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[F.A.Q.]
Fiji Sessional Legislation |
GOVERNMENT OF THE SOVEREIGN DEMOCRATIC REPUBLIC OF FIJI
DECREE NO. 45 OF 1991
VALUE ADDED TAX DECREE 1991
ARRANGEMENT OF SECTIONS
Section
PART I - PRELIMINARY
1. Short title and commencement
2. Interpretation
3.
Meaning of term "supply"
4. Meaning of term "taxable activity"
5. Decree
to bind Government
PART II - ADMINISTRATION
6. Administration of the tax
7. Official Secrecy
8.
Disclosure of information
9. Extension of time
10. Audit
11. Demand for
additional information
12. Rights of access and inspection
13. Power to
take samples
PART III - IMPOSITION OF TAX ON IMPORTS
14. Imposition of tax on imports
PART IV - IMPOSITION OF TAX ON SUPPLY
15. Imposition of tax on supply
16. Place of
supply
17. Place where supplier or recipient of services belongs
18. Time
of supply
19. Value of supply of goods and services
20. Second-hand
goods
21. Reverse charge on supplies received from abroad
PART V - REGISTRATION
22. Persons making taxable supplies to be
registered
23. Cancellation of registration
24. Registered person to
notify of change of status
25. Liabilities not affected by ceasing to be
registered person
26. Unincorporated bodies
27. Branch or division
28
Personal representative, liquidator, receiver, etc
29. Liability of agent of
non-resident principal for returns and tax
30. Agents and auctioneers
31.
Liability of new companies for tax payable by former companies with
substantially the same shareholders or under the same control
PART VII - RETURNS AND PAYMENT OF TAX
32. Taxable periods
33. Returns
34. Special
returns
35. Other returns
36. Accounting basis
37. Particulars to be
furnished and prepared where change in accounting basis
38. Tax payable, or
refund, where change in accounting basis
39. Calculation of tax
payable
40. Payment of tax
41. Tax invoices
42. Credit and debit
notes
43. Bad debts
PART VIII - ASSESSMENT OF TAX
44. Assessment of tax
45. Validity of the
assessment
46. Assessment deemed correct except in proceedings on
objection
47. Evidence of returns and assessment
48. Limitation of time
for issue of an assessment or amendment of assessment
PART IX - OBJECTION AND APPEALS
49. Objection to determination to treat
50. Objection
to assessment
51. Establishment of Value Added Tax Tribunal
52. Registrar
of the Tribunal
53. Rules of Tribunal
54. Tribunal Sittings
55.
Tribunal to decide and notify appellant and Commissioner
56. Proceedings
ex-paste
57. Costs
58. Appeal to High Court
59. No assessment to be set
aside for technical reasons
PART X - RECOVERY OF TAX
60. Additional tax to be payable if default made in the
payment of tax
61. Recovery of Tax
62. Unpaid tax constitute charge on
registered persons' property
63. Deduction of tax from payment due to
defaulters
64. Application of section 77 of income to recovery
procedures
PART XI - REFUNDS AND RELIEF FROM TAX
65. Refund of excess tax
66. Tax paid in excess may be
set off against additional tax where assessment re-opened
67. Interest on
late refunds
68. Power of Commissioner in respect of small amounts
69.
Refund for overpaid deposit on temporary imports
70. Relief from tax
PART XII - OFFENCES AND PENALTIES
71. Offences
72. Penalty for specified offences
73.
Penalty for aiding, abetting, etc
74. General penalty
75. Officers and
employees of registered person
76. Penalty in case of evasion
77. Failure
to furnish returns
78. Proceedings to be taken summarily
PART XIII - MISCELLANEOUS
79. Keeping of records
80. Contracts for avoidance of
tax
81. Liability to pay past tax
82. Price to be displayed
83. Fiji
currency
84. Regulations
PART XIV - TRANSITIONAL PROVISIONS
85. Registration of persons liable to be registered on 1
July 1992
86. Deduction for Customs and Excise Duty
87. Supplies prior to
1 July 1992
88. Effect of imposition of tax
PART XV - AMENDMENTS AND REPEALS
89. Amendments and Repeals
SCHEDULES
First Schedule - Exempt Supplies
Second Schedule -
Zero-rated supplies
Third Schedule - Forms
--------------------------------
In exercise of the powers vested in me as President of the
Sovereign Democratic Republic of Fiji and Commander-in-Chief of the Armed
Forces, and acting in accordance with the advice of the Prime Minister and the
Cabinet, I hereby make the following Decree:
PART I - PRELIMINARY
1. Short title and
commencement
(1) This Decree may be cited as the Value Added Tax
Decree 1991.
(2) This Decree shall come into force on the first day of
July, 1992.
2.
Interpretation
(1) In this Decree unless the context otherwise
requires -
"Additional tax" means the additional tax payable under section 60 of this Decree;
"Agent" includes every person who in Fiji, for or on behalf of any person out of Fiji, holds or has the control, receipt or disposal of any money belonging to such person, and every person declared by the Commissioner to be an agent under this Decree, and includes an authorised officer (within the meaning of Section 41 of the Income Tax Act 1974) and a sub-agent;
"Agriculture", without limiting the meaning of the term, includes coconut planting, dairy farming, fruit growing, sugar cane growing, all forms of animal husbandry, poultry keeping, grazing, market gardening, horticulture and epiculture; but does not include silviculture;
"Arms-length transaction" means a transaction where the following conditions do not apply: the recipient is a body of persons over whom that supplier has control, or the supplier is a body of persons over which the recipient has control, or both the recipient and the supplier are bodies of persons, and some other person has control over both of them;
For the purposes of this definition "control" means, in the case of a body corporate, the power of a person to secure, by means of the holding of shares or the possession of voting power in, or in relation to, that or any other body corporate, or by virtue of any powers conferred by the Articles of Association or other documents regulating that or any other body corporate, that the affairs of the first-mentioned body corporate are conducted in accordance with the wishes of that person, and, in the case of a partnership, the right to a share of more that one-half of the partnership assets or income;
"Chief Assessors" means Chief Assessors as appointed by the Public Service Commission under this Decree;
"Commissioner" means the Commission of Inland Revenue appointed under the Income Tax Act 1974;
"Company" means a company as defined in the Companies Act, Cap. 274, or a body corporate formed under any statute or charter, and includes every unit trust;
"Comptroller" means the Comptroller of Customs and Excise appointed under the Customs Act 1986;
"Consideration", in relation to the supply of goods and services to any person, includes any payment made or any act or forbearance, whether or not voluntary, in respect of, in response to, or for the inducement of, the supply of any goods and services, whether by that person or by any other person; but does not include any payment made by any person as an unconditional gift to any non-profit body;
"Consideration in money" includes consideration expressed as an amount of money;
"Document" includes any electronic data, computer programmes, computer tapes, and computer discs;
"Due date" in relation to the payment of tax by any person, means the last day for the payment in subsection (1) of Section 38, Section 40 or subsection (4) of Section 44 of this Decree, as the case may be, in respect of that registered person;
"Exempt supply" means a supply described in the First Schedule to this Decree;
"Fiji" includes the air space, the internal waters, the Archipelagic waters and the territorial seas of Fiji, defined in the Marine Spaces Act, Cap. 158A;
"Goods" means all kinds of personal and real property, but does not include choses in action or money;
"Grant" means any Standard Expenditure Group 6 or Standard Expenditure Group 10 payment other than a payment which is an income transfer payment, a loan, an advance or an equity injection;
"Hire", in relation to goods, includes a letting on any terms, including a lease;
"Independent of each other", in relation to a supplier and a recipient, means the supply is an arms-length transaction;
"Input tax", in relation to a registered person, means -
(a) tax charged under Section 15 of this Decree on the supply of goods and services made to that person:
(b) tax levied under Section 14 of this Decree on goods imported under the Customs Act 1986 by that person;
"Local authority" includes any municipality established under the Local Government Act, Cap. 125, any provincial council established under the Fijian Affairs Act, Cap. 120, and any council established under the Banaban Settlement Act, Cap. 123 or the Rotuma Act, Cap. 122;
"Minister" means the Minister responsible for finance;
"Money" includes the currencies of Fiji and any other country, postal and money orders, promissory notes and bills of exchange;
"Non-profit body" means any society, association, organisation, whether incorporated or not, -
(a) which is carried on other than for the purposes of profit or gain to any proprietor, member, or shareholder; and
(b) which is, by the terms of its memorandum, articles of association, rules, or other document constituting or governing the activities of that society, association, or organisation, prohibited from making any distribution whether by way of money, property, or otherwise howsoever, to any such proprietor, member, or shareholder;
"Open market value", in relation to a supply of goods and services, means the consideration in money that would be expected to be payable for that supply, being a supply at that date in Fiji, between a supplier and a recipient independent of each other;
"Output tax", in relation to a registered person, means the tax charged pursuant to Section 15 of this Decree in respect of the supply of goods and services made by that person;
"Person" includes a company, an association or body of person, corporate or unincorporate, a local authority and a public authority;
"Produce" means the produce, in a raw and unprocessed state, from the activity of agriculture and includes any fruits, vegetables and root, crops of the forest, fish and other aquatic produce;
"Produce supplier" means a person who, in the course or furtherance of all taxable activities carried on by that person, supplies produce and the supply of that produce constitutes at least ninety percent of that person's total value of supplies and the balance of the goods and services supplied by that person is produce but not in a raw and unprocessed state:
Provided that any such person shall not cease to be a produce supplier as a consequence of -
(a) any cessation of, or any substantial and permanent reduction in the size or scale of, any taxable activity carried on by that person; or
(b) the replacement of any plant or other capital assets used in any taxable activity carried on by that person.
