Você está na página 1de 1

News Alert - Significant setback for tax cases awaiting hearing in the Court of Appeal

Tax disputes go through a three tier adjudication process. The initial appeal is heard by the Tax Appeals Board. An appeal from the Board
goes to the Tax Appeals Tribunal. A final appeal lies with the Court of Appeal. The Tax Appeals Board sits as a panel of three people; the
Chairman is invariably a fairly senior and experienced magistrate. The Tax Appeals Tribunal, which also sits as a three-person panel, is
chaired by a judge of the High Court. In either case, the Chairman writes the judgment after a joint session with the members to deliberate
the points in dispute.
In a ruling delivered by the Court of Appeal in January 2010, it was decided that it was not enough for the Tribunal judgment to be signed
by the Chairman; all three members of the panel had to sign it (Ami Port Operations (T) Ltd vs The Commissioner for Income Tax). The
ruling had serious implications because a large number of Tribunal judgments were, until then, only signed by the Chairman. Pending
appeals had to be withdrawn from the Court of Appeal or else they would have failed when called for hearing. Tax lawyers frantically
withdrew the filed appeals and went back to the Tribunal to seek rectification of judgment. Lawyers also had to ask the Tribunal to extend
the time within which appeals could be re-lodged to the Court of Appeal since they were already time-barred. This was quite a process and
it took us nearly a year to accomplish; a frustrating result for both taxpayer and counsel.
One would have thought that the Court of Appeal would have learnt from this unreasonably extreme exercise. Not quite it would seem,
because the Court of Appeal has done it again in Mbeya Intertrade Company Ltd vs. Commissioner General. This was a tax dispute which
went to the Tax Appeals Board in 2003. The taxpayer was aggrieved by the decision of the Board and lodged an appeal to the Tribunal.
They were aggrieved yet again in 2005 when the Tribunal delivered their decision. For some reason, the appeal to the Court of Appeal was
not filed until 2010 and it took another five years for the Court to call it for hearing. When that happened on 20 March 2015, the Court
dismissed the appeal because the decree attached to the record of appeal was not signed by all three members who heard the case at the
Tribunal level.
As before, the immediate implication is that all tax appeals that are currently lying before the Court of Appeal are affected and will
consequently have to be withdrawn so that the Tribunal can correct any procedural signing errors. There are 35 tax cases that are awaiting
hearing at the Court of Appeal and they are all affected by the ruling in the Mbeya Intertrade case. The disputed tax tied up is a staggering
168.3 billion Tanzanian shillings. Some of these cases have been pending for nearly 8 years.
When the Court of Appeal delivered its Ami Port ruling in 2010, three of our appeals were affected. This time we have 10 affected appeals
and the process of procedural rectification could take a year. It seems that the Court of Appeal is too eager to dismiss appeals on
technicalities instead of focusing on substantive issues. This not only undermines a statement given by the Chief Justice last year that an
expeditious solution was needed for long-pending tax disputes but it also increases the frustration felt by taxpayers. The worst part is that
when we finally get round to re-lodging the affected appeals, they will land at the bottom of the queue; facing another 4 5 year wait. The
judgments for our appeals were eagerly awaited because of their potentially wide-reaching effects. Among these appeals are cases brought
by Barclays Bank, Akiba Bank and CRDB to contest TRAs refusal to allow impairment losses as tax deduction. There are also the Tullow
Oil and Shell BV appeals on the equally contentious issue of withholding tax on services performed offshore for mining companies
undertaking exploration in Tanzania. It now appears that both of these genuinely urgent matters will not be resolved as soon as we had all
hoped.

About Ako Law


Ako Law is a leading law firm in Tanzania which specialises in tax dispute resolution and general tax advice. If you have any questions
relating to this news alert or any other tax problem, please contact us using the details provided.
Dr Kibuta Ongwamuhana, Managing Partner
Email:
kibuta.ongwamuhana@akolaw.com
Mob:
+255 754 292 200
Alan Kileo, Legal Director
Email:
alan.kileo@akolaw.com
Mob:
+255 767 694 254
Wilson Mukebezi, Senior Associate
Email:
wilson.mukebezi@akolaw.com
Mob:
+255 766 645 690
Salome Gondwe, Associate
Email:
salome.gondwe@akolaw.com
Mob:
+255 767 850 027

This news alert is intended for information only. For anything requiring action please seek advice. Ako Law accepts no
responsibility for loss occasioned by reliance on material contained in this news alert. No part of this news alert may be
construed as tax advice upon which to act or refrain from acting.

Você também pode gostar