Q&A – 20 September 2021

Aiding or abetting a tax offence

When can a person who has no liability to pay tax be charged with aiding, abetting or counseling commission of a tax offence? Can a tax consultant or a legal advisor who represents or acts for a taxpayer after the assessment is raised by the revenue authority be charged with aiding, abetting or counseling the commission of a tax offence?
BJ, Dar 

Section 80 of the Tax Administration Act [Cap.438 R.E 2019] creates the offence of aiding, abetting, counseling or inducing commission of a tax offence. A person convicted of aiding, abetting, counseling or inducing the commission of a tax offence is liable to a penalty equal to 100 percent of the tax shortfall. The law however does not provide how to apportion the tax shortfall where the aider and the actual perpetrator of the tax crime are jointly charged.

The Tax Administration Act does not define the words aid, abet, counsel or induce. However, in criminal law aiding, abetting, counseling or inducing the commission of an offence is way a third party to the offence is deemed to be a co-offender without necessarily doing the prohibited act or omission constituting the offence charged. Aider, abettor or counselor are treated in the same footing like the actual perpetrator of the offence charged. Aider, abettor or counselor can be charged jointly with the actual offender or alone without joining the actual perpetrator of the offence.

A tax consultant or lawyer or tax administrator who ill advises a taxpayer to do something which results in the commission of a tax offence can be charged alone or jointly with the actual perpetrator of the offence. An opinion or guidance by such a person which opinion might have multiple interpretations might not be enough to charge such a person. More importantly to charge a person as aider, abettor or counsellor, the alleged conduct amounting to aiding, abetting, counseling or inducing must have been done before the commission of the tax offence. An ill advice given by a tax consultant or lawyer after the commission of a tax offence on for example an appeal strategy filed by the taxpayer, or an objection against a tax assessment, cannot constitute aiding or abetting or counseling a taxpayer to commit a tax offence because the alleged tax offence has already been committed at the time.

Having said the above, a tax administrator can be charged as aider or abettor of a tax offence for failure to prevent the commission of the tax offence if she/he was of aware that the taxpayer wanted to commit a tax offence and the tax administrator was in a position to prevent the offence but he deliberately failed to prevent it.

It is important to note that world over consultants act for various taxpayers to reduce the impact of taxes on the taxpayer. In any transaction the consultants and the taxpayer want to ensure that they appropriately and legally plan to reduce the tax obligation. That does not amount to evasion and neither can such advice amount to aiding or abetting tax evasion. Some of the world’s biggest corporates also have legally acceptable structures to ensure that their tax obligation is reduced.

Change of child’s name

My son was baptised three weeks ago at the age of 16 years. He wants to use his baptismal name which is different from his name appearing in his birth certificate. What is the procedure for changing the child’s name in the birth certificate?
BK, Bukoba

Section 14 of the Births and Deaths Registration Act [Cap. 108 R.E 2002] as amended by Act No.11 of 2019 prescribes the procedure for changing the child’s name. The parent or guardian who wishes to change the name of his/her child should apply to the district registrar of births and deaths for change of names in the births register and issuance of a new birth certificate. The application should be made before the child attains the age of 18 years and it should be accompanied with proof of payment of the necessary application fee and the parent’s or guardian’s affidavit substantiating the reasons in support of the application for the change of name. It is a relatively straightforward procedure and you don’t need to live with your name at birth for life.

Claim for costs in criminal matters

My neighbour made a false accusation against me to the Police that I threatened to shoot him with a pistol which I have never even owned. I was arrested and charged with the offence of threatening violence although I was released on Court bail. I have been attending Court almost once every month for the past one year. In case I get acquitted, can I claim costs that I have incurred to attend Court and pay fare for my witnesses to come to Court to testify on my behalf?
HK, Moshi

In rare cases criminal Courts do condemn the complainants to pay costs to the accused. Costs is awardable in criminal trials under section 347 of the Criminal Procedure Act [Cap.20 R.E 2019] only where the accused is acquitted and the Court acquitting him is of the opinion that the charge was frivolously or vexatiously instituted at the instance of the complainant. In criminal trials costs are normally awarded in a form of compensation to cover the expenses and trouble to which the accused may have been put by the complainant due to frivolous or vexatious charge.

In view of section 349 of the Criminal Procedure Act, an order for costs is enforced like a criminal penalty by way of distress. In default to pay the costs, the Court may issue a warrant of distress to attach the property belonging to the complainant condemned to pay costs. If the complainant has no money to pay the costs and has no property to attach, he shall be liable to imprisonment for a term not exceeding 6 months.