Ø ANNEXURES
TABLE OF
CONTENTANNEXURES
Ø CEMAC Tax Convention of 13th December 1966
Ø Convention on Mutual Administrative Assistance in Tax
Matters 14th December 1966
Ø Agreement on judicial cooperation between the CEMAC
Member States of 28th January 2004
TABLE OF CONTENT
TABLE OF CONTENT
DISCLAIMER
ii
DEDICATION
iii
ACKNOWLEDGEMENTS
iv
LIST
OF ABREVIATION
v
ABSTRACT
vi
RESUME
vii
SUMMARY
viii
GENERAL
INTRODUCTION
1
I- Background and justification of the study
1
II- Delimitation of the study
3
A- Geographical delimitation
3
B- Temporal delimitation
4
C- Material delimitation
4
II- Definition of key terms
4
A- Judicial cooperation
4
B-Tax Evasion
6
C-Tax Avoidance
8
D-The CEMAC Zone
9
III- Interest of the study
10
A- Academic interest
10
B- Practical interest
10
IV- Literature Review
11
V- Problem statement
14
VI- Hypothesis
15
VII- The theoretical and methodological framework of
the study
16
A- The theoretical framework
16
B- The methodological framework
17
PART
I
20
AN
ANALYSIS OF THE ROLE OF JUDICIAL COOPERATION WITHIN THE FRAMEWORK OF THE FIGHT
AGAINST TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE
20
CHAPTER
I: AN OVERVIEW OF TAX EVASION AND TAX AVOIDANCE IN THE CEMAC ZONE
22
SECTION I: THE POLITICAL AND LEGAL DIMENSION OF
JUDICIAL COOPERATION
22
PARAGRAPH I: THE POLITICAL DIMENSION OF JUDICIAL
COOPERATION
22
A: The active role of the representatives of the
executive within the CEMAC zone
23
1: The conference of Heads of State
23
2: The Council of Ministers of UEAC and the
Ministerial Committee of UMAC
23
B: The council of ministers of OHADA
24
1: The Permanent Secretariat: role in preparing the
Uniform Acts
24
2: The Council of Ministers: role of deliberation and
adoption
24
C: The influence GABAC and FATF
25
1: GABAC
25
2: FATF
25
PARAGRAPH II: THE LEGAL DIMENSION OF JUDICIAL
COOPERATION
26
A: The rules adopted by the CEMAC legislator
26
B: The harmonisation of sanctions provided by OHADA
27
C: The constitutive elements of tax evasion and tax
avoidance
27
1: tax evasion
28
a- the legal element
28
b- the material element
28
c- the intentional element
28
2: tax avoidance
28
SECTION II: THE MECHANISMS OF TAX EVASION AND TAX
AVOIDANCE
29
PARAGRAPH I: FORMS OF TAX EVASION AND AVOIDANCE
29
A: Forms of tax evasion
29
1: at the national level
29
a- voluntary omission to declare
29
b- Voluntary concealment of amounts subject to tax
30
c- Making fictitious or inaccurate entries in the
accounting books
30
d- Issuance of false invoices
30
e- Opposition to the action of the Tax Administration
30
2: at the international level
31
a- The overstatement of the prices of goods purchase
abroad
31
b- understatement of export selling prices
31
c- The transfer of profits by overstating or
understating the turnover or expenses
31
d- The Remuneration for fictitious services
31
B: forms of tax avoidance
32
1- Tax heavens
32
a- The role of tax heavens in tax avoidance
32
b- The impacts of tax heavens
33
2
- Other forms of tax avoidance
33
PARAGRAPH II: CAUSES AND CONSEQUENCES OF TAX EVASION
AND AVOIDANCE
34
A: causes of tax evasion and tax avoidance
34
1- Causes of tax evasion
34
a- The inadequacy of the tax system
34
b- The economic hardship
34
c- Mentalities
35
d- Tax pressure
35
e- The quest for easy gain
35
f- Denial of constraints
35
2- Causes of tax avoidance
36
B: consequences of tax evasion and tax avoidance
36
1- Consequences of tax evasion
36
a- On the national plan
36
b- On the international plan
37
2- Consequences of tax avoidance
37
a- Impact on financial resources
37
b- Impacts on developing countries
37
CONCLUSION OF CHAPTER I
38
CHAPTER
II: THE OPERATIONAL ASPECTS OF THE COOPERATION IN PREVENTING TAX EVASION AND
TAX AVOIDANCE IN THE CEMAC ZONE
39
SECTION I: THE JUDICIAL ASPECTS OF THE COOPERATION IN
THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE
39
PARAGRAPH I: THE INSTITUTION OF COMMUNITY TAX NORMS
AND THE MATERIALISATION OF THE COOPERATION
39
A: The foundation of community tax norms
40
1: The immediacy of community directives
40
2: The principle of the primacy of the community tax
norm
41
B: The material dimension of the judicial cooperation
41
1: the harmonisation of taxes
42
a: the harmonisation of indirect taxes
42
b: the harmonisation of direct taxes
44
2: tax treaties
47
a: multilateral tax convention on the elimination of
double taxation
47
b: tax convention on mutual exchange of information
49
3: community monitoring of transfer pricing
50
PARAGRAPH II: THE PRACTICAL ASPECTS OF JUDICIAL
COOPERATION WITHIN THE FRAMEWORK OF THE FIGHT AGAINST TAX EVASION AND TAX
AVOIDANCE
51
A: mutual legal assistance
51
1: international rotatory commission
