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Saturday, 20 April 2024

Individuals can’t deduct the 3% construction tax

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JONATHAN HORE

You may know that certain persons are, per the Income Tax Act, required to deduct a 3% tax on payments made in respect of construction contracts. The 3% tax is a tax falling under a category of what is commonly referred to as Other-withholding taxes. A withholding tax (WHT) is a tax required to be deducted at source by the payer to the payee in respect of amounts arising from construction contracts.

Whilst the 3% tax is in most instances deductible by companies, NGOs and government departments, one question which is never clear is whether individuals who are not in business should also deduct the tax. This issue arises from the fact that the section of the Income Tax Act (hereinafter Act) requiring that the tax be deducted reads as follows, ‘Every person who makes any payment to any person under a contract relating to construction operations shall deduct tax from such payment.’ You see, the word ‘person’ includes even our 75 year old granny in the village who pays for construction contracts. So, I want to analyse whether individuals not in business should deduct the 3% tax. In this article, words importing the masculine shall be deemed to include the feminine.

WHAT’S THIS 3% TAX?

The 3% construction tax is imposed by the Act on payments made in respect of construction contracts which are at least P 5 000 in value. I highlighted above that the Act states that the tax shall be deducted by every ‘person’ which implies that there are no exceptions. I will get back to this matter further below. On another note, the Act does not define construction contracts but it is common cause that the term includes, among others, the construction of the following: houses, office complexes, bridges, dams, tarred roads and sewerage works.

The payer of the amount charged on construction contracts is mandated by the Act to deduct the tax and remit the amount so deducted to BURS no later than the 15th day of the month following that of payment of the contractor. Failure to remit the tax to BURS within the stipulated time exposes the payer to an annual effective interest rate of 19.56% or compounded 1.5% interest per month or part thereof. Further, non-deduction of the tax makes the payer personally liable for the tax. You certainly don’t want to find yourself in such a situation; believe you me.

INDIVIDUALS CAN’T WITHHOLD

Now, let me get back to the main issue of today’s discussion, being that individuals who are not in business should ideally not deduct the 3% WHT. This is my view and you are free to disagree with it. My view is based on the points below:
Hard-to-tax: Individuals who are not in business cannot deduct this tax because they belong to a group of taxpayers who are by default, sworn tax evaders.
 

This group is commonly called the Hard-to-Tax. By nature, individuals do not volunteer to pay tax as their personal interests take precedence over tax laws. The fact that individuals can’t voluntarily pay their taxes explains why BURS, just like all tax authorities worldwide requires employers to deduct PAYE at source. If that were not the case, BURS would surely lose out as the majority of individuals not in business simply do not comply with taxes. Now, if this group of taxpayers can’t pay their own taxes, do you think that BURS would get anything if they were to deduct the 3% tax from other persons? They would simply squander the tax and play catch-me-if-you-can with BURS. This would be a losing game for the taxman.

 Impracticable: If individuals who are not in business were required to deduct the 3% tax, some of them could actually deduct the tax and then discover that there was no way of taking it to BURS. Practically, anyone who deducts such taxes should be registered for WHTs with BURS (i.e. have a WHT account). Most such persons should first be registered for income tax, implying that those who are not registered for tax would simply keep the tax at home and finally squander it.

If individuals not in business were to deduct the 3% tax, that would mean that every person in the country including those in the villages would need to register for WHT with BURS. Do you think that it would be practicable to require our aged mothers and fathers in the villages to register for tax, deduct the 3% tax and remit it to BURS?

That would simply be impossible. How many people on the streets, even those who are learned, understand that there is a section 57 and a Sixth Schedule in the Act which requires deduction of some 3% tax? Further, assuming that somehow tax knowledge was widespread such that everyone in towns and villages understood taxes, imagine how long the queues at BURS would be on the 15th of each month with individuals wanting to pay taxes. And also imagine how BURS would be inundated with cases of individuals who would deduct tax and never give the payee proof of payment of the tax in the form of withholding tax certificates (ITW 9s).

