የሰ/መ/ቁ 100079 “ን” አንብበን ስናበቃ ለተፈጥሮ ሰው ብቻ የምንጠቀምባቸው የተለመዱ አባባሎች ለህግ ሰውም ሊውሉ የመቻላቸው አጋጣሚ ሊኖር እንደሚችል እንረዳለን፡፡ በውሳኔው ላይ እንደተመለከተው አንድ የህግ ሰውነት ያለው ድርጅት በህጉ አግባብ ሳይፈርስና ህልውናውን ሳያጣ “በቁሙ ሊከስም” ይችላል፡፡ የዚህ አባባል ምንጩ በውሳኔው ላይ ባይገለጽም “በቁም መሞት” ከሚለው ሰውኛ አባባል እንደተቀዳ ያስታውቃል፡፡ አንዳንድ ጊዜ አንዳንድ ሰው ጊዜ ይጥለውና ከሰውነት ተራ ወጥቶ በቁሙ ይሞታል፡፡ አንዳንድ ጊዜ አንዳንድ ድርጅትም ማን እንደሚጥለው ባይታወቅም “ከህጋዊ ሰውነት ተራ ወጥቶ” በቁሙ ይከስማል፡፡ ድርጅት እንዲህ ሰውኛ ባህርይ የሚጋራ ከሆነ መሰል ሰውኛ አባባሎች ለድርጅት የሚውሉበት ጊዜ ሩቅ አይሆንም፡፡ ለምሳሌ…ለሕጋዊ ሰውነት መድሀኒቱ ሕጋዊ ሰውነት ነው! ለድርጅት መክሰም አነሰው! ሕጋዊ ሰውነትን ማመን ቀብሮ ነው እና የመሳሰሉት የሕጋዊ ሰውነት አባባሎች ሆነው በቅርቡ ዕውቅና ማግኘታቸው አይቀርም፡፡
በሰ/መ/ቁ 10009 ህጋዊ ሰውነቱን ሳያጣ “በቁሙ የከሰመው” ድርጅት ሜጋ የኪነ ጥበብ ማዕከል ኃላፊነቱ የተወሰነ የግል ማሕበር ሲሆን ከመክሰሙ በተጨማሪ ሰውኛ ገጽታው በመጥሪያ አደራረስም ተንጸባርቋል፡፡ ክሱ በቀረበበት ፍ/ቤት ድርጅቱ 1ኛ ተከሳሽ የነበረ ሲሆን ክሱ በሚሰማበት ወቅት የወንጀሉ ክስና መጥሪያ አልደረሰውም፡፡ ይህም የሆነበት ምክንያት በሰበር ውሳኔው ላይ እንደተመለከተው ከሳሽ የኢትዮጵያ ገቢዎችና ጉምሩክ ባለሥልጣን “የወንጀል ክሱንና መጥሪያውን ለማድረስ ጥረት አድርጎ ሊያገኘው ባለመቻሉ” ምክንያት ነው፡፡ ምናልባት መጥሪያ እንዳይደርሰው “ሆነ ብሎ እየተሸሸገ” ይሆን?
ገራሚውና አስገራሚው ነገር ድርጅቱ በቁሙ መክሰሙ አሊያም መጥሪያ እንዳይደርሰው መሰወሩ አይደለም፡፡ በሰበር ውሳኔው ላይ የሰፈረው የክርክሩ ሂደት እንደሚያሳየው ድርጅቱ በጋዜጣ አልተጠራም፡፡ ጉዳዩ በሌለበት እንዲታይም ትዕዛዝ አልተሰጠም፡፡ ሆኖም ግን በስር 2ኛ ተሳሳሽ (በሰበር መዝገቡ ላይ አመልካች) ከነበሩት የድርጅቱ የቀድሞ ስራ አስኪያጅ ጋር ጥፋተኛ ተብሏል፡፡ አመልካች ለሰበር ችሎት ባቀረቡት አቤቱታ ላይ ድርጅቱ በህጉ አግባብ ተጠርቶ ቀርቦ ሳይከራከር እንዲሁም በጋዜጣ ተጠርቶ ጉዳዩ በሌለበት እንዲታይ ትዕዛዝ ሳይሰጥና በዚሁ መሰረት ጥፋተኛ ሳይባል አመልካች ጥፋተኛ ሊባሉ እንደማይገባ በመግለጽ አጥብቀው ተከራክረዋል፡፡ ሆኖም የሰበር ችሎት በስር ፍ/ቤት ውሳኔ ላይ የሚገኘውን የሚከተለውን ሐተታ በመጥቀስ ድርጅቱ ጥፋተኛ እንደተባለ በደረሰበት ድምዳሜ መሰረት ክርክሩን ውድቅ አድርጎታል፡፡ ድርጅቱ ጥፋተኛ የተባለበት የስር ፍ/ቤት የውሳኔ ክፍል እንደሚከተለው ይነበባል፡፡
ስለሆነም ተከሳሹ የዐቃቤ ሕግን ማስረጃ የሚያስተባብል ማስረጃ ያላቀረቡ በመሆኑ በ1997ዓ.ም 1ኛ ተከሳሽ ባከናወነው የንግድ እቅስቃሴ ገቢን አሳውቆ ባለመክፈልና ተከሳሾች አሳሳች መረጃ በመስጠትና ኪሳራ ሪፖርት በማድረግና ከ1996ዓ.ም እስከ 2002 ዓ.ም ድረስ የተሰበሰበውን የተጨማሪ እሴት ታክስ የሰበሰቡትን በሙሉ ሪፖርት ባለማድረጋቸው ሁለተኛው ተከሳሽ (አመልካች) በስራ አስኪያጅነታቸው አንደኛ ተከሳሽ ለፈጸመው ድርጊት ተጠያቂ በመሆናቸው ተከሳሾች በአዋጅ ቁጥር 286/1994 አንቀጽ 96 እና አንቀጽ 97 ንዑስ አንቀጽ 3 (ሀ) አንደዚሁም በአዋጅ ቁጥር 285/1994 አንቀጽ 49 ላይ የተመለከተውን በመተላለፍ ጥፋተኛ ናቸው’’
