قانون ضريبة الدخل والمبيعات لعام 2004، غامبيا

INCOME AND SALES TAX ACT, 2005

Section Arrangement of Sections

CHAPTER I - PRELIMINARY

1. Short title and commencement
2. Interpretation
3. Associates
4. Fair market value
5. Resident individual
6. Resident company
7. Resident partnership
8. Resident body of persons
9. Resident trust

PART III - COMPUTATION OF CHARGEABLE INCOME

Sub-Part I — Gross Income Gross income Business income Employment income Employee share schemes Property income

PART V — RULES RELATING TO PARTICULAR INDUSTRIES

69. Short-term insurance business

PART VI— INTERNATIONAL Sub-Part I — Geographic Source of Income

70. Foreign-source income

CHAPTER III — CAPITAL GAINS TAX PART I - PRELIMINARY

104. Interpretation of Chapter III PART Il—IMPOSITION OF CAPITAL GAINS TAX Capital gains tax Computation of capital gain Exempt capital gains Disposal of private residence Disposal of agricultural land Foreign tax credit

PART III — CAPITAL GAINS TAX PROCEDURE

Furnishing of capital gains tax returns Capital gains tax assessments Due date for payment of capital gains tax Registration of instruments

CHAPTER IV — RESIDENTIAL RENT TAX PART I—PRELIMINARY

115. Interpretation of Chapter IV

PART III — RESIDENTIAL RENT TAX PROCEDURE

1. Furnishing of residential rent tax returns
2. Residential rent tax assessments
3. Due date for payment of residential rent tax
4. Instalment payments of residential rent tax

CHAPTER V. FRINGE BENEFITS TAX PART I - PRELIMINARY

123. Interpretation of Chapter V PART Il—IMPOSITION OF FRINGE BENEFITS TAX 124 Fringe benefits tax 125 Taxable fringe benefits amount 126 Exempt fringe benefits 127 Housing fringe benefit 128 Motor vehicle fringe benefit 129 Household personnel fringe benefit 130 Loan fringe benefits 131 Debt waiver fringe benefits 132 Property fringe benefits 133 Medical fringe benefits 134 Life insurance fringe benefit 135 Entertainment fringe benefits 136 Residual fringe benefits PART III — FRINGE BENEFITS TAX PROCEDURE

1. Furnishing of fringe benefits tax returns
2. Fringe benefits tax assessments
3. Due date for payment of fringe benefits tax
1. Instalment payments of fringe benefits tax
2. CHAPTER VI- SALES TAX PART I—PRELIMINARY
4. Interpretation of Chapter VI PART Il—IMPOSITION OF SALES TAX
5. Sales tax PART III — SUPPLIES, IMPORTS AND EXPORTS
6. Supply of goods or services
7. Time of supply
8. Place of supply
9. Import
10. Time of import
11. Export PART IV — TAXABLE SUPPLIES AND TAXABLE IMPORTS
12. Taxable supply of goods or services
13. Exempt supply of goods
14. Taxable imports
15. Exempt imports PART V — VALUE OF SUPPLIES AND TAXABLE IMPORTS
16. Value of supply of goods or services
17. Post-sale adjustments
18. Value of taxable import PART VI— REGISTRATION
19. Registration
1. Cancellation of registration
2. PART VII— CALCULATION OF SALES TAX PAYABLE
20. Calculation of sales tax payable for sales tax period
21. Input tax credit
1. Sales tax invoices, credit notes, and debit notes
2. PART VIII— SALES TAX PROCEDURE
22. Furnishing of sales tax returns
23. Sales tax assessments
24. Due date for payment of sales tax
25. Recovery of sales tax from recipient of a supply
26. Seizure of goods
27. Security
28. Sales tax refunds CHAPTER VII- GENERAL PROCEDURAL PROVISIONS PART II - TAX RETURNS AND OTHER DOCUMENTS

1. Furnishing of tax returns and other documents
2. Extension of time to furnish tax return or other document
3. Certification by preparer of tax return
4. Tax return or other document duly made PART III — TAXATION DECISIONS

168. Interpretation of Chapter VII

1. Validity of taxation decisions
2. Taxation decisions correct except in Part IV proceedings
3. Errors and defects in notices of taxation decisions n to affect validity PART I — PRELIMINARY PART IV — TAXATION OBJECTIONS AND APPEALS
4. Objection to a taxation decision
5. Review of objection decision by the Tax Tribunal
6. Appeal to High Court from decision of the Tax Tribunal
7. Implementation of decisions of the Tax Tribunal or High Court
8. General provisions in relation to taxation objections and appeals PART V - COLLECTION AND RECOVERY OF TAX
9. Payment of tax
10. Tax as a debt due to the State
11. Priority of tax I 84 Recovery of tax from persons holding money on behalf of a taxpayer

1. Collection of tax by distress and sale
2. Liquidators
3. Departure prohibition certificate
4. Temporary closure of business PART VI— RECORDS, INVESTIGATIONS, AND AUDIT
5. Accounts and records
6. Power to enter and search premises
7. Notice to obtain information or evidence
8. Books and records not in English language
9. Audit PART VII— TAXPAYER IDENTIFICATION NUMBER
10. Issuing of a Taxpayer Identification Number
11. Cancellation or alteration of Taxpayer Identification Number
12. Quotation of Taxpayer Identification Number PART VIII— REFUNDS
13. Repayment of overpaid tax
14. Representatives
15. Liabilities and obligations of representatives
16. Deceased individuals
17. Liability for tax payable by a company or partnership with insufficient assets PART X — INTEREST, PENALTY AND OFFENCES Sub-Part I — Late Payment Interest
18. Late payment interest Sub-Part II— Penalty
19. Penalty for failure to submit a tax return
20. Penalty for non-payment of tax
21. Penalty for failure to apply for sales tax registration
22. Penalty for failure to maintain proper records
23. Penalty for making false or misleading statements
24. Imposition of penalty Sub-Part Ill — Offences
25. Failure to lodge a tax return or other document
26. Offences related to sales tax registration
27. Offences related to sales tax Invoices, credit notes, and debit notes
28. Failure to comply with a section 184 notice
29. Failure to comply with section 186
30. Failure to maintain proper records
31. Failure to provide reasonable assistance
32. Failure to comply with a section 191 notice
33. Improper use of Taxpayer Identification Number
34. Making false or misleading statements
35. Obstructing a revenue officer
36. Aiding and abetting
37. Offences by revenue officers
1. Offences by companies
2. PART XI— RULINGS
38. Public rulings PART XII — FORMS AND NOTICES
39. Forms and notices; authentication of documents
40. Service of notices and other documents CHAPTER VIII— ADMINISTRATION PART I — COMMISSIONER-GENERAL AND REVENUE OFFICERS
41. Appointment of Commissioner-General and revenue officers
42. Delegation
43. Secrecy PART II — TAX TRIBUNAL
44. Establishment of Tax Tribunal
45. Appointment of members
46. Application for review of a reviewable decision
47. Decisions of Tax Tribunal
48. Appeal to High Court from decisions of the Tax Tribunal CHAPTER IX - MISCELLANEOUS PROVISIONS
49. Currency translation
50. Exemptions and tax provisions in other laws
51. Tax clearance certificate
52. Regulations
53. Repeal FIRST SCHEDULE — Rates of Income Tax SECOND SCHEDULE — Modifications to this Act in respect of income arising out or in connection with petroleum operations THIRD SCHFULE — Annual Allowances FOURTH SCHEDUL Goods Exempt from Sales Tax

PART IX — Representatives

Income and Sale 1 ix Act, 2004 14

2. In this Act, unless the context otherwise requires — “amount” includes an amount-in-kind;

“approved retirement fund” means a retirement fund approved by the Commissioner-General in accordance with regulations made under this Act;

“associate” has the meaning given to it in section 3;

“associate employer” means an employer acting for or on behalf of another employer whose relationship is such that —

(a)

one employer may reasonably be expected to act in accordance with the intention of the other; or

(b)

both employers may reasonably be expected to act in accordance with the intention of a third employer;

“audited accounts”, in relation to a taxpayer, means the accounts of the taxpayer that have been audited by a person registered as a chartered accountant with the Association of Chartered Accountants, other than an individual who is an employee of the taxpayer;

“body of persons” means a fraternity, fellowship, or society of persons, but does not include a partnership;

“business” includes a trade, or adventure or concern in the nature of trade;

Income and Sales Tax Act, 2004 15
“business income” has the meaning given to it in section 16;
“business loss” has the meaning in subsection (5) of section 45;
“capital gains tax” means the tax imposed under section 105;
“capital gains taxpayer” means a person liable for capital gains tax under this Act;
“chargeable income” has the meaning given to it in section 14;
Commissioner General” means the Commissioner-General of Taxes appointed under

section
226;
“company” means —

(a)

a company or corporation incorporated or registered in The Gambia or elsewhere;

