Q&A 5 November 2012

Ambiguity in tax law

There is one tax law that is ambiguous on how the tax is to be assessed and also on how it is to be calculated. How does such an ambiguity be decided? What should I do as TRA is looking at it to its advantage saying others have paid based on this? They are threatening me to issue an assessment. Please guide.
TY, Dar

Normally if there is ambiguity or any uncertainty then that advantage is to be given to the taxpayer. It does not matter if others have compromised and paid. The mere fact that others have paid does not change the ambiguity in the law. The rule of construction of a charging section is that before taxing any person, it must be shown that he or she falls within the ambit of the charging section by clear words used in the section.

The cardinal principle is that no one can be taxed just by implication. If a person has not been brought within the ambit of the tax law, he or she cannot be taxed at all. In your case, it entirely depends on what the ambiguity is.

In tax law there is little room for intendment. There is no equity about a tax and no presumption about a tax, nothing to be implied and one has to look fairly at the language used.

You cannot stop TRA from issuing an assessment. You can however challenge the assessment to the Commissioner General and if you are not satisfied with his decision, you can further appeal to the Tax Revenue Appeals Board, then to the Tax Revenue Appeals Tribunal and then to the Court of Appeal. Being issued with an assessment is not the end of the world. Your attorney can guide you further.

Mining in a forest reserve

I am a small-scale miner and wish to purchase a primary mining licence. However, the licence is part of a forest reserve. Does the forest reserve affect the mining rights? Can I buy it? How is such a licence defined?
JB, Shinyanga

The Forest Act allows mining activities within a forest reserve however you must get consent of the Ministry of Natural Resources and Tourism prior to starting mining activities. There are also some fees to be paid per hector to mine in a forest reserve.

The Mining Act 2010 states that a primary mining licence for any minerals shall not be granted to an individual, partnership or body corporate unless-(a) in the case of an individual, the individual is a citizen of Tanzania;(b) in the case of a partnership, it is composed exclusively of citizens of Tanzania; (c) in the case of a body corporate, it is a company and-(i) its membership is composed exclusively of citizens of Tanzania;(ii) its directors are all citizens of Tanzania;(iii) control over the company, both direct and indirect, is exercised, from within Tanzania by persons all of whom are citizens of Tanzania. As for the definition of primary mining licence, the Mining Act 2010 provides a specific definition in that it is a licence for small scale mining operations, whose capital investment is less than Usd 100,000 or its equivalent in Tanzanian shillings.

Arrest by a Magistrate

I got so drunk in a bar and physically and verbally insulted the barmaid. To my surprise a certain fat lady arrested me claiming to be a district magistrate. Now I have been charged with an offence and want to challenge my arrest. She might be a magistrate but I don’t believe she can misuse her powers by arresting me. Can I successfully challenge this issue?
KM, Arusha

Atleast, you know that you were drunk and further aware of your actions towards the barmaid. The Criminal Procedure Act provides that any person whether a civilian, police or magistrate or judge can arrest any person who commits an offence. The magistrate is expressly allowed to arrest any person who breaks the law in her presence. Hence it is unlikely that you will be able to challenge this arrest.

The defence of intoxication and temporary insanity will be available to you. This defence may not lead to a total acquittal but may invoke the sympathy of the Court.

Installation of electricity equipment on private land

I own a plot in Dar where a certain company which produces and transmits electricity gave me a notice that they want to have access to my land to install electricity lines and they will compensate me. I don’t want them in my land whether they pay compensation or not. Can I challenge this?
BJ, Dsm

The Electricity Act provides that any company which has a licence to produce and/or transmit power has the right to have access to any land to enable it to fulfill its duty to provide power and the owners of the property shall not be allowed to interfere with the rights or property of the said company. Also the company is authorized under the law, after issuing notice to the owner of the property to have access to the said land for purposes of repairing the equipment. However such companies are required to pay compensation to the owner of the property and if there is any dispute the same can be determined by the Court with requisite jurisdiction.

Hence you cannot prevent the owner of the company from accessing your property however should you have an issue with the consideration which is payable, you can consult your attorney who can assist you to challenge it in Court.