በእርግጥ ጥፋተኛ የሚል ቃል በውሳኔው ላይ የተጠቀሰ ቢሆንም ድርጅቱ ቀርቦ ሳይከራከር ብሎም ጉዳዩ በሌለበት እንዲታይ ትዕዛዝ ሳይሰጥ ውጤት ያለው የጥፋተኝነት ውሳኔ ሊሰጥ አይችልም፡፡ ምክንያቱም….በአጭሩ አያስኬድም፡፡ የጥፋተኝነት ውሳኔው ጸንቶ የሚቆምበት የህግ መሰረት የለውም፡፡ ከድርጅቱ ጥፋተኝነት ጋር ተያያዞ የተነሳውን ጭብጥ የበለጠ አስገራሚ የሚያደርገው ሌላም ነገር አለ፡፡ አመልካች ድርጅቱ ጥፋተኛ አይደለም በማለት በሰበር ችሎት ሽንጣቸውን ገትረው ሲከራከሩ የነበረው ለድርጅቱ በመቆርቆር አይደለም፡፡ የድርጅቱ ጥፋተኝነት ጭብጥ ሆኖ የተነሳው ድርጅቱ ጥፋተኛ ባልተባለበት የድርጅቱ ስራ አስኪያጅ (አመልካች) ጥፋተኛ ልባል አይገባም በማለት ክርክር በማቅረባቸው ነው፡፡ ይህ ጭብጥ ሊፈታ የሚችለው አንድም ድርጅቱ ጥፋተኛ ባይባልም አመልካች እንደ ስራ አስኪያጅነታቸው ጥፋተኛ የሚባሉበት የህግ አግባብ እንዳለ አቋም በመያዝ አሊያም በህጉ አግባብ በድርጅቱ ላይ የጥፋተኝነት ውሳኔ ተሰጥቷል ሊባል እንደማይገባ/እንደሚገባ ጭብጥ መስርቶ ለዚሁ ጭብጥ ተገቢውን ምላሽ በመስጠት ነው፡፡ ከዚህ በተቃራኒው አመልካች ስለድርጅቱ ጥፋተኝነት አያገባቸውም፤ ስለ ድርጅቱ ለመከራከርም ውክልና የላቸውም የሚባል ከሆነ ግን ከመሰረታዊው ጭብጥ መራቅ ነው የሚሆነው፡፡ ይህን አስመልክቶ የችሎቱ ሐተታ እንደሚከተለው ይነበባል፡፡
“አመልካች ከ2003ዓ.ም ጀምሮ የአንደኛ ተከሳሽ ስራ አስኪያጅ እንዳልሆነና አንደኛ ተከሳሽንም ወክሎ ክርክር ለማቅረብ እንደማይችል በስር ፍርድ ቤት የገለጸ መሆኑን ግራ ቀኙ ካቀረቡት ክርክር ተገንዝበናል፡፡ አንደኛ ተከሳሽ የወንጀል ጉዳይ የታየው የወንጀለኛ መቅጫ ስነ ስርዐት ሕግ አንቀጽ 162 አንቀጽ 167 እና ሌሎች ድንጋጌዎች ከሚደነግጉት ውጭ ነው ብሎ ካለ የስር ፍርድ ቤት አንደኛ ተከሳሽ በሌለበት አይቶ የሰጠው ፍርድ እንዲነሳለት ከሚያመለክት በስተቀር አንደኛ ተከሳሽ በሌለበት ታይቶ መወሰኑን አመልካች መከራከሪያ አድርጎ ሊያቀርብ የሚችል አይደለም፡፡ አንደኛ ተከሳሽ በመወከልም አንደኛ ተከሳሽ በሌለበት ታይቶ የተሰጠው ፍርድ እንዲነሳ ለመከራከር የሚያስችለው ውክልና ወይም ስልጣን የለውም ስልጣንም ቢኖረው ክርክሩ መቅረብ የሚገባው በወንጀለኛ መቅጫ ስነ-ስርዓት ሕግ ከአንቀጽ 197 እስከ አንቀጽ 102 የተደነገጉትን ድንጋጌዎች መሰረት በማድረግ መሆን የሚገባው በመሆኑ አመልካች ያቀረበው ክርክር የሕግ መሰረት ያለው ሆኖ አላገኘነውም፡፡”
የሰ/መ/ቁ 100079 ከላይ በቅንጭቡ ከቀረበው በላይ በርካታ ዘርፈ ብዙ የህግ ጥያቄዎችን ያስነሳል፡፡ አንባቢ በራሱ ይመዝነው ዘንድ የፍርዱ ሙሉ ይዘት እንደሚከተለው ቀርቧል፡፡ ከዚያ በፊት ግን በተለየው ሓሳብ ላይ የሰፈረው የሚከተለው ቁም ነገር እንደ መንደርደሪያ ይሁን፡፡
ሕግና ሥርዓት ባለበት አገር አንደኛ ተከሳሽ የነበረው ድርጅት በእርግጥ ሕጋዊ ሰውነት ያለው ህያው ድርጅት ከሆነ ከሚመለከታቸው አካላት በማጣራት እውነት የማፈላላግ ሥራ መከናወን ነበረበት፡፡ በሌላ በኩል ድርጅቱ ሜጋ ማስታወቂያ ከተባለው ድርጅት ከተዋሃዳ የተቀለቀለ / Amalgamation merge /ስለመሆኑ በክርክር ሂደት ተነስቷል፡፡ ይህ በተመለከተም ሁለቱም ድርጅቶች ተዋህደው ከሆነ መቼ እና በማን ውሳኔ ሰጪነት ተዋሀዱ የሚለው መጣራት ነበረበት፡፡
የአንድ ድርጅት ሥራአስኪያጅ ኃላፊ የሚሆነው ድርጅቱ በሕግ አግባብ ጥፋተኝነቱ ሲረጋገጥ ብቻ ነው፡፡ …ድርጁቱ በህግ አግባብ መጥሪያ የደረሰው ስለመሆኑ አልተረጋገጠም፡፡ የአሁኑ አመልካችም ድርጅቱ ከለቀቁ ከአንድ ዓመት በኃላ ክስ የተመሰረተባቸው ስለመሆኑ እየተከራከሩ ነው፡፡ የስር ፍርድ ቤቶች የአሁኑ አመልካች ጥፋተኛ ከተባሉ ድርጅቱም ጥፋተኛ ነው በሚል ድምዳሜ ላይ መድረሳቸው ከውሳኔያቸው ይዘት መረዳት ይቻላል፡፡ ይሁንና የስር ፍርድ ቤቶች ድምዳሜ የህግ መሰረት ያለው አይደለም፡፡……..