Former MP Kigoma Urban
- Mar 2, 2007
Was Zitto wrong?
By Sunday Citizen Team
By Sunday Citizen Team
The Income Tax of 1973, which was amended in 2002, bears the controversial Clause that Minister for Energy and Minerals, Nazir Karamagi told the Parliament was repealed in 2001.
During the historical debate in the House on Tuesday, Kigoma North MP (Chadema), Zitto Kabwe claimed that the said Clause was removed from the law without Parliamentary consent.
In response, Karamagi said the Clause was repealed in 2001 as shown in Paragraph 16B of the Second Schedule of The Financial Act 2001.
The Clause in question is the controversial 15 percent additional capital allowance on unredeemed capital expenditure in the Income Tax Act.
However, the Sunday Citizen investigations have revealed that The Income Tax of 1973, which incorporates amendments made until December 2002, still contains this Clause.
This is because, as per The Financial Act 2002, this Clause was re-instated, contrary to Karamagis claim.
Mheshimiwa Spika, maana ya mabadiliko haya ni kwamba fungu la 18 (1) la Sheria ya Kodi ya Mapato ya mwaka 1973 linaloweka masharti ya kipengele cha nyongeza ya asilimia 15% kwenye mtaji wa uwekezaji ambao HAUJAREJESHWA liliondolewa, Karamagi told the House on Tuesday, which translates as: Honourable Speaker, what these changes mean is that Paragraph 18 (1) of The Income Tax 1973 that incorporated the 15 % additional capital allowance on unredeemed capital expenditure, which has NOT BEEN REINSTATED, was removed.
Part VIII of The Financial Act 2002, is titled Amendment of The Income Tax Act, 1973 and Paragraph 39 (b), in Part III (iii) (1) states: For the purpose of deduction of development capital expenditure in ascertaining the income of a person derived from mining operations, an additional capital allowance of fifteen percentum per annum shall be applied to the balance of unredeemed qualifying capital expenditure forming part of any deficit brought forward and allowable as a deduction for such person at the commencement of each year of income.
The 15 per cent additional capital allowance on unredeemed capital basically means the government is each year gifting the miners 15 per cent of the capital yet to be recovered by them.
This means the companies take much longer to recover their initial investment and hence during all this period of time they do not declare profits, so they do not pay corporate tax.
Paragraph 16 on the Income Tax 1973, amended in 2002, in Part III of the Second Schedule states: In this Part, unless the context requires otherwise additional capital allowance has the meaning ascribed to it in paragraph 18 of this Schedule.
Paragraph 18 (1) states: For the purpose of deductions of development capital expenditure in ascertaining the income of a person derived from mining operations, an additional capital allowance of fifteen percentum per annum shall be applied to the balance of unredeemed qualifying capital expenditure forming part of any deficit brought forward and allowable as a deduction for such person at the commencement of each year of income.
The Income Tax 2004 too incorporates this Clause through Section 145 (1), which deals specifically with mining. It states: Part III of the Second Schedule of the Income Tax Act, 1973 shall continue to apply for the purposes of this Act.
Part III of the Second Schedule of the Income Tax Act, 1973 is the one quoted above.
Executive Director of the Lawyers Environmental Action Team (LEAT) and well-known critic of the mining industry, Tundu Lissu, told Sunday Citizen on Friday that he is not surprised that the government has actually failed to do away with the controversial Clause, which they claim to have done, even though it is detrimental to the country.
This, he said, is because the Investment Act of 1997 makes it difficult for the government to execute such changes.
Section 19 (1G) of the Investment Act of 1997 states: A business enterprise in respect of which a certificate is granted under this Act shall be entitled to the benefits which are applicable to that enterprise under the provisions of the Income Tax Act, 1973, the Customs Tariff Act 1976, the Sales Tax Act, 1976, or of any other written law for the time being in force.
Section 19 (2) goes on: For the purposes of creating a predictable investment climate, the benefits referred to under sub-section (1) shall not be amended or modified to the detriment of the investors enjoying those benefits.
Lissu said that while the government is making loud noises about having removed the said Clause, presenting evidence to the Parliament, they have quietly reinstated the Clause that provides too much benefit to mining companies.
He added that because many Tanzanians, including parliamentarians, are not well versed in law, and do not bother to read and investigate, government officials get away with blindfolding the nation.
Confirming to the Sunday Citizen that the Clause does exist in the Income Tax Act (1973), amended in 2002, Lissu said: You are absolutely right. Here is my copy of the Income Tax 1973, amended in 2002 and the 15 % clause is here.