Exemptions for individuals: Whilst there is no specific exemption for payments made in respect of construction contracts by individuals not in business, other WHTs provisions such as on rent simply state that only businesses should deduct the tax. In other words, individuals not in business can’t be given a liability to collect state funds. So, the exact reasons that the legislature had in mind when he prescribed that tax on rent shouldn’t be deducted by such individuals should apply to those individuals deducting the 3% WHT. There is no difference between the principle of these two taxes; so technically, they should be applied uniformly.

Contra-fiscum principle: The contra-fiscum principle prescribes that where there is anything unclear in a taxing Act, the courts rule in favour of taxpayers. So, as stated above, there is no exemption on individuals not in business but again it is impracticable for them to deduct the tax and it is in such cases where the contra-fiscum principle applies. Effectively,  if such matters were to be laid before the courts, the taxpayers would win, i.e. they can’t be obligated to deduct tax, for the reasons stated above.

Well folks, I hope that was insightful. As Yours Truly says goodbye, remember to pay to Caesar what belongs to him. If you want to join our Tax Whatsapp group, send me a text on the cell number below. Jonathan Hore is the Managing Tax Consultant of Aupracon Tax Specialists and feedback can be relayed to jhore@aupracontax.co.bw or 7181 5836. This article is of a general nature and is not meant to address particular matters of any person.

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GONE FISHING

28th March 2023

In recent years, using personal devices in working environments has become so commonplace it now has its own acronym, BOYD (Bring Your Own Device).  But as employees skip between corporate tools and personal applications on their own devices, their actions introduce a number of possible risks that should be managed and mitigated with careful consideration.  Consider these examples:

Si-lwli, a small family-run business in Wales, is arguably as niche a company as you could find, producing talking toys used to promote the Welsh language. Their potential market is small, with only some 300,000 Welsh language speakers in the world and in reality the business is really more of a hobby for the husband-and-wife team, who both still have day jobs.  Yet, despite still managing to be successful in terms of sales, the business is now fighting for survival after recently falling prey to cybercriminals. Emails between Si-Iwli and their Chinese suppliers were intercepted by hackers who altered the banking details in the correspondence, causing Si-Iwli to hand over £18,000 (around P ¼ m) to the thieves. That might not sound much to a large enterprise, but to a small or medium business it can be devastating.

Another recent SMB hacking story which appeared in the Wall Street Journal concerned Innovative Higher Ed Consulting (IHED) Inc, a small New York start-up with a handful of employees. IHED didn’t even have a website, but fraudsters were able to run stolen credit card numbers through the company’s payment system and reverse the charges to the tune of $27,000, around the same loss faced by Si-Iwli.  As the WSJ put it, the hackers completely destroyed the company, forcing its owners to fold.

And in May 2019, the city of Baltimore’s computer system was hit by a ransomware attack, with hackers using a variant called RobinHood. The hack, which has lasted more than a month, paralysed the computer system for city employees, with the hackers demanding a payment in Bitcoin to give access back to the city.

Of course, hackers target governments or business giants  but small and medium businesses are certainly not immune. In fact, 67% of SMBs reported that they had experienced a cyber attack across a period of 12 months, according to a 2018 survey carried out by security research firm Ponemon Institute. Additionally, Verizon issued a report in May 2019 that small businesses accounted for 43% of its reported data breaches.  Once seen as less vulnerable than PCs, smartphone attacks are on the rise, with movements like the Dark Caracal spyware campaign underlining the allure of mobile devices to hackers. Last year, the US Federal Trade Commission released a statement calling for greater education on mobile security, coming at a time when around 42% of all Android devices are believed to not carry the latest security updates.

