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Friday, April 19, 2024

GRA’s Tax Tribunal explained

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By Omar Bah

In January, the Ministry of Finance in partnership with the Gambia Revenue Authority commissioned the expected Tax Tribunal to settle tax disputes between taxpayers and GRA.

A Ghanaian judge, Justice George Appah Kwabeng who is appointed as president of the Tribunal, was sworn-in alongside Bakary Sanyang, Lamin S Jatta, Mamour Joof and Sheriff Kumba Jobe.

But the setting up of the tribunal has since generated some misconceptions and to set light on this, earlier this month, Omar Bah, The Standard chief reporter whose beat includes covering the GRA, sat down with the authority’s Director of Legal, Board Services and Board Secretary, Abdulrahman Bah, for this interview.

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The Standard: Can you kindly explain the role of the Tax Tribunal?

Esq Abdouraman Bah: Thank you very much for granting us this interview and also for seeking further clarification emanating from the inauguration of the Tax Tribunal. You are playing a very important role in disseminating the correct information to our taxpayers, and it’s very laudable. In our tax administration, the press has always been an important stakeholder because taxpayers need to get the right information, and your willingness to come to GRA to seek clarification and to get your readers to understand the role and importance of the Tax Tribunal is very important, and I applaud that. To answer your question, the role of the Tax Tribunal is like a middleman between the taxpayers and the GRA. GRA was established by an Act of Parliament to collect revenue from taxpayers so in discharging that mandate, a relationship is created between the tax administrators-GRA, and the taxpayers but due to human nature, there will come a time when there will be a dispute. The kind of dispute that will arise between a taxpayer and GRA as envisaged by the law is a dispute that relates to tax assessment. We have a tax system that allows taxpayers to self-assess themselves. We give the taxpayer the benefit of the doubt to declare his or her income and pay the appropriate taxes, so if a taxpayer self-assesses himself or herself and we are not satisfied with the assessment, we can reassess the person by auditing the person’s books and come up with another assessment, if a dispute arises out of a tax assessment an independent tribunal is the most ideal entity to resolve such dispute so that’s why the Tax Tribunal was established. A tax tribunal is a fundamental pillar in every taxation system because it offers taxpayers a grievance mechanism…Meaning, if you feel that you have been wrongly assessed by the tax authority, there should be an avenue that you go to seek redress to ventilate your grievances, and this right exist in almost all tax jurisdictions. Some people thought that the tax tribunal was inaugurated to go after tax evaders but that is not the case. It is envisaged under Section 256 of the IVAT Act, as basically a tribunal of independent persons so what we are saying is that when the taxpayer and GRA have a dispute in respect of a tax assessment, it is important that the dispute is heard by an independent body, in the same way we regard the courts as independent arbiters. Similarly, the tribunal is an independent arbiter that will stand between GRA and a taxpayer. So, if a taxpayer is dissatisfied with a tax assessment, then he or she will file an application to the Tax Tribunal for the tribunal to review the decision of the Commissioner General, and the tribunal, in doing so, may affirm the decision of the Commissioner General, vary it, or outrightly set it aside. The tribunal is important in the sense that it offers taxpayers an avenue to go and seek grievances so that is why the jurisdiction of the Tax Tribunal can only be triggered by taxpayers. It cannot be triggered by GRA. Even if you owe us taxes, we don’t take you to the tribunal. We cannot trigger the tribunal process, so we would rather take you to the Conventional Courts and file a civil claim to recover the taxes as a debt that is due to the state. So, if GRA wants to recover tax arrears from taxpayers, we cannot file an action before the tribunal, rather we resort to the conventional courts. The tax Tribunal is therefore a separate dispute resolution mechanism and also, in respect of crimes whether it is tax evasion or under-declaration, there is also another separate avenue for this. An indictment will be filed at either the Magistrates’ courts or the High Court but the tribunal, in essence, is one that deals with basically the disputes that emanate from a tax assessment. However, it is not all decisions of the Commissioner General that can be reviewed by the tribunal. There are certain decisions that are deemed to be reviewable. That’s why, if you look at the Act, the Tribunal was established to hear applications for review of ‘reviewable decisions’ made under the Act by the Commissioner General or officers acting under his authority. It means that under the Income and Value Added Tax, if any decision is reviewable and you are dissatisfied by the decision of the Commissioner General, you go to the Tax Tribunal, and the Tribunal is not the last port of call. If you go there and they deliver a decision against you, you can further appeal to the Court of Appeal and all the way to the Supreme Court. So, in essence, the Tax Tribunal is like an alternative dispute resolution mechanism, but one fundamental thing about it is that it is taxpayer-driven and taxpayer-triggered.

