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Q&A – 14 August 2017

Detained in police station for traffic offence

I was stopped by police officers who shockingly did an alcohol test on me. The results were positive and I got arrested and spent the night in police custody. Can they arrest me for this offence? Could they just not have fined me and let me go? Is this legal?
TT, Dar

The Road Traffic Act states that any person required to provide a specimen of blood for a laboratory test pursuant to the provisions of this Act may thereafter be detained at a police station until it appears to a police officer that the proportion of alcohol in the person’s blood does not exceed the prescribed limit. For the purposes of this Act, the expression “prescribed limit” means eighty milligrams of alcohol in one hundred millilitres of blood.

You can see that your arrest was legal to also protect you. There is nothing shocking about alcohol tests- they are now quite common in Dar.

Confidentiality of documents submitted to TRA

I submitted some very sensitive documents including business and feasibility plans to the Tanzania Revenue Authority (TRA) for them to look at my tax affairs. Can the TRA share such documents with my competitors as these documents contain our business secrets and how we conduct our affairs. We have no issues with TRA reviewing them, but what are the chances the TRA will share these with other companies to gather further intelligence? We even forgot to put a stamp reading confidential on the documents. Can I sue TRA if they leak my information?
QU, Mwanza

What you submit to the TRA becomes confidential with or without your stamp on it. The TRA cannot use this for any other purposes then tax collection. For example TRA cannot share the document with your competitors, athough TRA can appoint third party experts to assist it in the carrying out of its duties and the third party will also be bound by confidentiality.

Infact section 8 of the TRA Act states that Revenue Commissioner, or any other Commissioner or person employed in the carrying out of the provisions of this Act shall regard and deal with all documents and information relating to the income, expenditure or other financial dealings or status of any tax payer or other person involved in any operations in furtherance of the purposes of this Act, and all confidential instructions in respect of the administration of this Act which may come into his possession or to his knowledge in the course of his duties, as secret to any unauthorised person.

The TRA is a corporate body with a seal and can be sued and can sue. If at all it engages in such information leakage you have a right to sue it. Having said that and to be fair, we must state that we have not heard of any such instances where TRA leaks information to the taxpayers competitors.

Flying drones in Dar

I am informed that it is now illegal to fly drones without a permit. Is that true and why are the authorities so stiff? These are small gadgets not aircraft. What should I do?
PT, Dar

The Tanzania Civil Aviation Authority (TCAA) has recently issued a circular on drones which states that operation of all aircraft within the Tanzania airspace or at any point in Tanzania is subject to regulatory approval and/or authorizations by the TCAA and that all those who wish to fly drones must first seek approval from the Ministry of Defence and National Service, and then seek authorization from the TCAA.

The circular further states that “Please be guided by the current Aeronautical Information Circular (AIC) number 5/17 (Pink 62) of 1 JAN 2017 found on our website (www.tcaa.go.tz) for detailed information on limitations and conditions for the operation of Remotely Piloted Aircraft in Tanzania in accordance with the provisions of International Civil Aviation Organization (ICAO) Circular 328 AN/190.”

Drones are like small aircraft and can cause harm to larger aircraft in addition to becoming a security risk. Flying them without permits was always illegal. With this circular now in place, anyone found flying a drone may be criminally prosecuted. Depending on what you are doing with the drone, you may also be prosecuted under the National Security Act. So be careful and comply.

Private ruling with wrong assumptions

To be sure that our project does not get into trouble in the future, we applied for a private ruling with the TRA. I provided all the details and a private ruling was issued. In the ruling, the TRA has inserted assumptions that are not only unrealistic but not relevant. I find it hard to understand what the ruling says although it seems to agree with our analysis. What should we do? My tax consultant says since it seems to be in our favour, we should start the project, as TRA is not predictable and may end up drastically altering the ruling if we go back to them. Please guide.
HG, Moshi

We are as confused with your question as you are with the TRAs ruling. On one hand you say there is a ruling that has certain inserted assumptions that are not relevant; on the other hand you say it agrees with your analysis. Unless we see it, we are unable to answer in the affirmative or negative.

Having said that, regulation 28 of the Tax Administration (General) Regulations 2016 states that (1) Where the Commissioner General considers that the correctness of a private or class ruling would depend on an assumption to be made on a future event or other matters, the Commissioner General may- (a) make the assumptions he considers to be the most appropriate; or (b) decline to make the ruling. Furthermore, subsection (2) the Commissioner General may not make assumptions on information which the applicant can provide.

Predictability and transparency are some of the key pillars that large companies require and we suggest that you contact the TRA for clarification, and get a properly worded tax ruling so that it does not cause any interpretation issues in the future.

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