(b)

a foreign association of persons, whether incorporated or not, which the Commissioner-General has, by general or special order, declared to be a company for the purposes of.this Act; or

(C)

any other legal person which is not an individual, partnership, body of persons, trust, government, political subdivision of

a.

public international organisation;

Income and Sales Tax Act

“Consideration received”, in relation to the disposal of an asset, has the meaning
given to it in section 55;
“cost, in relation to an asset, has the meaning in section 54;
“customs laws” means the Customs Act or any other legislation relating to customs,
including any Proclamation, regulation, rule, resolution or Order made under the
authority of any law relating to customs;
“debt means an amount owing, including accounts payable and amounts owing under
a promissory note, bill of exchange, debenture, security, bond, or similar financial
instrument;
“depreciable asset” has the meaning given to it in section 36 (12);
“disposal” has the meaning given to it in section
53;
“dividend” means any distribution of profits by a company to a shareholder or by a
partnership to a partner
“employee” means an individual engaged in employment;
“employer” means a person who engages or remunerates an employee;
“employment includes —

(a)

a directorship or other office involved in the management of a company;

Income and Sales Tax Act. 2004 17

(b)

a position entitling the holder to a• or ascertainable remuneration; or

(c)

the holding or acting in any public of “employment income” has the meaning given it in section 17; excise laws” means the Excise Act and legislative enactment relating to excisable goods, including any Proclamation, regulation rule, resolution or Order made under authority of any law relating to excisable goods “fair market value” has the meaning given to section 4;

“financial institution” has the meaning giver under the Financial Institutions Act,
2003;
“financial lease” has the meaning given to section 52 (6);
“foreign-source income” has the meaning to it in section 70 (17);

“fringe benefits tax” means the fringe benefits tax imposed under section 124;
“fringe benefits taxpayer” means an employer liable for fringe benefits tax under this
Act;

“Gambian-source income” has the meaning given to it in section 70;
“Government institution” does not include a parastatal;
I X Income and Sales Tax Act, 2004

“interest” means —
or
“gross income” has the meaning given to it in section 15;

“income tax” means the tax imposed under sections 10, 11, 12 or 79; “income taxpayer” means a person liable for income tax under this Act; “insurance premium” includes a premium in relation to re-insurance; “intangible asset” has the meaning given to it in section 38 (9);

(a)

an amount, however described, whether periodical or a lump sum, as consideration
for the use of money or being given time to pay a sum of money;

(b)

an amount that is functionally equivalent to an amount referred to in paragraph (a),
such as an amount payable for the time value of money under a derivative financial
instrument or as defaulted interest under a guarantee agreement;

(C)

a commitment, guarantee, service, or similar fee payable in respect of a debt;
“local authority” has the meaning given to it in
the Local Government Act, 2002;

Income and Sales Tax Act, 2004

“natural resource amount” means —

(a)

an amount (including a premium or like amount) paid as consideration for the right to take minerals or a living or non- living resource from land; or

(b)

an amount calculated in whole or part by reference to the quantity or value of minerals or a living or non-living resource taken from land;

“non-profit organisation” has the meaning given to it in section 25 (2);

“non-resident person” means a person who is not a resident person;

“parent” means a biological or adoptive parent;

“partnership” means an association of persons carrying on business jointly with a common view to profit;

“permanent establishment” in relation to a person, means a place of business through which the business of person is wholly or partly carried on, and includes —

(a)

a place of management, branch, office, factory, warehouse, or workshop;

(b)

a mine, oil or gas well, quarry, or other place of extraction of natural resources;

(C)

a building site, or a construction, assembly or installation project, or any

• supervisory activity connected with the site or project;

Income and Sales Tax Act, 2004 20

(d)

the furnishing of services, including consultancy services, by any person through employees or other personnel engaged by the person for that purpose, but only if activities of that nature continue for the same or a connected project within The Gambia for a period or periods aggregating more than ninety days within any twelvemonth period;

(e)

a person (referred to as an “agent”) acting in The Gambia on behalf of the other person if the agent—

(i) has and habitually exercises an authority to conclude contracts on behalf of the other person, or

(ii)

habitually maintains a stock of goods or other merchandise from which the agent regularly delivers goods or merchandise on behalf of the other person; or

(f)

any substantial equipment installed, or other asset or property of the person capable of any activity giving rise to income;

“person” means an individual, a company, partnership, body of persons, trust, government, political subdivision of a government, or a public international organisation;

“pre-commencement expenditure” has the meaning given to it in section 39 (3); “prescribed” means prescribed by regulations made under this Act; Income and Sales Tax Act, 2004 21

“property income” has the meaning given to it in section 19” “received”, in relation to a person, includes —

(a)

applied on behalf of the person either at the instruction of the person or under any law; or

(b)

made available to the person;
“rent’” means an amount representing consideration for the use or occupation of, or

the right to use or occupy any land or building, including any premium or like
amount;
“resident body of persons” has the meaning given to it in section 8;
“resident company” has the meaning given to it in section 6;
“resident individual” has the meaning given to it in section 5;
“resident partnership” has the meaning given to it in section 7;

“resident person” means —

(a)

a resident individual, resident company, resident partnership, resident body of persons, or resident trust; or

(b)

the Government of The Gambia, or any local or district authority in The Gambia;

Income and Sales Tax Act, 2004 22

“resident trust” has the meaning given to it in section 9;

‘residential rent tax” means the tax imposed under section 116;

“residential rent taxpayer” means a person liable for residential rent tax under this Act;

“royalty” means an amount, however described, whether periodical or a lump sum, as consideration for—

(a)

the use of, or right to use any patent,

invention, design or model, secret formula or process, trademark, or other like property or right;

(b)

the use of, or right to use any copyright of a literary, artistic, or scientific work (including films or video tapes for use in connection with television or tapes in connection with radio broadcasting);

(c)

the receipt of, or right to receive, any visual images or sounds, or both, transmitted by satellite, cable, optic fibre or similar technology in connection with television, radio, or internet broadcasting;

(d)

the supply of any technical, industrial, commercial or scientific knowledge, ex perience, or skill;

(e)

the use of or right to use any industrial, commercial or scientific equipment;

Income and Sales Tax Act, 2004

(f)

the supply of any assistance that is
ancillary and subsidiary to, and is
furnished as a means of enabling the
application or enjoyment of, any
property or right mentioned in
paragraphs (a) to (e); or

(g)

the disposal of any property or right
referred to in paragraphs (a) to (e);
“sales tax” means the tax imposed under section
142;

“Secretary of State” means the Secretary of State responsible for finance and economic affairs;

“shares”, in relation to a company, means an ownership interest;

“shareholder”, in relation to a company, includes a member and a person who has an ownership interest in a company;

“stock-in-trade” has the meaning given to it in section 50 (8);

“tax treaty” has the meaning given to it in section 76 (5);

“tax year” has the meaning given to it in section 46;

“taxable business income” means business income included in gross income;

Income and Sales Tax Act, 2004 24

“technical service fees” means an amount, however described, whether periodical or lump sum, paid as consideration for the rendering of a managerial, technical or consultancy service, including the service of technical and other personnel, but does not include employment income;

“total turnover, in relation to a person for a tax year, means the gross revenue (including the gross proceeds from the disposal of an asset used in a business) received or receivable by the person in the tax year, but does not include amounts exempt from income tax, capital gains liable for tax under Chapter Ill, or residential rent liable for tax under Chapter IV;

“trust” means an arrangement under which there is a trustee in relation to property;

“trustee” means —

(a)

a person appointed or constituted as trustee by an act of parties, by a will, or by an order or a declaration of a court, or by operation of the law;

(b)

an executor, administrator, a tutor, or curator;

(C)

a liquidator or judicial manager;

(d)

any person having, either in a private or official capacity, the possession, direction, control, or management of any property of a person under a legal disability; or

(e)

any person who manages assets under a private foundation or other similar arrangement.

Income and Sales Tax Act, 2004.

3. (1) Subject to subsection (2), two persons are associates if the relationship between them is such that one may reasonably be expected to act in accordance with the intentions of the other, or both persons may reasonably be

‘Expected to act in accordance with the intention of a third person.

(2)

Two persons are not associates solely b reason of the fact that one person is an employee of the other or both persons an employees of a third person.

(3)

Without limiting the generality c subsection (1), the following are treated a. associates —

(a)

An individual and a relative of the individual, except if the Commissioner General is satisfied that neither person may reasonably be expected to act ii accordance with the intentions of the other;

(b)

a partner in a partnership and this partnership, if the partner, either alone c together with an associate or associate under another application of this section controls fifty per cent or more of the right to income or capital of the partnership;

(c)

A trust and a person who benefits or ma benefit under the trust;

(d)

A shareholder in a company and this company, if the shareholder, either alone or together with an associate or associates under another application of this section, controls either directly or through one or more interposed persons-

Income and Sales Tax Act, 2004

(C)

a spouse of the individual or of any person specified in paragraph (a) or (b).

