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Can SARS compel a taxpayer to submit a tax return in respect of a tax period more than 5 years ago?

Monday, 16 February 2015   (0 Comments)
Posted by: Author: SAIT Technical
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Author: SAIT Technical

Q: A client was requested in 2014 to file 2007 and 2008 tax returns, this is longer than 5 years and no IRP5s or any other supporting documents are available. I have filed a notice of objection and SARS disallowed it, stating that the taxpayer has to submit the return.

A:Time period for keeping records

With regards to the number of years one may keep documentation for tax purposes, please note section 29 of the Tax Administration Act (TAA):

It’s best you begin by looking at section 29(3):

"Records, books of account or documents need not be retained by the person described in—

(a) subsection (2) (a), after a period of five years from the date of the submission of the return; and

(b) subsection (2) (c), after a period of five years from the end of the relevant tax period."

You’ll notice that section 29(3) makes no mention of a person described in section 29(2)(b):

Section 29(2)(b) speaks of a person who "is required to submit a return for the tax period and has not submitted a return for the tax period.”

The 5 year period therefore doesn’t apply to someone who is required to submit a return but hasn’t, which is exactly the position your client is in. 

Yet section 29(1)(a) does still require such a person to keep records to "enable the person to observe the requirements of a tax Act…”; one such requirement is to submit a tax return [see section 66 of the Income Tax Act].

From this, one can infer that if one is required to submit a tax return, but doesn’t; then he or she must retain records indefinitely. 

Lastly, in terms of section 171 of the TAA, proceedings for recovery of a tax debt may not be initiated after the expiration of 15 years from the date the assessment of tax, or a decision referred to in section 104 (2) giving rise to a tax liability, becomes final.  SARS is therefore entitled to claim payment of an amount that is outstanding for a period of less than 15 years.  

No IRP5s available

To address this issue, please see section 95(3) of the TAA, which states:

"If the taxpayer is unable to submit an accurate return, a senior SARS official may agree in writing with the taxpayer as to the amount of tax chargeable and issue an assessment accordingly, which assessment is not subject to objection or appeal.”

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.



Section 240A of the Tax Administration Act, 2011 (as amended) requires that all tax practitioners register with a recognized controlling body before 1 July 2013. It is a criminal offense to not register with both a recognized controlling body and SARS.

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