Question

Question 1
Neelo Mbiganyi received a notice of assessment from Botswana Unified Revenue Service (BURS) and the Commissioner General had
disallowed some of the expenditures that she had claimed. Discuss the appeals and objection processes that Neelo can follow explaining in detail the rights and obligations that both Neelo and the Commissioner General have in these processes. In your answer, also explain what the Commissioner General should do suppose Neelo wins the case.

Answer 1

The Commissioner General may, at any time, raise an assessment on any person and the burden of proving that an assessment is excessive lies on the taxpayer.

Following is the PROCEDURE TO BE FOLLOWED WHEN MAKING AN OBJECTION:

A. Value Added Tax

1. An objection to an assessment or appealable decision must be lodged within 30 days after service of the notice of the decision. Appealable decision is any of the following:

• Request by the Commissioner General to a registered or non registered person to furnish return
• Refusal by the Commissioner General to accept a late objection due to reasonable cause
• Extension of time for payment of tax where good cause is shown
• Request by the Commissioner General to furnish security for tax that is or may become payable

2. The objection must be in writing and specify in detai the grounds upon which it is made

3. The Commissioner General may consider the objection only if

• The person assessed has paid the tax due under the assessment; or
• The Commissioner General is satisfied that the person objecting is unable to pay the full amount of tax due and as given sufficient security for the amount of tax unpaid
  and any penalty that may become payable.

4. It is the Commissioner General’s decision to either allow the objection in whole or in part or disallow the objection.

5. The Commissioner General shall serve the person objecting with notice in writing of the decision on the objection.

6. A person dissatisfied with the Commissioner General’s decision may appeal against that decision to the Board of Adjudicators or the High Court within 30 days after
   the person was served with notice of the decision.

B. Income Tax

1. Any person dissatisfied or aggrieved by an assessment made on him may lodge an objection in writing to the Commissioner General within 60 days after the notice
    of assessment. An objection can be made on the following grounds:

• The inclusion in an assessment of an amount as part of the taxable income
• The disallowance in an assessment of an amount claimed as a deduction in ascertaining the taxable income
• The determination by the Commissioner General of the amount of an assessed loss
• The amount set off under section 61 or section 63
• The imposition of any amount of penalty for failure to lodge a tax return within the prescribed time or any extended time allowed under section 77
• The imposition of any amount of penalty for failure to lodge a correct tax return
• Any decision relating to the status of a company under sections 130, 131, and 132
• A determination by the Commissioner General of the amount of capital losses on disposal of assets

2. The Commissioner General may consider the objection only if

• A tax return for the tax year to which the assessment relates has been furnished Tax due on the taxable income declared has been paid.

3. Where the assessment is an additional assessment or a reduced assessment which partly impose a fresh liability, the person assessed shall have no further right of objection.

4. An objection shall specify particulars of the grounds on which it is made.

5. It is the Commissioner General’s decision to either allow the objection in whole or in part or disallow the objection, and he shall serve the person objecting with notice in writing of the decision on the objection.

6. If the Commissioner General’s decision is a reduced assessment, he shall issue a notice of reduced assessment to the person objecting, together with the notice of his decision.

PROCEDURE TO BE FOLLOWED WHEN MAKING AN APPEAL

A. Value Added Tax

A person dissatisfied with a decision under section 30 (5) of the VAT Act, may within 30 days after receiving a notice of the decision, lodge with the Commissioner General a notice of appeal to the High Court or the Board of Adjudicators.

B. Income Tax

Any person dissatisfied with the Commissioner General’s decision may by notice in writing appeal to the High Court or to the Board of Adjudicators within 60 days after receiving a notice of the decision.

• The notice of appeal shall be in writing, state whether the appeal is to the High Court or the Board of Adjudicators.
• The notice must be restricted to the grounds in the objection given to the Commissioner General.
• It must contain an address for service of notice of the date and place of hearing.

The Commissioner General or the appellant may appeal to the High Court from any decision of the Board of Adjudicators which involves a question of law, including a question of mixed fact and law.

The Commissioner General or the appellant may also appeal to the Court of Appeal as of right from any decision of the High Court which involves a question of law, including a question of mixed fact and law