ቅድሚያ መረጋገጥ ያለበት የድርጅት ጥፋት መኖር ያለመኖር ነው፡፡ አንድ ድርጅት ጥፋተኛ ነው ወይስ አይደለም ወደ ሚለው ድምዳሜ ለመድረስም በህጉ የተዘረጋው የሙግት አመራር ሥርዓት በጥብቅ [ተግባራዊ] መደረግ ነበረበት፡፡ የስር ፍርድ ቤቶች አንደኛ ተከሳሽ የነበረው ድርጅት ሕጋዊ ሰውነት ያለውና ያልከሰመ መሆን ያለመሆኑን በአግባቡ ሳያጣሩ ጥሪ ቢደረግለትም አይቀርብም በሚል ሰበብ እውነት [የማፈላለግ] ግዴታቸው (truth finding) ወደ ጎን በመተው [ሕጉ] [የዘረጋውን] የሙግት አመራር ሥርዓት ሳይከተሉ ከውሳኔ ላይ መድረሳቸው መሰረታዊ የህግ ስህተት መፈጸማቸውን የሚያሳይ ነው፡፡”
መጋቢት 4 ቀን 2007 ዓ/ም
ዳኞች፡- አልማው ወሌ
አመልካች፡- አቶ ዕቁባይ በርሀ ገ/እግዚአብሔር – ጠበቃ ደሳለኝ መስፍን ቀረቡ
ተጠሪ፡- የኢትዮጵያ ገቢዎች ጉምሩክ ባለሥልጣን – ዐ/ህግ ወንድዬ ብርሃኑ ቀረቡ
መዝገቡን መርምረን የሚከተለውን ፍርድ ሰጥተናል
ፍ ር ድ
ጉዳዩ የቀረበው አመልካች የፌዴራል መጀመሪያ ደረጃ ፍርድ ቤት በመዝገብ ቁጥር 176025 ታህሳስ 19/2005 ዓ/ም የሰጠው ፍርድና የፌዴራል ከፍተኛ ፍርድ ቤት የመዝገብ ቁጥር 131320 ጥር 21 ቀን 2006 ዓ/ም የሰጠው ፍርድ መሠረታዊ የሕግ ስህተት ያለበት ስለሆነ በሰበር ታይቶ ይታርምልኝ በማለት ያቀረበውን የሰበር አቤቱታ አጣርቶ ለመወሰን ነው ጉዳዩ ተጠሪ አመልካች የአንድ ኃላፊነቱ የተወሰነ የግል ማህበር ሥራ አስኪያጅ ሆኖ ሲሰራ ለግብር ስብሳበው መሥሪያ ቤት አሳሳች ማስረጃ የማቅረብና ተጨማሪ እሴት ታክስ የማሳወቅና የመክፈል ኃላፊነቱን ባለመወጠት ወንጀል ፈፅሟል በማለት ያቀረበውን ክስና ክርክር የሚመለከት ነው፡፡ በሥር ፍርድ ቤት ተጠሪ ከሳሽ አመልካች ተከሳሽ በመሆን ተከራክረዋል፡፡ Continue reading →
Double Repeal and repeal after indefinite period of time
It is difficult even for law makers to remember each and every law they have amended and repealed. With the ever increasing quantity of legislations issued by the law maker and subordinate organs, sometimes it may happen that a provision of the law be repealed twice. Here are two instances:
A.) Proclamation No. 287/2002 (Tax on Coffee Exported from Ethiopia (Amendment) Proclamation) is an amendment to Proclamation No.99/1998 (Tax on Coffee Exported from Ethiopia.) One of the provisions of the previous law which was amended by Proclamation No. 287/2002 is Article 4. This Article provides that the rate of Tax payable on Coffee exported from Ethiopia shall be 6.5% (six and point five per cent) of the FOB price. FOB is defined in the proclamation as selling price of coffee quoted at the port of loading, agreed between the Coffee exporter and his customer and approved by the National Bank of Ethiopia, from which freight and insurance costs are excluded.
