An undomestic VAT

An undomestic VAT
Analysis of the partial judgment of the High Court in the case of Margaret Akiiki Rwaheru and 13,945 others

Like most developing countries, Uganda struggles to collect tax from the informal sector, which is one of the biggest sectors of the economy. The legislators and the Uganda Revenue Authority (URA) have made several attempts to bring the informal traders within the tax net in a manner that is administratively efficient. One such effort is the URA’s imposition and collection of “domestic VAT” at the point of importation of goods.
Though the imposition and collection of domestic VAT has long been considered controversial, it was not legally challenged until the class action case of Margaret Akiiki Rwaheru and 13,945 others vs. URA (Civil Suit No. 117 of 2013). In that case, Ms Akiiki and others (the plaintiffs) sought a declaration that there is no legal basis for the URA to charge domestic VAT on imported goods. The plaintiffs also asked the Court to order the URA repay those taxes illegally collected, together with interest.
On 10 January 2014, the Commercial Division of the High Court of Uganda delivered its partial judgment covering the points of law raised in the case. The High Court was scheduled to deliver its judgment separately on the merits of the facts of the case as proven by the plaintiffs, particularly for the purposes of awarding costs. However, the proceedings in the High Court were stayed by the fact that there is a pending appeal on the decision on the point of law (Court of Appeal Civil Appeal No. 98 of 2015). As such, the final judgment in respect of the High Court case has not been delivered to date.
Article 152 (1) of Uganda’s Constitution of 1995 prohibits the imposition of tax unless authorized by an Act of Parliament. There is no specific Act of Parliament authorizing the imposition of domestic VAT on non VAT registered importers. As a result, the general public and tax community were surprised when the URA included a note in its VAT guidelines (the ‘URA Guidelines’) that stated that “Domestic VAT for Non VAT registered importers” had come into effect on 1 March 2002. In the guidelines, the URA defined domestic VAT as VAT charged on goods whose value is UGX 4,000,000 or more. According to the guidelines, importers who meet the following are required to pay domestic VAT:

    The importer is not VAT registered.
    The Cost, Insurance, Freight (CIF) value (as determined by Customs) of the goods is UGX 4,000,000 or more.
    The goods are subject to the standard VAT rate of 18%.
    The goods are not personal effects or motor vehicles.

The URA guidelines further provide that domestic VAT is payable at the customs entry point together with “other customs taxes” and that the value for domestic tax purposes is computed by applying a 15% mark-up on the value on which VAT at Customs is computed, which is the sum total of CIF plus import duty and excise duty (the so-called Customs VAT value). The mark-up is the expected value added between the stage of importation and sale.
Based on the URA’s guidelines, the total combined VAT suffered by the importers is 33%, which is neither provided for by the Value Added Tax Act (Cap 349) nor the East African Community Customs Management Act, 2004.

In the Margaret Akiiki Rwaheru case, the URA explained its justification for imposition of domestic VAT on imports of goods. According to the URA, given the fact that many of taxpayers that fall into the informal sector intend to circumvent compulsory VAT registration, since they do not keep proper records, have no fixed places of abode, have multiple registrations, or are simply not registered for VAT at all, the URA faces administrative challenges in ascertaining output VAT. As a result, the URA feels it is important to collect input VAT at importation and output VAT (domestic VAT at 15%) at the point of importation. Furthermore, the URA claims that it has authority to do so under Section 32 (1) (c) of Cap 349, which empowers the URA Commissioner General to make an assessment of the amount of tax payable by a person where the Commissioner General has reasonable grounds to believe that a person will become liable to pay tax but is unlikely to pay the amount due.

The URA further explained that the domestic VAT did not amount to a different tax with a different rate because the calculation was based on an estimated mark-up (15%), derived through a research/market survey, that was meant to represent the expected value added on imports between the stage of importation and sale in the domestic market, taking into account costs incurred as well as the profit margin. The URA also noted that aggrieved taxpayers had a legal right to file a VAT return and could seek a refund for the overpaid tax under Section 42 (3) of Cap 349. According to the URA, the plaintiffs’ action was in essence an omnibus objection to VAT assessments at importation which was not provided for under Cap 349.