"Public authority" means all instruments of the Government of the Republic of Fiji, whether departments, ministries, agencies, or other instruments;
"Rates" has the same meaning as in the Local Government Act, Cap. 125 and includes any amount imposed by a provincial council or any council established under the Banaban Settlement Act, Cap. 123 or the Rotuma Act, Cap. 122;
"Raw and unprocessed state" in relation to produce, means not yet cooked, smoked, or baked; not yet processed by any mechanical or chemical means or otherwise other than through basic separation, cutting of parts, packaging, or freezing (not being the process of freezing through blast, quick or snap freezing); unmanufactured; undiluted; crude; unmilled; unpowdered; unpounded;
"Registered person" means any person who is registered or is liable to be registered under Section 22 of this Decree and includes a person, for the purposes of Parts VII, VIII, IX, X, and XI of this Decree, who is not otherwise required to register under this Decree, but was required to charge tax, has charged tax, or has represented to charge tax on a supply of goods and services in terms of Section 34 or Section 44 of this Decree;
"Resident" means resident as defined in Section 2 of the Income Tax Act 1974;
"Service" means anything which is not a good or money;
"Senate" means the Government of the Republic of Fiji;
"Tax" means value added tax charged or levied under this Decree;
"Tax fraction" means the fraction calculated in accordance with the following formula:
a
________
100 + a
where -
a is rate of tax specified in Section 15 of this Decree expressed as a whole number;
"Tax invoice" means a document issued pursuant to Section 41 of this Decree;
"Tax payable" means an amount calculated in accordance with Section 38 or section 39 of this Decree; and includes -
(a) any amount referred to in Section 34 or 44 of this Decree;
(b) any amount of additional tax; and
(c) any amount of tax refundable pursuant to subsection (4) of Section 38 or subsection of Section 39 of this Decree;
"Taxable period", in relation to a registered person, means a taxable period determined under Section 32 of this Decree;
"Taxable supply" means any supply of goods and services which is charged with tax pursuant to Section 15 of this Decree;
"Taxpayer identification number", in relation to a registered person, means a number allocated to that registered person upon registration for the purposes this Decree;
"Tribunal" means the Value Added Tax Tribunal established under this Decree;
"Trustee" includes an executor and administrator; and also includes the Public Trustee;
"Unconditional gift" means a payment voluntarily made to any non-profit body for the carrying on or carrying out of the purposes of that non-profit body and in respect of which no identifiable direct valuable benefit arises or may arise in the form of a supply of goods and services to the person making that payment whether that payment is enforceable or not, or any other person where that person and that other person are not independent of each other; but does not include any payment made by the State or a public authority;
"Zero-rated supply" means a supply described in the Second Schedule to this Decree.
(2) For the purposes of this Decree, a
reference to goods and services includes a reference to goods or
services.
3. Meaning of the term
"supply"
(1) For the purposes of this Decree, the term "supply"
includes all forms of supply and without limiting the generality of the term
has
the same meaning as in section 2 of the Sale of Goods Act, Cap. 230.
(2)
Where goods and services acquired or produced by a registered person in the
course or furtherance of making taxable supplies by
that person are appropriated
to use other than for the purposes of making those taxable supplies, the
appropriation of those goods
and services shall be deemed to be a supply made in
the course or furtherance of that person's taxable activity.
(3) Where
goods and services acquired or produced by a registered person in the course or
furtherance of a taxable activity carried
on by that registered person are,
under a power exercisable by another person, sold in satisfaction of a debt owed
by that registered
person in or towards the satisfaction of that debt owed by
that registered person, those goods shall be deemed to be supplied by
that
registered person in the course of that taxable activity.
(4) Where a
person ceases to be a registered person, any goods and services then forming
part of the assets of a taxable activity
carried on by that registered person
shall be deemed to be supplied by that registered person in the course of that
taxable activity
immediately before that person ceases to be a registered
person, unless the taxable activity is carried on by another person who,
pursuant to Section 28 of this Decree, is deemed to be a registered
person.
(5) For the purpose of this Decree, every public authority shall
be deemed to supply goods and services to the State where any payment
is made by
the State to or on behalf of the public authority.
(6) For the purposes
of this Decree, where any payment in the nature of a grant is made by the State
to or on behalf of any person
in the course or furtherance of any taxable
activity, which involves or will involve the making of taxable supplies, carried
on by
that person, that payment shall be deemed to be consideration for a supply
of good and services by that person in the course or furtherance
of that taxable
activity.
(7) For the purposes of this Decree, every local authority is
deemed to supply goods and services to any person where any amount of
rates is
payable by that person to that local authority.
(8) Where under a
contract of insurance, a registered person receives an amount by way of an
indemnity payment relating to a loss
incurred in respect of goods and services
in the course or furtherance of making taxable supplies, that person shall, for
the purposes
of the application of this Decree to that person but not to the
person by whom the payment is made, be deemed to have made a supply
of goods and
services to which the payment relates in the course or furtherance of the
taxable activity, at the time when the payment
is received, and the amount of
the payment shall be deemed to be the consideration for that supply.
(9)
Any contract that is a layby sale to which Part IV of the Sale of Goods Act,
Cap. 230 applies shall not constitute a supply of goods and services unless the
goods to which the contract relates are delivered
to the buyer and the property
therein is transferred to the buyer:
Provided that a supply of services
shall, in respect of any such contract, be deemed to take place where -
(a) a layby sale is cancelled pursuant to Part IV of the Sale of Goods Act, Cap. 230; and
(b) the seller either -
(i) retains any amount paid to the seller to recoup that seller's selling costs in respect of the layby sale; or
(ii) recovers any amount (including, or in addition to, the amount referred to in subparagraph (i) of this paragraph) from the buyer -
pursuant to Section 68 of the
Sale of Goods Act, Cap. 230.
(10) Where and to the extent that any
registered person, in the course or furtherance of making taxable supplies, has
or is treated
to have provided an employee benefit for income tax purposes, to
any other person, the provision of that employee benefit shall be
deemed to be a
supply of goods and services made by that registered person in the course of a
taxable activity carried on by that
registered person:
Provided that this
subsection shall not apply to any employee benefit to the extent that it has
arisen by virtue of any supply of
goods and services that is an exempt supply or
a zero-rated supply.
(11) Where a person carries on a taxable activity
which involves -
(a) the supply by a person of any unprocessed produce in the course or furtherance of a taxable activity involving agriculture or the supply by a person of any unprocessed fish or other aquatic animal and plant in the course or furtherance of a taxable activity, where that supply is not a zero-rated supply in terms of the Second Schedule to this Decree; and
(b) an activity which involves the processing of that produce, fish or other aquatic animals and plant of the activity referred to in paragraph (a) of this subsection,
the transfer of that produce, fish
or other aquatic animals and plants from the activity referred to in paragraph
(a) of this subsection
to the activity referred to in paragraph (b) of this
subsection, shall for the purposes of this Decree, be deemed to be a supply
of
goods and services as if these activities referred to in paragraph (a) and (b)
of this subsection were carried on by separate
persons.
(12) The
disposition of a taxable activity as a going concern shall be deemed to be a
supply of goods made in the course or furtherance
of the taxable
activity.
(13) For the purposes of this Decree, where a supply is charged
with tax in part under subsection (1) of Section 15 of this Decree
and in part
under subsection (2) of Section 15 of this Decree, each such part shall be
deemed to be a separate supply.
4.
Meaning of term "taxable activity"
(1) For the purposes of this
Decree, the term "taxable activity" means -
(a) any activity which is carried on continuously or regularly by any person, whether or not for pecuniary profit, and involves or is intended to involve, in whole or in part, the supply of goods and services to another person for a consideration; and includes any such activity carried on in the form of a business, services, trade, manufacture, profession, vocation, association, or club; and
(b) without limiting the generality of paragraph (a) of this subsection, the activities of any local authority or public authority.
(2) Anything done in the
commencement or termination of a taxable activity shall be deemed to be carried
out in the course or furtherance
of that taxable activity.
(3)
Notwithstanding anything in subsections (1) and (2) of this Section, for the
purposes of this Decree the term "taxable activity"
shall not include, in
relation to any person, -
(a) any activity carried on essentially as a private recreational pursuit or hobby; or
(b) any employment in terms of Section 79 of the Income Tax Act 1974; or
(c) any activity carried on by a non-profit body, other than an activity, which in the opinion of the Commissioner is in competition to the disadvantage of any taxable activity carried on by any other person.
5.
Decree to bind Government
This Decree shall bind the Government of
the Republic of Fiji.
PART II - ADMINISTRATION
6. Administration of the
Tax
(1) The Commissioner shall have the administration of this
Decree and the control and management of the collection of the taxation
charged
thereby and of all matters incidental thereto and the officers and the persons
employed in the Department.
(2) The Public Service Commission shall
appoint such officers, including an officer to be called the Deputy Commissioner
of Inland
Revenue and officers to be called Chief Assessors and Principal
Assessors of Inland Revenue, to be officers under the control of
the
Commissioner as the Minister may consider necessary for the purposes of the
administration of this Decree.
(3) Where, under this Decree, any power is
conferred on, or any duty is imposed on, the Commissioner, then, subject to any
express
direction by the Commissioner to the contrary, such power may be
exercised by, or such duty may be performed by the Deputy Commissioner
or Chief
Assessors or Principal Assessors:
Provided that the powers conferred by
Section 76 shall be exercised only by the Commissioner or the Deputy
Commissioner or the Chief
Assessors.
(4) The Commissioner may,
notwithstanding the provisions of subsection (3), authorise any officer in the
service of the Inland Revenue
Department to exercise any of the powers conferred
upon him by this Decree other than the powers conferred by Section 76 of this
Decree.
