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Taxation: A Contract or No Contract

BY: ASSAN JALLOW | Category: Finance | Submitted: 2011-09-21 19:19:46
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Article Summary: "Taxation itself is manifested by the contract which provides the basis for its legal imposition, payment and administration on a multi-faceted mandate. paying taxes goes with showing sense of civic duty and demonstrating a conscious conviction, sacrifice and commitment in contributing to national development. This requires taxat.."

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Going by the above- mentioned theme, it is interesting to provoke our minds to find a more fitting and thoughtful answer to the aforementioned question, as to whether taxation is a contract or not. Indeed, this theme is geared to jostle minds for rational thinking, action and responsibility for readers particularly, taxpayers to understand the reasons, comprehend and digest the critical understanding of the word "contract". What I am trying to bring in this thematic discussion is for taxpayers and the tax department to know fully that tax payment and tax collection is a legal binding contract.

First of all, we need to understand what is a binding contract before understanding the nitty-gritty and the provisions agreed in the binding contract. This will give an overview in bringing forth agreeable terms the needs, expectations and responsibilities of the contracting parties. For simplistic reasons, taxation is a contract because it involves two parties that are the payer and collector (the agency). According to Trietel in his Book- the Law of Contract, 'a contract refers to an agreement giving rise to obligations which are enforced or recognised by law'. What this implies is that contract is an enforceable agreement and its enforceability principle distinguishes contractual form from other legal obligations.

Moreover, it is further substantiated by the word "pacta sunt servanda", as in Latin, meaning that "an agreement is to be kept". Although, a number of quantitative measures are ideal in the execution of contractual agreement between parties of which contracting parties are ideally expected to observe certain standards of behaviour, all centred on agreement and enforceability. Any lapse would result to a bleach of contract and could lead to no contract at all.

In a nutshell, for contract to be legally binding the following ingredients are fundamental and must be duly present before its due execution and during its executed mandate.

a. An offer, indicating the services and products the tax authority is offering, how and why. What this implies is the indicative of services and products the tax authority offers to the taxpayer, i.e. the what, why and how;

b. An acceptance leading to the meeting of the mind (consensus ad idem) of both parties. This is the testability of two things that is service and payment. Suffice it to say, once your are engaged in any income generating activity or take any gainful employment;

c. A promise to perform and do a valuable consideration;

d. A time or event when performance must be made. Timeliness is very critical in taxation work. To this payments are supposed to be effected and on time. Failure of which will lead to the imposition of penalties and interest charges on offences committed in the performance of agreed terms of conditions;

e. Consent to contract: Terms and conditions for performance, indicating the stage of preparedness in fulfilling promises by both parties, that is paying due and assessed taxes and be provided with the paid receipts as evidences of your tax payments to legally do business without unnecessary interruptions from the tax office;

f. Capacity to contract: This is automatic for which once you are of sound mind and reaches the ages of 18 and above, you qualified to be in the net of 'capacity to contract;

g. Presence of a legal purpose and legality of form, is also evidence once you engaged in any income generating activity or employed and hired to do a work that supersedes the D625.00 per month or D7,500.00 per annum;

h. Intention to create legal relations,

i. Vitiating factors, such as misstates, undue influence, misrepresentation, duress, under age or undue influence are other factors to be considered in finalising a contractual agreement.

Therefore for a purposeful contract binding two or more parties on a proposal plan based on a consensual or a contractual agreement, the contract binding taxpayers and the tax authority need to understand the reciprocity of the mechanics of taxation for their ease of rational understanding, comprehension and digestion. Although, many would be having divergent views but the centrality of the critical question as above can best be centred or argued on the basis of legal, economics, business and social benefits, whilst been conscious and cognisant of the three-tier layers states governance structures, that is: the government, the agency (tax authority) and the people (taxpayers, i.e. both individual and body corporate).

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