Q&A – 1 June 2020

Kissing during COVID-19

Can we continue kissing during COVID-19? I am really scared of the virus and of committing an offence? How can we continue kissing? Please guide me as I feel a part of me is missing.
TU, Dar

This is a very interesting question. When it comes to kissing, it depends entirely who you are kissing, whether you know you have COVID-19 and whether the person you are kissing knows you have the virus. If you have no reason to believe that you have the virus, and provided the person you are kissing has consented to the kiss, there is no offence committed.

However, if you know or ought to know that you are infected with the virus and you kiss someone say on the lips, there is a huge risk of transmission and you can be convicted to upto a year imprisonment under the Public Health Act.

On how you can continue kissing, unfortunately we are legal practitioners and unable to guide you. Surely many people are missing this level of intimacy, but this should be directed to your doctor as this is beyond the scope of lawyers.

Air conditioners in jail

I have a friend who has been imprisoned for a certain offence. In prison he is unable to sleep because he is used to air conditioning. Is it not unfair to imprison persons without catering to their basic needs? Can he not fit air conditioning at his own expense?
WE, Dar

When you are sent to prison, you are deprived of certain non-basic needs as a punishment for the offence you have done.

Furthermore, the imprisonment is a deterrent to others from committing an offence. If the state starts providing air conditioning and other demands that your friend has, then for some it would be more ideal to commit an offence and enjoy the pleasures of imprisonment, which is counterproductive.

Further, there is no discrimination in not being able to provide air conditioning. Air conditioning is expensive and not a basic need. Had you said that your friend is not being fed, or not being provided a place to sleep, then it would amount to not meeting the prisoner’s basic needs.

As for fitting an air conditioner at his own expense, this is disallowed by the law as it would be discriminatory. Buying an AC is much cheaper than the power it consumes over its lifetime, and the prisons department cannot afford such additional power consumption. Therefore, buying an AC is not an option.

Confused with types of assessments

I am getting confused on the types of assessments that are being issued by the TRA. I hear of self-assessment, jeopardy assessment, adjusted assessment and amended assessment. Please let me know what these are. Also, for assessments that require objections, what details am I entitled to and within what time do I have to file my response? Is there a complaint mechanism against a TRA approach or officer behavior who is bullying me?
UR, Mwanza

The Tax Administration Act of 2015 (TAA) has all your answers. A self-assessment is made by the person her/himself. You can look at it as a self-declaration of taxes that you have to pay. A jeopardy assessment is when a person fails to file a tax return on time and the Commissioner General uses his best judgment and available information in estimating what taxes should be paid.

On the other hand, adjusted assessments are normally issued after audit findings and these are the assessments that are objected to, after either paying 1/3 of the amount of tax assessed or amount not disputed (whichever is higher). Generally, there is a 5-year time limit within which such assessments can be issued and section 48(4) of the TAA further elaborates on the 5-year rule.

After an adjusted assessment, usually an amended assessment is issued by the Commissioner after the objection is determined. This amended assessment is what allows you to proceed appeal to the Tax Revenue Appeals Board. There have been instances where the taxpayer objects, and the TRA issues another adjusted assessment, which vacates the previous adjusted assessment and must be objected to and not appealed against as it is not an amended assessment. Usually this happens when the TRA determine that the taxpayer has to pay more and not less than what had been previously assessed in the adjusted assessment.

The adjusted assessment notice must state the reasons of why the assessment has been issued including the event or matter to which the assessment relates and the amount remaining to be paid. Your rights to object, including the time, place and manner of objecting must also be stated on this assessment notice. All these details allow you to object. Short of getting such details, one would be required to request for more details, and the assessment would also not comply with the requirements of the law and could be challenged accordingly.

Lastly, an objection must be filed within 30 days of the amended assessment being issued. If you intend to apply for a full or partial waiver, then such waiver must be applied for 15 days before expiration of the time limit for lodging the objection.

As for the bullying by a TRA officer, our experience is that most TRA officers focus on their jobs and are trained to do so. Remember the compliance level in the country is not very good, however bullying is not permitted which can be reported to the Commissioner General.

Moreover the Tax Administration Act has provided for a Tax Ombudsperson, who is in charge of and required to carry out his functions independently and impartially without interference from any institution, agency or department of the Government or any other person. This person shall report her/his findings to the Minister for Finance with recommendations. The Tax Ombudsperson can review complaints, and resolve them amicably in addition to facilitate access by the taxpayer to dispute resolution processes within TRA. Unfortunately, and for unknown reasons, such position has not yet been filled and hence there is a vacuum here.