Ordinance-Law No. 13/005 of 23 February 2013 amending and supplementing certain provisions of Act No. 004/2003 of 13 March 2003 on tax reform

President of the Republic,

In view of the Constitution, as amended by Act No. 11/002 of 20 January 2011 on the revision of certain articles of the Constitution of the Democratic Republic of the Congo, especially in its articles 129 and 221;

Having regard to Act No. 13/007 of 22 January 2013 empowering the Government;

Revu, as amended and supplemented to date, Act No. 004/2003 of 13 March 2003 on tax reform;

Revu l’Ordonnance-loi n° 008/2012 du 21 septembre 2012 amend et compléter certaines dispositions de la loi n° 004/2003 du 13 mars 2003 portant réforme des procédure fiscales ;

On the proposal of the Government deliberated in the Council of Ministers,

O R D O N N E:

Article 1:

Sections 3, 5, 17, 23, 28, 31, 43, 52, 63, 66, 72, 86, 89, 91, 92, 93, 94, 97, 98, 99, 105, 105 bis, 105 ter, 108 and 111 of Act No. 004/2003 of 13 March 2003 on tax reform are amended and supplemented as follows:

“Article 3:

The persons referred to in Article 1 above shall be required to subscribe, under the conditions and deadlines provided for in Chapter II of this Title, to statements in accordance with the model provided by the Administration of Taxes.

They can do so either on paper or electronically. They determine, in these declarations and under their own responsibility, the tax bases and the amount of taxes and other duties due, in accordance with the legal provisions.

Paper statements, duly completed, dated and signed by the debtors or their representatives, are filed with the relevant departments of the Tax Administration.

The terms and conditions for the subscription of statements electronically are set by Order of the Minister with Finance in his or her powers.

In the event of the death of the debtor, statements must be made by his or her heirs, legataries and universal donates or by their agents.

Statements must be made even if the debtor is exempt.

Exempt persons are exempted from the obligation to subscribe to the declarations, with the exception of those relating to their taxes.

Without prejudice to the provisions of the preceding paragraph, local diplomatic missions and international organizations themselves subscribe to the relevant services of the Tax Administration, the declarations on remuneration allocated to them and pay the corresponding tax.

However, these diplomatic missions and international organizations may sign such declarations on behalf of their local commitments and pay the corresponding tax."

“Article 5:

Any debtor who has refrained from subscribing his or her statement within the time limit is the subject of a letter of relaunch, which will continue to declare. In this case, it has a period of five days from the receipt of the letter of revitalization to regularize its situation, the stamp of the post or the delivery slip. This provision does not apply in the event of recidivism.

However, with regard to diplomatic missions and international organizations, the letter of revitalization is sent directly to their local staff."

“Article 17:

Any natural or legal person, liable for the professional remuneration tax and the exceptional tax on the remuneration of expatriate staff, is required to make a return on a monthly basis, within 10 days of the month in which the remuneration was paid or made available to the beneficiaries.

This declaration must be accepted even if the remuneration is not paid. In this case, it bears the reference to "Nothing" in respect of paid remuneration and corresponding tax".

“Article 23:

Debts of profits and profits tax and of turnover tax must, for each transaction, issue an invoice or document in lieu of which references are determined by regulation."

“Article 28:

The Tax Administration Officers, with an audit order signed by the competent official, may verify, on site, the accuracy of the statements made by the debtors.

The audit may be general or ad hoc.

The general audit covers all taxes and taxes throughout the unspecified period.

The point check consists of a single tax control over a period below a fiscal year.

It operates at the company’s headquarters or instead of its principal establishment during the hours of service. In the case that, for objective reasons, control cannot be carried out in these places, the debtor must expressly request that it be carried out, either in the offices of his accountant or in the premises of the Tax Administration.”

“Article 31:

Where the Treasury’s interests are likely to be compromised, the Tax Administration may proceed without delay to an unannounced audit. In this case, the audit notice is delivered to the taxpayer in the first intervention. During this first intervention, transactions must be limited to material findings, including inventories, price surveys and controls for the existence of mandatory accounting documents.

The control itself will only begin under the conditions and time limits set out in the previous section, so that the taxpayer may be assisted by counsel of his or her choice.

The unannounced audit may also cover the professional tax on remuneration and the exceptional tax on the remuneration of expatriated personnel, in case of concealment of taxable elements to be used monthly as a basis for calculating these taxes.”

“Article 43:

The Tax Administration has the right to recall taxes or tax supplements due by debtors for the current year and four previous years. However, where the value-added tax credit for which the refund is sought originates in the period prior to the recall fee, the Tax Administration may exercise its right even beyond that period.

The period referred to in paragraph 1 above shall be interrupted by the notice of recovery, by the declaration or any other act that includes recognition of the tax on the part of the debtor or by the notification of a record of finding a tax offence.

When a civil, commercial or criminal proceeding or any other administration has revealed the existence of tax-related fraud, this period is short from the date of the disclosure of the facts.”