(I)

fifty per cent or more of the voting power in the company;

(ii)

fifty per cent or more of the rights to dividends, or

(iii) fifty per cent or more of the rights to capital, and

(e) two companies, if a person, either alone or together with an associate or associates under another application of this section, controls either directly or through one or more interposed persons—

(I) fifty per cent or more of the voting power in both companies,

(iii) fifty per cent or more of the rights to dividends in both companies, or

(iii) fifty per cent or more of the rights to capital in both companies.

(4)

In this section, “relative”, in relation to an individual, means— (a) an ancestor, a descendant of any of the

grandparents, or an adopted child, of the individual; or

(b)

an ancestor, a descendant of any of the grandparents, or an adopted child of a spouse of the individual; or

Income and Sales Tax Act, 2004 27

(5)

In applying paragraphs (b), (d), or (e) of subsection (3), holdings that are attributable to a person from an associate are not reattributed to another associate.

4. (1) For the purposes of this Act, the fair market value of any property, asset, service, benefit, or supply at a particular time is the amount the property, asset, service, benefit, or supply would ordinarily fetch in the open market at that time.

(2) If the fair market value of any property, asset, service, benefit, or supply cannot be determined under subsection (1), the fair market value is the amount determined by the Commissioner-General.

5. (1) Subject to subsections (2) and (3), an individual is a resident individual for a tax year if the individual —

(a)

resides in The Gambia at any time in the year;

(b)

is present in The Gambia for a period of, or periods amounting in aggregate to, one hundred and eighty-three days or more in the tax year, or

(C)

is an employee or official of the Government of The Gambia posted abroad at any time in the tax year?

Income and Sales Tax Act, 2004

(2)

An individual who is a resident individual under subsection (1) for a tax year, in this section referred to as the “current tax year”, but who was not a resident individual for the preceding tax year, is treated as a resident individual in the current tax year only for the period commencing on the day on which the individual was first present in The Gambia.

(3)

An individual who is a resident individual for the current tax year, but who is not a resident individual for the following tax year, is treated as a resident individual in the

current tax year only for the period ending on the last day on which the individual was present in The Gambia.

6. A company is a resident company for a tax year if— Resident partnership Resident body of persons

(a)

the company was incorporated or formed in The Gambia; or

(b)

the control and management of the company’s business is exercised in The Gambia at any time in the year.

1. A partnership is a resident partnership for a tax year if a partner of the partnership is a resident person at any time in the tax year.
2. A body of persons is a resident body of persons for a tax year if—

(a)

the body was formed in The Gambia; or

(b)

the control and management of the body’s activities is exercised in The Gambia at any time in the year.

Income and Sales Tax Act, 2004

Resident trust 9. A trust is a resident trust for a tax year if — Tax on chargeable income Fist Schedule

(a)

the trust was settled or established in The Gambia; or

(b)

a trustee of the trust is a resident person at any time in the tax year.

PART II- CHARGEABLE INCOME

14. The chargeable income of a person for a tax year is the gross income of the person for the year reduced by the total amount of deductions allowed to the person for the year under this Act.

General provisions relating to income tax imposed under sections 11 and 12

Income and Sale Tax Act, 2004 33

PART V - RULES RELATING TO PARTICULAR INDUSTRIES

69 (1) The chargeable income of a company carrying on a short-term insurance business shall be computed in accordance with this section.

(2)

The gross income of a resident company carrying on a short term insurance business for a tax year is the sum of—

(a)

the gross premiums derived by the company in the year for the insurance of any risk, including premiums on reinsurance but not including premiums returned to the insured;

(b)

the gross income of the company for the year, including any commission or expense allowance derived from the reinsurance of any risk and any income derived from investments; and

(C)

the amount of the company’s reserve for unexpired risks deducted in the previous tax year under paragraph (C) of subsection (3).

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81

(3)

The total deductions allowed to a resident company carrying on a short-term insurance business for a tax year is the sum of –

(a)

the amount of the claims admitted by the company in the year less any amount recovered or recoverable under any contract of re-insurance, guarantee, security, or indemnity;

(b)

the amount of agency expenses incurred by the company iii the year;

(C)

the balance of the company’s reserve for unexpired risks at the percentage adopted by the company as at the end of the year; and

(d)

the total amount of any other expenditure incurred by the company in the year allowable as a deduction under this Act.

(4)

The gross income of a non-resident company carrying on a short-term insurance business in The Gambia for a tax year is the sum of—

(a) the gross premiums derived by the company in the year for the insurance of any risk in The Gambia, including premiums on reinsurance but excluding premiums returned to the insured;

Income and Sales Tax Act. 2004 82

(b)

the total amount of any Gambian-source income derived by the company that is included in the gross income of the company for the year, including any commission or expense allowance de= rived from the reinsurance of any risk in The Gambia and any income derived from investments; and

(c)

the amount of the company reserve for unexpired risks deducted in the previous tax year under paragraph (c) of subsection (5).

(5)

The total deductions allowed to a non-resident company carrying on a short-term insurance business in The Gambia for a tax year is the sum of-

(a)

the amount of the claims admitted by the company in the year in respect of insured risks in The Gambia less any amount recovered or recoverable under any contract of re-insurance, ,security, or indemnity;

(b)

the amount of agency expenses incurred by the company in The Gambia in the year;

(b) the balance of the company’s reserve for unexpired risks in The Gambia at the percentage adopted by the company as at the end of the year; and

Income and Sales Tax Act. 2004 83

(d)

the total amount of any other expenditure incurred by the company in the year in deriving income included in the gross income of the company and allowable as a deduction in accordance with this Act.

(6)

In this section, “short-term insurance” means any insurance other than life insurance.

PART VI- INTERNATIONAL Sub-Part I - Geographic Source of Income

70. (1) An amount is foreign-source income to the extent it is not Gambian-source income as set out in this section.

(2)

An employment income is Gambian-source income to the extent to which the income —

(a)

is received from employment carried out in The Gambia, wherever paid; or

(b)

is paid by, or on behalf of, the Government of The Gambia, wherever the employment is carried out.

(3)

A business income of a resident person is Gambian-source income to the extent to which the income is derived from any business carried on in The Gambia.

(4)

A business income of a non-resident person is Gambian-source income to the extent to which it is directly or indirectly attributable to —

(a)

a permanent establishment of the non-resident person in The Gambia;

Income and Sales Tax Act. 2004

(b)

sales in The Gambia of goods or merchandise of the same or similar kind as those sold by the person through a permanent establishment in The Gambia; or

(c)

any other business activity carried on in The Gambia of the same or similar kind as that carried on by the person through a permanent establishment in the Gambia.

(5)

If the business of a non-resident person comprises the rendering of independent services (including professional services and the services of entertainers and sportspersons), the Gambian-source business income of the person includes (in addition to any amounts treated as Gambian-source income under subsection (4) any remuneration derived by the person when the remuneration is paid by a resident person or borne by a permanent establishment in The Gambia of a non-resident person.

(6)

Any gain from the disposal of an asset used in deriving business income referred to in subsection (3), (4), or (5) is Gambian-source income.

(7)

A dividend is Gambian-source income if it is paid by a resident company or a resident partnership.

(8)

An Interest is Gambian-source income if it

IS—

Income and Sales Tax Act. 2004 85

(a)

paid by a resident person, except when the interest is payable in respect of any debt used for the purposes of a business carried on by the person outside The Gambia through a permanent establishment; or

(b)

borne by a permanent establishment in The Gambia of a non-resident person.

(9)

A royalty is Gambian-source income if it

is —

(a)

paid by a resident person, except when the royalty is payable in respect of any right, property, or information used, or services utilised for the purposes of a business Gamed on by the person outside The Gambia through a permanent establishment; or

(b)

borne by a permanent establishment in The Gambia of a non-resident person.

(10)

A rent is Gambian-source income if it is derived from the lease of immovable property in The Gambia, or from any other interest in or over immovable property in The Gambia.

(11)

A gain from the alienation of any property or right referred to in subsection (10) or from the alienation of any share in a company the assets of which consist wholly or Principally, directly or indirectly, of property or rights referred to in subsection (10) is Gambian source income.

Income and Sales Tax Act, 2004 86

(12)

A pension, charge, or annuity is Gambian source income if it is paid by a resident person or borne by a permanent establishment in The Gambia of a non-resident person.

(13)

A technical services fee is Gambian source income if it is —

(a)

paid by a resident person, except when the fee is payable in respect of services utilised in a business carried on by the person outside The Gambia through a permanent establishment; or

(b)

borne by a permanent establishment in The Gambia of a non-resident person.

(14)

A gain arising on the disposal of a share in a resident company or an interest in a resident partnership is Gambian-source income.

