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Can SARS request documents for a 2001 tax return?

Monday, 30 March 2015   (0 Comments)
Posted by: Author: SAIT Technical
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Author: SAIT Technical

Q: We have a client who is being badgered by SARS; they want documents from her for the 2001 year of assessment. Up to what date must you keep your records and are SARS entitled now after 14 years to ask for documents that have been destroyed?

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.

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. 

Prescription period

SARS are, however, prohibited from making additional assessments after a certain time period has passed. Section 99 of the TAA states:

99. Period of limitations for issuance of assessments.—(1) SARS may not make an assessment in terms of this Chapter—

(a) three years after the date of assessment of an original assessment by SARS;

(b) in the case of self-assessment for which a return is required, five years after the date of assessment of an original assessment—

·         by way of self-assessment by the taxpayer; or

·         if no return is received, by SARS;

Section 99(2) provides an exception to this where:


(a) in the case of assessment by SARS, the fact that the full amount of tax chargeable was not assessed, was due to—

(i)                              fraud;

(ii)                            misrepresentation; or

(iii)                           non-disclosure of material facts;


(b) in the case of self-assessment, the fact that the full amount of tax chargeable was not assessed, was due to—

(i)                              fraud;

(ii)                            intentional or negligent misrepresentation;

(iii)                           intentional or negligent non-disclosure of material facts; or

(iv)                          the failure to submit a return or, if no return is required, the failure to make the required payment of tax


If any of the circumstances mentioned in s99(2) is applicable to your client, SARS has a right to issue an additional assessment to your client. To do this properly, they may require certain documents.

In such a case, you have section 29 of the TAA available as your defence. If your client’s situation fits exactly with what is mentioned in section 29, you can let SARS know that you are only required to keep the documents for 3 (or 5) years.

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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