THE TAX APPEALS TRIBUNAL RULES 2022
On 3rd June 2022, the Chief Justice of the Republic of Zambia, Honourable Dr. Justice Mumba Malila S.C prescribed the Tax Appeals Tribunal Rules, Statutory Instrument No. 37 of 2022 (the “TAT 2022 Rules”). Notably, the Rules were passed pursuant to Section 18 of the Tax Appeals Tribunal Act No. 1 of 2015 (the “Act”) which empowers the Chief Justice to prescribe subsidiary legislation through statutory instruments.
Prior to 2015, the Revenue Appeals Tribunal Act of 1998 (the “Repealed Act”) provided the governing law of what was then known as the Revenue Appeals Tribunal. Pursuant to Section 4 of the Repealed Act, the rules to guide the practice and procedure in the Revenue Appeals Tribunal, namely, the Revenue Appeals Tribunal Regulations, Statutory Instrument No. 143 of 1998 and the Revenue Appeals Tribunal (Fees) Regulations, Statutory Instrument No. 75 of 1999 (collectively referred to as the “Repealed Rules”) were passed.
In 2015, Parliament saw the need to amend the law and enacted the Tax Appeals Tribunal Act No. 1 of 2015 (the “TAT Act”). The TAT Act repealed and replaced the Repealed Act. Notwithstanding the amendment, the Repealed Rules remained in force and were used as rules of procedure post 2015. The continuous application of the Repealed Rules even after the amendment was on the basis that, under Zambian law, the subsidiary legislation of the repealed law remain applicable unless and until expressly revoked.
In the premises, the TAT 2022 Rules have expressly revoked the Repealed Rules. The net effect is that the Repealed Rules are no longer applicable. Some of the notable amendments under the 2022 Rules are discussed below.
- Administrative Changes
The 2022 Rules have brought about several administrative changes. These include the establishment of the Principal Registry of the Tax Appeals Tribunal (the “Tribunal”) in Lusaka as well as a provision for regional registries in designated places. Interestingly, a party is permitted to lodge a notice of appeal in any registry of their choice, and this is not to be regarded as a transfer of the appeal. This is very progressive and enhances access to justice as parties may file appeals is several districts, not only in Lusaka. Therefore, what remains is for the chairperson of the Tribunal to designate the respective regional registries.
Further, there has been an increase in the copies of certain documents required to be filed before the registry (i.e. the notice of appeal and affidavit in support, the respondents opposition and the reply) from previously seven (7) copies to a minimum of ten (10) copies of the said documents unless a contrary intention appears.
- Commencement and filing of the Notice of Appeal
The 2022 Rules have outlined and prescribed applicable filing fees for respective documents. Notable amongst these is the filing fees for a notice of appeal which has been increased from ZMW333.3 to ZMW3,000.00.
The 2022 Rules have also provided prescribed forms and how to title proceedings before the Tribunal. One significant form is regarding the commencement of an appeal. According to the TAT 2022 Rules, a person aggrieved with the decision of the Commissioner General shall within 30 days of being notified of the decision, and on payment of the prescribed fee, file a notice of appeal accompanied by an affidavit (exhibiting the decision appealed against and relevant documents) set out as forms I and II respectively. The requisite information that the notice of appeal should contain is now set out in clear and certain terms in the TAT 2022 Rules. This shows a fundamental departure from the previous position where the mode of commencement was couched in vague terms by merely providing that the appeal shall be in writing and provide grounds for the appeal as well as other information the Tribunal may require.
In a similar fashion, the format of the requisite documents for various applications such as interlocutory applications have equally been provided.
For purposes of opposing the appeal, the TAT 2022 Rules provide that the respondent is required to file an affidavit in opposition as prescribed. If the appellant wishes to challenge the foregoing, they are equally entitled to file an affidavit in reply. This has broadened the procedure and defined rights of each of the parties to the appeal.
- Service of documents
An important noteworthy change is that the respective parties are required to serve the documents that they file on the opposing party(s) and file the respective affidavit of service. This is a departure from the previous practice of the Tribunal to serve documents that parties file itself.