(15)

A natural resource amount is Gambian source income if it relates to the taking of minerals or a living or non-living resource from land in The Gambia.

(16)

An amount of any kind not mentioned in the preceding subsections is Gambian- source income if it is paid by a resident person or borne by a permanent establishment in The Gambia of a non-resident person.

(17)

If an amount comes within subsection (4) and another subsection (other than subsection (16)), this section applies —

(a)

by first determining whether the amount is Gambian-source income under that other subsection; and

Income and Sales Tax Act, 2004

87

(c) if the amount is not Gambian-source income under that other subsection, then determining whether it is Gambian-source income under subsection (4).

PART VIII- MINIMUM INCOME TAX

79. (1) In addition to the income tax imposed under section 10 (referred to as the “normal income tax”), a person carrying on business is liable for minimum income tax for each tax year.

(2)

The amount of minimum income tax payable by a person for a tax year is computed by applying the rate specified in subsection (3) to the person’s total turnover for the year.

(3)

The rate of minimum income tax is —

(a)

in the case of a person with audited accounts, two per cent, or

(b)

in any other case, three per cent.

Income and Sales Tax Act, 2004 95

(4)

The normal income tax payable by a person for a tax year, determined without taking into account any tax credits allowed under section 101 or 103, shall be credited against the minimum income tax payable by the person for that year.

(5)

If the normal income tax paid by a person for a tax year exceeds the minimum income tax payable for that year, no minimum income tax is payable for that year.

(6)

Minimum income tax payable under this section shall be treated for all purposes of this Act (other than this section and paragraph (b) of subsection (5) of section 103) as income tax.

PART IX-INCOME TAX PROCEDURE

Sub-Part I - Income Tax Returns

80. (1) Subject to section 81, an income taxpayer shall furnish an income tax return for each tax year not later than —

(a) in the case of a company permitted to use a special tax year as the company’s tax year, within three months after the end of the special tax year or,

(b)

in any other case, by 31 March after the end of the tax year.

(2)

An income tax return shall—

(a)

be in the prescribed form;
(b state the information required by the form;

Income and Sales Tax Act, 2OO4 96

(c)

be signed by the income taxpayer or the taxpayers representative; and

(d)

be furnished in the prescribed manner.

(3)

The Commissioner-General may, by notice in writing, require an income taxpayer or the taxpayers representative, as the case may be, to furnish an income tax return by the date specified in the notice for a period of less than twelve months, if -

(a)

the taxpayer has died;

(b)

the taxpayer has become bankrupt or gone into liquidation;

(c)

the taxpayer is about to leave The Gambia permanently;

(d)

the taxpayer is otherwise about to cease carrying on business in The Gambia; or

(e)

the Commissioner-General otherwise considers it appropriate to require the return to be furnished.

81. An income taxpayer is not required to furnish an income tax return if the only income derived by the taxpayer is —

(a) employment income from which tax has been withheld under section 89; or

(b) income from which tax has been withheld as a final tax under section 102.

Income and Sales Tax Act, 2004 97

CHAPTER III- CAPITAL GAINS TAX PART I – PRELIMINARY

. (1) In this Chapter, capital asset” means — Chapter III

(a)

in the case of a resident person —

(i) any land, building, or other structural improvement to land,

(ii)

any plant, machinery, fixture or equipment,

(iii) any share, security, or other financial asset,

(iv)

Any interest in a partnership, or

(v)

any right, title, or interest in an asset referred to in sub-paragraph (I), (ii), (iii) or (iv); or

(b)

In the case of a non-resident person —

(i) Any land in The Gambia, or any building or other structural improvement to land located in The Gambia,

Income and Sales Tax Act, 2004 113

(ii) any plant, machinery, fixture or equipment located in The Gambia,

(iii) any share, security, or other financial asset issued by a resident or nonresident person in The Gambia,

(iv)

any interest in a resident partnership, or

(v)

any right, title, or interest in an asset referred to in sub-paragraph (i), (ii), (iii) or (iv),

but does not include a depreciable asset or stock –in -trade

(2)

Sub-Part V of Part Ill of Chapter II applies for the purposes of this Chapter in determining when a capital asset has been disposed of, the cost of the asset, and the consideration received on the disposal.

PART II— IMPOSITION OF CAPITAL GAINS TAX

. (1) Subject to this Act, capital gains tax is imposed on a person who has disposed of a capital asset.

(2) The capital gains tax payable by a person on the disposal of a capital asset is —

(a) in the case of an individual, body of persons, or trustee of a deceased estate if

the disposal is in the first two years of administration of the estate, . the greater of—

Income and Sales Tax Act, 2004 114

(I)

fifteen per cent of the capital gain arising on percentage of the disposal, or

(II)

(ii)

five per cent of the consideration received on the disposal; or

(b)

in the case of a partnership, company, or trustee (other than a trustee to whom paragraph (a) applies), the greater of —

(i) twenty-five per cent of the capital gain arising on the disposal, or

(ii)

ten per cent of the consideration received for the disposal.

(3)

No capital gains tax is payable on the disposal of a capital asset if the capital gain arising on the disposal is exempt from capital gains tax.

106. (1) The capital gain arising on disposal of a capital asset is the excess of the consideration received on the disposal over the cost of the asset at the time of the disposal.

(2) The capital gain arising on disposal of a capital asset shall not be reduced by any capital loss arising on disposal of another capital asset.

107. (1) The following capital gains are exempt from capital gains tax —

(a) a capital gain on disposal of a capital asset by any person, if the amount of the gain does not exceed seven thousand five hundred dalasis;

Income and Sales Tax Act, 2004 115

(b)

a capital gain derived by a local authority, district authority, Government institution, or charitable organisation;

(C)

a capital gain on disposal of a private residence to the extent provided for in section 108; and

(d)

a capital gain on disposal of agricultural land to the extent provided for in section

109.

(2) If the Commissioner-General is satisfied that a capital asset has been disposed of in two or more parts for the purpose of taking advantage of paragraph (a) of subsection (1), any capital gain arising from the disposals is exempt under that paragraph only if the total gain from the disposal of all parts does not exceed seven thousand five hundred dalasis.

108. (1) This section applies to a disposal of a building by a person if —

(a)

in the two years immediately preceding the disposal, the building was used by the person or a parent of the person mainly as a private residence; and

(b)

the person has —

(i)

within one year after the disposal, purchased a new private residence for his or her use, or

(ii)

(ii)

within two years after the disposal, constructed a private residence for his or her use. .

Income and Sales Tax Act. 2004 116

(2)

If this section applies and the capital gain on the disposal is equal to or less than the cost of the new private residence, the capital gain is exempt from capital gains tax.

(3)

If this section applies and the capital gain on the disposal exceeds the cost of the new private residence, the amount of the excess is subject to capital gains tax at the time the new private residence is purchased or constructed.

109. (1) This section applies to a disposal of land by a person if—

(a)

in the two years immediately preceding the disposal, the land was used by the person or a parent of the person for agricultural purposes; and

(b)

the person has within two years after the disposal, purchased new land for agricultural purposes.

(2)

If this section applies and the capital gain on the disposal is equal to or less than the cost of the new agricultural land, the capital gain is exempt from capital gains tax.

(3)

If this section applies and the capital gain on the disposal exceeds the cost of the new agricultural land, the amount of the excess is subject to capital gains tax at the time the new agricultural land is purchased.

110. (1) If a resident person has a foreign capital gain on which foreign tax has been paid, the person is allowed a tax credit of an amount equal to—

Income and Sales Tax Act, 2004 117

(a)

the foreign tax paid; or

(b)

The Gambian capital gains tax payable in respect of the capital gain.

(2)

A tax credit allowed under subsection (1) reduces the amount of tax payable in respect of the capita! gain as computed under section 105.

(3)

In this section –

“foreign capital gain” means a capital gain on the following capital assets —

(a)

any land located outside The Gambia, or any building or other structural improvement to land located outside The Gambia;

(b)

any share, security, or other financial asset issued by a non-resident person;

(C)

any interest in a non-resident partnership; or

(c) any right, title, or interest in an asset referred to in paragraph (a), (b), or (C); and

CHAPTER IV - RESIDENTIAL RENT TAX PART I - PRELIMINARY

115. In this Chapter, “residential property” means any property occupied as a private residence, but does not include a hotel, inn, guest house, or boarding house.

PART II— IMPOSITION OF RESIDENTIAL RENT TAX

116. (1) Subject to this Act, residential rent tax is Imposed for each tax year on a person who has a taxable rental amount for the year.

(2) The tax imposed under subsection (1) on a person for a tax year is ten per cent of the person’s taxable rental amount for the year.