As the plaintiffs’ Counsel in the case pointed out, by imposing domestic VAT on imports, the URA made several assumptions that contravened the provisions of Cap 349. First, the URA assumed that all imports of goods worth over UGX 4,000,000 are for sale in the domestic market at a profit and that from such a sale, output tax would always exceed input tax and, as a result, an importer is always in a VAT payable position rather than a VAT refundable position. The plaintiffs argued that by assuming that all importers of goods worth over UGX 4,000,000 are eligible for VAT registration, the URA was effectively rendering the annual VAT registration threshold of UGX 50m (prior to the July 1, 2015 amendment to Cap 349 which raised the VAT registration threshold to UGX 150m) set out in Cap 349, meaningless.

And finally, the plaintiffs argued that to require unregistered persons to pay VAT without establishing whether they are taxable persons under the Act is contrary to the provisions of Cap 349.

In concluding that imposition of domestic VAT is not illegal per se, the judge pointed out that it is was irregular for the URA to assess taxes on taxable supplies before the supply takes place. The judge added that the URA’s conclusion that all importers are unlikely to pay VAT on future taxable supplies of goods should be determined on a case-by-case basis, rather than on a blanket basis for administrative convenience. The judge concluded that it was unnecessary for the URA to resort to relying on estimated VAT assessments on speculative future supplies and, instead, the URA should use the various penal provisions specified by Cap 349, such as penalties for failure to apply for registration, failure to lodge returns, and failure to maintain proper records.

The judge also noted that it cannot be assumed that the taxable person shall not lodge taxable returns which are accurate for the URA to invoke the provisions of Section 32 (1) (c) of Cap 349 or even to come to a conclusion that there are reasonable grounds to believe that the person will become liable to pay tax but is unlikely to pay the amount due.
Furthermore, he explained that a strict interpretation of Section 32 (1) (c) of Cap 349 confines the belief of the URA to reasonable grounds that a particular person will become liable to pay tax but is unlikely to pay the amount due. This by necessary implication refers to the circumstances of a particular person in each case. Consequently, Section 32 (1) (c) of Cap 349 can only be invoked on one taxpayer at a time and cannot cover a general category of taxpayers.

The judge concluded that the plaintiffs had only established generally that it would be irregular to charge VAT on taxable supplies which have not occurred and without giving the reasons why an importer who has paid VAT on the import ought also to pay VAT on a taxable supply before making the supply, on the basis of an estimate made under section 32 (1) (c) of Cap 349. He was of the view that while the charging of VAT on a person who would never supply the goods as a taxable supply would be illegal as submitted by the plaintiffs, VAT charged on an importer whose goods are subsequently supplied in the domestic market is an irregularity and not an illegality as tax on taxable supplies is prescribed by Cap 349. In other words it is a curable defect.

Whilst the point about the definition of what was domestic about the VAT collected by the URA at 15% was somewhat lost in the nomenclature of other legislation, it was a touch dispiriting to see that the exposition on the purpose of Section 32 (1) (c) of Cap 349 dealing with assessments was somewhat missed. The URA seems to stretch the use of Section 32 (1) (c) by applying it in instances where, as is widely accepted is a basic premise of VAT internationally, no supply has actually taken place.  There also appears to be distortive possibilities in the imposition of domestic VAT if a particular importer does indeed intend to make onward supplies of those goods, but for a consideration below the registration threshold. In such an instance, the URA would have raised tax illegally since it can safely be assumed that Parliament intended to exclude traders making supplies below the threshold from the clutches of VAT. Since the VAT registration threshold was revised upwards to UGX 150m on 1 July 2015, more tax payers are likely to be captured by the low domestic VAT threshold of UGX 4m thus circumventing the overall purpose of the amendment.

Through the imposition of domestic VAT, the URA also seems to amend the penalty regime of Cap 349 by interchanging circumstances authorizing it to impose penalties with circumstances where it is authorized to raise an assessment. Through the domestic VAT mechanism, the URA utilizes Section 32 (1) (c) of Cap 349 which covers assessments and not penalties to covertly impose an omnibus penalty for anticipated infringements of Cap 349, for failure to apply for registration, failure to lodge returns, and failure to maintain proper records that are covered elsewhere in Cap 349.