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What role will the GRA legal department play in this?

Our role in the tax tribunal is, for example, if a taxpayer should take GRA to the Tribunal, the Legal Department, will defend the decision of the Commissioner General. Maybe the other party will also get somebody to help them pursue their claim before the Tribunal, and that’s why, if you look at the composition of the Tribunal, most of the members have a taxation background. Two of them are managing partners of private accounting audit firms, and tax advisory firms, and one of them is a legal practitioner and the other a retired revenue officer.  Whenever there is a matter before the Tribunal, the role of the Legal Department is to defend the position of the Commissioner General. The Tribunal will call both sides to present their case, make their arguments and call witnesses and tender documents, and then the Tribunal, which is an independent expert body, will look at the law, practice, facts, and evidence and then reach a decision, but that decision is also subject to appeal to the Court of Appeal. If the matter goes to the Court of Appeal or Supreme Court, the role of my department is to defend the position of GRA.  In the event that a decision is made against GRA, and we feel dissatisfied by the decision, we can also appeal to the Court of Appeal and the Supreme Court. So, basically, that’s the role that we play in the tribunal.

Where does the Best of Judgement (BOJ) come in?

You know there might be taxpayers who are operating businesses in the country without filing annual tax returns and paying taxes and if we find out, we will send the taxpayer what is called the best of judgment assessment taking into account several factors. A BOJ is an assessment that is made by GRA when a taxpayer fails or refuses to file a tax return. The Commissioner General will send the BOJ to the taxpayer and if the taxpayer agrees with the assessment, then no problem but if the taxpayer disputes the BOJ assessment, they are expected to file an objection and provide evidence. The Commissioner General will then make a decision on the objection and that decision will be served on the taxpayer and if the taxpayer is not happy with the objection or decision of the Commissioner General, then a dispute on the assessment is said to arise. Then the Tax Tribunal comes into play with the taxpayer challenging the decision before it and if the tribunal sided with the Commissioner General’s decision, like I stated you can appeal to the conventional courts starting from the Court of Appeal all the way to the Supreme Court.

Isn’t it ironic that a High Court judge will be appointed to lead a tribunal that doesn’t have the power to try tax offences?

I don’t see an irony there because judges are trained in adjudicating disputes whether criminal or civil. They act as an unbiased arbiter who will sit and listen to the facts and evidence without being emotional in making their decisions. Judges are also trained in writing judgements as well…The best practice for a tribunal is to have a judge or a judicial officer to serve as the president, but that does not mean that whatever the judge says will be the decision of the tribunal. The tribunal is a panel and it is composed of five members. The odd number of the tribunal will mean that there is never going to be a deadlock in the decision of the tribunal. It is like whatever the majority decides is going to be the decision of the tribunal so the judge is not going to impose his own views on the other tribunal members. That is why we have five members to consult each other as to what is the proper decision in each case, and the outcome will be considered as the final decision because at times some members of the Tribunal can also dissent from the majority decision.

There are fears among the business community that the GRA is going to use this tax tribunal to harass them in its drive to mobilise more resources in 2024. What do you have to say to allay those fears?