This is an era when employees increasingly use their smartphones for work-related purposes so is your business doing enough to protect against data breaches on their employees’ phones? The SME Cyber Crime Survey 2018 carried out for risk management specialists AON showed that more than 80% of small businesses did not view this as a threat yet if as shown, 67% of SMBs were said to have been victims of hacking, either the stats are wrong or business owners are underestimating their vulnerability.  A 2019 report by PricewaterhouseCoopers suggests the latter, stating that the majority of global businesses are unprepared for cyber attacks.

Consider that a workstation no longer means a desk in an office: It can be a phone in the back of a taxi or Uber; a laptop in a coffee shop, or a tablet in an airport lounge.  Wherever the device is used, employees can potentially install applications that could be harmful to your business, even from something as seemingly insignificant as clicking on an accidental download or opening a link on a phishing email.  Out of the physical workplace, your employees’ activities might not have the same protections as they would on a company-monitored PC.

Yet many businesses not only encourage their employees to work remotely, but assume working from coffee shops, bookstores, and airports can boost employees’ productivity.  Unfortunately, many remote hot spots do not provide secure Wi-Fi so if your employee is accessing their work account on unsecured public Wi-Fi,  sensitive business data could be at risk. Furthermore, even if your employee uses a company smartphone or has access to company data through a personal mobile device, there is always a chance data could be in jeopardy with a lost or stolen device, even information as basic as clients’ addresses and phone numbers.

BOYDs are also at risk from malware designed to harm and infect the host system, transmittable to smartphones when downloading malicious third-party apps.  Then there is ransomware, a type of malware used by hackers to specifically take control of a system’s data, blocking access or threatening to release sensitive information unless a ransom is paid such as the one which affected Baltimore.  Ransomware attacks are on the increase,  predicted to occur every 14 seconds, potentially costing billions of dollars per year.

Lastly there is phishing – the cyber equivalent of the metaphorical fishing exercise –  whereby  cybercriminals attempt to obtain sensitive data –usernames, passwords, credit card details –usually through a phoney email designed to look legitimate which directs the user to a fraudulent website or requests the data be emailed back directly. Most of us like to think we could recognize a phishing email when we see it, but these emails have become more sophisticated and can come through other forms of communication such as messaging apps.

Bottom line is to be aware of the potential problems with BOYDs and if in doubt,  consult your IT security consultants.  You can’t put the own-device genie back in the bottle but you can make data protection one of your three wishes!

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“I Propose to Diana Tonight”

28th March 2023

About five days before Princess Diana and Dodi Al Fayed landed in Paris, General Atiku, a certain Edward Williams was taking a walk in a woods in the Welsh town of Mountain Ash. Williams, then 73, was a psychic of some renown. He had in the past foretold assassination attempts on US President Ronald Reagan, which occurred on March 30, 1981, and Pope John Paul II, which came to pass on May 13, 1981.

As he trudged the woods, Williams  had a sudden premonition that pointed to Diana’s imminent fate as per Christopher Andersen’s book The Day Diana Died. “When the vision struck me, it was as if everything around me was obscured and replaced by shadowy figures,” Williams was later to reminisce. “In the middle was the face of Princess Diana. Her expression was sad and full of pathos. She was wearing what looked like a floral dress with a short dark cardigan. But it was vague. I went cold with fear and knew it was a sign that she was in danger.”

Williams hastily beat a retreat to his home, which he shared with his wife Mary, and related to her his presentiment, trembling like an aspen leaf as he did so. “I have never seen him so upset,” Mary recounted. “He felt he was given a sign and when he came back from his walk he was deeply shaken.”

The following day, Williams frantically sauntered into a police station to inform the police of his premonition. The officer who attended to him would have dismissed him as no more than a crackpot but he treated him seriously in view of the accuracy of his past predictions. He  took a statement and immediately passed it on to the Special Branch Investigative  Unit.

The report read as follows:

“On 27 August, at 14:12 hrs, a man by the name of Edward Williams came to Mountain Ash police station. He said he was a psychic and predicted that Princess Diana was going to die. In previous years, he has predicted that the Pope and Ronald Reagan were going to be the victims of assassination attempts. On both occasions he was proved to be correct. Mr Williams appeared to be quite normal.”

