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Sunday, September 3, 2017

East African Community tax management


TAXATION (TANZANIA TAX LAWS AND COMPUTATION)


The East African Community tax management Act

The Treaty establishing the East African Community was signed by heads of government of the partner states on November 30, 1999 in Arusha, Tanzania and came into force on July 7, 2000. The East African Community was formally launched on January 15, 2001.
The broad goal of the EAC is to enhance co-operation in all areas for the mutual benefit of the Partner States.
In order to reach this goal a Customs Union will be established as the entry point of the Community followed by a Common Market, subsequently, a Monetary Union and ultimately a Political Federation of the East Africa States.

The Objectives of the Treaty are...
·         Promotion of a sustainable growth and equitable development of partner states including rational utilization of the region’s natural resources and protection of the environment;
·         Strengthening and consolidating the long standing political, economic, social, cultural and traditional ties by partner states and associations between the people of the region in promoting a people-centered mutual development;
·         Enhancing and strengthening participation of the private sector and civil society;
·         Mainstreaming of gender in all its programs and enhancement of the role of women in development;
·         Promotion of good governance including adherence to the principles of democratic rule of law, accountability, transparency, social justice, equal opportunities and gender equality; and
  • Promotion of peace and stability within the region, and good neighborliness among the partner states.

Background

The East African Community Customs Union commenced operations on 1st January 2005 following the official launching ceremonies that were held simultaneously in Kampala, Nairobi and Dar es Salaam on 31st January 2004.
The Members of the East African Community Customs Union are Kenya, Uganda and Tanzania.





Legal Framework for the EACCU
The following documents provide the Legal framework for the East African Community Customs Union:
1. The Treaty for Establishment of the East African Community
2. Protocol on the Establishment of the East African Community Customs Union
3. The East African Community Customs Management Act 2004
4. Annexes to the Protocol on the establishment of the east African Community Customs Union (key among them):
· The EAC Common External Tariff
· The Program for Elimination of Internal Tariff
· The Rules of Origin
· The Safeguard Measures
Functional structure of the EAC Customs Union
A Directorate of Customs and Trade at the EAC Secretariat is established whose role is to: -
(i)      Initiate policy on Customs and related trade matters in the Community
(ii)      Coordinate and monitor among others-
· Administration of the Common External Tariff;
· Enforcement of the Customs law of the Community; and
· Activities of the Commissioners in implementation of the Customs law
The Commissioners of Customs in the Partner States will handle day-to-day operations of Customs, including collection and accounting for Customs revenue and management of human and capital resources employed in Customs. These Commissioners and staff are appointed under the existing Partner States Revenue Authority laws.
Changes brought about by the Customs Union
1. Common duty rates which will apply uniformly on goods imported into East African Community
2. Zero rates on most of the goods originating and traded within East Africa
3. Reduction to zero duty rates within five years on some goods originating from Kenya and imported into Tanzania and Uganda.
4. COMESA and SADC preferential tariff treatment to continue applying on eligible goods for two years
5. An East African Community Customs Act which will apply uniformly in the three Partner States
6. A standard and harmonized exemption regime which does not give any officer or minister any discretionary powers to grant tax exemption
7. A harmonized list of prohibited and restricted goods which are not allowed to be imported in any one Partner State
8. Tax incentives for producers of goods for export through Export schemes where duty on inputs is waived. These include:  
· Export Processing Zones
· Free trade zones
· Manufacturing under Bond
· Duty drawback for manufactures of goods for export
· Inward Processing
9. Zero tariffs on most of the capital goods, agricultural inputs, medicines and medical equipment, raw materials and chemicals
10. Protection of agricultural production such as milk and dairy products, maize, rice, sugar
11. Simplified Customs procedures at border crossing where joint controls and sharing of facilities will be in place
12. Computation of taxes based on CIF value at the initial port of discharge in East African Community e.g. Mombasa, Dar es Salaam
13. Harmonized documents to eliminate duplication and delays in clearance
14. Dispute and appeal mechanism in case of dissatisfaction with a decision made by Customs
15. Anti- dumping and countervailing measures to deter dumping of cheap goods onto the East African Market
16. Use of information technology in Customs processes to enhance efficiency and reduce delays
17. Negotiating as a bloc on trade matters
18. Airfreight cost to be excluded in the value for computation of duty
19. Settlement and compounding of cases by Customs will be upon admission by the offender to have committed the offence
20. Customs must give reasons for refusal to grant or revoke a license to Customs Agents, Warehouse Operators and Internal Container Depot Operator
21. Duty remission Schemes for inputs used in manufacture of some products including:
· Sugar for industrial use
· Paper for manufacture of excise books