“Article 52:

Any person whose activity enters the scope of taxation is required to provide, within twenty days, to the Tax Administration the information requested to it and to submit to any requisition of the agents referred to in section 46 above, the books prescribed by the tax regulations, as well as the accompanying documents and documents.

“Article 63:

Prosecutions are carried out under the constraints of the Tax Receiver.

Before taking office, the Tax Receiver is sworn in before the High Court of Appeal.

The oath formula and the special requirements to access the Tax Receiver function are determined by regulation."

“Article 66:

Prosecution measures include:

- Notifications to Third Detentors;

- the securities, real estate and the resulting sales;

- the temporary closure of the establishments by the affixing of seals".

“Article 72:

All disputes relating to payment of dues and prosecutions are investigated by the Tax Receiver.

In the event of a dispute about the validity and form of the proceedings, the opposition suspends the execution of the seizure until the judicial decision.

The judicial decision referred to in the preceding paragraph must be rendered within thirty days of the court’s referral. In the absence of a judicial decision within this period, the suspension of the execution of the seizure is lifted".

“Article 86:

When making tax supplements or ex officio taxation, the basis for calculating recovery penalties is only the amount of the principal amount of the fees elected, reconstituted or fixed by law.

In the event of payment beyond the time limit set out in section 60 of this Act, recovery penalties shall be calculated on the basis of the amount of fees and penalties for the sum of the sum of the sum of the fees and the sum of the sum of the sum of the sum of the sum of the fees and the penalties for the sum of the sum.

“Article 89:

When the default debtor regulates its situation within the time limit set out in section 5 of this Act, the applicable increase is 25%.

In the event of an ex officio taxation for the absence of a declaration to be used in the calculation of any tax or accompanying the payment of a fee, an increase equal to 50% of the amount of the tax owing shall be applied. In the event of recurrence, the increase is 100% of the same amount.

In other cases of ex officio taxation, the tax is increased by 25%. In case of recidivism, the tax is increased by 50%.

In the event of a recovery, the taxpayer is charged a 20 per cent increase in the amount of the tax elected. In the event of recurrence, the increase is 40% of the same amount."

“Article 91:

Any delay in the payment of all or part of the taxes and other rights results in the application of a moratorium interest equal to 4% per month of delay.

The moratorium interest is deducted on the first day of the month in which the tax should have been paid on the day of the month of the actual payment, since all months began to be counted in full.

The Minister with Finance in his or her powers is authorized to amend the rate referred to in paragraph 1 of this section by regulation."

“Article 92:

Apart from any control procedure, the refusal to respond, within the legal period, to a request for information, is punishable by a tax offence equal to 100,000 Congolese francs for legal persons and 25.000 Congolese franc for physical persons, per day of delay, until the day the requested information is provided.

The amount referred to in the preceding paragraph is determined by the service that requested the information and claimed by way of a notice of recovery."

“Article 93:

The absence of annexes to the tax return on profits and profits is punishable by a fine of 10,000 Congolese francs per annex. In case of recidivism, this fine is extended to 200,000 Congolese Francs".

“Article 94:

The absence of a tax-calculation statement is punishable by a fine of 500,000

Congolese francs for legal persons and 250,000 Congolese francs for natural persons.

This includes a statement not used to calculate the tax:

- the quarterly statement of payments to third parties;

- the monthly statement of prepayments."

“Article 97:

Under the conditions provided for in article 92 above, the communication of false information is punishable by a fine of 1.500,000 Congolese francs for legal persons and 250,000 Congolese francs for natural persons.

The communication of incomplete information is punishable by a fine of 750,000 Congolese francs for legal persons and 125,000 Congolese francs for natural persons".

“Article 98:

The exercise of an activity subject to tax without first completing the formality prescribed in section 1 of this Act is punishable by the provisional closure as well as by a fine of 1,000,000 Congolese francs for legal persons, 100,000 Congolese francs for natural persons engaged in trade or a liberal profession and 50,000 Congolese francs for natural persons receiving rental income.

The fine referred to in the preceding paragraph is established and recovered at the time of the reopening of the establishment that occurs after the designation of the Tax Number.

In addition to the provisional closure, the tax situation of the failing taxpayer is regulated by the structure in charge of its management, in accordance with the recall right set out in section 43 of this Act".

“Article 99:

The penalties set out in this Act are established and recovered in the same manner and under the same guarantees as the rights to which they relate.

The collection penalties calculated upon payment of fees beyond the time limit set out in section 60 of this Act are claimed, on the initiative of the Tax Receiver, by way of a notice of recovery”.

“Article 105:

The decision of the Tax Administration must be notified within six (6) months of the date of receipt of the claim. The absence of a decision within the time frame is considered a decision to reject the claim.

As long as a decision has not taken place, the debtor may complete its original claim by new written means.

Even after the expiry of the claim period, the competent official shall grant deduction of overtaxes resulting from material errors or duplication.

However, if the tax is already paid, the surplus will only be credited to the debtor’s current tax account if the overtax is found or reported within three years of receipt”.