Williams, General, was spot-on as usual: four days later, the princess was no more.

Meanwhile, General,  even as Dodi and Diana were making their way to the Fayed-owned Ritz Hotel in central Paris, British newspapers were awash with headlines that suggested Diana was kind of deranged. Writes Andrew Morton in Diana in Pursuit of Love: “In The Independent Diana was described as ‘a woman with fundamentally nothing to say about anything’. She was ‘suffering from a form of arrested development’. ‘Isn’t it time she started using her head?’ asked The Mail on Sunday. The Sunday Mirror printed a special supplement entitled ‘A Story of Love’; The News of the World claimed that William had demanded that Diana should split from Dodi: ‘William can’t help it, he just doesn’t like the man.’ William was reportedly ‘horrified’ and ‘doesn’t think Mr Fayed is good for his mother’ – or was that just the press projecting their own prejudices? The upmarket Sunday Times newspaper, which had first serialised my biography of the princess, now put her in the psychiatrist’s chair for daring to be wooed by a Muslim. The pop-psychologist Oliver James put Diana ‘On the Couch’, asking why she was so ‘depressed’ and desperate for love. Other tabloids piled in with dire prognostications – about Prince Philip’s hostility to the relationship, Diana’s prospect of exile, and the social ostracism she would face if she married Dodi.”

DIANA AND DODI AT THE RITZ

Before Diana and Dodi departed the Villa Windsor sometime after 16 hrs, General, one of Dodi’s bodyguards Trevor Rees-Jones furtively asked Diana as to what the programme for the evening was. This Trevor did out of sheer desperation as Dodi had ceased and desisted from telling members of his security detail, let alone anyone else for that matter, what his onward destination was for fear that that piece of information would be passed on to the paparazzi. Diana kindly obliged Trevor though her response was terse and scarcely revealing. “Well, eventually we will be going out to a restaurant”, that was all Diana said. Without advance knowledge of exactly what restaurant that was, Trevor and his colleagues’ hands were tied: they could not do a recce on it as was standard practice for the security team of a VIP principal.  Dodi certainly, General, was being recklessly by throwing such caution to the winds.

At about 16:30, Diana and Dodi drew up at the Ritz Hotel, where they were received by acting hotel manager Claude Roulet.  The front entrance of the hotel was already crawling with paparazzi, as a result of which the couple took the precaution of using the rear entrance, where hopefully they would make their entry unperturbed and unmolested. The first thing they did when they were ensconced in the now $10,000 a night Imperial Suite was to spend some time on their mobiles and set about touching base with friends, relations, and associates.  Diana called at least two people, her clairvoyant friend Rita Rogers and her favourite journalist Richard Kay of The Daily Mail.

Rita, General,  was alarmed that Diana had proceeded to venture to Paris notwithstanding the warning she had given Dodi and herself in relation to what she had seen of him  in the crystal ball when the couple had consulted her. When quizzed as to what the hell she indeed was doing in Paris at that juncture, Diana replied that she and Dodi had simply come to do some shopping, which though partially true was not the material reason they were there. “But Diana, remember what I told Dodi,” Rita said somewhat reprovingly. Diana a bit apprehensively replied, “Yes I remember. I will be careful. I promise.” Well,  she did not live up to her promise as we shall soon unpack General.

As for Richard Kay, Diana made known to him that, “I have decided I am going to radically change my life. I am going to complete my obligations to charities and to the anti-personnel land mines cause, but in November I want to completely withdraw from formal public life.”

Once she was done with her round of calls, Diana went down to the hair saloon by the hotel swimming pool to have her hair washed and blow-dried ahead of the scheduled evening dinner.