(5) Notwithstanding anything in this Section, in respect of all
imported goods into Fiji, the collection of this tax shall be under
the control
and management of the Comptroller.
(6) All money and securities for money
collected or received for or on account of the tax, except deposits and
securities required
under the Customs Act 1986, shall be paid into the Fiji
Government Consolidated Fund.
7.
Official Secrecy
(1) Every officer required by the Commissioner to
perform any special duty in the Inland Revenue Department or having any official
duty in or being employed in the administration of this Decree shall regard and
deal with all documents, returns, assessments and
information relating to the
affairs of any person as secret and confidential and shall take an oath in the
form set out in Form 1
in the Third Schedule to this Decree before performing
any duty under this Decree and such oath may be administered by a
magistrate.
(2) Every officer employed in carrying out the provisions of
this Decree who -
(a) directly or indirectly asks for, or takes, in connection with any of his duties, any payment or reward whatsoever, whether pecuniary or otherwise, or any promise or security for any such payment or a payment or reward, not being a payment or reward which he is lawfully entitled to receive; or
(b) enters into or acquiesces in any agreement to do, abstains from doing, permits, conceals, or connives at, any act or thing whereby the tax revenue is or may be defrauded, or which is contrary to the provisions of this Decree or to the proper execution of his duty thereunder; or
(c) in contravention of the provisions of subsection (1) or of the terms of his declaration of secrecy, and without lawful excuse, reveals to any person any document or information which has come into his possession or to his knowledge in the course of his official duties, or permits any other person to have access to any document in the possession or custody of the Commissioner in his official capacity,
shall be guilty of an offence
against this Decree and shall be liable, on conviction, to a fine not exceeding
one thousand dollars
or to imprisonment for a term not exceeding three years or
to both such fine and imprisonment.
(3) No officer or person appointed
under, or employed in carrying out the provisions of this Decree shall be
required to produce in
any court any return, document or assessment, or to
divulge or communicate to any court any matter or thing coming under his notice
in the performance of his duties under this Decree, except as may be necessary
for the purpose of carrying into effect the provisions
of this Decree, or in
order to institute a prosecution, or in the course of a prosecution, for any
offence committed in relation
to tax.
(4) Notwithstanding anything
contained in this Section, the Commissioner shall permit the Minister to have
such access to any information,
records or documents as may be necessary for the
purposes of this Decree and the Minister shall himself, in relation to such
information
records or documents, become subject to the provisions of this
Section.
(5) The Auditor-General, exercising the powers and performing
the duties imposed upon him by the provisions of Section 10 of this
Decree,
shall be deemed to be an officer employed in carrying out the provisions of this
Decree for the purposes of this Section.
(6) Nothing in this section
shall prohibit the Commissioner or any person authorised by him from
communicating information of the
Tax Agents' Board constituted under Part VIIA
of the Income Tax Act 1974.
8.
Disclosure of Information
(1) No obligation as to secrecy or other
restriction upon the disclosure of information imposed by any enactment or
otherwise shall
prevent either -
(a) the Commissioner or any officer authorised in that behalf; and
(b) the Comptroller or any officer of Customs authorised in that behalf, -
from disclosing to each other information
obtained for revenue-gathering purposes and which is required to be disclosed by
the officers
authorised by this subsection for the same purpose to give effect
to the provisions of this Decree.
(2) Information obtained pursuant to
subsection (1) of this Section shall not be disclosed except -
(a) to the officers authorised under that subsection; or
(b) for the purpose of any proceedings connected with a matter in relation to which those officers so authorised perform their duties.
9.
Extension of Time
(1) Where anything required by or under this
Decree to be done at or within a fixed time cannot be or is not done, the
Commissioner
may, at any time extend such time for doing the same, whether the
time at or within which the same ought to have been done has or
has not
expired.
(2) Anything done at, or as the case may be, within the time
prescribed by the Commissioner shall be valid as if it had been done,
or, as the
case may be, within the time fixed by or under this
Decree.
10. Audit
(1) The
accounts of the receipt of revenue under this Decree shall be examined by the
Auditor-General in order to ascertain that adequate
regulations and procedure
have been framed to secure an effective check on the assessment, collection and
proper allocation of revenue,
and the Auditor-General shall satisfy himself that
any such regulations and procedure are being duly carried out.
(2) The
Auditor-General shall make such examinations as he thinks fit with respect to
the sums brought to account in respect of such
revenue
aforesaid.
11. Demand for additional
information
(1) If the Commissioner, in order to enable him to
make an assessment or for any other purpose, desires any information or
additional
information or a return from any person who has not made a return or
a complete return, he may, by registered letter or by personal
service of a
notice in writing, demand from such person such information, additional
information or return, which such person shall
deliver to the Commissioner such
information, additional information or return within the period of time
determined by the Commissioner
in such registered letter or notice. For the
purpose of any proceedings taken under this Decree, the facts necessary to
establish
compliance on the part of the Commissioner with the provisions of this
section as well as default thereunder shall be sufficiently
proved in any Court
of law by the affidavit of the Commissioner or any other responsible officer of
the Inland Revenue Department.
Such affidavit shall have attached thereto as an
exhibit a copy or duplicate of the said letter or notice.
(2) The
Commissioner may require and demand the production or the production on oath by
any person or his agent or officer of any
letters, accounts, invoices,
statements, books or documents or records held by such person, agent, or officer
for the purpose of
determining the tax payable by any person and the same shall
be produced within the time determined by such
demand.
12. Rights of access and
inspection
(1) The Commissioner or any officer authorised by him
in writing upon the production of his written authority shall at all reasonable
times be entitled to enter upon any lands, buildings, or places for the purposes
of inspecting all books and documents, whether in
the custody or under control
of a public officer or a body corporate or any other person whatsoever, if the
Commissioner or the officer
considers such inspection is likely to assist in the
ascertainment of the tax payable under this Decree by any person or in the
collection
or recovery of tax and may inspect any such books or documents and
may without fee or reward make extracts or copies of any such
books or
documents.
(2) The Commissioner or any officer authorised by him may, for
the purposes of any inspection under this subsection, require the production
of
any book or document by any person in whose custody or control such book or
document may be and may require any such person to
give reasonable assistance in
the inspection and to answer all proper questions relating
thereto.
13. Power to take
samples
The Commissioner or any officer authorised by him in
writing upon the production of his written authority, if it appears necessary
for the protection of the revenue against mistake or fraud, may at any time
take, from the possession of any person who supplies
goods, such samples as the
Commissioner or the officer may require with the view to determining how the
goods or the materials of
which the goods are made ought to be or to have been
treated for the purposes of tax.
(2) Any sample taken under this section
from the person's possession shall be returned to him within a reasonable time
and in good
condition.
PART III - IMPOSITION OF TAX ON IMPORTS
14. Imposition of tax on
imports
(1) Notwithstanding anything in this Decree, a tax shall
be levied, collected and paid in accordance with the provisions of this Section
at the rate of ten percent on the importation of goods into Fiji, being goods
that are imported or removed from a bonded or customs
warehouse, for home
consumption on or after the 1st day of July 1992 under the Customs Act 1986 and
the Customs Tariff Act 1986 by reference to the value of the goods determined
under subsection (2) of this Section.
(2) For the purposes of subsection
(1) of this Section, the value of goods imported into Fiji shall be the sum of
the amount of -
(a) the value of the goods determined in accordance with Part I of the First Schedule of the Customs Tariff Act 1986 (whether or not duty is payable under that Act); and
(b) any duties, taxes (other than tax levied or charged under this Decree) and other charges that are charged, paid or payable on goods upon the importation or removal from a bonded or customs warehouse for home consumption in Fiji.
(3) Subject to this Part of the Decree,
tax levied under subsection (1) of this Section shall be collected and paid as
if it were
duty leviable under the Customs Act 1986, and as if all goods
imported into or removed from bonded or customs warehouse for home consumption
in Fiji were liable to duty.
(4) The following provisions of the Customs
Act 1986 and Customs Tariff Act 1985 shall apply to the collection, payment and
enforcement of the tax levied under subsection (1) of this
Section:
(a) Section 2, Part II, Part III, Part IV, Part V, Part VI, Part VII, (except Section 33) Part VIII, Part IX, Part X, Part XI, Part XII, Part XIII, Part XIV, Part XV, Part XVI, (except Sections 95, 96 and 98 to 101), Part XVII, Part XVIII, Part XIX, Part XX, Part XXI, Part XXII, Part XXIII and Part XXIV of the Customs Act 1986; and
(b) Section 96 of the Customs Act 1986:
Provided that this paragraph shall not apply to any registered person in respect of goods imported for the purpose of carrying on that person's taxable activity; and
(c) Section 2, Part II, Part III (except Sections 10, 11 and 14), and Part IV of the Customs Tariff Act 1986; and
(d) Section 14 of the Customs Tariff Act 1986:
Provided that this paragraph shall apply only in respect of goods that are imported by the same person as the person who exported them from Fiji if, at the time of their export from Fiji those goods were not -
(i) a supply of goods charged with tax at the rate of zero percent pursuant to subsection (2) of Section 15 of this Decree; or
(ii) a supply of goods, made before the 1st day of July 1992, that would have been charged with tax at the rate of zero percent pursuant to subsection (2) of Section 15 of this Decree if the supply of those goods had taken place on the 1st day of July, 1992; and
(e) Concession Code Numbers: 102 (family planning goods), 108 (trade samples), 110 (goods imported for disabled persons), 201 (the President and his family), 203 (diplomatic missions), 204 (an international organisation to which the provision of Section 2 of the Diplomatic Privileges and Immunities Act apply), 205 (members of a State, organisation or an agency), 206 (consulates), 207 (consular officers), 215 (charitable and religious organisations), 216 (the owner of trustees of goods of a deceased Fiji resident), 218 and 219 (passengers disembarking in Fiji), 220 (Fiji residents), 222 (a hospital or medical institution), 223 (a university, school or other educational institution), 226 (a person to whom medals and decorations are awarded), 227 (an owner or temporal owner of trophies), 228 (tourists) and 229 (an institution or organisation approved by the Minister of Finance) in Parts II and III of the Second Schedule to the Customs Tariff Act 1986.
