To amend the Customs and Excise Act, 1964, so as to make new provision; and to make provision for continuations;
81. (1) The following section is hereby inserted in Chapter XII of the Customs and Excise Act, 1964, after section 119A: “Arrangements for obtaining undue tax benefits 119B”
. (1) Notwithstanding anything in this Act, whenever the Commissioner is satisfied that any arrangement - (a) has been entered into or carried out which has the effect of any person obtaining a tax benefit; and (b) having regard to the substance of the arrangement— (i) was entered into or carried out by means or in a manner which would not normally be employed for bona fide business purposes, other than the obtaining of a tax benefit; or (ii) has created rights or obligations which would not normally be created between persons dealing at arm’s length; and (c) was entered into or carried out solely or mainly for the purpose of obtaining a tax benefit, the Commissioner may determine the liability for duty imposed under this Act, and the amount thereof, as if the arrangement had not been entered into or carried out, or in such manner as in the circumstances of the case the Commissioner deems appropriate for the prevention or diminution of that tax benefit.
(2) An arrangement is presumed to have been entered into or carried out for the sole or main purpose of obtaining a tax benefit unless and until the party obtaining a tax benefit proves that, reasonably considered in light of the relevant facts and circumstances, obtaining a tax benefit was not the sole or main purpose of the arrangement.
(3) For the purposes of this section - ‘arrangement’ includes any transaction, operation, scheme or understanding, whether enforceable or not, including all steps and transactions by which it is carried into effect; ‘dealing at arm’s length’ means a transaction in the open market in which two or more independent persons acting in good faith, without regard to the liability for any tax, duty or levy, would freely and without conflict of interest agree to transact in the ordinary course of business; and ‘tax benefit’ includes - (a) any reduction in the liability of any person to pay any duty; (b) any increase in the entitlement of any person to a refund of any duty; or (c) any other avoidance, postponement or reduction of any liability for the payment of any tax, duty or levy imposed under this Act or by any other law administered by the Commissioner.’’.
(2) Subsection (1) takes effect on the date of promulgation of this Act. Continuation of certain amendments of Schedules to Act 91 of 1964
82. Every amendment or withdrawal of or insertion in Schedules No. 1 to 6, 8 and 10 to the Customs and Excise Act, 1964, made under section 48, 49, 56, 56A, 57, 60 or 75(15) of that Act during the period 1 September 2015 up to and including 30 September 2016, shall not lapse by virtue of section 48(6), 49(5A), 56(3), 56A(3), 57(3), 60(4) or 75(16) of that Act.
87. Schedule 1 to the Value-Added Tax Act, 1991, is hereby amended by the insertion after item number 412.07 of the following item numbers and description: ‘‘412.09 Goods Lost, Destroyed or Damaged 412.09/00.00/01.00/00 Goods in respect of which the customs duty, together with the fuel levy (where applicable), amounts to not less than R2 500, proved to have been lost, destroyed or damaged on any single occasion in circumstances of VIS MAJOR or in such other circumstances as the Commissioner deems exceptional while such goods are - (a) in any customs and excise warehouse or in any appointed transit shed or under control of the Commissioner; (b) being removed with deferment of payment of duty or under rebate of duty from a place in the Republic to any other place in terms of the provisions of the Customs and Excise Act; or (c) being stored in any rebate storeroom: Provided that - (i) no compensation in respect of the customs duty, fuel levy or VAT on such goods has been paid or is due to the owner by any other person; (ii) such loss, destruction or damage was not due to any negligence or fraud on the part of the person liable for the duty or VAT; and (iii) such goods did not enter into consumption and the importer of those goods was not liable for the tax imposed in terms of section 7(1)(b) when those goods were initially imported.’’