Are taxpayers protected against ZIMRA? An investigation on constitutionality of selected tax practices and procedures in Zimbabwe

Abstract

For any State to be able to effectively provide public goods and services for the benefit of citizens, it should collect as much revenue as possible for the fiscus. The enforcement of tax laws has posed a myriad of challenges to the State, the Zimbabwe Revenue Authority (ZIMRA) and taxpayers. Use of various practices and procedures to maximise revenue collection has not been without its challenges. Taxpayers are always knocking on the doors of the State seeking a balance between revenue collection and respect, promotion, and protection of taxpayers’ rights. The legislature, through various pieces of tax legislation including the Income Tax Act, the Value Added Tax Act, the Excise and Customs Act, and the Revenue Authority Act, developed and promulgated various practices and procedures to assist the State in revenue collection. These include the pay now argue later rule, the agent appointment procedure, garnishing of taxpayers’ accounts, as well as the practice of search and seizure. To ensure observance, respect, protection of their rights as provided for in the Constitution of Zimbabwe Amendment (No. 20), taxpayers have approached courts of law challenging ZIMRA’s enforcement of the tax collection practices and procedures. Among the rights sought to be enforced includes the right to property, right to be heard, right to administrative justice, right to access to courts, and the right to privacy. The higher courts of Zimbabwe, including the High Court, the Supreme Court, and the Constitutional Court, have maintained the judicial attitude of adopting the legal principle of presumption of constitutional validity of a piece of legislation. In the circumstances, this study addressed the legal question of the constitutionality of the pay now argue later principle, the practice of the appointment of an agent and garnishing of taxpayers accounts by ZIMRA, as well as search and seizure. The study also analysed whether there is a balance between revenue collection and the need to respect, protect and promote the rights of taxpayers. The study has made findings to the effect that some of the practices and procedures are unconstitutional as they violate fundamental human rights and freedoms, among them being the right to property, the right to just administrative conduct, and the right to access to courts. Recommendations for amendments have been made.