by section 41 of Act No 90 of 1988, section 22 of Act 70 of 1989, section 47 of Act 101 of 1990, section 46 of Act 129 of 1991, section 34 of Act 141 of 1992, section 40 of Act 21 of 1995, section 35 of Act 36 of 1996, section 40 of Act 21 of 1995, section 35 of Act 36 of 1996, section 48 of Act 28 of 1997, section 53 of Act 30 of 1998, section 56 of Act 59 of 2000, section 33 of Act 30 of 2002, section 56 of Act 74 of 2002, section 22 Act 16 of 2004, section 43 of Act 20 of 2006, section 105 of Act 8 of 2007 and section 44 of Act 3 of 2008 20.
''be an amount (to be known as Standard Income Tax on Employees) which shall, subject to the provisions of subparagraphs (2A) and (4), be [ï¬nally] determined by the employer at the end of the tax period under the provisions of subparagraph (3).''.
Amendment of paragraph 12 of Fourth Schedule to Act 58 of 1962, as inserted by section 43 of Act 53 of 1999 and amended by section 15 of Act 61 of 2008 21.
has submitted a declaration or furnished a return as required in terms of paragraph 14 (2) or (3) but the Commissioner is not satisï¬ed with the declaration or return;''.
''(6) If an employer fails to render to the Commissioner a return referred to in subparagraph (3) within the period prescribed in that subparagraph, that employer shall be required to pay a penalty equal to 10 per cent of the total amount of employees' tax deducted or withheld from the remuneration of employees for [during] the period [described in] relating to the return required in terms of that subparagraph: Provided that the Commissioner may remit that penalty or portion thereof if he or she is satisï¬ed that the circumstances warrant it.''.
Amendment of paragraph 3 of Seventh Schedule to Act 58 of 1962 23.
and issue the employer with a notice of assessment in terms of paragraph 12 of the Fourth Schedule for the unpaid amount of employees' tax that is required to be deducted or withheld from such cash equivalent; or upon the assessment of the liability for normal tax of the employee to whom such taxable beneï¬t has been granted.''.
Amendment of section 4 of Act 91 of 1964 24.
Administration Commission such information in relation to imports and exports and importers and exporters as may be required by that Chief Commissioner for purposes of performing any function conferred on the Chief Commissioner by or in terms of the International Trade Administration Act, 2002 (Act No.
''(3A) The Statistician General or the Director-General of the Department of Trade and Industry or the National Treasury as deï¬ned in the Exchange Control Regulations, 1961, or the Governor of the South African Reserve Bank or the National Commissioner of the South African Police Service or the National Director of Public Prosecutions or the Director-General of the National Treasury or any person acting under the direction and control of such Statistician-General or Director-General of the Department of Trade and Industry or Governor of the South African Reserve Bank or National Commissioner of the South African Police Service or National Director of Public Prosecutions or the Director-General of the National Treasury or the Chief Commissioner of the International Trade Administration Commission shall not disclose any information supplied under the proviso to subsection (3) to any person or permit any person to have access thereto, except in the exercise of his or her powers or the carrying out of his or her duties under any Act from which such powers or duties are derived.''.
Subsection (1) is deemed to have come into operation on 1 June 2003.
Continuation of amendments made under section 119A of Act 91 of 1964 25. Any rule made under section 119A of the Customs and Excise Act, 1964, or any amendment or withdrawal of or insertion in such rule during the period 1 October 2009 up to and including 31 May 2010 shall not lapse by virtue of section 119A(3) of that Act.
Amendment of section 1 of Act 89 of 1991, as amended by section 21 of Act 136 of 1991, paragraph 1 of Government Notice 2695 of 8 November 1991, section 12 of Act 136 of 1992, section 1 of Act 61 of 1993, section 22 of Act 97 of 1993, section 9 of Act 20 of 1994, section 18 of Act 37 of 1996, section 23 of Act 27 of 1997, section 34 of Act 34 of 1997, section 81 of Act 53 of 1999, section 76 of Act 30 of 2000, section 64 of Act 59 of 2000, section 65 of Act 19 of 2001, section 148 of Act 60 of 2001, section 114 of Act 74 of 2002, section 47 of Act 12 of 2003, section 164 of Act 45 of 2003, section 43 of Act 16 of 2004, section 92 of Act 32 of 2004, section 8 of Act 10 of 2005, section 101 of Act 31 of 2005, section 40 of Act 9 of 2006, section 77 of Act 20 of 2006, section 81 of Act 8 of 2007, section 104 of Act 35 of 2007, section 68 of Act 3 of 2008 and section 104 of Act 60 of 2008 26.