Income and Sales Tax Act, 2004 121

1. The taxable rental amount of a person for a tax year is the total rent received by the person in the year from the lease of residential property in The Gambia.
2. The tax imposed under section 116 is a final tax on the rent in respect of which the tax is imposed and

(a)

the rent shall not be included in gross income in computing the chargeable income of the person who receives it for any tax year

(b)

no deduction is allowable under this Act for any expenditure incurred in deriving the rent;

(C)

the amount of the rent is not reduced by any loss; and

(d)

the residential rent tax payable by a person under section 116 is not reduced by any tax credits allowed under this Act.

PART Ill — RESIDENTIAL RENT TAX PROCEDURE

119. (1) A residential rent taxpayer shall furnish
a residential rent tax return for each tax year
within three months after the end of the year.

(2)

A residential rent tax return shall —

(a)

be in the prescribed form;

(b)

state the information required by the form;

(C)

be signed by the residential rent taxpayer or the taxpayers representative; and

Income and Sales Tax Act. 2004 122

(d) be furnished in the prescribed manner.

120. (1) If a residential rent taxpayer furnishes a residential rent tax return for a tax year, other than a revised return under subsection (2) of section 169 —

(a)

the Commissioner-General is treated as having determined the taxpayer’s taxable rental amount for the year and assessed the residential rent tax due on the rental amount, equal to those respective amounts specified in the return; and

(b)

the taxpayer’s return is treated for all purposes of this Act to be a notice of a residential rent tax assessment served on the taxpayer by the Commissioner- General on the day the return was furnished by the taxpayer. Residential rent tax assessments

(2)

If a residential rent taxpayer fails to furnish a residential rent tax return for a tax year by the due date, the Commissioner-General may, based on any available information and to the best of the Commissioner-General’s judgment, determine the taxpayer’s taxable rental amount for the year and make an assessment of the residential rent tax due on the rental amount.

(3)

As soon as possible after making a residential rent tax assessment under subsection (2), the Commissioner-General shall serve the residential rent taxpayer with notice of the assessment stating —

(a)

the taxable rental amount for the year

Income and Sales Tax Act, 2004

(b)

the amount of residential rent tax due for the year

(C)

the amount of residential rent tax paid, if any, for the year;

(d)

the amount of any penalty and interest payable, if any, in respect of the residential rent tax due; and

(e)

the time, place, and manner of objecting to the assessment.

(4)

The making of a residential rent tax assessment under subsection (2) is an alternative to the application of subsection (1) of section 169.

(5)

Section 84 applies, with the necessary changes made, for the purposes of amending a residential rent tax assessment

1. The residential rent tax payable by a residential rent taxpayer for a tax year is due on the due date for furnishing the taxpayer’s residential rent tax return for the year.
2. (1) A residential rent taxpayer shall pay instalments of residential rent tax for a tax year.

(2)

Instalments of residential rent tax are payable for the three-month period ending on 31 March, 30th June, 30th September, and 31 December.

(3)

The amount of each instalment is ten per cent of the total rent received by the taxpayer for the period.

Income and Sales Tax Act, 2004 124

(4)

Instalments of residential rent tax are due on the l5” day after the end of the period to which they relate.

(5)

Instalments of residential rent tax paid by a residential rent taxpayer in a tax year are credited against the taxpayer’s residential rent tax liability for that year.

CHAPTER V - FRINGE BENEFITS TAX PART I - PRELIMINARY

“debt waiver fringe benefit’ has the meaning given to it in subsection (1) of section 131;

“employee’ includes an associate of an employee; “employer includes an associate of an employer;

“entertainment fringe benefit” has the meaning given to it in subsection (1) of section 135;

“fringe benefit’ means a housing fringe benefit, motor vehicle fringe benefit, household personnel fringe benefit, loan fringe benefit, debt waiver fringe benefit, property fringe benefit, medical fringe benefit, life insurance fringe benefit, entertainment fringe benefit, and residual fringe benefit;

“household personnel fringe benefit” has the meaning given to it in subsection (1) of section 129;

Income and Sales Tax Act. 2004 “housing fringe benefit” has the meaning given to it in subsection (1) of section 127; “life insurance fringe benefit” has the meaning given to it in subsection (1) of section

134;
“loan fringe benefit” has the meaning given to it in subsection (1) of section 130;
“medical fringe benefit” has the meaning given to it in subsection (1) of section 133;
“motor vehicle fringe benefit” has the meaning given to it in subsection (1) of section

128;
“property fringe benefit” has the meaning given to it in subsection (1) of section 132;
“residual fringe benefit” has the meaning given to it in subsection (1) of section 136;

and
“taxable fringe benefits amount” has the meaning given to it in section 125.

(2) For the purposes of this Chapter, the fair market value of a fringe benefit is determined without regard to any restriction on transfer of the benefit or the fact that the benefit is not otherwise convertible to cash.

CHAPTER VI- SALES TAX PART I - PRELIMINARY

“consideration”, in relation to a supply of goods or services, means the total of the following amounts —

(a)

the amount, in money or kind, paid or payable by any person, directly or indirectly, for the supply, reduced by any price discounts or rebates allowed and accounted for at the time of the supply; and

(b)

any duty, levy, fee, and charge (other than sales tax imposed under this Chapter) paid or payable on, or by reason of the supply;

“goods” means any tangible movable property, other than money;

“import” has the meaning given to it in section 146;

Income and Sales Tax Act, 2004 135

“importer, in relation to an import of goods, means any person who owns, possesses or has a beneficial interest in the goods at the time of the import; “manufacture” means the subjection of any physical matter to any process which

materially changes it in substance, character, or appearance, and includes assembling, printing, blending, mixing, cutting to size, diluting, bottling, packaging or repackaging of goods, or applying a coating or finishing to goods;

“manufacturer means any person engaged in manufacture;
“money’ means any currency issued by the Central Bank of The Gambia as legal

tender in The Gambia, but does not include any coins or paper currency that is a
collector’s piece or is otherwise of numismatic interest;
“registered manufacturer” means a registered person who is a manufacturer;
“registered person” means a person who is registered or required to be registered

under this Chapter
“sales tax period” means the calendar month;
“supply”, in relation to goods or services, has the meaning given to it in section 143;
“taxable import” has the meaning given to it in section 151;
“taxable services” means –

Income and Sales Tax Act, 2004 136

(a)

telecommunications services;

(b)

insurance services;

(C)

air transport services;

(d)

shipping agency services;

(e)

the provision of board, lodging, meals, beverages, or any other facility supplied in carrying on the business of a hotel operator;

(f)

the provision of meals, beverages, or any other facility supplied in carrying on the business of restaurant, bar, or night club operator;

(g)

services provided by a tourist enterprise licensed under The Gambia Tourism Authority Act, 2001;

(h)

services provided by casinos and gaming houses;

(i)

services provided by builders, lawyers, accountants, laundry and dry cleaners, surveyors, engineers, architects, and hairdressers;

(j)

video hire;

(k)

printing and publishing of commercial newspapers;

(I)

newspaper advertising; and

(m)

Recording studio services

Income and Sales Tax Act, 2004 137

“taxable supply”, in relation to goods or services, has the meaning given to it in section 149; and “telecommunication services” means —

(a)

services relating to the transmission, emission, or reception of signals, writing, images, sounds, or information of any kind by wire, radio, optical, or other electromagnetic systems;

(b)

the transfer or assignment of the right to use capacity for any transmission, emission, or reception referred to in paragraph (a); or

(C)

the provision of access to global information networks.

PART II- IMPOSITION OF SALES TAX

142. (1) Sales tax is imposed on —

(a)

a taxable supply of goods;

(b)

a taxable supply of services; and

(c)

a taxable import.

(2)

The amount of sales tax payable in respect of a taxable supply of goods or services, or taxable import is computed by applying the rate specified in subsection

(3)

to the value of the taxable supply or taxable import.

(3)

The rate of sales tax is —

Income and Sales Tax Act, 2004 138

(a)

in the case of a taxable supply of goods if the goods are treated as exported under section 148, zero per cent;

(b)

in the case of a taxable supply of telecommunications services, eighteen percent;

(C)

in the case of manufacturing and shipping agency services, fifteen per cent,

(d)

in the case of imported construction materials, fifteen per cent; and

(e)

in any other case, ten per cent.

(4)

The sales tax payable —

(a)

on a taxable supply of goods or services, is to be accounted for to the Commissioner-General by the registered person making the supply; or

(b)

on taxable import, is payable by the importer.

(5)

Notwithstanding anything contained in any law, the sales tax payable by a registered person under paragraph (a) of subsection (4) is recoverable from the recipient of the supply.

(6)

Notwithstanding anything contained in this section, sales tax shall not be payable on the goods listed in the Fourth Schedule.

PART Ill - SUPPLIES, IMPORTS AND EXPORTS

143. (1) The following is a supply of goods — Income and Sales Tax Ac 2004 139

(a)

a sale, exchange, or other transfer of the right to dispose of goods as owner;

(b)

an application of goods to a non-business use; or

(c)

a lease or hire of goods.

