Q&A – 30 October 2017
Legality of 7 day notices by TRA
Does TRA have powers to come and search taxpayers premises? Can this be a fishing expedition for them? If the answer is yes, is this provision not unconstitutional and can it be amended? Can TRA give me only 7 days to pay up after they issue assessments or demand notices? What are my rights? TRA has written to me demanding taxes in Kiswahili which I do not understand- do I still need to comply?
Under the Tax Administration Act and other tax laws, including the East Africa Community Customs Management Act, the Tanzania Revenue Authority has wide powers to search premises of taxpayers. This is similar to other jurisdictions where tax revenue collection must be protected. We do not see anything unconstitutional about this provision. Of course, the search needs to be for tax related matters and not a general fishing expedition; however the taxpayer cannot stop a tax official from doing his/her job. This provision can only be amended by parliament and we see no reason why parliament would wish to amend this especially in Tanzania where the tax base is very narrow and tax compliance very weak. We sometimes find TRA being blamed for powers that they actually do possess, with taxpayers calling it harassment and TRA calling it tax evasion!
As for the 7 days notices, we have indeed seen such deadlines being given and opine that the taxpayer has 30 days to object to any decision by the commissioner, or if an objection has been determined by the TRA to go to the Tax Revenue Appeals Board (Board) on an appeal. Hence the 7 days are, in our opinion, not justified as they fall within the objections or appeals period that is clearly provided by our tax laws. If you are issued with such a deadline, it is prudent that you inform TRA about your rights existing for 30 days and TRA cannot enforce collection measures when the time frame for you to object or appeal have not expired. Notwithstanding the above, if all objection and appeals periods have lapsed, and you have neither objected nor appealed, then TRA may proceed with recovery measures as there are no proceedings pending before them or the Board.
Kiswahili is our national language and the Tax Administration Act provides for Kiswahili as one of the languages of communication. Infact in some jurisdictions the tax authority only writes to you in the national language. Fortunately or unfortunately, in Tanzania TRA writes mostly in English. You seem to know the contents of the Kiswahili TRA letter although you claim not to understand Kiswahili, perhaps because there are taxes to be paid. We see absolutely no grounds why you should use the language of the letter to avoid paying taxes. This would constitute bad faith on your part and you could face serious consequences including further penalties, fines, and/or prosecution.
Written submissions filed out of time
Is it true that after you file your memorandum of appeal at the Court of Appeal, the written submissions must be filed within 60 days, and if not filed your appeal will be dismissed? My lawyer has not filed anything and I am really worried.
Rule 106(1) of the Tanzania Court of Appeal Rules states that a party to a civil appeal, application or other proceeding, shall within sixty (60) days after lodging the record of appeal or filing the notice of motion, file in the appropriate registry a written submission in support of or in opposition to the appeal or the cross-appeal or application, if any, as the case may be. It is true that one is supposed to file the submissions within 60 days, but there are rulings of the Court of Appeal that non filing of submissions cannot necessarily lead to a dismissal.
If you can explain your position in Court, you can still proceed submit orally during hearing, although you will only have 30 minutes to do so. You have an option of filing for an application for extension of time to file the submissions. Your lawyer can guide you more.
Scales of justice
In many Courts that I have visited, I have seen scales of justice. Is it a universal symbol of a sort? What do they depict? Are they mandatory in Court?
The Scales of Justice are, perhaps, the most familiar symbol associated with the law, symbolizing the impartial deliberation in Court. It is the weighing of two sides in a legal dispute. There is also the Book of Judgment or Law which represents learning, written knowledge and judgments. Sometimes the word ‘lex’ (law) is shown on the book. Tablets of the Law also have a long history, signifying the permanence of law when ‘written in stone’.
These scales of justice are symbolic and not mandatory to be present in a Court room. However many Courts have these scales.
Arbitration too expensive
I entered into a lease which is now in dispute and I have rushed to Court to sue my landlord which proceedings are still pending in Court. To my surprise the lease has an arbitration clause but I seek to go to Court as it is cheaper. I agreed to arbitration thinking it would be cheaper and faster, but the quotation I have received for arbitration is three times higher than going to Court. How can you help me?
There is very little we can do to ‘help’. You agreed to arbitration and unless the other party agrees that they are ready to litigate in Court, your Court application will unlikely survive. Reasons like you thought arbitration was cheaper than going to Court will not hold in a Court of law, which will direct you to arbitration. Arbitration is an alternate dispute resolution mechanism and binding on the parties, and Tanzanian Courts enforce such clauses.