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Maliyat journal (Iranian Tax Review)

 

No. 41, summer 2006

 

 

IN THE NAME OF ALLAH

 

FROM THE PRESIDENT

 

Legal procedure for adjudication of tax litigations is a factor that can play decisive role in regularization of the whole tax system of a country. Integrity and soundness of arrangements governing tax proceedings would contribute to weakening of tax-evasion tendencies among taxpayers. It would also persuade tax officials to be more careful in their decisions with regard to tax disputes, and thereby to be more attentive to legal rights of taxpayers. Such a course of action would play, by its turn, an important role in better compliance of taxpayers.

It should also be taken into account that the procedure envisaged under the Iranian tax law for settlement of tax disputes is a unique system. In most countries, tax cases are reviewed by two separate fora, namely the administrative boards and judicial courts. The Iranian system is similar to none of them, though elements of each of them are embodied in it. In addition, the representatives of business associations, such as chamber of commerce, cooperatives and the like, would also take part in the structure of relevant forums. This structure would be capable of realizing most of desirable aspects of other systems, provided that due attention is paid to its perfect actualization.

To achieve that purpose, certain measures are to be taken by relevant authorities. Organizational works, such as appropriate designations, effective education and the like, would obviously constitute the first step in this connection. Beside that, the active participation of all concerned, with a sense of responsibility, in the process of examination of cases, will be of great significance.

By the words "all concerned" we mean the taxpayers, members of adjudication forums and the pertinent tax officials. As far as forums and officers are concerned, such active participation is a matter of discharging their legal duties. But it would, at the same time, induce the taxpayers to be more serious about their cases and base them on more viable foundations.

The point does not concern the mere physical presence of members of forums or relevant tax officials in sessions of the Boards for Settlement of Tax Disputes (BSTDs). Refrainment from such physical presence is completely out of question and would constitute breach of a legal responsibility. Our discussion goes beyond the mere physical presence in sessions of the BSTDs. We have in mind an active and effective participation of all involved in the proceedings. The tax officials have to defend their assessments seriously and in a proper way. Thus, they would protect not only the public interests, but also their own prestige as well. A procedure of this type would also teach the officials to be more careful about their work and refrain from baseless assessments that may cause inability at the stage of defense before the tax fora.

We would also call the taxpayers to follow the same approach and found their cases on acceptable legal grounds. They should do their best to show the conformity of their statements with rulings of law and correctness of their claims. It is worthy of mentioning at this point that a bill has been recently submitted to the parliament with regard to tax consultants. In case of approval, the new bill would regularize the issue of tax practice, which in many countries is considered to be a special and separate branch of general attorneyship. 

Of much more importance is the responsibility of members of dispute-settlement forums. Their diligence with respect to exact and correct examination of tax cases corresponds not only to requirements of their legal duties, but to expectations of the government and citizens as well. Our reference is to all three members of the BSTDs. Their attentiveness to facts of cases, rights of both parties to the dispute and due observance of the law, would lead the tax system to integrity and trustworthiness.

None of these matters should deter us from paying due attention to another vital necessity. That is the prevention of tax cases and claims to be created as far as possible. A considerable number of tax litigations can be prevented from being initiated, if properly handled at the beginning. Both, the tax officials and taxpayers can play important role in this regard. The relevant regulations and procedures should also be amended with a view to discourage the resorting of people to such kinds of litigations. This is a subject worth of further discussion, to which we will refer in a later occasion.

 

Dr. Aliakbar Arabmazar

 

 

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Tax Threshold of Salary Income

 

A Common Basis for other Kinds of Taxes

 

By: Dr. Mohammad Tavakkol

 

According to the article 84 of the Direct Taxes Act (DTA) the annual income subject to salary tax is exempt from taxation up to an amount equal to 150 times of the base minimum salary of a schedule envisaged in the Iranian civil service regulations. This tax threshold is not limited to the salary tax and is applicable to some other branches of taxation as well. Tax threshold means a level of income, sales, etc. at which tax commences to be applied. A taxpayer with income below the threshold level would be exempt from income tax; an estate below a certain threshold value would be exempt from inheritance tax and a trader whose sales are below the relevant threshold would be exempt from value added tax.