(2)

The performance of services is a supply of services.

(3)

A supply of goods incidental to the supply of services is treated as part of the supply of services.

(4)

A supply of services incidental to the supply of goods is treated as part of the supply of goods.

(5)

Subject to subsections (3) and (4), if a supply is a supply of goods and services, the Commissioner-General may determine on any reasonable basis the extent to which the supply is to be treated as a supply of services or goods.

144. (1) Subject to this section, a supply of goods or services occurs on the earlier of —

(a)

the date on which the invoice for the supply is issued; or

(b)

the date on which payment (including part payment) for the supply is made.

(2)

A supply of goods by way of an application of the goods to a non-business use occurs on the date the goods are first applied to such use.

Income and Sales Tax Act, 2004 140

(3)

A supply of goods under a financial lease occurs on the date of commencement of the lease.

(4)

lf—

(a)

goods are supplied under a lease (other than a financial lease); or

(b)

services are supplied under an agreement or law that provides for periodic payments,

the goods or services shall be treated as successively supplied for successive parts of the period of the agreement or as determined by law, and each successive supply

occurs on the earlier of the date on which the payment for the supply is due or received.

145. (1) A supply of goods occurs at the place where the goods are delivered or made available by the supplier or, if the delivery or making available involves transportation, the place where the goods are when the transportation commences.

(2) A supply of services occurs at the place where the services are performed.

146. (1) An import of goods is the bringing of the goods into The Gambia from a foreign country.

(2) A supply of services incidental to an import of goods is treated as part of the import of the goods, including packaging, insurance, transportation, warranty costs, or services giving rise to commission.

Income and Sales Ta Act, 2004 141

147. An import occurs —

(a)

if the goods are entered under the customs laws or excise laws for home consumption, on the date on which the goods are so entered; or

(b)

in any other case, on the date the goods are brought into The Gambia.

148. (1) Subject to subsection (2), goods are treated as having been exported if—

(a)

the goods have been delivered to, or made available at, an address outside The Gambia for use or consumption outside The Gambia as evidenced by such documentary proof as prescribed; or

(b)

the goods have been supplied to a designated duty free sales outlet and the goods have been taken outside The Gambia by the purchaser from the outlet for use or consumption outside The Gambia.

(2)

No goods shall be treated as having been exported from The Gambia, unless the goods have been exported in accordance with the provisions of the customs laws or excise laws.

PART IV - TAXABLE SUPPLIES AND TAXABLE IMPORTS

149. (1) A taxable supply of goods is a supply of goods, other than an exempt supply of goods, in The Gambia by a registered person in connection with the carrying on of a business.

Income and Sales Tax Act. 2004 142

(2) A taxable supply of services is a supply of taxable services in The Gambia by a registered person in connection with the carrying on of a business

.(3) A supply of goods or services is made by a registered person in connection with the carrying on of a business if the supply is made as part of, or incidental to, any independent economic activity of the person, whatever the purpose or results of that activity.

150. Any of the following the supplies is an exempt supply of goods—

(a)

a supply of food or drink for human consumption, including sweetening agents, seasonings, and other ingredients to be mixed with or used in the preparation of food or drink, but does not include —

(i)

imported food or drink,

(ii)

alcoholic beverages and non-alcoholic malt beverages,

(iii) carbonated beverages and goods for use in the preparation of carbonated beverages, or

(iv)candies and other confectionery, including chewing gum, chocolate, popcorn, or fruits, seeds or nuts coated or treated with candy, chocolate, honey, molasses, sugar, syrup, or artificial sweeteners; and Income and Sales Act, 2004 143

(b) a supply of books and equipment to an educational institution for the institutions own use and not for resale.

Taxable imports 151. A taxable import is any import of goods that is not an exempt import.

152. An import of goods referred to in section 150 is an exempt import.

PART V - VALUE OF SUPPLIES AND TAXABLE IMPORTS

153. (1) Subject to this section, the value of a supply of goods or services is the consideration for the supply.

(2)

The value of a supply of goods being the application of goods to a non-business use is the consideration paid or payable on acquisition of the goods.

(3)

The value of a supply of goods under a financial lease is the amount determined under subsection (3) of section 52.

(4)

The value of a supply of goods or services made by a registered person to an associate for no consideration or for a consideration that is less than the fair market value of the supply is the fair market value of the supply at the time of the supply.

(5)

Except as provided in subsection (2) or (4), the value of a supply of goods or services for no consideration is zero.

Income and Sales Tax Act, 2004 144

(6)

If a taxable supply of goods or services is made without a separate amount of the
price being identified as sales tax, the value of the supply is the price reduced by an
amount equal to the price multiplied by the tax fraction.

(7)

In this section, “tax fraction”, in relation to a taxable supply of goods or services,
means the fraction calculated in accordance with the following formula —
r
(1 OO+r)
where r is the rate of sales tax applicable to the supply as determined under subsection

(3)

of section 142.

154. (1) This section applies if—

(a)

a taxable supply of goods or services is cancelled;

(b)

the nature of a taxable supply of goods or services is fundamentally varied or
altered;

(c)

the consideration for a taxable supply of goods or services is altered; or

(d)

the goods (or part of the goods) that are the subject of a taxable supply are returned to the supplier.

Income and Sales Tax Act, 2004 145

(2)

If this section applies and the sales tax properly chargeable in respect of the supply exceeds the sales tax actually accounted for by the registered person making the supply, the amount of the excess is treated as sales tax payable by the registered person in respect of a taxable supply of goods or services made by the person in the sales tax period in which the event referred to in subsection (1) occurred.

(3)

If-

(a) subsection (2) applies; and

(b)

the supplier has issued a debit note to the recipient of the supply in accordance with subsection (4) of section 160,

the recipient of the supply shall treat the additional sales tax specified in the debit note as input tax payable by the recipient in the sales tax period in which the debit note is received.

(4)

Subject to subsection (6), if this section applies and the sales tax actually accounted for by the registered person making the supply exceeds the sales tax properly chargeable in respect of the supply, the registered person shall be allowed an input tax credit for the amount of the excess in the sales tax period in which the event referred to in subsection (1) occurred.

(5)

If —

(a)

subsection (4) applies; and

Income and_ Sales Tax Act, 2004

(b) the supplier has issued a credit note to the recipient of the supply in
accordance with subsection (3) of section 160,

(c)

the recipient shall treat the additional sales tax specified in the credit note as sales tax payable by the recipient in the sales tax period in which the credit note is received.

(6)

If the recipient of a supply to which subsection (4) applies is unregistered, no credit is allowed until the registered person has repaid the excess sales tax to the recipient of the supply, whether in cash or as a credit against any amount owing to the registered person by the recipient.

155. The value of a taxable import is the sum of- import

(a)

the value of the goods ascertained for the purposes of customs duty under the customs or excise laws whether or not any duty is payable on the import;

(b)

the amount of customs duty, excise duty, and any other fiscal charge (other than sales tax) payable on the import; and

(d) .. . . the value of any services referred to in subsection (2) of section 146 not included in the value under paragraph (a).

Income and Sales Tax Act, 2004 147

PART VI- REGISTRATION

156. (1) A person who is a manufacturer or supplier of goods or taxable services, other than a person who makes only exempt supplies, is obliged to register for sales tax —

(a)

at the end of any twelve-month or shorter period, if during the period the total value of supplies of goods or taxable services made by the person in The Gambia equalled or exceeded one hundred and fifty thousand dalasis; or

(b)

at the beginning of any twelve-month period, if there are reasonable grounds to expect that the total value of supplies of goods or taxable services to be made by the person En The Gambia during that period Will equal or exceed one hundred and fifty thousand dalasis.

(2)

In determining whether a person has an obligation to register under subsection (1), the Commissioner-General may have regard to the value of supplies of goods or taxable services made by an associate of the person.

(3)

A person who has an obligation to under subsection (1) shall apply Commissioner-General for registration twenty-one days of becoming so obliged.

(4)

If the Commissioner-General is satisfied that a person who has applied for registration is obliged to register for sales tax, the Commissioner-General shall register the person within twenty-one days of receipt of the application. register to the within twenty-one days of receipt of the application

Income and Sales Tax Act, 2004 148

(5)

Registration takes effect from the beginning of the first sales tax period after the person became obliged to register or such later period as the Commissioner-General may notify in writing.

(6)

A person who fails to apply for registration as required under subsection (3) is treated as registered from the beginning of the first sales tax period after the person became obliged to register.

(7)

A registered person shall notify the Commissioner-General, in writing, of any change in the name (including business name), address, place of business, or nature of the business of the person within twenty-one days of the change occurring.

157. (1) A registered person shall apply, in writing, to the Commissioner-General for cancellation of the person’s registration if the person has ceased to make taxable supplies of goods or services.