In fact, Lissu had told this paper earlier this year that this Clause would have to go through Parliament for amendment and since the august House had not tabled this motion after reinstating it in 2002, it was misleading to say the clause has been removed from the Income Tax Act.
Karamagi first told the Parliament on July 9 while his ministrys budget was being debated, that the Clause was put before the House in 2001 and removed with the blessings of the Members of Parliament.
The repeal process of this Act went through the
Cabinet and then on to the Parliament for approval,
He said this while answering Kigoma North MP Zitto Kabwe who questioned the legality of the ministers move to amend law without seeking Parliament approval.
Karamagi said the MP had not been keen in his question because that particular Clause was removed in financial amendments during the 2001 and 2002 session, which passed through the Parliament.
However, Presidents Assistant Press Secretary Premier Kibanga confessed to Sunday Citizen earlier this year that the 15 per cent clause does in fact, exist, even in the latest Income Tax Act of 2004, and has only been removed from the mining firms contracts.
Once they all agree and this section has been removed from the mining contracts, the changes in the law then will have to pass through the Cabinet and then on to the Parliament for amendment, she said.
However, Karamagi insisted this week on the House floor, that amendments were tabled in 2001, and have not been re-instated thereafter. He went on to present the evidence to that effect.
Based on this evidence, MPs, majority of them from the ruling CCM party, refused Kabwes motion to investigate the minister on the matter.
Furthermore, most of the CCM legislators who participated in the ensuing debate on the motion lodged by Mchinga MP Mudhihir Mudhihir to punish Kabwe for having lied, relied on the evidence presented by Karamagi to support this motion.
In the end, they voted to suspend Kabwe from Parliament until next year on grounds that he lied on the matter.
In essence, Kabwe did not lie, because according to experts, Kabwe charged that the Parliament had not repealed the clause, basing his arguments on his research that showed him that the clause exists in the Income Tax to date.
The only mistake Kabwe made in his evidence was to refer to the Mining Act, instead of the Income Tax since this clause appears in the Income Tax, and not the Mining Act.
Furthermore, he picked on the wrong year of 2001, when the clause was truly repealed, but did not show that it was reinstated in 2002, and has not been repealed thereafter by Parliament.
His challenge thus to the government which claims that the clause does not appear today in the Income Tax, with Parliaments blessings, still stands.
Furthermore, Karamagi told the House on Tuesday that the clause was removed from the Mining Act 1998 as appears in The Financial Act 2002.
The Financial Act 2002 does not incorporate any changes to the Mining Act, it only amended The Income Tax Act by re-instating the 15 percent clause.
This was the same mistake made by the then Minister for Finance, Basil Mramba on June 13, 2002 when he told Parliament he proposed to reinstate the same clause in the Mining Act.
Replying to this, Minister for Infrastructure, Andrew Chenge, a one-time attorney general, told the House that Mramba had made the mistake and confused the Acts, adding that Mining Act and Income Tax Act were not too different.
In fact, these are two different laws and 15 per cent clause arises in the Income Tax Act and not The Mining Act.
Kabwe also questioned that if it was true that since 2002, the Income Tax has not contained this clause, how come at least three gold mining companies that were established after that year have yet to pay any cooperate tax five years on?
The reality is that none of them are compelled by the law to do so, thanks to the reinstated clause.
Kabwe cited the mining companies as Bulyanhulu which opened in 2001, North Mara that started in 2002 and
Tulawaka in 2005.
Corporate tax is the major source of income for the nation from the mining sector. Once a mining company starts making profit, under the Income Tax Act 2004, its total income must be taxed at the rate of 30 per cent. This is the standard corporate tax rate in Tanzania.
A review of mining development agreements and fiscal regime for the mineral sector, undertaken by the Ministry of Energy and Minerals in June 2006 states: Despite the fact that the major gold mines have been operational in Tanzania for over five years now and the gold price in the world market has recorded a steady rise over the time, none of the mining companies has declared taxable income.
It further reads: They (gold mining companies) claim to have accumulated heavy losses, despite a steady rise in the world market gold price since 2002. Paradoxically, the same companies commit large additional capital expenditure.
No gold mining company has paid any corporate tax to date.
The government has always defended the mining firms failure to remit corporate tax on the account of their losses but an audit report last year by external auditors, Washington, DC based Alex Stewarts (Assayers) Government Business Corporation, contracted by the Government of Tanzania for the task, revealed how the same firms under declared income by a whopping Shs1.3 trillion.