Also of interest is the fact that the URA guidelines note that domestic VAT came into effect on 1 March 2002 notwithstanding that Section 32(1) (c) of Cap 349 which is the suggested enabling provision of the law has not been amended since the inception of Cap 349 on 1 July 1996.

If sustained in the appellate courts of law, the plaintiffs’ arguments in this case have wide-ranging ramifications for the URA and taxpayers alike. Subject to factual evidence and, of course, verification by a URA audit, some taxpayers may seek refunds of overpaid VAT in accordance with the provisions of Cap 349.
Given the URA’s practice of instigating wide-ranging audits into taxpayer’s affairs to verify refunds claimed, the URA may be overwhelmed by the large number of pre-refund verification audits and possible legal challenges that may result. Importers who have erroneously paid domestic VAT face the dilemma of deciding whether to pursue the VAT refund or to forfeit it in order to avoid the intrusive URA audits.
Very undomestic!

Random news

Why you can’t assess auditing software just the same way as accounting software.

Why you can’t assess auditing software just the same way as accounting software.

As a representative of a popular audit software product, I often get asked by audit practitioners whether I could avail them with a demo copy of the software so that we can ‘play around with it’.

Since financial audit and accounting are related, how different can the respective software be? The self-check procedures accountants use to decide whether an accounting system is working are quite simple and straightforward in their design: You put in a piece of data at one end and check to see if the information that has been crunched through the system and that comes out at the other end meets your expectations. A simple example of such a procedure would be taking a pocket calculator and adding up the column of numbers your assistant gave you to see if it agrees with the total at the bottom of his schedule.

However procedures like these only tell you whether the accounting softwareis able to properly process information that has been fed into it according to the rules that you specify. It’s the sort of procedure where because you know in advance, what the results should be, you can test it quite easily using that input vs. output model.

The real job of an accountant however, is not merely entering a transaction in the records but rather of knowing how to classify transactions. For example, which engineering items are repairs and which ones should be treated as new fixed assets instead? Is the value of the motor car as shown in the accounts still valid or does it need to be marked down – or even up? The accountant is also responsible for summarising the transactions in the way that most suits the people who need the information and presenting it in a way that makes sense. Seen in this light, it is not possible to create “accounting” software as these accounting judgement roles cannot be played by a computer program. What we refer to as accounting software should really be referred to as bookkeeping software.

Auditing, on the other hand, is the checking process. Confirming that data going in at one end of the system comes out the way it should at the other end, is just one audit objective and frankly, it isn’t even the most important one. The most important objectives of audit are to determine whether the financial statements (a) contain all the information they should contain, (b) contain only the information they should contain and (c) are reported in a way that conforms to a pre-agreed standard.

It does involve the arithmetical accuracy checking that most accountants do in the first place. However it also involves checking that the basis of classifying and summarising information was properly done – a test of judgement(because so-called accounting programs will execute incorrect instructionsto summarise or classify information just as faithfully as they will correct ones.)It also involves checking that there is no information missing  - another judgement test.It also involves checking that the information is not overstated – also a matter of judgement. That’s not all however. International Standards on Auditing now actually pay attention to the process that was used to evaluate the accountant and it requires certain mandatory steps to be taken and documented, no matter how certain the auditor may be of the correct situation.

This leads to an interesting question then; is it possible to create software that can meet all of these requirements of the audit? Data interrogation and sample selection software could go through the accounting information and try to extract information that makes sense but could it tell if the classification method used by the accountant was wrong? How would it decide if the evidence provided was acceptable? This is a trickier proposition and indeed, nobody has yet been able to design software that actually “audits”, much in the same way that nobody has been able to design software that does “accounting.”

