FEC denounces the detention of economic operators following inquiries into compensation for import duties and taxes

The president of the Federation of Congo Enterprises (FEC), Albert Yuma, in a correspondence on August 18, 2020, wrote to the Attorney General at the Court of Cassation to denounce the detention of economic operators in the context of the rights compensation file. and import taxes.

“We have recently witnessed a wave of arrests of which economic operators are subject, which are systematically followed by detentions by the courts, for offenses in the context of compensation for operations linked to claims of companies on public authorities with those relating to certain duties and taxes,  ”writes Albert Yuma in his correspondence.

For the FEC, with these arrests “there is a risk in wanting to incriminate economic operators within the framework of very lawful operations and unrelated to any violation of criminal law, as long as we understand their modus operandi”.

Referring to a letter from the former Minister of Finance, Henri Yav, of March 2019 addressed to the Director General of the DGDA, the President of the FEC reminds the Attorney General that there is indeed a mechanism for the compensation of duties and taxes on importation with claims of operators on the Congolese State and represented by fiscal obligations.

It follows from this, maintains the Yuma, the Head of the FEC, that “compensation is a method of extinguishing certain, liquid and payable debts from legal persons governed by public law, within the meaning of the combination of articles 132, 181 and following of the Decree of July 30, 1888 on contracts and conventional obligations and 30 of the OHADA Uniform Act relating to simplified collection procedures and means of execution ”.

Consequently, the FEC considers that the compensation cannot, on the one hand, be considered as a unilateral favor and without counterpart, and on the other hand, that it is perfectly lawful only in the presence of reciprocal claims of economic operators on legal persons governed by public law and vice versa, compensation can be used for the extinction of debts.

For the cases under examination, the Congolese employers maintain that the debts of the concerned economic operators having been used for the compensation operations have “a proven legal and economic basis”, through acts of recognition.

”  The concerns of the Federation of Congo Businesses are all the more justified in this case as it seems to emerge that the legal action is being conducted under the seal of the violation of the rule of continuity of the ‘State and public service (the commitments made by the authorities in the name of the State must continue to deploy their effects), as such an action gives the singular impression that we want to wipe out a clean slate, without however worrying about the possible responsibility of the State,  ”he added.

Faced with all these kinds of questions, the president of the FEC fears that the rule of law advocated by the President of the Republic, Félix Tshisekedi, is “overused”. He believes that the rule of law is also respect for private investment and that of the postulate that no one can be prosecuted, arrested, detained or sentenced except by virtue of the law and in the forms that this here prescribed.

Faced with the weakness of public revenues, the government has lifted the option of tracking down tax evaders in order to replenish its coffers. Thus, in recent weeks, public services including the General Inspectorate of Finance and the Judicial Police of the Prosecutor’s Office have been investigating exemptions and other undue tax advantages that would benefit certain economic operators in the Democratic Republic of the Congo.