Tuesday, December 1, 2020

Lawyer Darboe Loses Tax Evasion Case

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By Yankuba Jallow

The Supreme Court has on Tuesday held that the Commission of Inquiry was right in finding Lawyer Ousainou Darboe, the leader of the United Democratic Party (UDP) liable for tax evasion.

Delivering the judgment, Justice M.M. Sey dismissed all the claims of the appellant (Lawyer Darboe).

Darboe was challenging the findings of the Commission of Inquiry into tax evasion. The Commission fined him liable of about 2 million dalasis on tax evasion. The adverse finding was dated 6th June 2012 wherein Darboe was found liable of tax evasion to the tune of D1,981,296.52 (one million nine hundred and eighty-one thousand two hundred and ninety-six dalasis and fifty-two bututs).

The Supreme Court upheld the decisions of the Commission of Inquiry that Lawyer Darboe was paying his tax as arrears for the purpose of nomination in elections. The Court held the payments of the taxes were only made during election periods. In fact, the Supreme Court held that Darboe was not compliant with the tax laws. The Court found that Darboe has tax arrears and he failed to pay.

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“The Commission of Inquiry was right, consistent and the findings were supported by evidence,” Justice Sey held.

The apex court ordered that Darboe should pay the tax arrears owed because he was not compliant with the tax laws.

The Commission was instituted by former President Yahya Jammeh under powers conferred on him by section 200 of the 1997 Constitution to investigate tax evasion and avoidance, assess government’s revenue losses caused as a result of tax evasion and avoidance among other things by people.

Darboe said the delay of payment of tax does not mean tax evasion, but the Commission’s report and the holding of the Court of Appeal, was that Darboe only pays tax during election period. He appealed against the decision of the Commission at the Court of Appeal on the 15th June 2012. On the 14th June 2014, the Court of Appeal dismissed his claims and he further appealed before the Supreme Court on the 20th June 2016.

The Supreme Court upheld this finding and held that Lawyer Darboe was only paying tax to enable him contest in elections. In his appeal before the Supreme Court, Darboe contended that the Commission does not have the power to review his tax; that the the power to assess is only with the Commissioner General of GRA. He said he was not confronted with the adverse findings of the Commission and there it violated the Constitution. He said the judgment of the Court of Appeal is against the weight of the evidence adduced.

Darboe argued that the Commission lacks the mandate to reassess his tax and therefore, the action was contrary to law because the Commission was not conferred with such powers. He relied on Section 23 (1) of the National Sales Act, Sections 64 and 84 (1) and (2) of the Income Tax Act to support his position on the powers of the Commission to reassess taxes. He contended that there was no evidence of fraud against him, adding that the Court of Appeal failed to properly assess the documentary evidence before it. Darboe challenged the Commission’s finding, saying it is not supported by evidence.

Darboe began by saying he was called to the bar in 1973 and that he established his law firm in 1980. He told the Court he was the lawyer to several companies including GAMTEL, SSHFC, GPTC, Gambia Airways and the Continental Bank but when ventured in politics in 1996, he lost his customers and some of them were not forthcoming.

The Solicitor General for the State in his submission conceded to the issue of jurisdiction of the Commission saying the Commission lacks the power to reassess taxes.

Justice MM Sey said pursuant to paragraph 3 of the Legal Notice establishing the Commission and section 200 of the Constitution, the Commission has the power to review taxes as she dismissed Darboe’s challenge on the jurisdiction of the Commission to review taxes.

“The Commission has the power to assess and reassess the appellant’s (Darboe’s) tax liabilities,” the judge held.

She said the sources of the Commission’s power to assess and reassess tax liabilities are section 200 of the Constitution and Legal Notice 27 of 2011.

“The powers to assess and reassess is both for the Commission of Inquiry and the Commissioner General,” she held.

She added: “The Legal Notice conferred the Commission the power to reassess the tax liability of the appellant.”

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