Article 2(1) of Proclamation No. 287/2002 mainly amends the tax rate lowering it to zero. It reads:
Article 4 of the proclamation is deleted and replaced by the following new Article 4.
“4. The rate of the Tax which has been 6.5% (six and point five per cent) shall be zero”
However, the deletion and replacement to article 4 of Proclamation No.99/1998 is a double repeal as it has already been deleted by Council of Ministers Regulations No.73/2001(Tax Amendment on Exported Coffee Council of Ministers Regulations.)
Article 2 of the regulation reads:
Article 4 of the Tax on Coffee Exported from Ethiopia Proclamation No.99/1998 is deleted and replaced by the following new Article 4:
4. Rate of the Tax
1) The Rate of the Tax shall be 6.5% (six and point five per cent) of the FOB price.
2) Notwithstanding the provisions of Sub-Article (1) above, no tax shall be levied if the FOB price of the coffee exported is:
(a) Below 105 cents (one hundred five cents) per pound for washed coffee;
(b) Below 70 cents (seventy cents) per pound for unwashed coffee.
By way conclusion, it means that article 4 of Proclamation No.99/1998 was repealed by Proclamation No. 287/2002 after it [Proclamation No.99/1998] was repealed by Regulations No.73/2001.
B.) Article 17(1) of the Census Commission Establishment proclamation No. 84/1997 states that the Population and Housing Census Commission Establishment Proclamation No.32/1992 is repealed. However, Proclamation No.32/1992 was again repealed for the second time by article 18(1) of Proclamation No. 180/1999 (Census Commission Establishment Proclamation)
The problem seems to have been created due to failure of parliament to set exact expiry date for Proclamation No.32/1992. Even though it [Proclamation No.32/1992] was expressly repealed by Proclamation No. 180/1999, its applicability was extended for indefinite period of time. According to article 19 of proclamation No. 84/1997, the previous proclamation (32/1992) will remain applicable with respect to census undertakings not completed and until such time that the Secretariat (of the Census Commission) is properly organized. Hence, someone has to wait until he/she is told that the Secretariat (of the Census Commission) is properly organized to verify whether the proclamation is active or not. It is a subjective condition and no one could for sure know that it is actually repealed. When I say no one, it includes the House of People’s Representatives. That is why it repealed the same law twice.
What is more interesting is article 20 of Proclamation No. 180/1999. It reads:
“Notwithstanding the provisions of Article 18 (l) of this proclamation, Proclamation No. 32/1992 shall remain applicable until such time that the Secretariat is properly organized.”
It may be confusing, but this article seems to suggest that Proclamation No. 32/1992 which was repealed twice is still active for some unknown time in the future… until such time that the Secretariat is properly organized! By the way, why was it so difficult to organize the secretariat of the Census Commission? [It took more than two years!]
Repeal for the unusual ground
Why is a law repealed? There may be so many convincing justifications to repeal a law, but definitely the following two cases are wrong [I mean may be unusual] answers to the question.
· National Lottery Administration Re-establishment Proclamation No.535/2007
[Article] 22 Repealed and Inapplicable Laws
1/ The National Lottery Administration Re-establishment Proclamation No. 510/2007 .having not been published as endorsed by the House, is hereby repealed
· Addis Ababa City Government Revised Charter Proclamation No. 361/2003
[Article] 67. Repealed Laws
1) The Addis Ababa City Government Revised Charter Proclamation No. 311/2003, having been published with its contents changed without following the Legislative Procedure, is hereby deleted and replaced by this Charter
Now You can easily get all directive in ONE.
Use Bookmark or Table of Contents to find a specific directive within the compilation.
