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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:
- Health
- economic
- security of state and its people
- 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)
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