What does this mean for a practitioner thinking about buying audit software? Audit software doesn’t have transactions that you can insert at one end and click to see if they have been properly classified at the other end. Instead it provides what amounts to very a long and sophisticated checklist (or series of checklists) of the all the procedures an auditor needs to carry out to determine the three objectives and comply with the mandatory procedures mentioned above. These are extensive and run, at present to nearly 800 separate mandatory procedures in the International Standards on Auditing. And that’s not counting the steps in the audit programmes in each section of the audit file. There is only one way to tell if this collection of checklistsworks properly; carry out an audit with it and submit the results of the audit to an independent quality reviewer to determine if the work was done properly.

People who aren’t skilled enough to know how to use the checklist will not be able to gauge whether they failed or passed the quality review due to an inadequacy of their checklist or due to their failure to use it properly.

Also, although the ISAs prescribe the approach to the audit to which all auditors should conform and in some instances even stipulate the exact tests to be carried out, they are not precise enough about how to do it. For example, there are more than a dozen ways to develop a sampling frame that produces a truly random sample. Which one is most appropriate? What’s a reasonable maximum or minimum sample size? If your sample contains an error, by how much should you extend your tests if at all? What’s the best way to calculate materiality? How many levels of review should there be in a particular assignment? The ISAs just don’t say.

Audit software helps by providing handy computation tools for sample design and selection and guidance on developing materiality. They even provide specific program steps for various areas of the audit. They also nudge you, (by blocking access to particular file areas and questionnaires), into using the work flow sequence that is most efficient or effective. These features, in the aggregate, comprise the methodology of particular audit software.

Without training by a person with proper experience on the specific methodology of a particular piece of audit software, it could be difficult to understand how all the questionnaires, computing tools and checklists work together to achieve efficient compliance with the ISAs.

For these reasons, taking a demo copy of audit software to try it out is unlikely to be helpful unless you are also willing to undergo not just “demo” training in the methodology but also a “demo” quality review – all lengthy and costly steps.

I would suggest that a more reassuring route would be to work through a presentation with an experienced user and ask to be shown all the features that you consider to be key in your existing methodology to ensure that they are present. Another, perhaps more important source of reassurance would be to look at the number of other practitioners relying on the same software to carry out their work successfully. The more there are, the more likely that it is the right product for you.

 Joe Gichuki

Joe, a member of ICPAU, is the CEO of Kawai Consulting, a firm that specialises in providing technical and capacity building services to financial auditors. Email: This email address is being protected from spambots. You need JavaScript enabled to view it.




Cycle time refers to the period required to complete one cycle of an operation; or to complete a function, job, or task from start to finish. Cycle time is used in differentiating total duration of a process from its run time.

It is the average time between successive deliveries. In other words:
Cycle Time = Operating Hours per day / Quantity per day
For example, assume that the plant operates for 10 hours per day and need to produce 60 computers each day. The Cycle Time is 10 / 60 = 1/6th of an hour,which is 10 minutes. In other words, on average every 10 minutes a computer rolls off the assembly line.
“Quantity per day” is the same as Throughput for a day, in the example 60 computers per day.
As the old saying goes that time is money, critical business processes are subject to the rule of thumb that time is money. Such processes are usually carried out through resources that often result as bottlenecks. Unfortunately, the products derived from these processes are usually the ones that matter most to customers; therefore, the products need to be delivered as fast as possible. This cuts across both to the internal and external clients, manufacturing and service industries.

    Competitive Advantage:Business and service delivery has changed over recent years, and competitors threaten in almost every market. Reducing product cycle times increases the potential to develop and deliver innovative products and be first to market with them. This is especially true if you compete against multiple providers that offer similar products or close substitutes. Every day you reduce your cycle time is a day you gain in meeting or beating competitor product launch dates.
If company A cannot supply the desired product at the desired time, a competitor will.Inthisnew environment, cycle time reduction provides a key competitive advantage.

    Customer satisfaction: Reduced cycle time can translate into increased customer satisfaction. Quick response companies can launch new products earlier, penetrate
New markets faster, meet changing demand, and can deliver rapidly and on time. They can also offer their customers lower costs because quick response companies have streamlined processes with low inventory and less obsolete stock. According to empirical studies, halving the cycle time (and doubling the work-in-process inventory tums can increase productivity20% to 70%. Moreover, quartering the time for one step typically reduces costs by 20.05%.