National Bank of Ethiopia
National Election Board
Ethiopian Broadcasting Authority
(የመንግስት ቤቶች ኤጄንሲ በሚያስተዳድራቸው ቤቶች የተፈፀሙ ህገ-ወጥ ተግባራትን ስርዓት ለማስያዝ እንዲቻል ተሻሽሎ የተዘጋጀ መመሪያ)
- በትምህርት ተቋማት የአምልኮ ሥርዓትን በሚመለከት የወጣ መመሪያ
- የግል ከፍተኛ ትምህርት ተቋም የመጀመሪያ ዱግሪ ትምህርት የዕውቅና አሰጣጥ መመሪያ
- ከቴክኒክና ሙያ ትምህርትና ሥልጠና መስክ ወደ ከፍተኛ ትምህርት ተቋም መሸጋገሪያ መመሪያ
For list of Directives included in Each directives CLICK HERE
Mizan Law Review publishes peer reviewed scholarly articles that identify, examine, explore and analyze legal and related principles, stipulations and concepts based on research findings. Mizan’s articles aim at interpretation, description, exploration and diagnosis towards the solution of problems (or legal issues) including proactive critique and projection that assist the development of laws.(Source African Journals on-line http://www.ajol.info)
BETWEEN ‘LAND GRABS’ AND AGRICULTURAL INVESTMENT: LAND RENT CONTRACTS WITH FOREIGN INVESTORS AND ETHIOPIA’S NORMATIVE SETTING IN FOCUS
Elias N. Stebek
This article examines whether the land rent contracts and the Ethiopian legal framework on rural land use rights can assure win-win mutual benefits expected from large-scale land transfers to foreign investors. The article further examines the challenges in the realization of the Seven Principles for Responsible Agricultural Investments prepared by FAO, IFAD, UNCTAD and the World Bank Group as a framework of standards for the current global dialogue on large-scale farmland acquisitions. I argue that land-use insecurity in the Ethiopian context results from the extensive powers of executive offices that are empowered to dispossess holders and reallocate land to investors. These powers can be even more discretionary where land transfers are made without prior mapping and demarcation of protected forests and wildlife, and where registration and the issuance of land-holding certificates to smallholder farmers and pastoralists have not yet been made. The article suggests the need to rectify the gaps in the land transfer contracts and most importantly, the need to render the government a custodian (and not owner) of land in conformity with the FDRE Constitution and to ensure that the termination of land use rights is decided by courts so that executive offices would not perform the dual functions of revoking and reallocating rural land use rights.
THE POLITICS UNDERPINNING THE NON–REALISATION OF THE RIGHT TO DEVELOPMENT
Belachew Mekuria Fikre
The right to development stands out as one of the controversial rights ever since its articulation in the 1970s. The adoption of the 1986 United Nations Declaration on the Right to Development underlines the importance of international cooperation for it to be realised. I argue that the emphasis on ‘development aid’ rather than the broader ‘development cooperation’ has contributed a great deal to the politicisation of the right and consequently undermined its materialisation. Indeed, there is the need for semantic and conceptual clarity in the use of the term ‘international assistance and cooperation’ that has deceptively supplanted ‘international cooperation.’ While the former is a term used under Article 2(1) of the International Covenant on Economic, Social and Cultural Rights with a view to laying down the broader States Parties’ obligations, the latter is what the Declaration on the Right to Development exclusively employs. I argue that even if development assistance is indispensable, taking it as the sole approach to the realisation of the right to development is both wrong and unhelpful.
ETHIOPIAN LAW OF INTERNATIONAL CARRIAGE BY AIR: AN OVERVIEW
Hailegabriel G. Feyissa
Ethiopia’s aviation history goes back to the late 1920s. And, carriage of goods and passengers by air dates at least as far back as the 1940s – the decade which witnessed the establishment of Ethiopian Air Lines Corporation (now Ethiopian Airlines). Despite Ethiopia’s relative success in commercial aviation, domestic literature on commercial air law has been scanty. Court decisions involving air carriage are rare, and one can seldom find a course on air law in the curricula of Ethiopian law schools. This article is an attempt to briefly address the gap in literature and encourage further academic discourse on Ethiopian law of air carriage with particular attention to the law and practice regarding international carriage by air.
TO TAX OR NOT TO TAX: IS THAT REALLY THE QUESTION? VAT, BANK FORECLOSURE SALES, AND THE SCOPE OF EXEMPTIONS FOR FINANCIAL SERVICES IN ETHIOPIA
The Ethiopian Value Added Tax of 2002 follows the standard approach of exempting financial services from VAT. Not all ‘financial services’ are, however, exempted from VAT. A number of services provided by the financial institutions are made taxable by the VAT laws of Ethiopia. No subject in this regard has probably attracted as much attention and controversy as that of sale by foreclosure of property held as security by banks. Both sides (i.e., members of the financial industry and the tax authorities) seemed locked in their conviction over the treatment of foreclosure sales in VAT. Members of the financial industry (in particular banks) are convinced that foreclosure sales enjoy the privilege of exemption in VAT while some within the Tax Authorities are equally convinced that foreclosure sales should be chargeable with VAT. These controversies have played out in the courtrooms, the press and a number of communications between the Tax Authorities and the members of the financial industry. This article examines these controversies and analyzes the scope of exemptions for financial institutions under Ethiopian VAT laws.