(2)

Subject to subsection (3), if the Commissioner-General is satisfied that a registered person who has properly made an application under subsection (1) has ceased to make taxable supplies of goods or services, the Commissioner-General shall cancel the person’s registration with effect from the last day of the sales tax period in which the person ceased to make taxable supplies or such other date as the Commissioner-General may determine.

Income and Sales Tax Act, 2004 149

(3)

The Commissioner-General shall not cancel the registration of a registered person if the Commissioner-General has reasonable grounds to believe that, at any time in the following twelve months, the person will recommence making taxable supplies of goods or services.

(4)

A person whose registration is cancelled under subsection (2) shall be treated as having made a taxable supply of any goods (including raw materials) on hand at the time the registration is cancelled but only if the person was allowed an input tax credit on acquisition of the goods.

(5)

The taxable supply referred to in subsection (4) is treated as having been made —

(a)

Immediately before cancellation of the person’s registration; and

(b)

for a value equal to the fair market value of the goods at the time the person’s registration is cancelled.

(6)

The obligations and liabilities of a person under this Chapter, including the furnishing of sales tax returns, in respect of anything done or omitted to be done while the person was registered are not affected by cancellation of the person’s registration.

PART VII - CALCULATION OF SALES TAX PAYABLE

158. (1) The sales tax payable in respect of taxable supplies of goods by a registered person for a sales tax period is computed in accordance with the following formula —

Income and Sales Tax Act, 2004

150 A-B where— A is the total sales tax payable in respect of taxable supplies of goods made by the registered person during the period; and

B is the total input tax credit allowed to the registered person for the period under subsection (4) of section 154 and section 159

(2)

If, for any sales tax period, the amount of B in subsection (1) exceeds the amount of A in that subsection, section 167 shall apply to the excess.

(3)

The sales tax payable in respect of taxable supplies of services by a registered person for a sales tax period is the total sales tax payable in respect of taxable supplies of services made by the person during the period.

159. (1) A registered manufacturer is allowed an input tax credit for the sales tax payable in respect of a taxable supply of goods to, or taxable import by, the manufacturer to the extent to which the goods are capital goods or goods for use in manufacturing to make taxable supplies.

(2) An input tax credit is allowed on the date the goods are supplied to, or imported by, the registered manufacturer.

Income and Sales Tax Act, 2004 151

(3)

Subject to subsection (4), an input tax credit allowed under subsection (1) shall not be claimed by a registered manufacturer until the sales tax period in which the manufacturer has —

(a)

a sales tax invoice for the taxable supply to which the credit relates; or

(b)

a bill of entry or other document prescribed under the Customs or excise laws.

(4)

If a registered manufacturer entitled to an input tax credit does not have a sales tax invoice evidencing the sales tax payable, the Commissioner-General may allow an

input tax credit in the sales tax period in which the credit is allowed if the Commissioner-General is satisfied that —

(a)

the manufacturer took all reasonable steps to acquire a sales tax invoice;

(b)

the failure to acquire a sales tax invoice was not the fault of the manufacturer; and

(C)

the amount of sales tax claimed by the manufacturer as an input tax credit is correct.

(5)

In this section, “capital goods” means any plant or equipment, including spare parts therefore, but not including motor vehicles, for use exclusively and directly in manufacturing.

Income and Sales Tax Act, 2004 152

160. (1) A registered manufacturer making a taxable supply of goods to another registered manufacturer shall, at the time of the supply, provide the recipient with a sales tax invoice for the supply.

(2)

A sales tax invoice shall contain the following particulars —

(a)

the words ‘sales tax invoice” in a prominent place;

(b)

the name, address, and taxpayer identification number of the registered manufacturer making the supply;

(C)

the individualised serial number and the date on which the sales tax invoice is issued;

(d)

the description of the goods supplied, including quantity or volume, and the date on which the supply was made; and

(e)

The consideration for the supply and the amount of sales tax charged.

(3)

If subsection (4) of section 154 applies to a taxable supply of goods by a registered manufacturer to another registered manufacturer, the registered manufacturer making the supply shall provide the recipient with a credit note containing the following particulars—

(a)

the words “credit note” in a prominent place;

(b)

the name, address, and taxpayer identification number of the registered manufacturer making the supply;

— Income and Sales Tax Act, 2004 153

(C)

the individualised serial number and the date on which the credit note is issued;

(d)

a brief description of the circumstances giving rise to the issuing of the credit note, including information sufficient to identify the taxable supply to which the credit note relates; and

(e)

the consideration shown on the sales tax invoice for the supply, the correct amount of the consideration, the difference between these two amounts, and the amount of sales tax that relates to the difference.

(4)

If subsection (2) of section 154 applies to a taxable supply of goods by a registered manufacturer to another registered manufacturer, the registered manufacturer making the supply shall provide the recipient with a debit note in relation to the supply containing the following particulars-

(a)

the words “debit note” in a prominent place;

(b)

the name, address, and taxpayer identification number of the registered manufacturer making the supply;

(j)

the individualised serial number and the date on which the debit note is issued;

Income and Sales Tax Act, 2004 154

(d)

a brief description of the circumstances giving rise to the issuing of the debit note, including information sufficient to identify the taxable supply to which the debit note relates, and

(k)

the consideration shown on the sales tax invoice for the supply, the correct amount of the consideration, the difference between these two amounts, and the amount of sales tax that relates to the difference.

(l)

PART VIII - SALES TAX PROCEDURE

161. (1) A registered person shall furnish a sales tax return for each sales tax period within fifteen days after the end of the period.

(2)

A sales tax return must —

(a)

be in the prescribed form;

(b)

state the information required by the form;

(C)

be signed by the registered person or the person’s representative; and

(e) be furnished in the prescribed manner.

(f)

. (1) If a registered person furnishes a sales

tax return for a sales tax period, other than a revised return under subsection (2) of section 169—

Income and Sales Tax Act, 2004

(a)

the Commissioner-General is treated as having determined the person’s value of taxable supplies of goods and services made in the period and as having assessed the sales tax due thereon, equal to those respective amounts specified in the return; and

(b)

the taxpayers return is treated for all purposes of this Act to be a notice of a sales tax assessment served on the taxpayer by the Commissioner- General on the day the return was furnished by the taxpayer.

(2)

If a registered person fails to furnish a sales tax return for a sales tax period by the due date, the Commissioner-General may, based on any available information and to the best of the Commissioners judgment, determine the person’s value of taxable supplies of goods or services for the period and make an assessment of the sales tax due the goods or services.

(3)

As soon as possible after making a sales tax assessment under subsection (2), the Commissioner-General shall serve the registered person with notice of the assessment stating—

(a)

the value of taxable supplies of goods or services made in the sales tax period;

(b)

the amount of sales tax due for the period;

(c)

the amount of penalty and interest payable, if any, in respect of the sales tax due; and

Income and Sales Tax Act, 2004 156

(d)

the time, place, and manner of objecting to the assessment.

(4)

The making of a sales tax assessment under subsection (2) is an alternative to the application of subsection (1) of section 169.

(5)

Section 84 applies, with the necessary changes made, for the purposes of amending a sales tax assessment.

163. (1) The sales tax payable by a registered person for a sales tax period as computed under section 158 is due on the date for furnishing the person’s sales tax return for that period.

(2)

The sales tax payable by an importer on a taxable import is due on the date of the import.

(3)

The Commissioner of Customs and Excise shall-

(a)

collect, at the time of import and on behalf of the Commissioner-General, any sales tax due under this Act in respect of a taxable import; and

(b)

make arrangements with The Gambia Post Office for sales tax to be collected on taxable imports made through the post.

(4)

Except if the contrary intention appears, the provisions of the customs or excise laws relating to the import, transit, coastwise carnage and clearance of goods, and to the payment and recovery of duties apply, with such exceptions, modifications, and adaptations as the Secretary of State may by regulation prescribe, and so far as is relevant, to any sales tax payable under this Chapter on a taxable import.

Income and Sales Tax Act, 2004 157

164. (1) If a registered person (referred to as the “supplier’) has, in consequence of a fraudulent action or misrepresentation by the recipient of a supply, incorrectly treated the supply as —

(a)

an exempt supply; or

(b)

a supply subject to a zero rate of sales tax under paragraph (a) of subsection (3) of section 142,

the Commissioner-General may assess the recipient of the supply for payment of the sales tax due in respect of the supply and any interest and penalty imposed as a result of the late payment of the sales tax.

(2)

Subsection (1) does not preclude the Commissioner-General from recovering the sales tax, together with any interest imposed under section 202 and penalty imposed under section 204, payable in respect of the supply from the supplier and —

(a)

any amount recovered from the recipient of the supply shall be credited against the liability of the supplier in respect of the supply; and

(b)

any amount recovered from the supplier shall be credited against the liability of the recipient of the supply.