Processes
1. Goods must be landed at an approved Customs area
2. Goods must be accompanied by transaction documents such as invoices, receipts, freight notes, airway bills, and certificate of origin, export documents or any other documents required.
3. The owner or agent are obliged to make true declaration of goods at the customs office in a partner state where the goods are destined

4. Goods may be entered for:
· Home consumption
· Warehousing
· Export
· Re export
· Export Processing
· Transit
· Temporary importation
· Inward processing
· Temporary Export
· Outward processing










Key documents used by Customs
The EAC Common External Tariff
The EAC Internal Tariff:
This handbook for the Elimination of Internal Tariffs has been prepared on the basis of the World Customs Organization (WCO) Convention on the Harmonization of Commodity Description and Coding System framework.  The Internal Tariff covers specific tariff lines of the East African Community Customs Nomenclature.
It is applied on Category B goods originating from the Republic of Kenya imported into the Republic of Uganda and the rates will reduce progressively to 0% over a period of 5 years.
This Community Tariff Treatment is only applicable on goods that satisfy the East African Community Rules of Origin.
NOTE:
  • Tanzania and Uganda will export to Kenya at a zero rate
  • Kenya to Uganda: 453 items have been selected for progressive tariff reduction. Other will be zero rated
  • Kenya to Tanzania: 880 items have been selected for progressive reduction. The rest will be zero rated

The EAC Customs Management Act
The EAC Rules of Origin
THE EAC CUSTOM MANAGEMENT ACT
PART 1-PRELIMINARY PROVISIONS
This is an act of the community to make provisions for the management and administration of customs and related matters.

Known as the East African Community Customs management Act, 2004, it became affective on the 1st January 2005, after receiving presidential assent on the 31 December 2004. It effectively replaces the East African Customs Transfer Tax Management Act and shall apply to the partner states.(s1.2). The commencement date is appointed by the council of ministers(s 1.3)

The act is a result of the east African protocol agreement that set the creation of the east African council of ministers. The council of ministers under its mandate established the Directorate of Customs, which is responsible for the initiation of policies on customs and related trade matters in the community and the coordination of such matters in the Partner states.(s.3)











PART II-ADMINISTRATION
Without prejudice to the generality of s.3, the directorate shall in relation to the management and administration of customs, coordinate and monitor

a)      administration of the common external tariff
b)      enforcement of the custom laws of the community
c)      trade facilitation as provided by article 6 of the Protocol
d)      administration of the rules of origin
e)      compilation and dissemination of trade statistics
f)       application and interfacing of IT in customs administration
g)      training in customs related matters
h)      quality control in customs operations and enforcement of compliance
i)       customs related negotiations and
j)        activities of the commissioner in the implementation of this act

The performance of the directorate in performance of its functions under the act is subject to the general directions of the council of ministers, and may consult with or delegate its functions to any commissioner (see below).
Apart from the powers to establish the Directorate of customs, the council of ministers has the following powers
i)                   to establish within the community’s institutional framework a committee
ii)                 To make regulations for the working arrangement between the directorate and the customs.

The committee as established above shall have the following objectives:
a)      to facilitate the directorates formulation of policies and programs on customs management and administration
b)      facilitate exchange of information between the directorate and the commissioner and
c)      facilitate any other matters on working arrangements between the directorate and customs

Appointment of the commissioner of customs
The commissioner responsible for the management of customs for each of the partner states shall be appointed in accordance with the partner states legislation, and so shall other staff as necessary for the administration of this act and efficient working of the customs(s 5)

The commissioner shall be responsible for the management and control of customs including the collection, and accounting for customs revenue in the respective partner states (s.5.2)

Commissioner’s power to delegate:
The commissioner may authorize any officer in exercise of any of the powers conferred by this act, subject to any limitations that the commissioner may impose (s5.3)

 Powers of a police officer s.7
In the performance of their duty in accordance with the provisions of the act, every officer shall have the powers, privileges, rights and protection, of a police officer of the partner states in which such officer performs his duties.

