| (1) | For the purposes of this section, unless the context otherwise indicates— |
"agent" means an agent contemplated in subsection (5)(c);
"airline" means any air transport enterprise offering or operating an international air service;
"airport" means a customs and excise airport specified in item 200.04 of the Schedule to the rules;
"carriage" means carriage by air;
"chargeable aircraft" means an aircraft designed or adapted to carry any person in addition to the flight crew;
"chargeable passenger", subject to the provisions of subsection (3), means every passenger on a chargeable aircraft departing from an airport in the Republic to a destination in a territory outside the Republic;
"flight", in relation to any chargeable passenger, means the carriage of such passenger from an airport in the Republic on a chargeable aircraft to any destination in a territory outside the Republic;
"operator", in relation to a chargeable aircraft, means the person having the management of the aircraft for the time being, and includes any airline or any person who owns or hires such aircraft or in whose name the aircraft is registered in terms of the regulations made under the Aviation Act, 1962 (Act No. 74 of 1962);
"passenger", in relation to any chargeable aircraft, means—
(a) where the operator is an air transport undertaking, any person carried on the aircraft other than—
| (i) | a member of the flight crew; |
| (ii) | a cabin attendant; or |
| (iii) | a person not carried for reward who is an employee of the operator and who satisfies such other requirements as may be prescribed by rule; and |
| (b) | in any other case, any person carried for reward; |
"reward", in relation to the carriage of any person, includes any form of consideration received or to be received wholly or partly in connection with the carriage, irrespective of the person by whom or to whom the consideration has been given or is to be given;
"tax" means air passenger tax.
(2)
| (a) | A tax known as air passenger tax shall be charged in accordance with this section on the carriage on a chargeable aircraft of any chargeable passenger. |
| (aa) | The tax shall be charged on the carriage of each chargeable passenger departing on a flight . |
| (bb) | A lower rate of tax may be levied in respect of any flight of which the final destination is any country in Africa. |
| (cc) | The rates of tax shall be the rates in force when this section comes into operation until amended as contemplated in subparagraph (ii). |
| (ii) | The Minister may by notice in the Gazette amend the rates of tax from a date specified in that notice. |
| (iii) | In considering the imposition of a lower rate as contemplated in subparagraph (i)(bb) the Minister shall take into account— |
| (aa) | the distance between an airport in a country concerned and an airport in the Republic; |
| (bb) | any agreement existing between the Republic and any of the countries concerned; |
| (cc) | the price of the flight ticket; and |
| (dd) | any other ground which may be regarded as reasonable in the circumstances. |
| (iv) | The provisions of section 48(6) shall apply with the necessary changes to any notice referred to in subparagraph (ii). |
| (i) | The chargeable passenger shall be liable for the tax which shall be collected by the operator or his agent. |
| (ii) | The operator or his or her agent shall be entitled to collect the tax from a chargeable passenger— |
| (aa) | at the time of the acquisition by that chargeable passenger of a ticket for the flight; or |
| (bb) | prior to the embarkation of that chargeable passenger on a flight; and |
| (iii) | Where the tax has not been collected at the time contemplated in subparagraph (ii), an operator or his or her agent shall be liable for the tax and may recover the uncollected tax from the chargeable passenger. |
| (d) | Subject to the provisions of this section and the rules, the tax— |
| (i) | becomes due when the aircraft first takes off on the passenger's flight; |
| (aa) | for the benefit of the National Revenue Fund; |
| (bb) | in respect of each chargeable passenger, by the operator or the agent; |
| (cc) | in accordance with the rules as contemplated in subsection (7)(b)(i). |
| (e) | Subject to the provisions of this section and except for the purposes of any customs union agreement contemplated in section 49, the tax shall be deemed to be a duty leviable under this Act. |
(3)
(a) A child who—
| (i) | has not attained the age of two years; and |
| (ii) | is not allocated a separate seat before boarding the aircraft, |
is not a chargeable passenger.
| (b) | A passenger is not a chargeable passenger if— |
| (i) | not carried for reward— |
| (aa) | in pursuance of any requirement imposed under any law; or |
| (bb) | for the purposes only of inspecting matters relating to the aircraft or the flight crew; |
| (ii) | whether or not carried for reward, in pursuance of any international agreement, convention or obligation, subject to the approval of the Commissioner and such conditions as he may impose in each case; |
| (c) | Any passenger, who is in transit through the Republic and departs from the transit area of the airport on a flight without entering the Republic by passing through immigration, is not a chargeable passenger. |
(4)
| (a) | The Commissioner shall keep a register of operators. |
| (i) | The operator of a chargeable aircraft used for the carriage of any chargeable passenger shall be liable to be registered under this section. |
| (ii) | Application for registration shall be in such form and manner and contain such information as may be prescribed by rule. |
| (c) | Any person liable to be registered under this section ceases to be so liable if the Commissioner is, on good cause shown, satisfied that— |
| (i) | such person no longer operates any chargeable aircraft; or |
| (ii) | no chargeable aircraft operated by such person will be used for the carriage of chargeable passengers. |
| (d) | Any person who is not registered and who has not applied for registration shall, if he becomes liable to be registered at any time, give notice of that fact to the Commissioner and apply for registration in writing within seven days of the time of becoming so liable. |
| (e) | Every pilot of a chargeable aircraft shall, for the purposes of section 7(3), produce together with the report outwards— |
| (i) | proof of registration of the operator; or |
| (ii) | a certificate from the Commissioner that the operator is not liable to be registered; and |
| (iii) | a passenger manifest in such form and containing such particulars as may be prescribed by rule. |
(5)
(a) An operator who—
| (i) | is, or is liable to be, registered; and |
| (ii) | does not meet the requirements contemplated in paragraph (b), |
shall appoint an agent whose place of business is in the Republic as the South African representative of the operator.