''(iii) which is a party to a 'Public Private Partnership Agreement' as deï¬ned in Regulation 16 of the Treasury Regulations issued in terms of section 76 of the Public Finance Management Act, 1999 (Act No. 1 of 1999), to the extent that that party supplies goods or services in terms of that Agreement to the 'institution' deï¬ned in that Regulation;''.
Amendment of section 9 of Act 89 of 1991, as amended by section 25 of Act 136 of 1991, section 25 of Act 97 of 1993, section 21 of Act 46 of 1996, section 26 of Act 27 of 1997, section 167 of Act 45 of 2003, section 96 of Act 32 of 2004, section 103 of Act 31 of 2005, section 172 of Act 34 of 2005 and section 28 of Act 36 of 2007 27.
in the case of such supplier, at the time any such coin, paper currency or token is taken from that machine, meter or other device by or on behalf of the supplier or an amount is received by the supplier by other means; and in the case of the recipient of such supply at the time the coin, paper currency or token is inserted into that machine, meter or other device by or on behalf of the recipient or when payment is tendered through other means;''.
Amendment of section 14 of Act 89 of 1991, as amended by section 171 of Act 45 of 2003 and section 101 of Act 32 of 2004 28.
Provided that where the recipient is a vendor, that vendor must calculate the tax payable on the value of the imported services at the rate of tax in force on the date of supply of the imported services and must furnish the Commissioner with a return reï¬ecting the information required for the purposes of the calculation of the tax in terms of section 14 and pay such tax to the Commissioner in accordance with section 28.''.
Subsection (1) comes into operation on 1 February 2011.
Amendment of section 16 of Act 89 of 1991, as amended by section 30 of Act 136 of 1991, section 21 of Act 136 of 1992, section 30 of Act 97 of 1993, section 16 of Act 20 of 1994, section 23 of Act 37 of 1996, section 32 of Act 27 of 1997, section 91 of Act 30 of 1998, section 87 of Act 53 of 1999, section 71 of Act 19 of 2001, section 156 of Act 60 of 2001, section 172 of Act 45 of 2003, section 107 of Act 31 of 2005, section 47 of Act 9 of 2006, section 83 of Act 20 of 2006, section 83 of Act 8 of 2007, section 106 of Act 35 of 2007 and section 30 of Act 36 of 2007 29.
a document issued by the supplier in compliance with section 20(7) or 21(5); or''.
Amendment of section 20 of Act 89 of 1991, as amended by section 25 of Act 136 of 1992, section 33 of Act 97 of 1993, section 35 of Act 27 of 1997, section 94 of Act 30 of 1998, section 91 of Act 53 of 1999, section 157 of Act 60 of 2001, section 175 of Act 45 of 2003, section 47 of Act 16 of 2004, section 104 of Act 32 of 2004, section 38 of Act 21 of 2006, section 14 of Act 9 of 2007 and section 35 of Act 18 of 2009 30.
''(6) Notwithstanding any other provision of this Act, a supplier shall not be required to provide a tax invoice if the total consideration for a supply is in money and does not exceed R50: Provided that the supplier shall provide the recipient with a document as is acceptable to the Commissioner.'
shall verify such name and identity number of any such natural person with reference to his identity document, as contemplated in section 1 of the Identiï¬cation Act, 1997 (Act No.
[Provided that this subsection shall not require that recipient to keep such records where the total consideration for that supply is in money and does not exceed R50 or an amount determined by the Commissioner].''.
Amendment of section 28 of Act 89 of 1991, as amended by section 29 of Act 136 of 1992, section 79 of Act 30 of 2000, section 44 of Act 5 of 2001, section 158 of Act 60 of 2001, section 118 of Act 74 of 2002, section 179 of Act 45 of 2003, section 37 of Act 32 of 2005, section 32 of Act 36 of 2007 and section 41 of Act 61 of 2008 31.