(5) For the
purposes of this Section the term "goods" has the same meaning as defined in the
Customs Act 1986.
PART IV - IMPOSITION OF TAX ON SUPPLY
15. Imposition of tax on
supply
(1) Subject to the provisions of this Decree, the tax shall
be charged in accordance with the provisions of this Decree at the rate
of ten
percent on the supply (but not including an exempt supply) in Fiji of goods and
services on or after the 1st day of July 1992,
by a registered person in the
course or furtherance of a taxable activity carried on by that person, by
reference to the value of
that supply.
(2) Where, but for this
subsection, a supply of goods and services would be charged with tax under
subsection (1) or this Section,
any such supply shall be charged at the rate of
zero percent where that supply is a zero-rated
supply.
16. Place of
supply
(1) For the purposes of Section 15 of this Decree, the
following provisions of this Section shall apply for determining, for the
purposes
of the charge of tax, whether goods and services are supplied in
Fiji.
(2) In relation to a supply of goods which does not involve their
removal from or to Fiji, those goods shall be deemed to be supplied
in Fiji if
those goods are in Fiji and otherwise shall be deemed to be supplied outside
Fiji.
(3) In relation to a supply of goods which involves their removal -
(a) from Fiji, those goods shall be deemed to be supplied in Fiji;
(b) to Fiji, those goods shall be deemed to be supplied outside Fiji.
(4) Subject to this Section, a supply of
services shall be deemed to be -
(a) in Fiji if the supplier belongs in Fiji; or
(b) in another country, if that supplier belongs in that other country.
17.
Place where supplier or recipient of services belongs
(1)
Subsection (2) of this Section shall apply for determining, in relation to any
supply of services, whether the supplier belongs
in one country or another and
subsections (3) and (4) of this Section shall apply for determining, in relation
to a supply of services,
whether the recipient belongs in one country or
another.
(2) The supplier of services shall be deemed to belong in a
country if the supplier -
(a) has there a taxable activity establishment or some other fixed establishment and no such establishment elsewhere; or
(b) has no such establishment there or elsewhere but the supplier's usual place of residence is there; or
(c) has such establishments both in that country and elsewhere and the establishment or the supplier which is most directly concerned with the supply is there.
(3) If the supply of services is
made to an individual and received by that person otherwise than for the
purposes of any taxable
activity carried on by that person, that person shall be
deemed to belong in whatever country that person has their usual place of
residence.
(4) Where subsection (3) of this Section does not apply, the
person to whom the supply of services is made shall be deemed as belonging
in a
country if -
(a) either of the conditions mentioned in paragraphs (a) and (b) of subsection (2) of this Section is satisfied; or
(b) that person has such establishments as are mentioned in subsection (2) of this Section both in that country and elsewhere and the establishment of that person at which, or for the purposes of which, the services are most directly used or to be used in that country.
(5) For
the purposes of this Section -
(a) a person carrying on a taxable activity through a branch or agency in any country shall be deemed to have a taxable activity establishment there; and
(b) the expression "usual place of residence", in relation to a body corporate, means the place where it is legally constituted.
18.
Time of supply
(1) Subject to this Decree, a supply of goods and
services shall be deemed to take place at the time -
(a) a tax invoice is issued by the supplier or the recipient; or
(b) any payment is received by the supplier; or
(c) the delivery of the goods and services takes place, -
whichever is the earlier.
(2)
Notwithstanding anything in subsection (1) of this Section, a supply of goods
and services shall be deemed to take place -
(a) where the supply is for a consideration in money received by the supplier by means of any machine, meter, or other device operated by a coin or token, at the time any such coin or token is taken from that machine, meter, or other device by or on behalf of the supplier:
(b) where that supply is a supply to which subsection (9) of Section 3 of this Decree refers, at the time at which the property in the goods is transferred to the buyer:
Provided that in any case in which a supply of services is deemed to take place pursuant to the proviso to, subsection (9) of Section 3, that supply of services shall be deemed to take place at the time that the layby sale is cancelled pursuant to Part IV of the Sale of Goods Act, Cap. 230:
(c) where goods are supplied under an agreement for hire, or services are supplied under any agreement or enactment which provides for periodic payments, those goods or services shall be deemed to be successively supplied for successive parts of the period of the agreement or enactment, and each of the successive supplies shall be deemed to take place when a payment becomes due or is received, whichever is the earlier:
(d) where and to the extent that goods and services are supplied progressively or periodically pursuant to any agreement or enactment which provides for the consideration for that supply to be paid in instalments or periodically and in relation to the progressive or periodic supply of those goods, those goods shall be deemed to be successively supplied, and each such successive supply shall be deemed to take place whenever any payment in respect of that supply becomes due, is received, or a tax invoice relating only to that payment is issued, whichever is the earlier:
(e) where and to the extent that goods and services supplied directly in the construction, major reconstruction, manufacture or extension of a building or engineering work are supplied pursuant to any agreement or enactment which provides for the consideration for that supply to become due and payable in instalments or periodically in relation to the progressive nature of that construction, manufacture or extension, those goods and services shall be deemed to be successively supplied, and each successive supply shall be deemed to take place whenever any payment in respect of that supply becomes due, is received or any tax invoice relating to that payment is issued, whichever is the earlier:
(f) where goods are supplied under an agreement, other than an agreement for hire, and the goods or part of them are appropriated under that agreement by the recipient in circumstances where the whole of the consideration is not determined at the time those goods are appropriated, that supply shall be deemed to take place when and to the extent that any payment under the agreement is due or is received or a tax invoice relating to the supply is issued by the supplier or the recipient, whichever is the earlier.
(g) the supply of goods and services which is deemed to be made by a registered person pursuant to subsection (10) of Section 3 of this Decree shall be deemed to take place at the time that that registered person is liable to deduct income tax from the value of the employee benefit in terms of the Income Tax Act, Cap. 201.
(3) For the purposes of subsection (2) of
this Section, the term "agreement for hire" means an agreement for the bailment
of goods
for hire and includes a lease of goods and a rental agreement but
excludes an agreement under which the property in goods passes
to the bailee or
which expressly contemplates that the property in the goods will pass to the
bailee.
19. Value of supply of goods
and services
(1) For the purposes of this Decree the following
provisions of this Section shall apply for determining the value of supply of
goods
and services.
(2) Subject to this Section and Section 20 of this
Decree, the value of a supply of goods and services shall be such amount as,
with
the addition of the tax charged, is equal to the aggregate of, -
(a) to the extent that the consideration for the supply is consideration in money, the amount of the money:
(b) to the extent that the consideration for the supply is not consideration in money, the open market value of that consideration.
(3) Subject to subsections (4)
and (6) of this Section where -
(a) a supply is made by a person for no consideration or for a consideration in money that is less than the open market value of that supply; and
(b) the supplier and recipient are not independent of each other, -
the consideration in money for the supply
shall be deemed to be the open market value of that supply.
(4)
Subsection (3) of this Section shall not apply to any supply made by a
registered person where the recipient acquired that supply
wholly for the
purposes of making taxable supplies and is entitled under subsection (2) of
Section 39 of this Decree to make a deduction
in respect of that
supply.
(5) Notwithstanding anything in subsection (2) of this Section,
where any supply of goods and services is made pursuant to -
(a) a hire purchase agreement (being a conditional sale agreement whereby the property in the goods will pass to the bailee); or
(b) a financial lease (being an agreement to lease whereby the lessee is expressly required or has the option to purchase the goods subject to the lease at a guarantee residual value or nil),
the
consideration in money for the supply shall be deemed to be the cash price of
those goods and services.
(6) Where goods and services are deemed to be
supplied by a person under subsection (2) of Section 3 and subsection (4) of
Section
3 of this Decree, the consideration in money for that supply shall
deemed to be the lesser of -
(a) the cost of those goods and services to the supplier, including any tax charged in respect of the supply of those goods and services to that supplier:
(b) the open market value of that supply.
(7)
Notwithstanding anything in this Section, where goods and services are, or are
deemed to be supplied to the State by any public
authority pursuant to
subsection (5) of Section 3 of this Decree, the consideration in money for any
such supply shall be an amount
equal to any amount from time to time paid by the
State to or on behalf of that public authority for that supply.
(8)
Notwithstanding anything in this Section, where goods and services are, or
deemed to be supplied to any person by any local authority
pursuant to
subsection (7) of Section 3 of this Decree, the consideration in money for any
such supply shall be an amount equal to
any amount from time to time paid or
payable by or on behalf of that person for that supply.
(9) Where a
supply of services is deemed to be made under the proviso to subsection (9) of
Section 3 of this Decree, the consideration
in money for that supply shall be
deemed to be an amount equal to the amount referred to in paragraph (b) of that
proviso as being
retained or recoverable.
(10) Where a right to receive
goods and services for a monetary value stated on any token, stamp (not being a
postage stamp) or voucher
is granted for a consideration in money, that supply
shall be disregarded for the purposes of this Decree, except to the extent (if
any) that consideration exceeds that monetary value.