| (b) | A person meets the requirements of this subsection if such person— |
| (i) | has any business establishment or other fixed establishment in the Republic; or |
| (ii) | is an individual and is usually resident in the Republic. |
| (c) | The Commissioner may register any duly appointed agent of an operator, and if so registered, the agent may act on behalf of the operator for the purposes of this Act. |
| (d) | The Commissioner may by rule prescribe the following: |
| (i) | The persons who may be appointed as agent; |
| (ii) | the manner and conditions in or on which a person is to be appointed as agent for an operator; |
| (iii) | the conditions on which agents are registered by the Commissioner; and |
| (iv) | any other matter which is required or permitted in terms of this section to be prescribed by rule. |
| (i) | The Commissioner may refuse to register an agent appointed by an operator or cancel or suspend the registration of any agent. |
| (ii) | For the purposes of subparagraph (i), the provisions of section 60(2) shall apply mutatis mutandis. |
| (f) | The provisions of sections 44A, 98 and 99(1) shall apply mutatis mutandis to an operator and his agent. |
(6)
(a) No—
| (i) | who is liable to be registered; or |
| (ii) | agent appointed by an operator, |
may conduct any business contemplated in this section unless such operator or agent has furnished such security as the Commissioner may require.
| (b) | The Commissioner may at any time require that the form, nature or amount of such security be altered in such a manner as he may determine. |
(7)
| (a) | Any operator who is registered or liable to be registered and any agent of such operator shall— |
| (i) | keep accounts in such form and such manner; and |
| (ii) | render tax accounts at such time, in such manner and for such periods, |
as may be prescribed by rule.
| (i) | Any operator or agent of such operator shall pay any tax due at such time, in such manner and at such place as may be prescribed by rule. |
(ii)
| (aa) | Any tax due and not accounted for and not paid in accordance with the provisions of this subsection, shall be paid upon demand by the Commissioner. |
| (bb) | If such tax is not paid within 14 days after demand for payment was made, it shall be recoverable in terms of the provisions of this Act as if it were a duty payable under this Act. |
| (iii) | Interest on any outstanding tax shall be payable as provided in section 105. |
| (iv) | Any amounts of tax overpaid shall be refundable in the circumstances and on compliance with such conditions as may be prescribed by rule. |
(8)
(a) Any person who—
| (i) | is knowingly a party to the fraudulent evasion of tax or attempts to commit such evasion or assists any other person in taking steps with a view to such fraudulent evasion; or |
| (ii) | in connection with tax makes a statement he knows to be false or recklessly makes a statement that is false, or, with intent to deceive produces or makes use of a book, account, return or other document that is false, |
shall be guilty of an offence and liable on conviction to a fine not exceeding R100 000 or three times the value of the tax to which the offence relates, whichever is the greater, or to imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment, and the aircraft in respect of which the fraudulent act took place or false statements were made shall be liable to forfeiture in accordance with this Act.
(9)
| (a) | Notwithstanding anything to the contrary contained in this section, there shall be no liability for any underpayment of tax or failure to collect tax— |
| (i) | after a period of two years from the date any account was or should have been rendered in respect of such tax; or |
| (ii) | where such underpayment or failure was discovered as a result of, during the course of, or following upon, an inspection and that underpayment or failure occurred on a date earlier than two years prior to the date on which such inspection commenced: |
Provided that such liability shall, subject to paragraph (c), not cease even if an underpayment is discovered after an earlier assessment and payment of an amount in respect of any inspection during the period concerned, where such underpayment is the result of—
| (cc) | non-disclosure of any material facts; or |
| (dd) | any false declaration for the purposes of this Act. |
| (b) | Where any period is prescribed in this Act for books, accounts or other documents in whatever form to be kept available for production to or inspection by an officer, any such period shall, subject to the provisions of paragraph (c), be calculated from a date prior to the date on which production is demanded or the inspection commences. |
| (c) | Except where the Commissioner may otherwise determine in exceptional circumstances, where any underpayment arises from the circumstances contemplated in the proviso to paragraph (a), there shall be no limitation on the period of liability for any underpayment of tax or failure to collect tax or the period for which any books, accounts or any other documents, in whatever form available, are required to be produced to or may be inspected by an officer. |