VALUE ADDED TAX(VAT) PROCLAMATION NO. 285/2002
WHEREAS, the current sales tax does not allow collection of the tax on the added value created wherever a sales transaction
WHEREAS, the value added tax minimizes the damage that may be caused by attempts to avoid and evade the tax and helps to ascertain the profit obtained by the taxpayers;
WHEREAS, the tax enhance saving and investment as it is a consumption tax and does not tax capital;
WHEREAS, replacement of the current sales tax by value added tax enhances economic growth and improves the ratio relationship between Gross Domestic Product and Government Revenue;
NOW, THEREFORE, in accordance with Article 55(1) and (11) of the Constitution, it is hereby proclaimed as follows:
- Short Title
This proclamation may be cited as the “Value Added Tax Proclamation No.285/2002.”
For the purpose of this Proclamation, unless the context otherwise requires:
- ” accounting period” means a calendar month. The month of Nahase and Pagumen shall be aggregated and treated as one calendar month;
- “Agent” means any person who acts on behalf of and on instruction from another person;
- “Association of persons” means an association of individuals or an association that includes one or more members who are not individuals, but not including any association falling within the definition of “body”;
- “Authority” means the Federal Inland Revenue Authority;
- “Body” means any company, registered partnership, entity formed under foreign law resembling a company or registered partnership, or any public enterprise or public financial agency that carries out business activities including body of persons corporate or unincorporated whether created or recognized under a law in force in Ethiopia or elsewhere, and any foreign body’s business agent doing business in Ethiopia behalf of the principal:
- “Export” means taking goods out of Ethiopia;
- “goods” means all kinds of corporeal movable or immovable property, thermal or electrical energy, heat, gas, refrigeration, air conditioning, and water, but does not include money;
- “Money” means:
- a coin or note that is legal tender in Ethiopia; or
- a bill of exchange, bank draft, promissory note, postal order, or money order; or
- a stamp, from or card that has a monetary value and is sold or issued by the Government for the payment of any fiscal charge leveled under any law except where the coin, note, stamp, from, or card is disposed of as a collector’s piece, an investment article, or an item of numismatic interest;
- “Import of Goods” means bringing goods into Ethiopia according to the customs legislation;
- “Permanent Establishment” means a fixed place of taxable activities through which those activities of a person are wholly or partly carried on. The following shall, in particular, be considered to be a permanent establishment, an administrative office, branch, factory, workshop, mine quarry or any other place for the exploitation of natural resources, and a building site or place where construction and/or assembly works are carried out. READ MORE
PROCLAMATION NO. 99/1998 PROCLAMATION TO PROVIDE FOR THE PAYMENT OF TAX ON COFFEE EXPORTED FROM ETHIOPIA
PROCLAMATION NO. 99/1998
A PROCLAMATION TO PROVIDE FOR THE PAYMENT OF TAX ON COFFEE EXPORTED FROM ETHIOPIA
WHEREAS, consolidating the various taxes and duties levied by different Proclamations and Regulations into a single tax facilities execution;
WHEREAS, converting specific rates into advalorem ensures the equability of the tax;
WHEREAS, it is necessary to lay down procedures to protect revenue against fluctuations due to change in prices and adjust the tax rate following market trend.
NOW THEREFORE, in accordance with Article 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows:
1. Short Title
This Proclamation may be cited as “Tax on Coffee Exported from Ethiopia Proclamation No. 99/1998.”
In this Proclamation:
1) “FOB” means selling price of coffee quoted at the port of loading, agreed between the Coffee exporter and his customer and approved by the National Bank of Ethiopia, from which freight and insurance costs are excluded.
2) “Tax” means the tax payable on Coffee exported in accordance with this Proclamation.
3. Basis of Computation of Tax
The FOB price of the coffee exported shall be the basis for the computation of the tax.
4. Rate of the Tax
The rate of the Tax shall be 6.5%(six and half per cent) of the FOB price.
5. Collection of the Tax
The Tax on Coffee exported shall be computed and collected by the Customs Authority.
6. Payment of the Tax
1) The Tax shall be paid at the Customs Station where the Coffee is declared for export.
2) If the Coffee is not exported on the date on which it shall have been exported and in the meantime the Council of Ministers increased the rate of the Tax, the exporter shall pay the difference between the increased rate and the rate that has actually been paid.
No refund to Tax once paid will be made.
8. Power to Issue Regulations
The Council of Ministers is hereby empowered to issue regulations amending the rate of the Tax specified under Article 4 of this Proclamation following fluctuations in the quantity and price of Coffee exported.
9. Duty to Cooperate
1) Any person or organization has the duty to co-operate with the Customs Authority in the implementation of this Proclamation.
2) The National Bank of Ethiopia has the duty to cooperate with the Customs Authority in the supply of information regarding the sales date of the Coffee, contract number, the name and address of the exporter, the quantity and price of the Coffee.
The provisions concerning customs formalities of export merchandise under the Re-Establishment and Modernization of Customs Authority proclamation No. 60/1997 shall apply to Tax payable in accordance with this Proclamation.
The following laws are hereby repealed:
1) Transaction Tax Proclamation No. 205/1963
2) The third schedule (export duties) attached to the Customs Tariffs Regulation No. 42.1976.
