Q&A – 26 November 2012
Faulty calculator, in trouble with TRA
I bought a calculator from a street vendor for my business. When I added 18% VAT, the calculator keeps ont giving me a lower figure. For example, for a sale of Tsh 100,000, when I add 18% VAT on this sale, it should read 118,000 but this particular calculator gives a figure of 116,000. I took it to a technician who said that the calculator was faulty and the 18% was being calculated as 16%. Is this a good reason for me to explain to TRA who are assessing me for the remaining 2% shortfall which amounts comes in excess of Tsh 150M? Can I sue someone?
PL, Dar
This is the first time we are hearing of such a calculator and find it very hard to believe. But with the current influx of substandard products in the market, you might as well be right.
To begin with it is very unlikely that TRA will accept your argument. When you do a sale of 100,000 even the trader who has not gone beyond primary school would know that the VAT amount is 18,000 and not 16,000. We are also quite surprised that the 2% amount has added up to Tsh 150M meaning that you have been using this calculator for a long time without noticing the defect.
As for whom to sue, you can sue the street vendor who sold you this calculator. This might not yield you the results you want. You can also sue the manufacturer and distributor of the product. You never know that some calculators in town might be adding more VAT then required and traders maybe profiting from the surplus and hence you should in parallel report this to the Fair Competition Commission, the Tanzania Bureau of Standards and the Tanzania Revenue Authority.
We also recommend that you contact a tax consultant who can guide you further on the VAT issue you are faced with.
Woman’s rights under presumption of marriage
I never married formally but lived happily with a certain man as my husband for five years until recently. During our life together, we had three children and a number of properties. Regrettably, we are now separated and I am living in one of the houses we built together. I am advised by my best friend to sue for divorce, distribution of properties and custody of children. However, some people say I won’t get a dime because there was no formal marriage. Please advice.
MM, Dar
The Law of Marriage Act provides that, whenever it is proved that a man and a woman have lived together for over two years and during such time they acquired the reputation of being husband and wife, there shall be a rebuttable presumption that they were duly married hence so long as your ex had no other formal marriage and the community around you considered you man and wife, then the presumption of marriage principles shall apply in your case. What is required of you in this regard is to satisfy the Court of competent jurisdiction that, you in fact cohabited with the said man for over two years, that people considered you married and you acquired the said properties jointly.
Under the presumption of marriage, a woman shall be deemed legal wife devoid only of the legal right to petition for divorce or separation.
Therefore, you cannot petition for divorce or separation in court as your union was a presumption of marriage. However, the law vests you with the legal right to apply for maintenance for yourself and the children. You are also vested with the legal right to apply for custody of the children of the union and some other reliefs which may include division of matrimonial property acquired by joint efforts. We recommend you contact your lawyer for further guidance.
Confession after police threat
I was arrested and accused of armed robbery. I was threatened by the police that if I did not confess they will torture me but I still refused. I was locked up and was charged the next day. When they interrogated me the second time, I hurriedly confessed because I feared that they might torture me. I wish to challenge the confession because it was induced by fear of torture. Will I succeed?
KA, Shinyanga
The Evidence Act provides that, confession by an accused shall not be rejected on the ground that, there was threat of torture unless the Court is of the opinion that the threat was made in such circumstances and was of such nature as was likely to cause an untrue admission of guilt. Also note that, the law is clear that if the accused confesses after the threat or inducement has been fully removed, the confession is admissible and need not be rejected. We are of the firm view that the Court will proceed to admit the confession because when you made it, there was no more threat and even though the police threatened you, they never actually tortured you. You should seek the services of an attorney who can guide you further. Kindly note that our response is based on the minimal facts as provided.
Bill Gates of Africa
I invented a certain business. It is on demand and I want to know if I can legally prohibit people from doing the same business for at least twenty years. I want full dominance to make big money just like Bill Gates.
RO, Bukoba
We are glad you have invented a business which is of high demand and hope that business will be of great service to the public. We also wish you all the best in trying to become the Bill Gates of Africa.
However, the Fair Competition Act prohibits any act or conduct which aims to distort or prohibit competition. Generally, a person cannot legally dominate the market because competition is encouraged. You should also note that, there are very high penalties for doing acts or omissions with the aim of dominating the market by preventing or eliminating competition. We recommend you get the services of a lawyer to guide you further.