(11) Where a
registered person supplies goods and services by way of a gift or as a trade
sample for no consideration in the course
or furtherance of taxable activity,
the consideration in money for that supply shall be deemed to be the open marker
value of that
supply:
Provided that this provisions shall not apply where
-
(a) the good or service gifted did not cost the supplier more than ten dollars and does not form part of a series or succession of gifts made to the same recipient from time to time:
(b) the good or service is a trade sample supplied to an actual or potential customer of the taxable activity, in a form not ordinarily available for supply to the public.
(12) Where goods and services
are deemed to be supplied by a registered person under subsection (10) of
Section 3 of this Decree,
the consideration in money for the supply shall be
deemed to be an amount equal to the value of the employee benefit determined by
the Commissioner for income tax purposes.
(13) Where a taxable supply is
not the only matter to which a consideration relates, the supply shall be deemed
to be for such part
of the consideration as is properly attributable to
it.
(14) Subject to the foregoing provisions of this Section where any
supply is made for no consideration, the value of that supply shall
be
nil.
20. Second-hand
goods
(1) Where a registered person, who is a dealer in
second-hand goods, has purchased second-hand goods of whatever kind from a
non-registered
person, the consideration in money for the supply of those goods
by that registered person shall be an amount equal to the gross
margin by
allowing the purchase price as a deduction from the sale price of those goods at
the time of the sale of those goods.
(2) Where the supplier and recipient
are not independent of each other, the purchase price for the second-hand goods
shall, for the
purpose of subsection (1) of this Section, be deemed to be the
lesser of the purchase price or the open marker value of that supply
of
second-hand goods.
(3) The registered person, shall in respect of
second-hand goods purchased from a non-registered person maintain sufficient
records
to enable the following particulars to be ascertained:
(a) the name and address of the supplier;
(b) the date upon which the second-hand goods were supplied;
(c) a description of the goods supplied;
(d) the quantity or volume of the goods supplied; and
(e) the consideration for the supply.
21.
Reverse charge on supplied received from abroad
(1) For the
purposes of this Section "relevant service" means services of any of the
descriptions specified in paragraph (14) of the
Second Schedule to this Decree,
not being services within any of the descriptions specified in paragraph (1) of
the First Schedule
to this Decree.
(2) Subject to subsection (3) of this
Section, where relevant services are -
(a) supplied by a person who belongs in a country other than Fiji; and
(b) received by a person (hereafter in this subsection referred to as a recipient) who belongs in Fiji for the purposes of any taxable activity carried on by that person;
then all the consequences
shall follow under this Decree (and particularly so much as charges tax on
supply and entitles a registered
person to a deduction for input tax) as if the
recipient had supplied the services in Fiji in the course or furtherance of that
recipient's
taxable activity.
(3) The provisions of this Decree relating
to the deduction of input tax shall apply in respect of supplies, which are
treated as
made by a registered person under subsection (2) of this Section,
although those supplies themselves shall not be treated as being
taxable
supplies made by that person for the purposes of determining the input tax
deductible under subsection (2) of Section 39
of this Decree.
(4) For the
purposes of this Decree, where subsection (2) of this Section, treats a supply
or relevant services as being made by a
person in the course or furtherance of
that person's taxable activity -
(a) the value of that supply shall be for whatever consideration was paid or payable for the relevant services; and
(b) the supply shall take place when the relevant services are paid for, or if the consideration is not in money, the last day of the taxable period in which the services are performed.
(5) Where a person
carried on a taxable activity through an establishment of the person in Fiji and
through another establishment
outside Fiji, any supply of relevant services by
the establishment outside Fiji to the establishment in Fiji shall be treated as
a supply to which subsection (2) of the Section applies, as if that supply
between the two establishments were between two separate
persons who are
independent of each other.
(6) Notwithstanding anything in paragraph
(a) of subsection (4) of this Section,
where subsection (5) of this Section applies, the value of the supply shall be
deemed to be the
open market value of the relevant services.
PART V - REGISTRATION
22. Persons making
taxable supplies to be registered
(1) Subject to this Decree,
every person (other than a produce supplier) who, on or after the 1st day of
July 1992, carries on any
taxable activity and is not registered, becomes liable
to be registered -
(a) in the case of any person who solely supplies goods -
(i) at the end of any month where the total value of supplies (not being exempt supplies) made in Fiji in that month and the eleven months immediately preceding that month in the course of carrying on all taxable activities has exceeded twenty thousand dollars in gross turnover or such other amount as the minister may from time to time, by Legal Notice declare:
Provided that a person does not become liable to be registered by virtue of this paragraph where the Commissioner is satisfied that the value of all those supplies in the twelve month period beginning on the day after the last day of the period referred to in the said paragraph will not exceed that amount:
(ii) at the commencement of any month where there are reasonable grounds for believing that the total value of the supplies (not being exempt supplies) to be made in Fiji in that month and the eleven months immediately following that month will exceed the amount specified in subparagraph (i) of this paragraph:
(b) in the case of any other person -
(i) at the end of any month where the total value of supplies (not being exempt supplies) made in Fiji in that month and the eleven months immediately preceding that month in the course of carrying on all taxable activities has exceeded ten thousand dollars in gross turnover or such other amount as the Minister may from time to time, by Legal Notice declare:
Provided that a person does not become liable to be registered by virtue of this paragraph where the Commissioner is satisfied that the value of all those supplies in the twelve month period beginning on the day after the last day of the period referred to in the said paragraph will not exceed that amount:
(ii) at the commencement of any month where there are reasonable grounds for believing that the total value of the supplies (not being exempt supplies) to be made in Fiji in that month and the eleven months immediately following that month will exceed the amount specified in subparagraph (i) of this paragraph.
(2) For the purposes
of subsection (1) of this Section, the total value of a registered person's
taxable supplies shall be deemed
not to have exceeded any amount specified in or
under that subsection where the total value exceeds any such amount solely as a
consequence
of -
(a) any cessation of, or any substantial and permanent reduction in the size or scale of, any taxable activity carried on by that person; or
(b) the replacement of any plant or other capital asset used in any taxable activity carried on by that person.
(3) Every
person who, by virtue of subsection (1) of this Section, becomes liable to be
registered shall apply to the Commissioner
on the prescribed registration form,
as may be approved by the Commissioner, within twenty one days of becoming so
liable.
(4) Notwithstanding subsections (1) and (3) of this section,
every person who satisfies the Commissioner that on or after the 1st
day of July
1992, -
(a) that person is carrying on a taxable activity that involves the making of other than exempt supplies; or
(b) that person intends to carry on any taxable activity, which will involve the making of other than exempt supplies, from a specific date, -
may apply to the Commissioner on the
prescribed registration form for registration.
(5) Where any person -
(a) applies to be registered pursuant to subsection (3) or (4) of this Section, and the Commission is satisfied that that person is eligible to be registered under this Decree, that person shall be a registered person for the purposes of this Decree with effect from such date as the Commissioner may determine; or
(b) has not made application for registration pursuant to subsection (3) of this Section, and the Commissioner is satisfied that that person is liable to be registered under this Decree, that person shall be a registered person for the purposes of this Decree with effect from the date on which that person first became liable to be registered under this Decree:
Provided that the Commissioner may, having regard to the circumstances of the case, determine that person to be a registered persons from such later date as the Commissioner considers equitable.
(6) The
provisions of this Decree relating to the determination of the value of any
supply of goods and services shall apply for the
purposes of this Section, with
the modification that no regard shall be made to any tax charged in respect of
any such supply.
(7) An application for registration under this Decree
purporting to be made by or on behalf of any person shall for all purposes be
deemed to have been made by that person or by that person's authority, as the
case may be, unless the contrary is
proved.
23. Cancellation of
registration
(1) Subject to this Decree, every registered person
who carries on any taxable activity shall cease to be liable to be registered
where at any time, if that person has been registered for the whole of the
twelve months then ending, the Commissioner is satisfied
that the value of that
person's taxable supplies in the period of twelve months then beginning will not
be more than the amounts
specified in paragraphs (a) or (b) of subsection (1) of
Section 22 of this Decree for the purposes of that said Section.
(2)
Every person, by virtue of subsection (1) of this Section, ceases to be liable
to be registered may request the Commissioner in
writing to cancel the
registration, and if the Commissioner is at any time satisfied, as mentioned in
subsection (1) of this Section,
the Commissioner shall cancel that person's
registration with effect from the last day of the taxable period during which
the Commissioner
was so satisfied, or from which other date as may be determined
by the Commissioner, and shall notify that person of the date on
which the
cancellation of registration takes effect.
(3) Every registered person
who ceases to carry on all taxable activities that involve the making of taxable
supplies shall notify
the Commissioner of that fact within seven days of the
date of cessation and the Commissioner shall cancel the registration of any
such
person with effect from the last day of the taxable period during which all such
taxable activities ceased, or such other date
as may be determined by the
Commissioner.
Provided that the Commissioner shall not at any time cancel
the registration of any such registered person if there are reasonable
grounds
for believing that the registered person will carry on any taxable activity that
will involve the making of taxable supplies
at any time within twelve months
from that date of cessation.
(4) Any notification by a registered person
pursuant to subsection (3) of this Section shall be made in writing to the
Commissioner
and shall state the date upon which that person ceased to carry on
all such taxable activities and whether or not that person intends
to carry on
any such taxable activity within twelve months from that date.
(5) Where
the Commissioner is satisfied that a registered person is not carrying on any
taxable activities that involve the making
of taxable supplies the Commissioner
may cancel that person's registration with effect from the last day of the
taxable period during
which the Commissioner was so satisfied, or from such
other date as may be determined by the Commissioner and shall notify that person
of the date on which the cancellation of registration takes effect.