3) Coffee Surtax Regulation No. 280/1964 and all subsequent amendments.
4) Cess on Coffee Exported from Ethiopia Regulations No. 47/1976.
12. Transitory Provisions
Customs duty, transaction tax, Surtax and Cess due prior to the coming into force of this Proclamation shall be paid in accordance with the relevant laws then in force.
13. Effective Date
This Proclamation shall enter into force as of the 19th day of February, 1998.
Addis Ababa, this 19th day of February, 1998.
NEGASO GIDADA (DR.)
PRESIDENT OF THE FEDERAL DEMOCRATIC
REPUBLIC OF ETHIOPIA
PROCLAMATION NO. 110/1998
A PROCLAMATION TO PROVIDE FOR THE
PAYMENT OF STAMP DUTY
WHEREAS, it has become necessary to amend the stamp duty levied on documents in a manner which would contribute to the development of art, the activities of financial institutions and the transfer of capital assets;
NOW, THEREFORE, in accordance with Article 55(1) and (11) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follow:
1. Short Title
This Proclamation may be cited as the “Stamp Duty Proclamation No. 110/1998”
In this Proclamation
1. “Award” means a decision in writing rendered by an arbitrator(s) on a reference made otherwise than by order of court in the course of suit by parties to a compromise, conciliation or arbitral submission or other similar matters;
2. “Bond” includes any instrument, whereby a person obliges himself to pay money to another, on condition that the obligation shall be void, if a specific act is performed or is not performed, as the case may be; or any instrument attested to by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another;
3. “Collective Agreement” means an agreement relating to conditions of work, concluded in writing between one or more representatives of trade unions and one or more employers or agents or representatives of employers organizations;
4.”Contract of Employment” means an agreement formed where a person agrees, directly or indirectly, to perform, work for a definite or indefinite period or, piece work in return for remuneration;
5. Instrument” means a written document by which any right or obligation is or purports to be created, recorded, transferred, extinguished or by which its scope is limited or extended;
6. “Minister” means the Minister of Finance;
7. “Notarial Act” means an act of attestation and certification performed by person(s) authorized to perform such acts;
8. “Person” means any natural person or any organization irrespective of having juridical personality;
9. “to Execute Instrument” means to draw, issue, to carry into effect or to negotiate an instrument;
10. “Security Deed” means any instrument whereby a borrower or guarantor gives to a lender a charge upon a part or the whole of his property;
11. “Articles of Association” include memorandum of association;
3. Instruments Chargeable with Stamp Duty
The Following instruments shall be chargeable with stamp duty:
1. memorandum and articles of association of any business organization, cooperative or any other form of association;
4. warehouse bond;
5. contract and agreements and memoranda thereof;
6. security deeds;
7. collective agreement;
8. contract of employment;
9. lease, including sub-lease and transfer of similar rights;
10. notarial acts;
11. power of attorney;
12. documents of title to property.
4. Rates of Stamp Duty
1. The applicable rates of stamp duty for each instrument mentioned under Article 3 shall be those specified in the Schedule attached hereto and constituting an integral part hereof.
2. The rate payable at any subsequent execution of an instrument shall be as specified in the same schedule.
5. Mode of Valuation
1) Where the value of the right or obligation executed by means of an instrument can be determined, the rate chargeable on such instrument shall be the percentage of such value as specified in the schedule.
2) Where the value of the right or obligation executed by means of an instrument cannot be determined, the amount chargeable on such an instrument is the fixed amount specified for each such instrument in the schedule.
3) Where an instrument is chargeable with stamp duty in respect of any amount expressed in any currency, other than Birr, such amount shall be computed on the basis of the prevailing rate of exchange.
4) Where an instrument is chargeable with stamp duty on an ad-valorem basis in respect of any stock or of any marketable security, such amount shall be computed on the average value of the stock or security prevailing at the time when the instrument is made.
5) Any instrument comprising or relating to several distinct matters shall be chargeable with the aggregate amount of duties payable in respect of each separate instrument.
6.a) The stamp duty payable on documents transferring title shall be calculated on the value of the property involved as agreed upon between the transfer and the transferee, provided however that such valuation is approved by the Federal Inland Revenue Authority;
b) Where the value agreed between the transfer and the transferee is not acceptable to the Federal Inland Revenue Authority, the value of the property involved in the transfer of title shall, for the purpose of calculating the stamp duty, be determined by a special committee which shall be appointed for such purposes by the Federal Government Revenue Board.
1. Unless otherwise provided herein the beneficiary of an instrument shall be liable to pay the stamp duty thereon.
2. The person making (drawing) or issuing an instrument in Ethiopia shall, upon its exectuion, be liable for the payment of stamp duty provided, however, that when an instrument is made (drawn) or issued outside Ethiopia the person who is first executing it in Ethiopia shall be liable for the payment of stamp duty.
3. Unless otherwise specified in the lease agreement the stamp duty in respect of the lease agreement shall be paid by the lessee.
4. The borrower shall be liable for the payment of stamp duty chargeable on security deeds.
5. The transferee shall, unless otherwise agreed, be liable for the payment of stamp duty chargeable on documents transferring title to property.