Requirement to take an oath (s 5.4)
An officer appointed for any permanent office of employment in the customs shall before appointment take an oath of diligence before a magistrate of the commissioner of oaths ( as set out in the first schedule of the act)

Offences by or in relation to customs officer’s s.9
1.      Any officer who directly or indirectly asks for or takes any payments or rewards of any nature or any promise or security for such payment, not being a payment lawfully entitled commits and offense or
2.      Any officer who enters or agrees to any agreement to do, abstain form doing, permit, conceal, any act or thing whereby the customs revenue may be defrauded or which is contrary to the provisions of the act , or the proper execution of duty commits an offense. The officer shall be liable on conviction to imprisonment for a term not exceeding 3 yrs.
3.      Any person who discloses information acquired by him in the course of the performance of their duties relating to any firm, business or person of any kind commits an offense. On conviction, the officer shall be liable for a fine not exceeding $2500 or imprisonment for a term not exceeding 3 yrs or both fine and jail term.

Under item 1 and 2, the external party with whom the officer is working with will also be liable for the same punishment.

Cooperation between Commissioners of Partner States s.10
1. The commissioners may provide each other with such information, certificates, official reports, or documents relating to
a)      prevention, investigation and suppression of offenses under this act
b)      relevant information relating to customs
2. The commissioners may establish common border posts, joint customs control, joint initiatives etc

Powers of the Council to appointment of Ports s.11
The Council may by notice in the Gazzette appoint and fix limits to: ports; customs airports; places of loading and unloading within ports. The appointment may also be done for specified limited purposes only.

Powers of the commissioners to appoint boarding stations etc s.12
The commissioner may by notice in the gazette appoint
a)      boarding stations
b)      customs areas
c)      sufferance wharves
d)      places of landing and embankment of passengers
e)      places for the examination of goods including baggage
f)       roads and routes in the partner states over which goods in transit, or goods conveyed between the partner states may be conveyed
g)      entrances and exits to and from any customs area or customs airport within the partner states
h)      transit sheds
i)       internal container depots

The commissioner may make the appointment subject to any terms and conditions as he may deem fit.
The commissioner may revoke the appointment any time if satisfied that the terms and conditions imposed have not been complied to.

Internal container depots s.14
The commissioner may on application license any internal container depot for the deposit of goods subject to customs control. He may refuse or revoke the license giving the reasons for suck revocation.

Duties of owner of internal container depot:
a)      Provide such office accommodation, weights, scales, measures and other facilities for examination and taking into account of goods and securing them as the proper officer may require.
b)      Keep records of all goods in the depot at all times and make the records available for examination by the proper officer
c)      Provide all necessary labor and material for the storing, examination, packing, marking, weighing etc and take stock of goods in the depot whenever the officer requires
d)      Maintain such records and accounts relating to goods and operations in such a manner as the officer may require and avail the records for examination when required.
e)      Any other requirement as may be specified by the commissioner.

An owner who contravenes this provisions, shall have further receipt of goods stopped and shall be liable to an offense not exceeding $1000

Goods subject to customs control:s.16
The following goods shall be subject to customs control.
a)      imported goods including through the post office , from the time of importation to the time they are delivered for home consumption or re exportation which ever is the earliest
b)      goods under duty drawback from the time of the claim until exportation
c)      good subject to any export duty from the time the goods are brought from any port for exportation until exportation
d)      goods subject to any restriction of exportation from the time they are brought to port until exportation
e)      goods which are with the permission of the proper officer stored in a customs area pending exportation
f)       goods on board any aircraft or vessel whilst within any part or place in the partner states
g)      Imported goods subject to duty where there is a change of ownership of such person from an exempt person to a non exempt person.
h)      Goods which have been declared for or are intended for transfer to a partner state
i)       Seized goods

Goods subject to customs control:
-are open to examination by any officer any time
-No person shall interfere with such goods except with the authority of the commissioner, or in accordance with the act
- the commissioner may permit the owner of such goods to abandon them to the customs, and if that happens, shall be destroyed or disposed of in a manner deemed fit by the commissioner at the expense of the owner of such goods, and the duty thereof shall be remitted or refunded.

