Mozambique: Tax debt amnesty and simplification

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1 Mozambique: Tax debt amnesty and simplification Mozambique is implementing as from January 2011 measures aimed at clearing tax debts and stimulating tax payers to regularize their obligations, namely, through amnesty, payment in instalments and compensation of tax debt. Tax debt Amnesty As per the Law nº 8/2011 dated January 11, the amnesty covers any fines, interests, legal costs of execution cases and other legal charges arising from taxes or breach of accessory obligations which debt was born until December 31, The debt amnesty is granted providing the tax payer regularize his tax in debt until December 31, The government should still approve regulations to this exceptional regime. The additional measures include the payment in instalment and compensation of tax debts with the approval of new regulation to the provisions of the Law Nº 2/2006, dated March 22 regarding the general principles and rules of the Mozambican tax legal system, applicable to all national and municipal taxes. Indeed, the said law establish in Article 148 the possibility of the taxpayer who is unable to comply fully and at once with the payment of tax debts can apply to pay in instalments before or after the deadline for payment. Further, article 44 of the aforementioned law establishes the possibility of compensation to clear partially or in total tax debts. Payment in Instalments The regulation, approved by Decree Nº 45/10, dated November 2 and published in Government Gazette Nº. 43, Series I, with the same date, lays down the procedures for payment in instalments of tax debts resulting from personal and corporate income tax, which can be summarised as follows: Scope

2 The regulation covers only income taxes, excluding, however, withholding tax. The payment in instalments (e.g. principal tax debt, penalties, interest and other charges), can be made during the period of voluntary payment and/or in the phase of tax execution and will not suspend the accrual of interest or other legal charges due, levied on the part of the remaining debt. Requirements To benefit from this type of payment the taxpayer must submit, before the competent tax department and within the deadline indicated in the notification document, a grounded application to the Minister of Finance, indicating (i) the nature of debt and (ii) The number of instalments sought, within the legal ceiling. Monthly maximum limit of instalments If the application is accepted, the total amount of the tax debt should be divided into the maximum number of authorized instalments for which payments should be monthly and successive. The number of monthly instalments is set at a maximum of 12 months for payment to be made during the period for voluntary payment and 24 months in the case of debt in tax execution. Failure The lack of any payment of instalments will make the other instalments due immediately and lead to establishment of procedures for the tax execution of the debt. It is worth to underline that in case of default of a payment authorization in instalment in the voluntary phase, the taxpayer is forbidden to seek a new instalment payment in the execution phase. Compensation of Tax Debts Compensation is a form of mutual extinction of tax obligations. In other words, occurs when a debtor taxpayer is also a creditor of the tax authority and the first is discharged from his debt through his credit.

3 It is, therefore, the meeting of debts between the parties related to credits recognized by administrative act or court decision that the taxpayers are entitled to as a result of overpayments of taxes. According to the Decree Nº 46/10, dated November 2 and published in Government Gazette Nº. 43, Series I, the compensation can be made with any tax debt, except where there are already special rules for compensation. Procedures This mechanism of extinguishment of debt can occur by initiative of the tax administration or the taxpayer. In general, the compensation by the tax administration s initiative occurs when the taxpayer exceeds the amount effectively due. In this case, the tax administration shall notify the taxpayer and, with their consent, use this overpayment to offset any future tax debt. In case after compensation of the debt remains a balance, the taxpayer may use the credit to offset future tax debts and the tax administration is therefore obliged to issue a Credit Note in his favour. It is highlighted that credits resulting from refunds, administrative review, complaint or favourable decision of administrative and judicial appeals of any administrative act are mandatorily applied in compensation. The exception is for situations in case of an appeal or opposition to debt execution or when this is being paid in instalments. Compensation by initiative of the taxpayer is made under the same terms and conditions as the compensation by public administration s initiative, within the payment deadline until the initiation of the tax execution process.

4 The institutionalization of Credit Note The regulation provides the institutionalization of a Credit Note, an instrument to acknowledge the tax payer s creditor position. The credit note should be used to compensate taxpayers debts previous or subsequent to its issuance. At the request of interested parties, if the amount of Credit Note is higher than the debt amount to compensate, the Credit Note can be divided into as many notes as necessary for future compensation for debts of the same taxpayer. The Credit Note term is one year after the notification if it is not collected. In turn, the right to use the Credit Note expires within five years from the date of issuance. The taxpayer may request a refund in cash the Credit Note s amount in application to the Minister of Finance within 30 days before expiry mentioned above. It is important to add that the credits granted before the entry into force of the regulation shall continue to be analysed and treated in accordance with the procedures concerning refunds and cancellation of overpayments. Hierarchy of Compensation Compensation must be made in the following order of preference: - Debts of the same nature and in these first the ones of the same tax year; - Debts from withholding taxes or legally passed on to third parties and not paid; - Debts from other taxes. If the amount of the credit is insufficient to compensate all the main debt and additions, the credit is applied in the following order: - Interest on arrears; - Other legal charges; - Fines, and - Tax debt including interest.

5 If the claim is insufficient to compensate all the debts in the same hierarchy of preference, the compensation must obey the following order: - Older Debts; - In with the same seniority, the highest value; and - In the same ground, with any debts. Final Note The measures approved intend to clear the debts accrued, stimulate the tax payers to comply with their obligation and prevent that they are not lapsed as a result of the inability of the administration to handle the demand of execution cases. In the other hand, the regulations on payment in instalments and compensation tax debts is filling a shortcoming in the rules of the tax administration system and constitute an instrument to promote compliance with obligations and settlement of debts with the treasury trough a mechanisms that do not create burden and do not interfere heavily with the operations and assets of the taxpayers. Yasser Issá Consultant Tax and Legal Services PricewaterhouseCoopers Legal yasser.issa@mz.pwc.com

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