We just want to say that GRA is not targeting anybody, and like I clarified earlier, in fact, that is what necessitates this interview. The tax tribunal is not a witch-hunting entity because it doesn’t even deal with crimes. It was a misunderstanding of the motive of the tax tribunal; maybe their fears were misconceived purely because of what they read, so that is why we deem it necessary to clarify that the Tribunal is not set up to deal with tax evaders and tax defaulters. We have a separate mechanism for that, but this tax tribunal is basically trying to enhance the rights of taxpayers. Under every tax system, the taxpayer should have the right to have an avenue where he or she will seek redress because government institutions, by the power vested in them can be high-handed in some instances. If that happens, there has to be an avenue where you have to go and air your grievances, and that’s what this Tax Tribunal is all about. It is basically to create an avenue for taxpayers to be able to challenge our decisions before an independent body that is not affiliated with GRA. That is why, if you look at the appointment, it was done by the Minister of Finance, and they were inaugurated at the Ministry of Finance. Their allowances and remuneration will come from the Ministry of Finance. The ministry will get them a secretariat so that they can function properly.

It will only look at reviewable decisions made by the Commissioner General in terms of whether a taxpayer has been over assessed. We all agree that we have to pay our fair share of the tax burden, but we also should not charge people to pay taxes arbitrarily so taxpayers should embrace the tribunal. 

One of the things we are going to do is to embark on a public awareness campaign and also media sensitisation to ensure that every taxpayer knows about the purpose of the tribunal, their rights in the tribunal, and the fact that if they are not happy with a taxation decision, they have an avenue to challenge it. So basically, this is purely driven for the purpose of protecting the right of the taxpayers to have recourse to redress through an independent body. So, they should not see it as a witch hunt.

Is the Tribunal going to be any different from the conventional courts in terms of the timely execution of cases?

Like I said earlier, it’s an alternative dispute resolution mechanism, and if you look at the trend lately in almost all jurisdictions, it’s like we have noticed a lot of backlogs of cases in the conventional court. Believe me, if you give a taxpayer a choice to go to a tribunal that has few cases or to the conventional court, he or she will choose the tribunal. Why? Because the tribunal would be faster than the conventional courts, where there are backlogs of cases. If you file your case today in the conventional courts and you get a date, it keeps dragging on because there are other cases before the court, and that is why even the government at the national level established the Alternative Dispute Resolution Secretariat. In fact, in some countries now, it is mandatory to try alternative dispute resolution first, before resorting to the conventional courts otherwise your case cannot be heard. You need to get a certificate that you have tried mediation before you go to the conventional court, and that is basically to ensure that before you get to the courts, you have explored ADR to settle it. What that shows you is that there’s a preference for or a high premium placed on alternative dispute resolution processes compared to conventional courts so in the conventional court, you will have lawyers there arguing and objecting to evidence or frustrating the proceeding, but in the tribunal, you will not have all that. You have a process; you present your case and the evidence is reviewed and a decision is made. For me, I believe that the tribunal is going to deal with cases more quickly than the conventional court, and that’s why it is important that taxpayers understand that the tribunal is the best avenue for them, and they should be happy that we have this and that we want to make it work. We don’t want to be an arbitrary institution, where whatever we say, hold.

Are taxpayers required to pay a certain fee when lodging a complaint at the Tribunal?

Just like in most courts, even if you are going to pay, it is going to be a minimal amount for filing fees. We are working on the rules of the tribunal, and we will determine the filing fees. But definitely, it is not going to be anything expensive. Probably, it is not even going to be up to D500 or even D1000 for you to file. It is just to facilitate the process. So, we don’t want compliance to be expensive because going to the tax tribunal is part of the taxpayer’s effort to fulfil his or her obligation. Two things we don’t like in tax administration are that we don’t want to increase the cost of compliance because the taxpayer already has the burden of paying taxes every year. So, the taxpayer should not incur unnecessary costs in trying to comply with his legal obligation. For us as well, as tax administrators, we should not spend more money administering taxes than is required. So, the process of filing is not going to be anything that would deter people from going to the tribunal.

We will have somebody there, just like the magistrate court, to help people draft their claims. The process is going to be such that it will accommodate everybody and be less complicated and because the Tax Tribunal is new, we are trying to look at mechanisms by which its members can go on a study tour to East Africa, where they have vibrant tax tribunals, because for them, they started this Revenue Authority way before us, so they have these systems well established so that it can expose the tribunal members to the best practices and procedures so that they will be able to pitch their tent and start taking cases, making decisions, and setting precedence as well.

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