A person who interferes with goods under customs control shall be liable if convicted to a fine not exceeding $1,000 or term not exceeding 3 yrs, or both, and any goods subject to such interference shall be liable for forfeiture.

Where any loss or damage is occasioned to any goods subject to customs control through the willful neglect or negligence on the part of the commissioner or an officer, an action shall be brought to lie against the commissioner.



PART III - IMPORTATION
Importation is defined in the act as ‘to bring or cause to bring into the partner states from a foreign country’

The importation procedures are covered in the act under the provisions of s. 18 to s. 46 of the act

Under these sections the act provides for the following:
-prohibited and restricted imports
-arrival and report of aircraft and vessels
-arrival overland
-clearance by pipeline
-unloading and removal of cargo
-entry, examination and delivery
-provisions relating to customs warehouses
-passenger clearance.


Prohibited Imports: s.18
These are specified under part A of the 2nd Schedule. The importation of such goods is prohibited.

Examples of prohibited imports are the following:
-all goods whose imports is currently prohibited under this act or any law currently in 
 Force in the partner states
-false and counterfeit money
-drugs
 -seditious publications
-sexual material, obscene material, indecent material

Restricted Imports:
These are a category of goods whose importation is subject to certain conditions.
-All goods the restriction of which is currently restricted under the act or any other law currently in force in the partner states
-firearms and ammunitions
-armored fighting vehicles
-genetically modified products
-Ozone depleting substances
-Second hand tyres
-historical artifacts
-psychotropic drugs under international control
-Tear gas –live animals and birds
etc

Councils powers in respect of restricted and prohibited goods: s.19
The council may by order published in the gazette amend the second schedule in relation of prohibited and restricted goods by providing for restriction of items not previously in the list or removal of items already in the list.
The prohibition or restriction may be relate to the whole of the partner states or specific areas of the partner states.

Limitation of restriction/prohibition s.20
The restriction or prohibition shall not apply to goods imported in transit, in transshipment, or as stores of any aircraft or ship, unless such transit, transshipment or stores is specifically restricted or prohibited by any order made under the act.

Goods of the nature mentioned above, shall be duly exported within such a time and subject to such conditions as the commissioner may specify. Where such goods are not re exported as per the commissioners directive, then from the last date from which they should have been exported, they shall be deemed to be restricted/prohibited as the case may be.

Reasons for prohibitions/restriction:
  1. Health
  2. economic
  3. security of state and its people
  4. moral


PART IV-WAREHOUSING OF GOODS s.47-s.69
Subject to any regulations goods liable to import duty may on first importation be warehoused without payment of duty in a government warehouse, or a bonded ware house

Define gvt warehouse and bonded warehouse
As soon as practicable after the landing of such goods the proper officer shall take account such goods, the record of which will form the basis for the determination of the duties.s.47

Warehousing procedure s.48
-The proper officer before delivery of such goods to a warehouse shall, save where the commissioner otherwise directs, take accounts of the goods, whether or not such account had previously been taken
- record the name of vessel/aircraft/vehicle/parcel post reference; name of the owner of such goods, the number of the packages,; the mark and number on each package; the value and particulars of the goods
-proper officer shall certify at the foot of the account that the entry and warehousing of the goods is complete
-any goods entered for warehousing shall be within 14 days moved to such a warehouse and deposited in the packages in which they were imported.
-any goods were permitted to be repacked, bulked, sorted etc, they shall be deposited in the packages in which they were contained when that count took place
-if the cargo is bulk or the warehouse is far away, the commissioner may allow up to a maximum of 45 days

Any one who contravenes the above provision is liable of an offense, and if convicted the goods shall be forfeited

In respect of goods not moved to warehouse by the owner, the commissioner may direct such removal to the warehouse at the cost of the warehouse keeper, who shall hold lien the goods for the recovery of such cost.