    Improves quality: With reduced cycle times, quality improves too. Faster processes allow lower inventories which, in turn, expose weaknesses and increase the rate of improvement. After eliminating non-value added transactions (as opposed to value added transformations), there are fewer opportunities for defects. Fast cycle time organizations experience more rapid feedback throughout the supply chain as downstream customers receive goods closer and closer to the time they were manufactured.

    Cost savings: Cycle time reduction saves costs.

Typically, optimizing efficiency in production processes helps you cut down on cycle time, which saves you money. This often results from thorough analysis of every step of the development and production process, refinement of inefficient steps and removal of steps unnecessary to the process. Each hour or day cut from the product cycle time saves money spent on labor, equipment and utilities used in production.
For example, if manufacturing cannot respond quickly and if a high service level isdesired, then the organization must either keep high inventory or lengthen the promisedlead time. Also consider a service industry: Suppose the central store spends less time on internal clients, they will save on deterioration, pilferage and insurance if some of the inventory is insured. 

    Distribution Channel Benefits
Within a traditional distribution channel, manufacturers produce and then sell products to distributors or retailers, which eventually sell goods to consumers. Maintaining close relationships in your distribution channel is important to manufacturers, and reducing product cycle times helps you meet the needs and requirements of distribution channel partners. This strengthens your position and makes you more attractive for other resellers looking for efficient producers.
Cycle time reduction results in simplified processes with fewer steps. In most cases, a process that has fewer steps will yield fewer mistakes. Simpler processes produce fewer errors.

Common methods to reduce cycle time
There are several efforts suitable for reducing cycle times. Streamlining multiple efforts, however, can yield a much more efficient process resulting in cost and time savings and customer satisfaction. When reducing process cycle time, consider a combination of the following ideas.
Perform activities in parallel. Most of the steps in a business process are often performed in sequence. A serial approach results in the cycle time for the entire process being the sum of the individual steps, not to mention transport and waiting time between steps. When using a parallel approach, the cycle time can be reduced by as much as 80% and produces a better result.
A classic example is product development, where the current trend is toward concurrent engineering. Instead of forming a concept, making drawings, creating a bill of materials, and mapping processes, all activities take place in parallel by integrated teams. In doing so, the development time is reduced dramatically, and the needs of all those involved are addressed during the development process.
Change the sequence of activities. Documents and products are often transported back and forth between machines, departments, buildings, and so forth. For instance, a document might be transferred between two offices a number of times for inspection and signing. If the sequence of some of these activities can be altered, it may be possible to perform much of the document's processing when it comes to a building the first time.
Reduce interruptions. Any issue that causes long delays and increases the cycle time for a critical business process is an interruption. The production of an important order can, for example, be stopped by an order from a far less valuable customer request--one that must be rushed because it has been delayed. Similarly, anyone working amidst a critical business process can be interrupted by a phone call that could have been handled by someone else. The main principle is that everything should be done to allow uninterrupted operation of the critical business processes and let others handle interruptions.
Improve timing. Many processes are performed with relatively large time intervals between each activity. For example, a purchasing order may only be issued every other day. Individuals using such reports should be aware of deadlines to avoid missing them, as improved timing in these processes can save many days of cycle time.
A case study in streamlining
Consider an electronics manufacturer receiving customer complaints about long order processing times--a cycle time of 29 days. An assessment of the order processing system revealed 12 instances where managers had to approve employees' work.
It was determined that the first 10 approval instances did not yield detailed reviews because managers felt the activity was an interruption when there were other activities that needed to be addressed. Those initiating the orders, therefore, were given authority to approve their own work. This saved an average of seven to eight days in the order processing activity.
Many subsystems had interfered with the process--each performing the same or similar tasks. The logical step was to perform redundancy elimination, and a detailed flowchart of the process was created. At closer inspection, 16 steps proved very similar to one another. By changing the sequence of activities and creating one companywide order document, 13 of these steps were removed.
Over a period of four months, the order system was totally redesigned to allow information to be entered once and become available to the entire organization. Due to this adjustment, activities could be handled in a parallel manner. After a value-added analysis, the manufacturer was able to reduce cycle time from 29 days to 9 days, save cost and employee time per standard order, and increase customer satisfaction.
The good news is that almost every company is a good candidate for cycle time reduction.