- Scheduling and Status Conference/Adjournment of matters
Like the normal court process, the TAT 2022 Rules has codified the requirement for a scheduling and status conference. Previously, the scheduling and status conference occurred as a manner of practice. Therefore, the Registrar is now obliged to call for a scheduling conference within fourteen days of the respondent filing an affidavit in opposition and direct parties to indicate the number of witnesses they will call, filing of witness statements, estimate duration of the hearing and set a date of hearing. Notably, if the appellant fails to appear at a scheduling conference for two consecutive times without just cause, the TAT 2022 Rules empowers the Tribunal to dismiss the matter.
The TAT 2022 Rules provide that once the scheduling conference concludes, parties are required to appear for a status conference. The latter, also known as compliance conference, is for purposes of ensuring that the parties complied with the directions given at the scheduling conference. Once, the parties satisfy this, the Registrar is to issue a notice of hearing to the parties in the prescribed form.
The codification of the foregoing process enhances speedy and predictable proceedings before the Tribunal and allows for parties to apply to dismiss appeals for want of prosecution. Further, the TAT 2022 Rules have provided for adjournments to be allowed only in compelling and exceptional circumstances. It is vital to note that the Tribunal may strike out a matter if the appellant or applicant does not attend a hearing of the matter. The foregoing is progressive as it will also foster speedy adjudication and prevent laxity in prosecution of matters before the Tribunal.
The TAT 2022 Rules have now made provision for the filing of witness statements as evidence in chief. The contents of the witness statements have also been provided. This is a welcome addition as it will prevent unnecessary long trials and fast track matters before the Tribunal.
The TAT 2022 Rules have redefined the form which a decision handed down by the Tribunal must take. It is now provided that the decision shall be in writing and contain findings on each issue of fact and law raised. Additionally, the decision must be accompanied by reasons informing the Tribunal to pass such a decision. Put differently, the decision must be well founded and supported by valid reasons.
With regard to enforcement, the TAT 2022 Rules provide that the decision of the Tribunal is enforceable in the same manner the High Court decision is. In other words, it has the same effect of a decision of the High Court. Therefore, state machinery, the Sheriff Office can be used to enforce the decision. In relation to this, the decision of the Tribunal is appealable to the Supreme Court as provided for under the Tax Appeals Tribunal Act of 2015. This is notwithstanding the fact that there is a Court of Appeal. The courts have guided that where a quasi-judicial body’s Act specifically stipulates the forum to appeal, jurisdiction cannot be assumed as forum goes to jurisdiction.
The TAT 2022 Rules have maintained the provision on costs but have made some important amendments. An important addition is that an application for taxation of costs should be made within sixty (60) days of the costs order to the Registrar.
The costs provision has been amplified to the extent that it is now clear that the governing law on taxation of costs is the High Court Rules, including the computations of the costs. Previously, it was a preserve of the Registrar to determine costs as they deem fit.
- Interlocutory Applications
Unlike the Repealed Rules, the 2022 Rules expressly provide for interlocutory applications. It is trite that civil proceedings before any forum of competent jurisdiction, be it a court or tribunal, are usually dominated by interlocutory applications. To this end, it is only befitting that a provision on interlocutory applications be part and parcel of the rule of procedure.
Regarding the manner of filing an interlocutory application, this must be done by filing four (4) copies of a summons, affidavit in support and skeleton arguments. The TAT 2022 Rules actually provide the format of the foregoing documents and thereby guide on their form and content. Likewise, they also provide a prescribed fee for filing an interlocutory application. Examples of interlocutory applications provided include applications for further and better particulars, amendments of documents, withdraw of proceedings, consent orders, consolidation of appeals, joinder and misjoinder etc.
In conclusion, the enactment of the TAT 2022 Rules is a step in the right direction. Evidently, the parties before the tribunal, especially legal practitioners, will now have a clear guide on the rules of procedure before the Tribunal.
The TAT 2022 Rules enhance access to justice, are more comprehensive and increases predictability of the manner in which proceedings before the Tribunal are conducted and ultimately promote speedy resolution of matters.
Further, it is evident that the TAT 2022 Rules greatly borrow from the High Court Rules and are tailored in such a way in many respects. We have no doubt that the TAT 2022 Rules will be of great benefit to parties as far as practice and procedure in the Tribunal is concerned.