Tax Amnesties in Africa: An Analysis of the Voluntary Disclosure Programme in Uganda

Tax amnesties have taken centre stage as a compliance tool in recent years. The OECD estimates that since 2009 tax amnesties in 40 jurisdictions have resulted in the collection of an additional €102 billion in tax revenue. A number of African countries have introduced tax amnesties in the last decade, including Nigeria, Namibia, South Africa and Tanzania. Despite their global popularity, the efficacy of tax amnesties as a tax compliance tool remains in doubt. The revenue is often below expectations, and it probably could have been raised through effective use of regular enforcement measures. It is also argued that tax amnesties might incentivise non-compliance – taxpayers may engage in non-compliance in the hope of benefiting from an amnesty. This paper examines the administration of tax amnesties in various jurisdictions around the world, including the United States, Australia, Canada, Kenya and South Africa. The paper makes a cost-benefit analysis of these and other tax amnesties – and from this analysis develops a model tax amnesty, whose features maximise the benefits of a tax amnesty while minimising the potential costs. The model tax amnesty: (1) is permanent, (2) is available only to taxpayers who make a voluntary disclosure, (3) relieves taxpayers of penalties, interest and the risk of prosecution, but treats intentional and unintentional non-compliance differently, (4) has clear reporting requirements for taxpayers, and (5) is communicated clearly to attract non-compliant taxpayers without appearing unfair to the compliant ones. The paper then focuses on the Ugandan tax amnesty introduced in July 2019 – a Voluntary Disclosure Programme (VDP). As at 7 November 2020, this initiative had raised USh16.8 billion (US$6.2 million) against a projection of USh45 billion (US$16.6 million). The paper examines the legal regime and administration of this VDP, scoring it against the model tax amnesty. It notes that, while the Ugandan VDP partially matches up to the model tax amnesty, because it is permanent, restricted to taxpayers who make voluntary disclosure and relieves penalties and interest only, it still falls short due to a number of limitations. These include: (1) communication of the administration of the VDP through a public notice, instead of a practice note that is binding on the tax authority; (2) uncertainty regarding situations where a VDP application is made while the tax authority has been doing a secret investigation into the taxpayer’s affairs; (3) the absence of differentiated treatment between taxpayers involved in intentional non-compliance, and those whose non-compliance may be unintentional; (4) lack of clarity on how the VDP protects the taxpayer when non-compliance involves the breach of other non-tax statutes, such as those governing financial regulation; (5)absence of clear timelines in the administration of the VDP, which creates uncertainty;(6)failure to cater for voluntary disclosures with minor errors; (7) lack of clarity on VDP applications that result in a refund position for the applicant; and (8) lack of clarity on how often a VDP application can be made. The paper offers recommendations on how the Ugandan VDP can be aligned to match the model tax amnesty, in order to gain the most from this compliance tool.

Slepenu izmeklēšanas metožu lietošanas principu attiecināmība uz likumā “Par policiju” paredzētā kontrolpirkuma izpildi

Rakstā tiek pētīta Eiropas Cilvēktiesību tiesas (ECT) pausto slepeno izmeklēšanas metožu (undercover operations) izpildes principu attiecināmība uz likumā “Par policiju” noteiktā kontrolpirkuma (turpmāk rakstā – policijas kontrolpirkums) izpildi. Policijas kontrolpirkums galvenokārt tiek veikts, lai atklātu administratīvos pārkāpumus, kuru izskatīšana nav piekritīga ECT, jo Cilvēka tiesību un pamatbrīvību aizsardzības konvencijas (turpmāk rakstā – Konvencija) 6. pantā noteiktās tiesības uz taisnīgu tiesu paredzētas apsūdzētajiem krimināllietās [1, angļu valodas versija]. Taču atsevišķos gadījumos arī administratīvais pārkāpums (vai disciplinārpārkāpums) var būt piekritīgs ECT kompetencei – tas atkarīgs no tā, kāda rakstura pārkāpums tiek izmeklēts un kāds sods par tā izdarīšanu paredzēts. ECT ir definējusi trīs kritērijus, pēc kuriem tā vērtē, vai pārkāpums atbilst krimināla pārkāpuma būtībai un ir piekritīgs Konvencijas 6. pantam. Aktuāls ir jautājums, vai likumpārkāpumi, kuru izmeklēšanā ir paredzēts izmantot policijas kontrolpirkumu, ir piekritīgi Konvencijas 6. pantam, un, ja tā, vai policijas kontrolpirkuma normatīvais regulējums ir atbilstošs ECT paustajiem slepenu izmeklēšanas metožu lietojuma principiem (nosacījumiem). The article examines the relevance of the principles of the use of secret investigation methods (undercover operations) expressed by the European Court of Human Rights (ECHR) to the test-purchase measure set out in the Law “On police” (police test-purchase). The police test-purchase mainly is used to detect administrative offences which are not subject to review by the ECHR, since the right to a fair trial provided in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) is reserved for defendants in criminal proceedings. The question is whether the offences, where police test-purchase is used as part of investigation, are subject to Article 6 of the Convention, and if so, whether the regulatory framework for police control is in line with the principles (conditions) of the use of secret investigative methods expressed by the ECHR.

ADVERSARIAL MODEL OF PRE-TRIAL INVESTIGATION: ILLUSIONS AND REALITY

The article analyzes certain trends in the mechanism of the adversarial process at the pre-trial investigation stage. It attempts to determine legislative changes in the regulation of the pre-trial investigation as a stage in criminal proceedings. The article also focuses on the essence of the investigation activity, the order of its implementation, the investigator’s functions and powers. At the same time any investigation has to ultimately aim at establishing the truth. The article determines the functional purposes of investigation (search) actions as well as secret investigation (search) actions and points out to certain problems and deficiencies in the course of their implementation. It dwells on the peculiarities of addressing special knowledge by various parties of the criminal proceedings (the state prosecution and the defense). The article concludes that at present the parties to the criminal trial proceedings do not have equal access to special knowledge. With this regard and taking into account the existing conditions, the article offers suggestions to optimize the investigation activity with the emphasis on the need for making criminalistic knowledge available to the pre-trial investigation and formation of an «adversarial criminalistics».