(6)
Any date determined by the Commissioner for the cancellation of registration
under subsection (5) of this Section may be retrospective
to a date not earlier
than -
(a) the last day of the taxable period during which all such taxable activities carried on by that person ceased; or
(b) the date on which the person was registered under this Decree, if the Commissioner is satisfied that the person did not, from that date, carry on any taxable activity involving the making of taxable supplies.
24.
Registered person to notify of change of status
Subject to this
Decree, every registered person shall within twenty one days notify the
Commissioner in writing of -
(a) any changes in the name, address, constitution or nature of the principal taxable activity or activities of that registered person;
(b) any change of address for which, or the name in which, any taxable activity is carried on by that registered person;
(c) any change whereby that registered person ceases to satisfy the conditions of subsection (3) of Section 32 of this Decree;
(d) any change whereby that registered person ceases to satisfy the conditions of subsection (2) of Section 36 of this Decree;
Provided that this Section shall not
apply to the notification of any changes in the ownership of a
company.
25. Liabilities not affected
by ceasing to be registered person
The obligations and liabilities
under this Decree of any person in respect of anything done, or omitted to be
done, by that person
while that person is a registered person shall not be
affected by the fact that that person ceases to be a registered person, or
by
the fact that, being a registered person, the Commissioner cancels that person's
registration.
PART VI - SPECIAL CASES
26. Unincorporated
bodies.
For the purpose of this Section -
"Body" means an unincorporated body of persons; and includes -
(a) a partnership;
(b) a joint venture;
(c) the trustees of a trust;
"Members" means a partner, a joint venturer, a trustee or a member of any body;
"Partnership" has the same meaning as in the Partnership Act, Cap. 248.
(2) Where a body that carries on any
taxable activity is registered pursuant to this Decree,
(a) the members of that body shall not themselves be registered or liable to be registered under this Decree in relation to the carrying on of that taxable activity; and
(b) any supply of goods and services made in the course of carrying on that taxable activity shall be deemed for the purposes of this Decree to be supplied by that body, and shall be deemed not to be made by a member of that body; and
(c) any supply of goods and services to, or acquisition of goods by, any member of that body acting in the capacity as a member of that body and in the course of carrying on that taxable activity, not being a supply to which paragraph (b) of this subsection applies, shall be deemed for the purposes of this Decree to be supplies to or acquired by that body, and shall be deemed not to be supplied to or acquired by that member; and
(d) that registration shall be in the name of the body, or where that body is the trustee of a trust, in name of the trust; and
(e) subject to subsection (3) of this Section, any change of members of that body shall have no effect for the purposes of this Decree.
(3) Notwithstanding anything in this
Section, every member is liable jointly and severally with any other members for
all tax payable
by the body while that member remains a member of that body,
and, where that member is an individual, after that member's death,
that
member's estate shall be severally liable in due course of administration for
such tax payable as far as it remains unpaid:
Provided that where any
such body is a partnership, joint venture, or the trustees of a trust, a member
shall not cease to be a member
for the purposes of this Section until the date
on which any change of membership of that body is notified in writing to the
Commissioner.
(4) For the purpose of this Decree, any notice served in
accordance with this Decree which is addressed to a body by the name in which
it
is registered pursuant to this Decree, shall be deemed to be served on that body
and on all members of that body.
(5) Subject to subsection (6) of this
Section, where anything is required to be done pursuant to this Decree by or on
behalf of any
body, it shall be the joint and several liability of all the
members to do any such thing:
Provided that any such thing done by one
member shall be sufficient compliance with any such requirement.
(6)
Notwithstanding anything in this Section, but subject to subsection (3) of this
Section, where anything is required to be done
pursuant to this Decree by or on
behalf of any body, not being a partnership, joint venture, or trustees of a
trust, the affairs
of which are managed by its members of a committee or
committees of its members, it shall be held joint and several responsibility
of
-
(a) every member holding office as president, chairman, treasurer, secretary or any similar office; or
(b) in default of any such member, every member holding office as a member of a committee:
Provided that if it is done by any official or committee member, referred to in paragraph (a) or paragraph (b) of this subsection, that shall be sufficient compliance with any such requirement.
27
Branch or division
(1) Where a taxable activity is carried on by
any registered person in branches or divisions and those branches and divisions
are
a produce supplier, that registered person may apply in writing to the
Commissioner for any such branch or division to be treated
as a separate person
for the purposes of this Decree.
(2) The Commissioner may, upon
application made pursuant to subsection (1) of this Section treat any branch or
division as a separate
person if each branch or division maintains an
independent system of accounting, solely supplies produce in a raw and
unprocessed
state and can be separately identified by reference to being a
produce supplier or the location of the branch or division where any
such branch
or division is so separately treated, any taxable activity carried on by that
branch or division shall, to that extent,
be deemed not to be carried on by the
registered person first mentioned in subsection (1) of this
Section.
28. Personal representative,
liquidator, receiver, etc
(1) Where a registered person dies, or
goes into liquidation or receivership, or becomes bankrupt or incapacitated, the
Commissioner
shall from the date on which that person died, or went into
liquidation or receivership, or became bankrupt or incapacitated, until
such
time as some other person is registered in respect of the taxable supplies made
or intended to be made by that registered person
in the course or furtherance of
that person's taxable activity or until such time as the incapacity ceases, as
the case may be, deem
any person carrying on that taxable activity to be a
registered person.
(2) Where a mortgagee in possession of any land or
other property previously mortgaged by the mortgagor, being a registered person,
the Commissioner shall, from the date on which the mortgagee took possession of
that land or other property, until such time as the
mortgagee ceases to be in
possession of that land or other property, deem the mortgagee, in any case where
and to the extent that
the mortgagee carries on any taxable activity of the
mortgagor, to be a registered person.
(3) Any person carrying on such
taxable activity as aforesaid shall, within twenty one days of commencing to do
so, inform the Commissioner
in writing of that fact and of the date of the death
or of the liquidation or receivership or bankruptcy or mortgagee taking
possession
of any land or other property previously mortgaged by the mortgagor,
or of the nature of the incapacity and the date on which it
began.
29. Liability of agent of
non-resident principal for returns and tax
(1) For the purposes of
this Section, the term "non-resident" means -
(a) any person, not being a company, who is for the time being out of Fiji;
(b) any company, not being a company incorporated in Fiji, unless it has a fixed or permanent place in Fiji relating to the carrying on of any taxable activity in Fiji in its own name;
(c) any company, not being a company incorporated in Fiji, which is declared by the Commissioner to be a non-resident for the purposes of this Decree by notice given to that company or to its agent or attorney in Fiji, so long as that declaration remains unrevoked.
(2) Every
person who in Fiji carries on any taxable activity for and on behalf of a
principal who is a non-resident shall, for the
purposes of this Decree, be the
agent of that principal in respect of that taxable activity so carried on in
Fiji by means of that
agent, and the agent shall make returns and be liable for
the tax charged or levied under this Decree.
(3) The Commissioner shall
have the power to declare any person a non-resident for the purpose of this
Section.
30. Agents and
auctioneers
(1) Subject to this Section, where an agent makes a
supply of goods and services for and on behalf of any other person who is the
principal of that agent, that supply shall be deemed to be made by that
principal and not by that agent.
(2) Subject to this Section, where any
registered person makes a taxable supply of goods and services to an agent who
is acting on
behalf of another person who is the principal for the purposes of
that supply, that supply shall be deemed to be made to that principal
and not to
that agent.
(3) For the purposes of subsection (4) of this Section, the
expression "auctioneer" means a registered person carrying on a taxable
activity
which comprises or includes the supply by auction of goods as an auctioneer or
agent for or on behalf of another person
(hereafter in this Section referred to
as a principal).
(4) Notwithstanding anything in the foregoing provisions
of this Section, where the principal and the auctioneer agree to have a supply
by auction of any goods, not being a taxable supply, treated as if that supply
had been made by that auctioneer and not by that principal,
that supply shall be
charged with tax as if it were made by that auctioneer in the course or
furtherance of that auctioneer's taxable
activity and that auctioneer may -
(a) recover the amount of tax charged on that supply from that principal as a debt together with the costs of recovery in any Court of competent jurisdiction; or
(b) retain or deduct the same out of any money in that auctioneer's hands belonging or payable to that principal.
(5)
Notwithstanding anything in subsection (2) of this Section, where any registered
person makes a taxable supply (not being a supply
to which subsection (2) of
Section 15 of this Decree applies) of goods and services to an agent, being a
registered person, who is
acting for or on behalf of another person who is the
principal for the purposes of that supply, and -
(a) that principal is not resident in Fiji and is not a registered person; and
(b) that supply is directly in connection with either the exportation, or the arranging thereof, of goods from Fiji to any country or place outside Fiji, or the importation, or the arranging thereof, of goods to Fiji from any country or place outside Fiji, including, in either case, the transportation of goods within Fiji as part of that exportation or, as the case may by importation, -
this Decree shall, where that agent and that
principal agree, have effect as if that supply were made to that agent and not
to that
principal.
31. Liability of new
companies for tax payable by former companies with substantially the same
shareholders or under the same control
(1) For the purpose of this
Section,
"Company" means any company incorporated in or outside Fiji;
"New Company" means a company carrying on a taxable activity in Fiji and consisting substantially of the same shareholders as an original company or being under the control of the same persons as an original company;
"Original company" means a company which having at any time carried on a taxable activity in Fiji, after the commencement of this Decree, has ceased to carry on a taxable activity in Fiji, and includes any such company that has been wound up.
(2) Where an original company has been
wound up, its shareholders and directors, as on the commencement of its winding
up, shall respectively
be deemed to be the shareholders and the persons having
the control of the company for the purpose of this section.