The said threshold of the article 84, DTA is not a stable and permanent basis and would change in the course of time to compensate for inflation and upward trend of living costs. For that purpose a special coefficient has been included in civil service regulations that constitute the basis of determination of the said minimum salary. Necessary changes are usually applied to this coefficient and thereby to the base minimum salary, and then the threshold in question will also be changed through multiplying of the new base salary by 150.

The last increase in the above tax threshold of salary income took place recently on basis of the decree dated April 10, 2006 of the Council of Ministers and declared by the State Tax Organization to be observed from that date onward. As a result, the threshold has been raised to an annual salary of 25920000 Iranian Rials, namely 2160000 Rials per month. So, the tax would apply to salaries that exceed this threshold.

 

Other cases of application

As we said above, the threshold in question applies to some other kinds of taxes as well. They are as follows:

 

A. Rental income

Under the article 57, DTA, the annual taxable income of individuals with no other sources of income (except the rental income) has been exempted from taxation up to the level of tax exemption of salary income envisaged in the article 84 of the same law. It means that this category of taxpayers would also take benefit from the salary tax threshold as is applicable to salary receivers. The reason for extension of that threshold to individuals whose only income consists of rental is clear. They are in a situation very similar to salary receivers and are to be dealt with in the same manner.

 

B. Business income

According to article 101, DTA, the annual taxable income of the owners of businesses shall be exempted from taxation up to the same threshold that described in respect of salary receivers, provided that they would submit their tax returns on time. Here again the same rationale has justified the extension of the threshold to business owners. A minimum amount of income is to be left untouched for individuals and their families, whether they are employees, business owners or persons whose only source of income is the rental of real estate. In case of business owners the abatement in question is conditioned on submission of tax return on time. But this requirement has been withdrawn by the budget laws of recent years. Of course not for all business owners, but only in favor of lower class of businessmen who at the same time constitute majority strata of these taxpayers (see ,for instance, paragraph "f", Note 1 of the budget law of the Iranian year 1385).

 

Other taxes

In case of other direct taxes no reference has been made to the tax threshold of salary income. As far as inheritance tax is concerned, a special threshold (other than that of the salary income) is applicable. The article 20, DTA provides for a threshold of 30 million Iranian Rials in respect of each of the first class heirs. The same shall be raised to 50 million Rials if a first class heir is under the age of twenty or is a ward or disabled and devoid of working ability. So, the threshold is applicable only in favor of first class heirs and other categories of heirs are deprived from it. The rationale for more favorable treatment with the heirs that are closer to the deceased person is clear and the same treatment is followed everywhere.

There remains two other types of direct taxes, namely the tax on legal entities and tax on incidental income. None of them is subject to any thresholds. The reason behind that is understandable in case of the incidental income. The very title of the tax would indicate the reason. The incidental income is defined under the article 119, DTA as "the cash or non cash income that a real or juridical person earns ex gratia or through favoritism or as an award or under any other similar titles". This qualification would by itself justify the lack of threshold in case of incidental income.

 

Legal entities

More discussion would be necessary in case of this specific category. Some time ago (in February 2006) the Direct Taxes Act (Iranian main tax law) underwent a thorough amendment. Among alterations, the most important one was a tremendous abatement granted to companies and other legal entities in the form of a very considerable reduction of the tax rate. Before that, a flat rate of 10% applied to corporate profits and dividends were subject to a schedule of progressive rates. The rates begun from 12% and ended at 54%, the latter for incomes above 300 million Rials. Profits of such a size are fairly moderate and incomes of big and average companies would easily surpass this final bracket.

As a result, a large part of companies' profits was subject to that marginal rate of 54%, which by adding the aforesaid corporate income tax of 10% raised to 64%.

Now after the amendment, that rate of 64% has fallen to 25%, which is a flat rate applicable to taxable income of all legal persons. The corporate income tax of 10% has also been cancelled.

