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Examining the Tax Requirements of a Public Officer

05 April 2012   (0 Comments)
Posted by: TaxFind™
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Examining the Tax Requirements of a Public Officer

The Income Tax Act, Section 101, requires that every company conducting business or having an office in the Republic must at all times be represented by an individual residing in the Republic, known as a ‘Public Officer’.The same applies for collective investment schemes.

The public officer must be appointed within one month of a company (including close corporations) commencing business activities or acquiring an office in the Republic.The public officer is appointed by the company, or agent/attorney who has authority to do so.When appointing the public officer it is important that the required resolution is passed conferring the required authority to sign returns, objections, appeals, to take legal notices, and generally to represent the company.

The public officer is responsible for undertaking all acts,matters, or things as required to be done in terms of the Income Tax Act by a taxpayer, and is liable for any penalties in respect of defaults by the taxpayer. The public officer performs his tasks as a representative of the company.

In the event that the company is placed in liquidation (either voluntary or compulsory liquidation), the liquidator is required to perform the functions and assume the responsibilities of the public officer until the liquidation process is finalised.If the required public officer has not been appointed, the public officer of the company will by default be the managing director, financial director, director, company secretary, or other officer of the company or person acting in the management of the business or affairs of such company, as the Commissioner may assign for that purpose.

Any notice, process, or proceeding that may be served,given, or taken against any company in terms of the Income Tax Act, may be served, given, or taken against the public officer.

Other than the appointment of the public officer, every company must also within one month after commencing business, or acquiring an office in the Republic, appoint aplace in the Republic at which any notices or other documents may be served in terms of the Income Tax Act. This may a different address as the address listed in the company registration documentation.

Every company is required to keep the office of public officer filled and to maintain a place for service or delivery of notices at all times.Until SARS has been given notice of the public officer, it will be deemed that no appointment has been made.The notice lodged with SARS must specify the name and contact details of the public officer, clearly stipulating the address to be used for servicing or delivery of notices. Any change in who is appointed as the public officer, or place for the service or delivery of notices, must be communicated to SARS within fourteen days of such change.

If a company fails to appoint the required public officer, or elect the place for service or delivery of notice, or fails to keep the office of public officer constantly filled, or maintains the place for service or delivery of notice, or fails to notify SARS of any change of public officer or place for service or delivery of notice, the administrative penalties (as per section 75B) maybe levied by SARS for such failure to comply.

With regards to VAT, the Value Added Tax Act imposes various duties and obligations on vendors.When the vendor is not a natural person (such as a company or close corporation)someone must be appointed to be responsible for performing the duties and obligations imposed by the Act.In terms of Section 46 of the Value Added Tax Act the representative will be the public officer in the case of a company (including a close corporation).If the company is placed in liquidation, the liquidator of that company will be the representative.

 Source: By SAIPA Tax Committee


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