51
2: the transfer of judicial acts
52
3: extradition
52
B: denunciation for prosecution and execution of
judgments
53
1: denunciation for prosecution
53
2: exequatur
54
SECTION II: THE ADMINISTRATIVE ASPECT OF THE
COOPERATION
54
PARAGRAPH I: THE MODALITIES OF EXCHANGE OF INFORMATION
55
A: the automatic exchange of information
55
B: administrative assistance on request
55
1: preliminary considerations
55
2: Form of the request
56
PARAGRAPH II: THE NATURE AND CHARACTERISTICS OF
INFORMATION EXCHANGED
56
A: the character of information contained in the
request
56
1: the confidentiality of the information
56
2: Reciprocity
56
B: the nature of information
57
CONCLUSION OF CHAPTER II
58
CONCLUSION
OF PART I
59
PART
II: THE PROBLEMATIC INHERENT IN PREVENTING TAX EVASION AND TAX AVOIDANCE AND
THE NECESSITY OF ADOPTING A NEW APPROACH IN OTHER TO ENHANCE JUDICIAL
COOPERATION IN THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE WITHIN THE CEMAC
ZONE
60
CHAPTER
III: CHALLENGES FACING JUDICIAL COOPERATION IN PREVENTING TAX EVASION AND
AVOIDANCE IN THE CEMAC ZONE
62
SECTION I: FACTORS ACCOUNTING FOR THE LIMITED ROLE OF
JUDICIAL COOPERATION WITHIN THE FRAMEWORK OF THE FIGHT AGAINST TAX EVASION AND
TAX AVOIDANCE
62
PARAGRAPH I: INSTITUTIONAL FACTORS
62
A: laxity of the process of adoption and ratification
of community texts
62
1: The impact of the unanimity rule in matters of
judicial cooperation
63
2: The gap between adoption and ratification
63
B: the scarcity of Community institutions in charge of
judicial cooperation
64
PARAGRAPH II: STRUCTURAL FACTORS
65
A: Conditional extradition in tax matters
65
B: the protection banking secrecy
65
C: systemic corruption
66
SECTION II: THE LACUNAS OF THE CURRENT JUDICIAL AND
ADMINISTRATIVE COOPERATION INSTRUMENTS
68
PARAGRAPH I: THE ABSENCE OF A HARMONISED SUB-REGIONAL
APPROACH ON THE MODALITIES OF JUDICIAL COOPERATION
68
A: The timid harmonisation of tax legislation
68
B: The significant weight of sovereignty claims by
CEMAC member States
69
PARAGRAPH II: THE DISUSE OF SUB-REGIONAL
ADMINISTRATIVE ASSISTANCE IN THE CEMAC ZONE
69
A: The anachronistic nature of community
administrative assistance instruments
69
B: The failure to adopt a community approach based on
the new modalities of administrative assistance
70
CONCLUSION OF CHAPTER III
71
CHAPTER
IV: THE NEED OF ADOPTING A NEW APPROACH IN OTHER TO ENHANCE JUDICIAL
COOPERATION IN THE FIGHT AGAINST TAX EVASION AND TAX AVOIDANCE WITHIN THE CEMAC
ZONE
72
SECTION I: THE NECESSITY OF A NEW APPROACH IN MATTERS
OF ADMINISTRATIVE ASSISTANCE IN OTHER TO ENHANCE JUDICIAL COOPERATION
72
PARAGRAPH I: THE IMPERATIVE OF ADOPTING A MULTIFACETED
COMMON POLICY ON TAX ASSISTANCE
72
A: the adoption of automatic exchange of information
73
B: the institution of a legal framework governing
automatic exchange of information
73
C: the reinforcement of the means of institutions in
charge of assistance
74
1: the creation of a central African tax commission
74
2: the establishment of tax attachés and a
central liaison office
74
a: The role of the tax attaché
75
b:The role of the central liaison office
75
PARAGRAPH II: THE EXTENSION OF COOPERATION OUT OF
CEMAC BOUNDARIES
76
A: an assistance between CEMAC and other Africans
States
76
1: the need for the signature of a cooperation
agreement between CEMAC-ECOWAS-ECCAS on tax assistance
76
2: the urgent need of a tax assistance agreement
between CEMAC and Nigeria
77
B: the extension of the cooperation with international
organisation
77
1: The OECD contribution to administrative assistance
77
2: The IMF expertise in matters of administrative
assistance
78
SECTION II: THE URGENT NEED TO REVITALISE SUB-REGIONAL
JUDICIAL COOPERATION
79
PARAGRAPH I: THE HARMONISATION OF SANCTIONS AGAINST
TAX OFFENCES
80
A: The harmonisation of sanctions by the community
legislator
80
B: The techniques of harmonisation of community
sanctions
81
PARAGRAPH II: THE ENHANCEMENT OF JUDICIAL INSTITUTIONS
82
A: The consecration of the principle of mutual
recognition of courts decisions by the CEMAC member States
82
1: the application of the principle of res judicata in
tax matters
82
2: the consecration of executory force of courts
decisions delivered at the community level
83
B: Recommendations for an efficient judicial
cooperation
84
1: the creation of community institutions in charge of
coordinating judicial cooperation
84
2: the creation of a financial prosecutors office at
the community level
85
CONCLUSION OF CHAPTER IV
86
CONCLUSION
OF PART II
87
GENERAL
CONCLUSION
87
BIBLIOGRAPHY
87
ANNEXURES
87
TABLE
OF CONTENT
87
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