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Is a person allowed to be a public officer of a company he doesn’t work for?

Monday, 09 March 2015   (0 Comments)
Posted by: Author: SAIT Technical
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Author: SAIT Technical

Q: Section 246(2)(a) of Tax Administration Act (TAA) states that after October 2012 the appointed public officer must be a senior official of that company. I am appointed as the public officer of all the companies we manage. I am a senior official of the company I work for, but not the companies we manage. Am I allowed to be appointed as the public officer for these companies? Is there a directive issued by SARS clearing me to be appointed?

As I am a senior official of my employer, I am of the opinion that I may be the appointed public officer for our client companies.

A: Amendment of section 246 of Act 28 of 2011, as amended by section 86 of Act 21 of 2012 states:

84. Section 246 of the Tax Administration Act, 2011, is hereby amended—

(a) by the substitution in subsection (2) for paragraph (a) of the following paragraph:

‘‘(a) approved by SARS and—

(i) must be a person who is a senior official of the company [and is approved by SARS]; or

(ii) if no senior official resides in the Republic, may be another suitable person;’’; and

(b) by the substitution for subsection (3) of the following subsection:

‘‘(3) If a public officer is not appointed as required under this section, the public officer is the [managing director,] director, company secretary or other officer of the company that SARS designates for that purpose.’’.

For purposes of sub-para 2(a), "a senior official” of a company is a person having official duties as a representative of an organisation or government department. Even though the Act does not list any specific persons who may act in this capacity, the fact that the public officer must be an official of the company would suggest that this should be a person employed by or actively involved in the affairs of the company, as opposed to a person contracted by the company for purposes of acting as a public officer.

This view is substantiated by the fact that section 246(3) of the TAA states that where a public officer is not appointed as required by a company, the public officer will be the managing director, director, secretary or other officer of the company that SARS designates for that purpose.

It is clear that from this that the final say is with SARS, and I do suggest that you make an application in writing to SARS with regards to your appointment.

Disclaimer: Nothing in this query and answer should be construed as constituting tax advice or a tax opinion. An expert should be consulted for advice based on the facts and circumstances of each transaction/case. Even though great care has been taken to ensure the accuracy of the answer, SAIT do not accept any responsibility for consequences of decisions taken based on this query and answer. It remains your own responsibility to consult the relevant primary resources when taking a decision.



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