THE “TELL ME YES” RING IS DELIVERED

Since the main object of their Paris trip was to pick up the “Tell Me Yes” engagement ring  Dodi had ordered in Monte Carlo a week earlier, Dodi decided to check on Repossi Jewellery, which was right within the Ritz prencincts, known as the Place Vendome.  It could have taken less than a minute for Dodi to get to the store on foot but he decided to use a car to outsmart the paparazzi invasion. He was driven there by Trevor Rees-Jones, with Alexander Kez Wingfield and Claude Roulet following on foot, though he entered the shop alone.

The Repossi store had closed for the holiday season but Alberto Repossi, accompanied by his wife and brother-in-law,  had decided to travel all the way from his home in Monaco  and momentarily open it for the sake of the potentially highly lucrative  Dodi transaction.  Alberto, however, disappointed Dodi as the ring he had chosen was not the one  he produced. The one he showed Dodi was pricier and perhaps more exquisite but Dodi  was adamant that he wanted the exact one he had ordered as that was what Diana herself had picked. It was a ploy  on the part of Repossi to make a real killing on the sale, his excuse to that effect being that Diana deserved a ring tha was well worthy of her social pedigree.  With Dodi having expressed disaffection, Repossi rendered his apologies and assured Dodi he would make the right ring available shortly, whereupon Dodi repaired back to the hotel to await its delivery. But Dodi  did insist nonetheless that the pricier ring be delivered too in case it appealed to Diana anyway.

Repossi delivered the two rings an hour later. They were collected by Roulet. On inspecting them, Dodi chose the very one he had seen in Monte Carlo, apparently at the insistence of Diana.  There is a possibility that Diana, who was very much aware of her public image and was not comfortable with ostentatious displays of wealth, may have deliberately shown an interest in a less expensive engagement ring. It  may have been a purely romantic as opposed to a prestigious  choice for her.

The value of the ring, which was found on a wardrobe shelf in Dodi’s apartment after the crash,  has been estimated to be between $20,000 and $250,000 as Repossi has always refused to be drawn into revealing how much Dodi paid for it. The sum, which enjoyed a 25 percent discount, was in truth paid for not by Dodi himself but by his father as was the usual practice.

Dodi was also shown Repossi’s sketches for a bracelet, a watch, and earrings which he proposed to create if Diana approved of them.

DIANA AND DODI GUSH OVER IMMINENT NUPTIALS

At about 7 pm,  Dodi and Diana left the Ritz and headed for Dodi’s apartment at a place known as the Arc de Trompe. They went there to properly tog themselves out for the scheduled evening dinner. They spent two hours at the luxurious apartment. As usual, the ubiquitous paparazzi were patiently waiting for them there.

As they lingered in the apartment, Dodi beckoned over to his butler Rene Delorm  and showed him  the engagement ring. “Dodi came into my kitchen,” Delorm relates. “He looked into the hallway to check that Diana couldn’t hear and reached into his pocket and pulled out the box … He said, ‘Rene, I’m going to propose to the princess tonight. Make sure that we have champagne on ice when we come back from dinner’.” Rene described the ring as “a spectacular diamond encrusted ring, a massive emerald surrounded by a cluster of diamonds, set on a yellow and white gold band sitting in a small light-grey velvet box”.

Just before 9 pm, Dodi called the brother of his step-father, Hassan Yassen, who also was staying at the Ritz  that night, and told him that he hoped to get married to Diana by the end of the year.

Later that same evening, both Dodi and Diana would talk to Mohamed Al Fayed, Dodi’s dad, and make known to him their pre-nuptial intentions. “They called me and said we’re coming back  (to London) on Sunday (August 31) and on Monday (September 1) they are

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RAMADAN – The Blessed Month of Fasting

28th March 2023

Ramadan is the fasting month for Muslims, where over one billion Muslims throughout the world fast from dawn to sunset, and pray additional prayers at night. It is a time for inner reflection, devotion to Allah, and self-control. It is the ninth month in the Islamic calendar. As you read this Muslims the world over have already begun fasting as the month of Ramadan has commenced (depending on the sighting of the new moon).