That huge abatement in favor of legal entities was, most probably, the reason why no tax threshold granted to this category of taxpayers. This proves to be true when considering another favor given to companies under the amendment. It was the exemption of dividends, and thus the shareholders, from taxation. Based on that reasoning, lack of threshold seems to be quite understandable, but one can not ignore another fact, that is the situation of small and weak companies. To have the title of company would not necessarily mean a sizeable amount of turnover and income.

There are many individual business owners who earn quite big amounts of profits without being registered as companies. Their financial and commercial potentialities are much higher than many weak and small companies. Beside that, the non-company businesses are owned by one person, while companies belong to a number of participants. This would result in allocation of less income to each shareholder, whereas in case of businesses all the profits would go to a single owner.

So, one may raise the question why no tax threshold has been provided at least for such weak companies, while the same favor is shown to single business owners? Another fact would also call for paying attention to this situation. It is the absence of imputation system in the Iranian tax law. Under an imputation system the taxable corporate profits are subject to corporate income tax. When the profits are distributed, each shareholder is entitled to a credit for the underlying corporation tax that can be attributed to dividends. Then the shareholder would declare as taxable income the dividends received (together with other items of his income) when submitting his annual return. Through that mechanism the corporate level tax would ultimately credited against the shareholder's own tax liability. If this imputation credit exceeds the shareholder's tax liability, he may claim refund of the excess. But if his liability exceeds the credit, he must pay the difference.

No such arrangements are foreseen under the Iranian tax system. A less viable system of "tax on aggregate income" had been provided under the DTA, which did not implemented properly and was annulled totally by the last amendment of the law. Taking into account all these considerations, it seems appropriate to take measure for redressing the inequality that exists under the law in disadvantage of small companies as described above.

 

 

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Tax News

 

Suspension of a tax during

 

 the term of development plan

 

The article 141 of the Direct Taxes Act (DTA) has exempted from taxation the income derived from exportation of industrial finished goods and products of agricultural sector. As regards other goods and products, the said exemption is restricted to 50% of exportation income, and the rest of it shall be subject to income tax. Such is the rule of DTA which is a permanent law. On the other hand, the Law of Fourth Development Plan (which is a temporary law and covers a period of 5  years only) had also provided for a special rule concerning the exportation of goods and services. It provides, under paragraph "d", article 33, that "no taxes and duties are permitted to be imposed on exportation of services and non-oil goods during the term of the development plan" [namely from March 21, 2005 to March 20, 2010].

Comparison of those two regulations (article 141 of DTA and paragraph "d', article 33 of the fourth development plan) would show that the only difference between them relates to the category of "other  goods" referred to under the DTA, namely any goods other than finished industrial goods and products of agricultural sector. These are subject to taxation under the DTA (of course in respect of 50% of the income derived from their exportation). But the rule of the development plan (concerning the tax exemption) does not differentiate between those categories of exported goods and services.

Now the point is that whether the phrase "to be imposed" in the aforementioned para "d", article 33 of the development plan means the creation of new taxes and duties or it prohibits collection of previously levied imposts? A new circular of the tax administration has decided in favor of the latter interpretation and stated that the rule of the article 141 of the DTA shall be suspended during the term  of the fourth development plan, so that only the paragraph "d", article 33 of that plan would govern in respect of exportation of goods and services without exception in the course of the said period.

It should be mentioned that the said interpretation is based on an opinion given by the office of the Vice President in Charge of Legal and Parliamentary Affairs. It is also worthy of mentioning that the tax exemption granted for exportation of services is an innovation, the credit of which goes to the said law of development plan.

 

Composition of a tax forum

 

The forum for reviewing all tax disputes is the Board of Settlement of Tax Disputes (BSTD), except in cases where other forums are provided under the Direct Taxes Act (DTA). Every BSTD is composed of three members; a representative from the State Tax Organization, one judge and a person introduced by some civil organizations, such as the chamber of commerce, chamber of cooperatives, association of official accountants, guild organizations and the like.

