Q&A – 5 December 2016

Absence of transfer pricing regulations

We are a company in Tanzania with a holding company in Europe. The biggest challenge we face is that on transfer pricing, especially since these regulations don’t exist at the moment. In the absence of such regulations, what should we assume. Is there case law in this area?
TG, Dar

Fortunately as we answer this question, the Income Tax (Transfer Pricing) Regulations 2014 have been published. These have been gazetted by the Minister for Finance under power of sections 33 and 129 of the Income Tax Act 2004 and are now in force. Should you wish a soft copy you can e mail us on info@fbattorneys.com and we can send it out to you.

Apart from other regulations contained therein, you may want to pay particular attention to: Regulation 4(5) which states that a 100% penalty (based on underpayment of tax) shall be imposed on a person who contravenes this regulation; Regulation 5 talks of the transfer pricing methods to be applied; Regulation 9 construction of these regulations to be in manner consistent with the OECD/UN Model. However in the event of inconsistencies, the Income Tax Act and these Regulations will prevail; Regulation 12 address advance pricing arrangement that can be entered into after seeking approval from TRA. Your tax consultant can guide you further.

One pastor criticizing another

I am a follower of a certain prophet and we worship daily in a suburb of Dar es Salaam where our church is registered. Astonishingly, and without even a flicker courtesy, there is a nearby church’s pastor who has been giving sermons through his loudspeakers criticizing our mission and our pastor. Among the allegations are that we are all pretenders, our pastor used to be a leader of a gang in Dar es Salaam, our belief is nothing but geared to con the nation and that we shall all not enter into heaven. We have all along been praying for him so that he may stop but this he hasn’t and this has reached boiling point now. Apart from beating him up, which is an option I am considering, is there a legal way we can deal with the situation?

To being with our country is one country in Africa whereby all religions live in harmony with each other. It is a model that other African countries are learning from and such utterances are taken very seriously by the government as it can lead to disharmony.

Bearing the above in mind, the Penal Code specifically provides that any person who with the deliberate intention of wounding the religious feelings of any person, utters any word, or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, commits an offence and is liable to imprisonment for one year.

What you have told us likely falls within the ambit of the foregoing provisions hence punishable and we advise you to report the commission of the offence to the police station for their further steps. If you take the law into your hands, as you seem to propose to do, please note that you will end up in jail and the pastor might continue doing what he is doing.

On personal attacks of character, the proper avenue is to pursue your recourse by filing a defamation suit by all those who have been injured by the statements. We advise you to continue enjoying your rights of worship as guaranteed by the constitution.

Death after one year

Two years ago, I beat my wife up badly because of an argument we had. She was admitted in hospital where I was informed that she had some fractured ribs and injury to the brain and I ensured she got the best medical care. However immediately after the incident, I was charged, pleaded guilty and imprisoned for six months. After she got better I did not see her ever since until ten months after the incident when she was found dead in her bed. Few days ago the police showed up at my door and took me to the police station for questioning on the grounds that I am the one who caused her death due to the beating. I am now informed that they intend to charge me with murder. As far as I am informed, she went back to work and was fine. I hadn’t seen her from the date she left and never came to visit me in prison. How can I be held liable for murder in such circumstances? Please guide.
LA, Arusha

The Penal Code provides that, “a person is not deemed to have killed another if the death of that person does not take place within a year and a day of the cause of death.” Meaning, it wouldn’t be murder if your wife passed away 12 months and 1 day from the date of the physical abuse you inflicted upon her. Since you state that your wife passed away only 10 months from the date of the incident, then the police have grounds to charge you with murder. Simply because your wife was better, was released from hospital and had gone back to office, doesn’t necessarily mean that the injuries you caused her did not lead to her early death. The police must have performed a postmortem on the body of your wife and may have reasonable grounds to charge you under the said provision. You should seek legal assistance.