Entry of warehoused goods
Goods which have been warehoused may be entered either for:
-Home consumption
-exportation
-removal to another warehouse
-used as stores for aircraft or vessel
-removal to an export processing zone
-removal to a free port

Operations in a warehouse: s 51
Where any goods are warehoused the commissioner may permit subject to any conditions imposed:
-repacking, sorting, bulking
-permit the taking of samples by the owner
-allow the name of the owner as entered in the records changed to a new owner if application is made by the owner on the prescribed form
-permit the assembly or manufacture of any article consisting wholly or partly of such goods, and for such purpose the commissioner may allow into the warehouse any duty free or locally produced product necessary for the manufacture of the product.

Where such manufacture happens and the final product is for home consumption, the duty shall be charged on the final product based on the original entry of the components except in the case of crude or partly refined petrol in which case the duty shall be levied on the basis of the final product as if the product had been freshly imported. The same procedure shall apply for blended lubricating oil.

Any contravention of the above procedure would result in the goods being forfeited.

Re-gauging and revaluation s.52
The commissioner or on the application of the owner and at the expense of the owner may

- re-gauge, re-measure, re-weigh, re-count etc any warehoused goods
-re-value any warehoused goods liable to duty

Where this happens the duty shall be based on the revaluation. However where there is excessive loss or deterioration which has been negligently caused, the duty shall be based on the original amount subject to any reductions that the commissioner may grant


PART V –EXPORTATION
Prohibited goods as per section A of the 3rd schedule: s.70

All goods the exportation of which is prohibited under any written law in force in the partner states

Restricted goods as per section B of the 3rd schedule:
1.
a)      all goods the exportation of which is regulated under this act or any law in force in the partner states
b)      waste and scrap of ferrous cast iron
c)      timber from any wood grown in the partner states
d)      fresh unprocessed fish(Nile perch and tilapia)
e)      wood charcoal

2. The following goods shall not be exported in vessels less than 250 tons register

a)      warehoused goods
b)      goods under duty drawback
c)      transshipped goods

The council may by an order published in the gazette amend the provisions of the third schedule, either specifically or generally. s 71

The provisions shall not apply for good in transit, transshipment or for stores of vessels or aircraft (unless the vessel is less than 250 tons) or the goods are of the category that are expressly prohibited or restricted for export under the act or any other law in the partner states.

s.72 Where the goods are for trans shipment, transit, stores etc they should be dealt with within a time as specified by the commissioner , otherwise they may be deemed prohibited or restricted.

Entry of goods for export s.73
Any cargo to be loaded for export must be entered by the owner of such cargo in the manner prescribed, and such entry shall be supported by full particulars and documentary evidence. Failure to do this is an offense and the goods may be forfeited.

The vessel shall also be entered for outward movement, and no goods shall be loaded on the vessel before the said entry is made.

 Loading will be at an approved time and from an approved place of loading

Goods that may be loaded without entry s .76
-goods which are the bona fide personal belongings of passengers, crew, or vessel
-goods intended for sale or delivery to passengers, crew, and vessel
-mail bags and postal articles in the course of transmission by post
-on application by owner to make the entry within 48 hrs and upon issuance of security on the duties due on the goods

Goods entered for export, use by passengers, store etc shall not be discharged within the partner states, save with the written permission of the officer and upon such conditions as he may impose. S 77

