Vol. 5 Num 568 Sat. December 31, 2005  

Whither the tax ombudsman?

In its 17th session, parliament passed the tax ombudsman bill, 2005. The bill passed by parliament became an act (act no. 19 of 2005) of parliament when the president assented to it on July 12, 2005. Mentionable that in his budget (2004-2005) speech on June 10, 2004 the minister for finance and planning M Saifur Rahman disclosed the government plan for setting up the office of the tax ombudsman to settle tax-complaints and tax-demand. Enactment of a law for the establishment of the office of the tax ombudsman has been welcomed by the taxpayers and the media.

The act has prescribed qualifications and disqualifications for appointing the tax ombudsman. A person shall be eligible for appointment as tax ombudsman if he has a minimum of 20 years' direct or indirect experience in tax administration or profession, general or financial administration, law or judiciary. A person shall not be eligible for appointment as tax ombudsman if he (a) is not a citizen of Bangladesh; (b) is declared loan defaulter by any bank or financial institution; (c) is declared / identified by national board of revenue (NBR) as tax defaulter; (d) is an undischarged insolvent; (e) has been, on conviction for a criminal offence involving moral turpitude or corruption, sentenced to imprisonment by a competent court; (f) is in government service; (g) has been subjected to any major penalty in any departmental proceedings while in government service; (h) is incapable of discharging duties due to infirmity of mind or body; (i) is above 67 years of age.

Appointed for a term of four years the tax ombudsman, according to the act, will make an investigation into a complaint made by an aggrieved person against the misdeeds of tax officials in matters relating to assessment of income, tax or customs duty, classification of commodities or valuation thereof or on the basis of reference from the president, prime minister, finance minister, parliament. He may also institute suo moto inquiry against the NBR or any of its officials for their any misdeeds.

If, after investigating a complaint, the tax ombudsman is of the opinion that injustice has been done to the complainant, he will send his written recommendation to the NBR within 15 days from the date of completion of the inquiry. The NBR will implement the recommendation(s) within 60 days from the date of receipt of such recommendation(s) and inform the tax ombudsman. If the NBR is unable to implement the recommendation(s), it will inform the tax ombudsman the reasons for non-implementation of the recommendation(s). The tax ombudsman will bring such cases to the notice of the finance minister who may (a) direct the NBR to implement the recommendation(s) of the tax ombudsman; (b) request the tax ombudsman to reconsider his recommendation(s); (c) take such action as he deems fit.

The act provides that for investigating a complaint, the tax ombudsman or any authorised person will have the power to serve summons and collect deposition from the witnesses on administering oath and issue warrants for interrogation of witnesses and examination of records. If the tax ombudsman feels that a person is able to furnish with relevant information to help investigate a case, he can ask that person to furnish with the relevant information and the person concerned will be legally bound to furnish with the information he has in his possession. For the failure to comply with such orders by the NBR or any of its officials, the members of the NBR will be jointly and severally responsible and in the case of an official he will be personally responsible. If the tax ombudsman is convinced that a tax official has behaved in such a way that demands criminal or departmental proceedings against him, he may bring the matter to the notice of the superior authority of the officer concerned and the appropriate authority will take necessary action according to the recommendation(s) of the tax ombudsman.

The references received from the president, prime minister, finance minister or parliament will be quickly inquired by the tax ombudsman. The findings and recommendations of inquiry/ inquiries shall be sent to them within a reasonable period.

In order to assist him in the discharge of his functions, the act has empowered the tax ombudsman to (a) appoint necessary consultants, experts, liaison officers and other employees, (b) constitute one or more inspection teams comprising his officers and employees or any other person/ persons concerned, and (c) constitute one or more advisory committees.

Making the office of the tax ombudsman functional early is necessary primarily due to the following reasons:

First, it is a regular feature that revenue collection falls short of target. The NBR, which collects about 90 percent of total tax revenue and 80 percent of total revenue of the government, generally ascribes the failure to ambitious revenue collection target of the government. But the ground reality is different to a great extent. Many knowledgeable people are of opinion that 'the major barrier to revenue collection is the public fear and negative image of taxation officials. Some people are very rich but uneducated and rely on income tax lawyers for settling tax-related matters. Sometimes corrupt tax lawyers manage taxation officials to make assessment on the lower side and thereby deprive the public exchequer of appropriate amount of tax. Some dishonest tax inspectors make wrong and unusually huge amount of assessment allegedly to blackmail honest taxpayers and compel them to pay extra money. Most of the time tax evaders can manage NBR people to make unusually small assessments. As a result, there remains perennial disbelief between taxpayers and tax collectors.'

Second, the tax ombudsman will work as an intermediary between the tax payers and the tax department. The aggrieved tax payers may find relief from the harassment of the tax officials without going to the tax appellate tribunal or to the court, which is a costly affair.

Third, the tax department is one of the most corrupt departments in the country. Transparency International Bangladesh (TIB) conducted 'Corruption in Bangladesh: A household survey' to find out the nature of corruption, the broad spectrum, depth and losses made by corruption between September 10 and October 24, 2004 in approximately 3,000 households of 55 districts revealed that 49 percent of households paid bribes to income tax offices, while 9 percent of households had to bribe the offices concerned for holding tax payment. The tax department officials took TK. 167.73 crore a year from the income taxpayers and TK. 39.18 crore from the holding taxpayers. Efficient functioning of the office of the tax ombudsman may help reduce unbridled corruption in the tax department.

Last but not the least, the office of the tax ombudsman is expected to play an important role in establishing transparency and accountability in the revenue administration.

Unlike ombudsman, the tax ombudsman shall not hold a constitutional post. According to the ombudsman act, 1980 made pursuant to article 77 of our constitution, the president shall appoint ombudsman on the recommendation of parliament. But appointment of the tax ombudsman is at the pleasure of the executive, that is, the president shall appoint the tax ombudsman on the recommendation of the prime minister.

To conclude, although more than five months have elapsed since enactment of the tax ombudsman act, appointment to the post of tax ombudsman is yet to take place. The finance and planning minister recently said that he was in search of a suitable person to be appointed as tax ombudsman. Hopefully, a long search will not lead to appointment of somebody as tax ombudsman on partisan consideration; rather a proven track record of efficiency, dynamism, honesty, integrity and patriotism should be the criteria in appointing someone to the position. The earlier the office of the tax ombudsman is made functional, the better it is for good governance and the taxpayers.

M. Abdul Latif Mondal is a former Secretary to the Government