(3) Where an
original company was, when it ceased to carry on a taxable activity in Fiji,
liable under this Decree for any tax or
was liable to be assessed for any such
tax, and that tax has not been paid, the new company shall, for the purpose of
this Decree,
be deemed to be the agent of the original company and shall be
liable for all tax payable by the original company.
PART VII - RETURNS AND PAYMENT OF TAX
32. Taxable
periods
(1) Each registered person shall be placed by the
Commissioner in one of the following categories for the purposes of determining
that person's taxable periods for the purposes of this Decree:
(a) Category A, with taxable periods of one month ending on the last day of each month in each year:
(b) Category B, with taxable periods of three months ending on the last day of any month in any year, as may be determined by the Commissioner.
(2) Every registered person who
is not placed in Category B pursuant to subsection (3) of this Section, shall be
placed by the Commissioner
in Category A.
(3) The Commissioner may, on
written application by a registered person, place that person in Category B if
the total value of that
person's taxable supplies -
(a) has not, in the twelve months ending with the last day of any month, exceeded one hundred thousand dollars or such other amount as the Minister may, from time to time, by Legal Notice declare; or
(b) is not likely to exceed that amount in the period of twelve months beginning on the first day of any month.
(4) For the
purposes of subsection (3) of this Section, the total value of a registered
person's taxable supplies shall be deemed
not to have exceeded any amount
specified in or under that subsection where that total value exceeds any such
amount solely as a
consequence of -
(a) any cessation of, or any substantial and permanent reduction in the size or scale of, any taxable activity carried on by that registered person; or
(b) the replacement of any plant or other capital asset used in any taxable activity carried on by that registered person.
(5) The Commissioner may from time to
time direct that a registered person change from category A to category B or, as
the case may
be, category B to category A -
(a) on written application by the registered person; or
(b) following the notification by the registered person under paragraph (c) of Section 24 of this Decree of a change in status; or
(c) Where the Commissioner is otherwise satisfied that the registered person has ceased to satisfy the conditions of subsection (3) of this Section:
Provided that a registered person may
only make a written application to the Commissioner to change the category that
determines the
registered person's taxable periods after the expiry of twelve
months from the date on which the last written application was made.
(6)
Where the Commissioner directs that a registered person change from one category
to the other, the person shall be deemed to have
been placed in the new category
with effect from the day following the end of the taxable period during which
the direction was made
by the Commissioner.
(7) Notwithstanding anything
in this Section, the Commissioner may, upon written application by a registered
person, determine a day
in substitution for the last day referred to in
paragraphs (a) and (b) of subsection (1) of this Section, not being a day more
than
seven days earlier or seven days later than that last day, but any such
determination shall be disregarded for the purposes of subsection
(1) of Section
33 of this Decree.
33.
Returns
(1) Every registered person shall, on or before the last
day of the month following the last day of every taxable period, without
notice
or demand furnish to the Commissioner a tax return, in such prescribed form as
may be approved by the Commissioner.
(2) Any registered person who ceases
to be registered shall, not later than one month after so ceasing, furnish to
the Commissioner
a final tax return, in such form as may be approved by the
Commissioner, in respect of that part of the last taxable period during
which
that registered person was
registered.
34. Special
Returns
(1) Where goods are deemed to be supplied by a person
pursuant to subsection (3) of Section 3 of this Decree, the person selling the
goods, whether or not that person is a registered person, shall, on or before
the last day of the month following the month within
which the sale was made,
-
(a) furnish to the Commissioner in the prescribed form a return showing -
(i) that person's name and address and, if registered, taxpayer identification number;
(ii) the name, address, and taxpayer identification number of the person whose goods were sold;
(iii) the date of the sale;
(iv) the description and quantity of the goods sold;
(v) the amount for which they were sold and the amount of tax charged on that supply; and
(vi) such other particulars as may be prescribed;
(b) pay to the Commissioner the amount of tax charged on that supply; and
(c) send to the person whose goods were sold a copy of the return referred to in paragraph (a) of this Section, -
and the
person selling the goods and the person whose goods were sold shall exclude from
any return, other than a return required
pursuant to this section, which either
or both may be required to furnish under this Decree, the tax charged on that
supply of goods.
35. Other
returns
In addition to the returns specified in Sections 33 and 34
of this Decree, the Commissioner may require any person, whether a registered
person or not, to furnish (whether on that person's own behalf or as an agent or
trustee) to the Commissioner such further or other
returns in the prescribed
form as and when the Commissioner requires for the purpose of this
Decree.
36. Accounting
basis
(1) Subject to this Section, every registered person shall
account for tax payable on an invoice basis for the purposes of Section
39 of
this Decree.
(2) The Commissioner may, on application in writing by a
registered person, direct that the registered person account for the tax
payable
on a payments basis for the purposes of Section 39 of this Decree if -
(a) that registered person is a public authority, local authority or a non-profit body; or
(b) in respect of that registered person -
(i) at the end of any month, the total value of the person's taxable supplies in the period of twelve months then ended during has not exceeded one hundred thousand dollars or such other amount as the Minister may from time to time, by Legal Notice declare; or
(ii) in the twelve months beginning on the first day of any month, the total value of that person's taxable supplies is not likely to exceed the amount specified in subparagraph (i) of this paragraph.
(3) Where the
Commissioner has, pursuant to subsection (2) of this Section, directed that a
registered person account for tax payable
on a payments basis, and -
(a) that registered person has ceased to satisfy the conditions of subsection (2) of this Section under which any such direction may be given, and -
(i) that registered person has notified the Commissioner under paragraph (d) of Section 24 of this Decree of a change in status; or
(ii) the Commissioner is otherwise satisfied that the registered person has ceased to satisfy the conditions of subsection (2) of this Section; or
(b) that registered person has made an application in writing to the Commissioner to account for tax payable on an invoice basis -
the Commissioner shall direct that that
registered person account for the tax payable on an invoice basis.
(4)
Where the Commissioner gives a direction in respect of a registered person's
accounting basis under subsection (2) or subsection
(3) of this Section, the
registered person shall account for the tax payable on the accounting basis;
directed by the Commissioner
with effect from -
(a) the commencement of the taxable period immediately following the taxable period during which the direction is given by the Commissioner, in any case to which paragraph (b) of this subsection does not apply; or
(b) the person's registration under this Decree, where the direction is given by the Commissioner before the end of the first taxable period of the person that follows that registration.
(5) For the
purposes of subsection (3) of this Section, the total value of a registered
person's taxable supplies shall be deemed
not to have exceeded any amount
specified in or under subsection (2) of this Section where the total value
exceeds any such amount
solely as a consequence of -
(a) any cessation of, or any substantial and permanent reduction in the size or scale of, any taxable activity carried on by that registered person; or
(b) the replacement of any plant or other capital asset used in any taxable activity carried on by that registered person.
37.
Particulars to be furnished and prepared where change in accounting
basis
(1) Where the Commissioner directs a change in a registered
person's accounting basis under Section 36 of this Decree, the registered
person
shall furnish to the Commissioner particulars in the prescribed form calculating
the tax payable in respect of the change
in the basis of accounting.
(2)
The particulars required to be furnished under subsection (1) of this Section
shall be furnished to the Commissioner not later
than the last day for
furnishing a return pursuant to subsection (1) of Section 33 of the Decree for
the taxable period preceding
that in which the direction of the Commissioner
takes effect.
(3) Where the Commissioner directs a change in a registered
person's accounting basis under Section 36 of this Decree, the registered
person
shall prepare -
(a) A list of creditors of the registered person in relation to that person's taxable activity, showing the amounts due by that person as at the last day of the taxable period preceding that in which the direction takes effect; and
(b) A list of debtors of the registered person in relation to that person's taxable activity, showing the amount due to that person as at the last day of the taxable activity in which the direction takes effect.
38.
Taxes payable, or refund, where change in accounting basis
(1)
Every registered person whose accounting basis is changed pursuant to Section 36
shall, not later than the last day allowed under
subsection (2) of Section 37 of
this Decree for furnishing particulars in respect of the change, pay to the
Commissioner the tax
payable (if any) as determined pursuant to this
Section.
(2) Where a registered person changes from an invoice basis to a
payments basis of accounting, the tax payable under subsection (1)
of this
Section shall be an amount determined in accordance with the following
formula:
(a - b) - (c - d)
where -
a - is an amount equal to the aggregate amount of the input tax deducted pursuant to Section 39 of this Decree in relation to any taxable period up to and including the taxable period preceding that in which the direction changing during the person's accounting basis takes effect; and
b - is an amount equal to the aggregate amount of input tax that would have been deducted pursuant to Section 39 of this Decree if the person had, for those taxable periods been accounting for tax payable on a payments basis; and
c - is an amount equal to the aggregate amount of the output tax accounted for pursuant to Section 39 of this Decree in those taxable periods; and
d - is an amount equal to the aggregate amount of output tax that would have been accounted for pursuant to Section 39 of this Decree if the person had, for those taxable periods been accounting for tax payable on a payments basis.
(3) Where a registered person changes
from a payments basis to an invoice basis of accounting, the tax payable under
subsection (1)
of this Section shall be an amount determined in accordance with
the following formula:
(a - b) - (c - d)
where
a - is an amount equal to the aggregate amount of output tax that would have been accounted for pursuant to Section 39 of this Decree if the person had, in relation to any taxable period up to and including the taxable period preceding that in which the direction changing the person's accounting basis takes effect, been accounting for tax payable on an invoice basis; and
b - is an amount equal to the aggregate amount of the output tax accounted for pursuant to Section 39 in those taxable periods; and
c - is an amount equal to the aggregate amount of input tax that would have been deducted pursuant to Section 39 of this Decree if the person had, for those taxable periods, been accounting for tax payable on an invoice basis; and
d - is an amount equal to the aggregate amount of the input tax accounted for pursuant to Section 39 of this Decree in those taxable periods.