‘The month of Ramadan is that in which the Qur’an was revealed as guidance for people, in it are clear signs of guidance and Criterion, therefore whoever of you who witnesses this month, it is obligatory on him to fast it. But whoever is ill or traveling let him fast the same number of other days, God desires ease for you and not hardship, and He desires that you complete the ordained period and glorify God for His guidance to you, that you may be grateful”. Holy Qur’an  (2 : 185)

Fasting during Ramadan is one of the five pillars upon which the structure of Islam is built. The other four are: the declaration of one’s belief in Allah’s oneness and in the message of Muhammad (PBUH); regular attendance to prayer; payment of zakaat (obligatory charity); and the pilgrimage to Mecca.

As explained in an earlier article, fasting includes total abstinence from eating, drinking, smoking, refraining from obscenity, avoiding getting into arguments and including abstaining from marital relations, from sunrise to sunset. While fasting may appear to some as difficult Muslims see it as an opportunity to get closer to their Lord, a chance to develop spiritually and at the same time the act of fasting builds character, discipline and self-restraint.

Just as our cars require servicing at regular intervals, so do Muslims consider Ramadan as a month in which the body and spirit undergoes as it were a ‘full service’. This ‘service’ includes heightened spiritual awareness both the mental and physical aspects and also the body undergoing a process of detoxification and some of the organs get to ‘rest’ through fasting.

Because of the intensive devotional activity fasting, Ramadan has a particularly high importance, derived from its very personal nature as an act of worship but there is nothing to stop anyone from privately violating Allah’s commandment of fasting if one chooses to do so by claiming to be fasting yet eating on the sly. This means that although fasting is obligatory, its observance is purely voluntary. If a person claims to be a Muslim, he is expected to fast in Ramadan.

 

The reward Allah gives for proper fasting is very generous. Prophet Muhammad (PBUH) quotes Allah as saying: “All actions done by a human being are his own except fasting, which belongs to Me and I will reward it accordingly.” We are also told by the Prophet Muhammad (PBUH) that the reward for proper fasting is admittance into heaven.

Fasting earns great reward when it is done in a ‘proper’ manner. This is because every Muslim is required to make his worship perfect. For example perfection of fasting can be achieved through restraint of one’s feelings and emotions. Prophet Muhammad (PBUH) said that when fasting, a person should not allow himself to be drawn into a quarrel or a slanging match. He teaches us: “On a day of fasting, let no one of you indulge in any obscenity, or enter into a slanging match. Should someone abuse or fight him, let him respond by saying: ‘I am fasting!’”

This high standard of self-restraint fits in well with fasting, which is considered as an act of self-discipline. Islam requires us to couple patience with voluntary abstention from indulgence in our physical desires. The purpose of fasting helps man to attain a high degree of sublimity, discipline and self-restraint. In other words, this standard CAN BE achieved by every Muslim who knows the purpose of fasting and strives to fulfill it.

Fasting has another special aspect. It makes all people share in the feelings of hunger and thirst. In normal circumstances, people with decent income may go from one year’s end to another without experiencing the pangs of hunger which a poor person may feel every day of his life. Such an experience helps to draw the rich one’s conscience nearer to needs of the poor. A Muslim is encouraged to be more charitable and learns to give generously for a good cause.

Fasting also has a universal or communal aspect to it. As Muslims throughout the world share in this blessed act of worship, their sense of unity is enhanced by the fact that every Muslim individual joins willingly in the fulfillment of this divine commandment. This is a unity of action and purpose, since they all fast in order to be better human beings. As a person restrains himself from the things he desires most, in the hope that he will earn Allah’s pleasure, self-discipline and sacrifice become part of his nature.

The month of Ramadan can aptly be described as a “season of worship.” Fasting is the main aspect of worship in this month, because people are more attentive to their prayers, read the Qur’an more frequently and also strive to improve on their inner and outer character. Thus, their devotion is more complete and they feel much happier in Ramadan because they feel themselves to be closer to their Creator.

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