''(a) furnish the Commissioner with a return reï¬ecting such information as may be required for the purpose of the calculation of tax in terms of section 14 or 16; and''.
Amendment of section 8 of Act 4 of 2002, as amended by section 81 of Act 30 of 2002 and section 48 of Act 19 of 2009 32.
by such date or dates as prescribed by the Commissioner by notice in the Gazette; and if during any such period the employer ceases to carry on any business or other undertaking in respect of which the employer has paid or becomes liable to pay a contribution as determined in terms of section 6, or otherwise ceases to be an employer, within 14 days after the date on which the employer has so ceased to carry on that business or undertaking or to be an employer, as the case may be, or within such longer time as the Commissioner may approve, render to the Commissioner such return as the Commissioner may prescribe.''.
Subsection (1) is deemed to have come into operation on 30 September 2009.
Amendment of section 1 of Act 29 of 2008, as amended by section 61 of Act 18 of 2009 33.
the period commencing on 1 March 2010 and ending on the last day of the ï¬nancial year in which that period falls; or the period commencing on the ï¬rst day of that person's ï¬nancial year and ending on the last day of that ï¬nancial year, and if any ï¬nancial year begins on any day other than the ï¬rst day of a month, that ï¬nancial year is deemed to begin on the ï¬rst day of that month.''.
Subsection (1) is deemed to have come into operation on 1 March 2010.
Amendment of section 2 of Act 29 of 2008, as amended by section 62 of Act 18 of 2009 34.
''(b) wins or recovers a mineral resource extracted from within the Republic[.
''(c) elects to register for the purposes of this Act.'
''(ii) must apply to register with the Commissioner by [31 January] 28 February 2010; or''.
Subsection (1) is deemed to have come into operation on 1 November 2009.
Amendment of section 4 of Act 29 of 2008, as amended by section 63 of Act 18 of 2009 35.
[holds] one or more members of that unincorporated body hold a prospecting right, retention permit, exploration right, mining right, mining permit or production right granted pursuant to the Mineral and Petroleum Resources Development Act (or a lease or sublease mentioned in section 11 of the Mineral and Petroleum Resources Development Act in respect of such a right) [in the name of that unincorporated body]; and wins or recovers a mineral resource originating from within the Republic, all the members of that unincorporated body may elect that the unincorporated body is deemed to be a person for the purposes of this Act [and], the Royalty Act and the Income Tax Act as applied to the Royalty Act.''.
Amendment of section 5 of Act 29 of 2008 36.
one-half of the amount of the royalty so estimated; or if the number of months in that year is less than 12, an amount which bears to the amount so estimated the same ratio as the number of months that have elapsed in that year bear to the total number of months in that year, together with such return for that payment as the Commissioner may prescribe.''.
Amendment of section 14 of Act 29 of 2008 37.
''(1) If the royalty mentioned in section 6(1) in respect of a year of assessment exceeds the amount paid as mentioned in section 5 in respect of that year and that excess is greater than  20 per cent of the royalty mentioned in section 6(1), the Commissioner may impose a penalty that may not exceed 20 per cent of that excess.'
Amendment of section 19 of Act 29 of 2008 38.
the methodology employed to adjust the amount of gross sales determined in terms of section 6 of the Mineral and Petroleum Resources Royalty Act; and the allocation of the amount in respect of assets used or expenditure incurred contemplated in section 5 of the Royalty Act per mineral resource.'
the Minister of Finance from disclosing to the Commissioner; and the Commissioner from disclosing to the Director-General of the Department of Mineral Resources; and the Minister of Finance and the Commissioner from disclosing to the chief executive officer of the agency designated by the Minister responsible for Mineral Resources in terms of section 70 of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 20 of 2002), any information submitted under this subsection.''.
This Act is called the Voluntary Disclosure Programme and Taxation Laws Second Amendment Act, 2010.
Save in so far as is otherwise provided for in this Act or the context otherwise indicates, the amendments effected by this Act come into operation on the date of promulgation of this Act.
Notwithstanding subsection (2), and save in so far as is otherwise provided for in this Act or the context otherwise indicates, the amendments effected to the Income Tax Act, 1962, by this Act are deemed for the purposes of assessments in respect of normal tax under the Income Tax Act, 1962, to have come into operation as from the commencement of years of assessment ending on or after 1 January 2011.