6. Parties to a contract or to an agreement are jointly and severally liable for the payment of stamp duty thereon.
7. The employer shall be liable for the payment of stamp duty on contracts of employment.
8. Parties to an award are jointly and severally liable for the payment of stamp duty thereon.
9. The employer and employees are jointly and severally liable for the payment of stamp duty on collective agreement.
7. Time and manner of Payment
1. The stamp duty shall be paid:
a) on memorandum and articles of association, before or at the time of registration;
b) on awards, before or at the time of issuance of the award;
c) on contracts or agreements, before or at the time of signature;
d) on leases or sub-leases, before or at the time of signature;
e) on notarial acts, at the time of issuance;
f) on security deeds, before or at the time of signature;
g) on documents of title to property, before or at the time issuance is effected.
2. a) The payment of a stamp duty under Birr fifty(50) shall be effected by affixing stamp of appropriate value to the instrument.
b) When the stamp duty exceeds Birr fifty(50) or where the type and nature of instrument so requires, the Federal Government Revenues Board may by directive provide that stamp duty be paid by means other than affixing stamp.
3.a) Whoever executes or receives an instrument bearing an adhesive stamp shall at the time of execution cancel the same, so that it cannot be used again.
b) Persons required to cancel the adhesive stamp shall cancel it in such manner as will be prescribed by the Federal Inland Revenue Authority.
c) Any instrument bearing an adhesive stamp which has not been canceled as prescribed by the Federal Inland Revenue Authority shall be deemed, so far as such stamp is concerned, to be unstamped. The responsibility arising from the non cancellation of the stamp shall be on the person executing or receving the instrument bearing an adhesive stamp and not on the person submitting the document for execution.
8. Power of the Federal Inland Revenue Authority
The Federal Inland Revenue authority is hereby vested with powers to:
1. collect the stamp duty determined under, and implement the provisions of this Proclamation;
2. require persons liable to pay stamp duty to submit for its inspection any registers and books, papers, documents and proceedings necessary for the determination of stamp duty, or where necessary to require the attendance of such persons who shall give the necessary explanation in the course of its inspection of such records;
3. to determine by estimation and collect the stamp duty payable under this Proclamation if the concerned person fails to comply with its requests provided in sub-article 2 of this Article.
9. Right to Appeal
Persons dissatisfied with the decision of the Federal Inland Revenue Authority in respect of the amount of stamp Duty may, within 21 days from the date of notification of the decision rendered in writing, make an appeal against the decision to the Federal High Court.
10. Effect of nonpayment of Stamp Duty
1. No instrument chargeable with stamp duty shall be admitted in evidence for any purpose by any person having, by law or consent of parties, authority to receive evidence or shall be noted upon or authenticated by any such person or public office, unless such instrument is duly stamped.
2. Sub-article 1 of this Article shall not affect the validity of the instrument when submitted as evidence in any proceedings in a criminal court.
3. Any instrument inadmissible in evidence in accordance with this Proclamation shall be admitted in evidence on payment of two times the amount due which shall not be less than 10 Birr.
4. The application of any penalty pursuant to the foregoing Articles shall not bar the prosecution of any person in accordance with Article 12 of this Proclamation.
1. The Minister may for good cause grant exemption from payment of stamp duty.
2. Public bodies on which the Federal Government of Ethiopia Financial Administration Proclamation No. 57/1996 applies shall be exempt from payment of stamp duties.
3. Goods imported for sale by traders having import license shall be exempt from payment of stamp duty when first registered in the name of the trader.
4. Documents may be exempted from the payment of stamp duty in accordance with international agreements and conventions approved by the Government.
5. Subject to reciprocity, the Minister may grant embassies, consulates and missions of foreign states exemption from payment of stamp duty.
6. Share Certificates shall be exempt from stamp duty payable on the register of title of property.
1. Any person:
a) executing or signing, otherwise than as a witness, a document chargeable with stamp duty without the same being stamped;
b) who, with intent to defraud the appropriate payment of duty, conceals facts bearning on the true nature of any instrument;
shall be liable on conviction to a fine not less than Birr 25,000 and not exceeding Birr 35,000 and to rigorous imprisonment for a term not less than 10 years and not more than 15 years.
2. Any person:
a) appointed to sell stamps or stamped papers, who disobeys Regulations issued under this Proclamation; or
b) not so appointed, sells or offers for sell stamps or stamped papers;
shall be liable on conviction to a fine not less than Birr 5,000 and not exceeding Birr 20,000 and to rigorous imprisonment for a term not less than five years and not more than 10 years
13. Repeal and Savings
1. The stamp Duty proclamation No. 334/1987 is hereby repealed and replaced by this proclamation.
2. The provisions of the Stamp Duty Regulations No. 221/1959 shall remain in force insofar as they are not in consistent with this Proclamation.
The Federal Government Revenues Board may issue directives for the proper implementation of this proclamation.
15. Effective Date
This Proclamation shall enter into force as of the 12th day of May, 1998.
Done at Addis Ababa, this 12th day of May, 1998.
PRESIDENT OF THE FEDERAL DEMOCRATIC
REPUBLIC OF ETHIOPIA