As far as the Iranian tax system is concerned, that structure is of special importance. Ordinary tax tribunals do not exist in this country and all tax disputes are referred to BSTDs. That is why this forum has such a composition. The representative of tax organization is an expert in the field of tax affairs and aware of issues faced by, and viewpoints of, that organization. The man from civil organizations is supposed to have enough knowledge on current issues and problems of relevant sections of the private sector. And the judge would assist the BSTD with his judicial expertise and impartiality that is supposed to be the characteristic of his job.

Because of significance of that structure, the tax law has emphasized that "the quorum for the sessions of the BSTD shall consist of three members" (Note 1, article 253, DTA). It means that all three members pf the Board should take part in sessions. In spite of that, some BSTDs by-pass the rule and hear the cases without physical presence of one, or even two, members, namely the judge and the man from civil organizations. Thus, only the man from tax organization would actually participate in BSTD's session, while the other member, or members, would give their opinion later.

The tax administration has paid due attention to this problem and ordered, in a circular, that the legal composition of BSTDs should be strictly observed and all three members of the board must be physically present at relevant sessions and take part in deliberations of that forum. An organ called the Board for Supervision over the Work of BSTDs' Affairs has been given the mission to follow up the order and report cases of infringement to relevant authorities.

 

Refunding of extra taxes

 

The tax law requires the refunding of extra taxes when they are collected as result of miscalculation, and also where tax is refundable under the provisions of the same law. A new circular letter of the tax administration draws the attention of tax officials to this matter and orders them to take necessary measures for repayment of such taxes on time and without delay. An interesting point in the circular is the prevention of officials from setting off the repayable amount against any tax claims that may exist at the time of refunding. It states: "the extra tax must be repaid to taxpayer, irrespective of his indebtedness for any finalized taxes related to previous or subsequent years, unless the taxpayer himself would apply in writing for offsetting the extra tax against such finalized tax debts of other years".  General directors of tax departments are ordered to follow up the matter and report the cases of infringement to the office of the Disciplinary Prosecutor.

 

Underground economy and the verdict of CAJ

 

The Court of Administrative Justice has issued a verdict and annulled a circular letter of the tax administration. The circular relates to people who buy several cars during a year and sell them outside the formal business channels and thus escape the tax net. It had required the relevant officials to follow up such activities and take measures to ascertain the receipt of the applicable taxes. The circulation had been followed by a complementary instruction of the Department of Tax Information and Services that is a section of the tax administration. Under the latter instruction, the persons engaged in those activities had been divided to different categories, one of them being persons without any place of business. In respect of these people, the tax officials had been instructed to obtain relevant information from manufacturing companies who have sold the cars. Such information relates to one side of underground activities only, that is the number and price of purchased cars. As regards the price they had received from selling of the same cars, the said department had instructed the officials to take annual purchase as an indication for determining the taxable income. This procedure is based on articles 152 and 153, DTA. In addition, that this latter guidance had been recommended only in case of one category of the persons engaged in the activities in question. In respect of other categories, no reference had been made to similar procedures and ordinary methods of examining and assessment of taxes had been recommended. Nevertheless, the verdict of the CAJ annulled not only the instruction of the aforesaid department, but the circular letter of the tax administration as well. The reason presented in the verdict is that the circular demanded the assessment of taxes on basis of purchases only without paying attention to selling and actual income realized from such transactions.

 

Health tax

The government has in mind to prepare a bill regarding some new taxes under the title of "health taxes". The news was declared by the public relations office of the Plan and Budget Organization. A blend of different things will be taxed under the bill. Tobacco products, solid cooking oil and cars are mentioned as examples of taxable items. The bill will be prepared as an ingredient of a series of measures in the field of public health. It will be presented to the parliament during the current Iranian year. Though the bill would contain some green taxes, but it may not be considered as an environmental law, since the green taxes would constitute only a part of the bill and many other non-environmental taxes will also be included in it. Very little attention has been paid to green taxes so far. Environmental issues are dealt with in various occasions, but relevant deliberations and measures do not usually tackle the taxation aspect of the subject.

 

The End

 

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