s. 85- 87 goods in transit and transshipment

S.106-109 provisions relating to securities

PART X –DUTIES
S 110-144 provisions relating to duties

PART XII- POWERS OF OFFICERS s.149-166
1.       to require the master of any vessel or aircraft to bring to board and land when signaled to do so by a customs vessel bearing the custom flag or the fag of the partner states
-          The master shall facilitate the boarding of the vessel or aircraft by the customs officer, as shall remain stationery for such a period as the customs officer may require.
-          Contravention may lead to a fine not exceeding $2,000and the vessel being less than 250 tons shall be liable for forfeiture. Where an aircraft is involved, or where the ship exceeds 250 tons, the fine will  not be less than $5000 and the vessel or aircraft may be seized until the fine is paid or security given
2.       To require any vessel or aircraft within or over the partner states to depart within 12 hours, except that this shall not be applicable for a vessel registered in the partner states.
3.      to patrol freely and more vessels
4.      to board vessels and search
5.      To stop vehicles suspected of conveying un-customed goods- any gods found in relation to which any offense under the act has been committed, such goods shall be liable for forfeiture.
6.      To require persons leaving or entering the partner states to answer questions in respect of baggage, and if carried in the vehicle, answer any question on the vehicle and nits baggage, and shall produce goods and documents in respect to the baggage.
7.      To search persons, with reasonable force where he believes the person is in possession of un accustomed goods. Such goods if found shall be forfeited.
8.      to arrest, using reasonable force if there is reason to believe that the person so arrested has committed a crime under the act
9.      To search premises, using reasonable force where it’s believed there are unaccustomed goods or documents relating to such goods. He may require production of documents, make copies, detain any documents as evidence etc
10.  to require production of books of account


OFFENSES, PENALTIES, FORFEITURE AND SEIZURES S.193 –S.218
1. A person who conspires with another person or persons to contravene the provisions of this act commits an offense and shall be liable on conviction to a term not exceeding 5 yrs
2.Any person who shoots at a aircraft or vessel in the service of the customs, shoots at any officer maliciously, wounds any officer on duty, commits with violence the following:
-obstructs any officer in the execution of his duties
-breaks, destroys, throws over board any goods to prevent the seizure of such goods, or the securing if such seized goods
-rescues any person arrested for an offense under the act

Commits an offense and shall be liable on conviction to imprisonment for a term not exceeding 20 yrs.
3. A person who while committing an offense is found armed or while being so armed is found in the possession of goods liable for forfeiture under the act is liable for imprisonment for a term not exceeding 10 yrs.
4. A person who disguises and commits and offense under the act or while disguised is found in the possession of goods liable for forfeiture commits an offense and on conviction will be liable for a term not exceeding 3 yrs
5. A person who removes, obliterates, defaces ,alters, or imitates the customs seal or any mark placed on custom goods shall if convicted be liable to a fine not exceeding $2,500 or a term not exceeding 3 yrs or both
6. Any person who induces another to commit an offense under the act shall be liable for a jail term not exceeding 1 yrs
7. Its an offense to warn an offender, of impending action under the customs act
Offense to assume character of customs officer
8. Master of a vessel, aircraft, vehicle who uses it to smuggle commits an offense
9. offense related to prohibited, restricted and un costumed goods- acquires or is in possession of, causes to be carried coastwise, cause to be boarded, etc is liable to an offense and may be imprisoned for a term not exceeding 5 yrs or fine not exceeding 50% of the dutiable value of the goods
10. Offense to import or export concealed goods
11. Offense to make or use false documents
12. Offense to refuse to produce documents
13. Offense to interfere with custom gear-fine $2,500
14 failure to report an accustomed good is an offense-fine $2,500



General penalty
A person who commits an offense under this act for which no specific penalty is provided shall be liable to a fine not exceeding $5,000

Where under a conviction under the act a person becomes liable for a fine not exceeding a certain amount, the court may impose a fine not exceeding three time the value of the goods in respect to which the offense was committed or the specified amount whichever is the greater. For the person of the value of the goods the commissioner shall cause such goods to be valued by a customs officer, and such valuation shall not take into account any damage to the goods.

Goods liable for forfeiture s.210
-          any prohibited goods
-          any restricted goods dealt with contrary to the condition attached to their importation, exportation or carriage
-          any unaccustomed goods
-          goods imported ,exported or transferred, but packaged in a manner appearing to be intended at deceiving the customs officer
-          any goods imported, exported or transferred for which the entry, application for shipment or application to unload does not correspond with such goods
-          goods subject to customs control, which are moved, altered, or in any way transferred


By Stewart Mbegu (ECA, BAF, MBA- Finance, CPA T)

FREE NOTES AT http/idianaconsultancy.blogsport.com