(4) Subject to this Decree, if, in
relation to any particulars required to be furnished by Section 37 of this
Decree, the amount determined
in accordance with subsection (2) or (3) of this
Section is a negative amount, the amount of the negative amount shall be
refunded
to the registered person by the Commissioner pursuant to Section 55 of
this Decree.
(5) For the purposes of this Decree, any previous adjustment
made to input tax or output tax, as the case may be, when a registered
person
changed -
(a) from an invoice basis to a payments basis; or
(b) from a payments basis to an invoice basis -
shall be deemed to have been deducted, or
accounted for, as the case may be, pursuant to Section 39 of this
Decree.
39. Calculation on of tax
payable
(1) In respect of each taxable period every registered
person shall calculate the amount of tax payable by that registered person
in
accordance with the provisions of this Section.
(2) Subject to this
Section, in calculating the amount of tax payable in respect of each taxable
period, there shall be deducted from
the amount of out-put tax of a registered
person attributable to the taxable period -
(a) where some, but not all, the supplies made or to be made by the registered person are or will be taxable supplies, the total amount of the input tax;
(b) where some, but not all, the supplies made or to be made by the registered person are or will be taxable supplies -
(i) all the input tax for the taxable period that is in respect of goods and services supplied to or imported by that registered person wholly for the purposes of making, whether or not during that taxable period, taxable supplies;
(ii) none of the input tax for the taxable period that is in respect of goods and services supplied to or imported by that registered person wholly for the purposes of making, whether or not during that taxable period, supplies which are not taxable supplies;
(iii) such proportion of the input tax for the taxable period that is not in respect of supplies referred to in subparagraphs (i) and (ii) of this paragraph as the value of the registered person's taxable supplies during that taxable period or, such longer period that the Commissioner considers equitable, represents as a proportion of the registered person's total supplies during that taxable period or, such longer period as allowed by the Commissioner;
(c) where no taxable supplies were made during the taxable period, such proportion, if any, of the input tax for that taxable period as the Commissioner considers to be fair and reasonable;
(d) where a credit note or, as the case may be, a debit note has been issued in that taxable period pursuant to subsection (2) of Section 42 of this Decree and that registered person is, -
(i) the supplier, in relation to a credit note, the amount of the tax credit:
(ii) the recipient, in relation to a debit note, the amount of the tax debit:
Provided that this
subparagraph shall only apply to the extent that the recipient was entitled to
an input tax deduction in respect
of the original supply to which the debit note
refers;
(e) any amount calculated in accordance with Section 43 of this Decree.
(3) For the purposes of subsection (2)
of this Section, the amount of output tax in relation to a supply made by a
registered person
attributable to a taxable period is, -
(a) the total of tax charged on all taxable supplies made or deemed to be made during that taxable period; and
(b) where a credit note or, as the case may be, a debit note has been issued in that period pursuant to subsection (2) of Section 42 of this Decree and that registered person is, -
(i) the supplier, in relation to a debit note, the amount of the tax debit:
(ii) the recipient, in relation to a credit note, the amount of the tax credit:
Provided that this
subparagraph shall only apply to the extent that the recipient has claimed an
input tax deduction in respect of
the original supply to which that credit note
relates.
(4) Notwithstanding anything in subsections 2 and 3 of this
Section, where a registered person is required to account for tax payable
on a
payments basis pursuant to Section 36 the amount of input tax or, as the case
may be, output tax attributable to the taxable
period shall be, -
(a) in respect of a supply of goods and services which is deemed to take place pursuant to subsection (1) of Section 18 or paragraphs (c), (d), (e) or (f) of subsection (2) of Section 18 of this Decree;
(b) in respect of a credit note or a debit note to which paragraph (d) of subsection (2) or, as the case may be, paragraph (b) of subsection (3) of this Section applies, -
the amount of any payment
made or, as the case may be, received in respect of that supply or, as the case
may be, in respect of that
credit or debit note during that taxable
period:
Provided that this subsection shall not apply in respect of any
supply of goods and services -
(c) in terms of a hire purchase agreement (being a conditional sale agreement whereby the property in the goods will pass to the bailee);
(d) in terms of a financial lease (being an agreement to lease whereby the lessee is expressly required or has the option to purchase the goods subject to the lease at a guaranteed residual value or nil); or
(e) between persons who are not independent of each other.
(5) No deduction of input tax shall be
made in respect of a supply, unless -
(a) a tax invoice or credit note or debit note, in relation to that supply, has been issued in accordance with Sections 41 and 42 of this Decree and is held and retained in accordance with Section 79 of this Decree by the registered person making that deduction at the time that any return in respect of that supply is furnished; or
(b) a tax invoice is not required to be issued pursuant to any regulation made under this Decree.
(6) Where a registered
person is entitled, pursuant to the provisions of this Section, to deduct input
tax in respect of any taxable
period from the amount of output tax attributable
to that taxable period, the registered person may deduct that amount from the
amount
attributable to any later taxable period to the extent that it has not
previously been deducted from the output tax of that registered
person.
(7) For the purposes of paragraph (b) of subsection (2) of this
Section, where, in relation to a taxable period, the value of supplies
made by a
registered person that are not taxable supplies is not more than -
(a) five percent of the value of all supplies made by that person during that taxable period; or
(b) the amount of four thousand dollars,
whichever is the lesser, any input
tax, other than input tax to which subparagraph (ii) of paragraph (b) of
subsection (2) of this
Section applies, shall be deemed to have been incurred
wholly for the purposes of making taxable supplies.
(8) If, in relation
to any taxable period and any registered person, the total amount that may be
deducted under subsection (2) of
this Section and Section 86 of this Decree
exceeds that aggregate amount of output tax of that registered person
attributable to
that taxable period, the amount of excess may, subject to this
Decree, be refunded to that registered person by the Commissioner
pursuant to
Section 65 of this Decree.
40. Payment
of Tax
(1) Every registered person, for each taxable period,
shall, not later than the last day allowed under this Decree for furnishing
a
return for that taxable period, pay to the Commissioner the tax payable for that
period as calculated pursuant to Section 39 of
this Decree.
(2)
Notwithstanding subsection (1) of this Section, where a later due date has been
fixed pursuant to Section 44 of this Decree, the
tax payable shall be paid to
the Commissioner on or before that later due date.
(3) Subject to Part
VIII and Part IX of this Decree, the amount set forth as tax payable on any tax
return furnished by a registered
person shall be conclusively deemed and taken
to be correct for the purposes of this Decree.
(4) A return purporting to
be made by or on behalf of any person shall for all purposes be deemed to have
been made by that person
or by that person's authority, as the case may be,
unless the contrary is proved.
41. Tax
invoices
Except as otherwise provided by regulation, a supplier,
being a registered person, making a taxable supply to a recipient, shall issue
a
tax invoice containing such particulars as specified by regulation at the time
that the supply takes place:
Provided that -
(a) it shall not be lawful to issue more than one tax invoice for each taxable supply:
(b) if a registered person claims to have lost the original tax invoice, the supplier or the recipient, as the case may be, may provide a copy clearly marked "copy only".
42.
Credit and debit notes
(1) This Section shall apply where a
registered person has issued a tax invoice in respect of a taxable supply and
-
(a) that supply has been cancelled; or
(b) the previously agreed consideration for the supply has been altered whether due to an offer of discount (not being a discount for prompt payment which is clearly stated on the face of the tax invoice) or otherwise; or
(c) the goods and services or part of the goods and services supplied have been returned to the supplier.
(2) Where this
Section applies, the supplier shall issue to the recipient a credit note or, as
the case may be, a debit note containing
such particulars as specified by
regulation, to adjust the amount shown on the tax invoice as being in respect of
tax to the amount,
if any, that would have been so shown if -
(a) the cancellation or alteration referred to in paragraphs (a) or (b) of subsection (1) had taken place before the tax invoice was issued;
(b) the goods and services returned had not been supplied:
Provided that-
(c) it shall not be lawful to issue more than one credit note or debit note to adjust the amount shown on the tax invoice;
(d) if any registered person claims to have lost the original credit note or debit note, the supplier or the recipient, as the case may be, may provide a copy clearly marked "copy only".
43.
Bad debts
(1) Where -
(a) a registered person has made a taxable supply for consideration in money; and
(b) that registered person has furnished a return in relation to the taxable period during which the supply was made and has properly accounted for tax on that supply as required under this Decree; and
(c) the registered person has written off as a bad debt the whole or part of the consideration not paid to him; and
(d) the registered person has taken all reasonable steps to recover the bad debt; and
(e) the registered person satisfies the Commissioner that there is no reasonable or probable expectation that the bad debt will ever be recovered, -
then the Commissioner may allow the
registered person to make a deduction under subsection (2) of Section 39 of this
Decree of that
portion of the amount of tax chargeable in relation to that
supply as the amount written off as a bad debt bears to the total consideration
for the supply:
Provided that where goods and services are supplied under
-
(i) a hire purchase agreement (being a conditional sale agreement whereby the property in the goods will pass to the bailee); or
(ii) a financial lease (being an agreement to lease whereby the lessee is expressly required or has the option to purchase the goods subject to the lease at a guaranteed residual value or nil),
the registered person shall
only make a deduction under this Decree of the tax fraction of that portion of
the amount written off
as a bad debt as the cash price bears to the total amount
payable under the hire purchase agreement or, as the case may be, the financial
lease.
(2) Where any amount in respect of which a deduction has been made
in accordance with subsection (1) of this Section is at any time
wholly or
partly recovered by the registered person, that portion of the amount of the
deduction allowable under subsection (1) of
this Section as the amount of the
bad debt recovered bears