Small and Medium Practices (SMP) still a long way to the top of the class

Small and Medium Practices (SMP) still a long way to the top of the class

The commercial banks will soon start publishing their abridged audited accounts for the year ended 31 December 2015; in the New Vision and Daily Monitor. What will be evident is that the external auditors will be one of the Top 5 firms (PwC, KPMG, EY, Deloitte and PKF). For purposes of this article, the author has restricted himself to just 2014 and 2015 but a more expensive research will be extended to 20 years back.

In December 2013, the Bank of Uganda (BOU) published a list of 56  auditing firms that had passed the test and were thus considered suitable to audit the financial statements of commercial banks, credit institutions and microfinance deposit taking institutions (Tier 1,2 and 3). The list was compiled by BOU after the auditing firms have submitted their pre-qualifications documents by the due date. The author had not yet established the total number of auditing firms that had submitted their pre-qualifications documents to BOU.

Suffice to know that those 56 firms were all duly authorised firms approved by the Institute of Certified Public Accountants of Uganda (ICPAU). By that time, the total number of auditing firms approved by ICPAU was close to 190, meaning that about one-third had been pre-qualified by BOU.

However, the number of Tier 1-2 financial institutions is limited and not all the firms will get an audit. The table below shows that out of 27 Tier 1-3 financial institutions, only five of the 56 firms got an audit for the year ended 31 December 2014. The top three of PwC, KPMG and EY had the lion’s share auditing 22 of those financial institutions which constituted 97% of the total assets of that population – which stood at UGX 18 trillion (US$ 5,300 million). Compare this to assets of about 90 members of the Association of Microfinance Institutions of Uganda (AMFIU) which added up to between US$300-400million.

Source: Author’s own compilation from published accounts in newspapers
The story of dominance by the top firms may not be very different come 2015.

Of particular interest are the following statistics:

•    Out of the 56 auditing firms that were on the pre-qualification list in 2014, a total of 18 were unsuccessful in their bids for 2015. The author will attempt to find out why that was the case. It could be that the audit firm did not pass the BOU requirements or they did not meet the deadline or did not submit a bid altogether; these facts will be established;

•    For the year 2015, BOU pre-qualified a total of 64  audit firms. Notably, a total of 26 new audit firms were added onto the list which was a welcome boost to those firms. The author will in due course engage the BOU to find out the criteria for inclusion or exclusion of an audit firm from the pre-qualification list; and

•    Out of the 64 audit firms pre-qualified for 2015, a total of 22 of them were sole proprietorships. Originally, there was a view that only audit firms with at least two partners would be eligible for BOU pre-qualification, but that assertion has now been proven incorrect.

Is the situation in Kenya, Tanzania and Rwanda any different?  

Kenya has over 500 auditing firms registered with the Institute of Certified Public Accountants of Kenya, but with 56  commercial banks, mortgage financial institutions and microfinance banks. On the other hand, Tanzania has close to 150 auditing firms registered with the National Board for Accountants and Auditors of Tanzania, but with 44  commercial banks, finance leasing companies and other financial institutions. Last but not least, Rwanda has close to 35 auditing firms registered with the Institute of Certified Public Accountants of Rwanda, but with 17  commercial banks.

In Q2 2016, the author will have established whether the financial institutions in Tanzania, Kenya and Rwanda primarily also use appoint the top firms of PwC, KPMG, EY and Deloitte as their external auditors or is it a good mixture of the top firms and SMPs.

Do SMP have a chance on the Tier 1-3 cake?

The author thinks the SMPs have a good chance but one would need to dig deep into the critical success factors why the Tier 1-3 financial institutions continue to prefer PwC, KPMG, EY and Deloitte as their external auditors. In the meantime, the SMP have to be contented with auditing forex bureau which number over 200; non-deposit taking microfinance and SACCOs which could be approaching 2000 in number across Uganda. Should BOU consider regulating these Tier 4 institutions in the future, then the auditor’s pre-qualification list will end up being the same as the ICPAU list in its entirety.

Today's Accountant Magazines