(3)

A supplier who pays sales tax, interest, or penalty referred to in subsection (1) may recover the amount from the recipient of the supply.

(4)

An assessment made under subsection (1) is treated as a sales tax assessment for all purposes of this Act.

Income and Sales Tax Act. 2004 158

165. (1) The Commissioner-General may seize any goods in respect of which the Commissioner-General has reasonable grounds to believe that sales tax that is, or will become, payable in respect of the supply of those goods has not been, or will not be, paid.

(2)

Any goods seized under this section shall be stored in a place approved by the Commissioner-General for the storage of those goods.

(3)

If goods have been seized under subsection (1), the Commissioner-General shall, as soon as is practicable after the seizure, serve on the owner of the goods or the person who had custody or control of the goods immediately before the seizure, a notice in writing –

(a)

identifying the goods;

(b)

stating that the goods have been seized under this section and the reason for seizure; and

(c)

setting out the terms of subsections (6), (7), and (8).

(4)

The Commissioner-General is not required to serve a notice under subsection (3) if, after making reasonable enquiries, the Commissioner-General does not have sufficient information to identify the person on whom the notice should be served.

Income and Sales Tax Act, 2004 159

(5)

If subsection (4) applies, the Commissioner- General may serve a notice under subsection (3) on any person claiming the goods, provided the person has given the Commissioner-General sufficient information to enable such a notice to be served.

(6)

The Commissioner-General may authorise any goods seized under subsection (1) to be delivered to the person on whom a notice under subsection (3) has been served if that person has paid, or makes an arrangement satisfactory to the Commissioner-General for payment of, the sales tax that is, or will become, payable in respect of the supply of the goods.

(7)

Except if subsection (6) applies, the Commissioner-General shall detain the goods seized under subsection (1) –

(a)

in the case of perishable goods, for such period as the Commissioner-General considers reasonable having regard to the condition of the goods; or

(b)

in any other case, for twenty-one days after seizure of the goods.

(8)

If the detention period in subsection (7) has expired, the Commissioner-General may sell the goods in the manner specified in subsection (7) of section 185 and apply the proceeds of sale as set out in subsection (8) of section 185.

(9)

Nothing in this section precludes the Commissioner-General from proceeding under Part V of Chapter VII if the proceeds of disposal are not sufficient to meet the costs of disposal and the sales tax due.

Income and Sales Tax Act, 2004 160

1. If the Commissioner-General considers it necessary for the protection of the revenue, the Commissioner-General may require a registered person or importer, as a condition of the person making a taxable supply of goods or services, or a taxable import, to give security of such amount and in such manner as the Commissioner-General may determine for the payment of sales tax due or that may become due in respect of the supply or import.
2. (1) Except as provided in this section, a person who has paid sales tax in excess of the amount due under this Act may apply for a refund under section 197.

(2)

Subject to subsection (3), if, for any sales tax period, the total input tax credit allowed to a registered person under this Chapter exceeds the person’s sales tax liability for that period

(a)

the excess shall be carried forward and allowed as an input tax credit in the following sales tax period and any amount of the excess not credited in that period shall be carried forward to the next following sales tax period; and

(b)

any amount of the excess not credited under paragraph (a) shall, on application by the person, be refunded to the person within forty-five days of the lodgement of the refund application.

(3)

If the registered person has an excess input tax credit carried forward under this section for more than one sales tax period, the excess credit of the earliest tax period shall be allowed first.

Income and Sales Tax Act, 2004 161

(4)

If the excess referred to in subsection (2) is due to excess input tax credits that are a regular feature of the registered person’s business, the Commissioner-General shall, upon application in writing, refund the excess at the end of each sales tax period Within forty five days after the date of furnishing the sales tax return for the period.

-

CHAPTER VII - GENERAL PROCEDURAL PROVISIONS PART I – PRELIMINARY

168. In this Chapter, unless the context otherwise requires —
“capital gains tax assessment” means an assessment under section 112 of capital gains
tax due;
“capital gains tax return” means a capital gains tax return required to be furnished
under section 111;

“fringe benefits tax assessment” means an assessment under section 138 of fringe benefits tax due;

“fringe benefits tax return” means a fringe benefits tax return required to be furnished under section 137;

“income tax assessment” means an assessment under Sub-Part II of Part IX of Chapter II of income tax due;

“income tax return” means —

Income and Sales Tax Act, 2004

162

(a)

an income tax return required to be furnished under section 80; or

(b)

a return required to be furnished under section 87 or 88;

“liquidator” means a person appointed or assuming the position of liquidator, receiver, trustee in-bankruptcy, or mortgagee-in-possession;

“objection decision” has the meaning given to it in subsection (8) of section 176; Repetitive has the meaning given to it in section 198

“residential rent tax assessment means an assessment under section 120 of residential rent tax due; “residential rent tax return” means a residential rent tax return required to be furnished under section 119

“revenue officer” means the Commissioner- General, and any officer of the Authority; “reviewable decision” means —

(a)

an objection decision;

(b)

a decision relating to the determination of the amount of customs duty payable under the customs or excise laws in respect of an import of goods;

“sales tax assessment” means an assessment under section 162 of sales tax due;

Income and Sale Tax Act 163 “sales tax return” means a sales tax return required to be furnished under section 161;

“sales taxpayer means a registered person for the purposes of sales tax or an importer; “tax” means —

(a)

income tax, capital gains tax,

(b)

an instalment of income tax, resident residential rent tax, fringe benefits tax, or sales tax;

(C)

tax withheld or required to be withheld from a payment under section 89,90,91, or

(d)

penalty imposed under Sub-Part II of Part X of this Chapter; “taxation assessment means —

(a)

an income tax assessment, capital gains tax assessment, residential rent tax assessment, fringe benefits tax assessment, or sales tax assessment

(b)

a determination of the amount of a business loss under section 45; or

(C)

an assessment of penalty under subsection (3) of section 208; “taxation decision” means —

-(a) a taxation assessment;

Income and Sales Tax Act, .2004 164

(b)

a decision by the Commissioner- General on an application under subsection (2) or (4) of section 46;

(C)

a decision by the Commissioner- General under subsection (6) of section 46 to withdraw permission to use a special tax year;

(d)

a decision by the Commissioner- General on an application under subsection (4) of section 47;

(e)

a decision by the Commissioner- General under subsection (7) of section 50 in relation to a change in stock valuation method;

(f)

a decision by the Commissioner- General under subsection (2) of section 157 on an application for cancellation of sales tax registration;

(g)

a decision by General under section 170

(h)

a decision by General under section 176

(i)

a decision by General under section 181

(j)

a decision by the Commissioner- General to issue a notice under subsection (7) of section 181;

Income and Sales Tax Act, 2004

(k)

a decision by the Commissioner- General to issue a notice under subsection (2) of section 184;

(I)

a decision by the Commissioner- General on an application under subsection (9) of section 184;

(m)

a determination by the Commissioner- General of the amount of tax payable notified to a liquidator under subsection (3) of section 186;

(n)

a decision by the Commissioner- General to refuse to allow a liquidator to part with an asset under subsection (5) of section 186;

(0) a decision by the Commissioner- General to issue a certificate under section 187;

(p)

a decision by General under section (5) of section 194 or subsection (1) of section 195

(q)

a decision by the Commissioner- General on an application for a refund under section 197; or

(r)

a decision by the Commissioner- General to declare an individual to be a representative of a person under subsection (2) of section 198;

Income and Sales Tax Act, 2004 166 ‘taxpayer” means —

(a)

an income taxpayer, capital gains tax- payer, residential rent taxpayer, fringe benefits taxpayer; or sales taxpayer; .

(b)

a person who has made a business loss for a tax year;

(c)

a person required to withhold tax from a payment under section 89, 90, 91, or 92; or

(d)

a representative of a person referred
“tax period”, in relation to a taxpayer, means — to in paragraph (a), (b), or (C);

(a)

in the case of the income tax, the taxpayer’s tax year including a special tax year or transitional tax year;

(b)

in the case of the residential rent tax or fringe benefits tax, the tax year;

(C)

in the case of the capital gains tax, the time of disposal;

(d)

in the case of tax withheld under section 89, 90, 91, or 92, the period to which the withholding relates; or

(d) in the case of sales tax, the sales tax period

Income and Sales Tax Act, 2004 167 “tax return means —

(a)

an income tax return, capital gains tax return, residential rent tax return, fringe benefits tax return, or sales tax return; or

(b)

a section 98 withholding tax statement; and

“Tax Tribunal” means the Tax Tribunal established under section 229.

PART II - TAX RETURNS AND OTHER DOCUMENTS

(1)

If a taxpayer fails to furnish a tax return, returns and other Documents statement, certificate, or other document as required under this Act, the Commissioner- General may, by notice in writing, require the taxpayer to furnish the tax return, statement, certificate, or other document, as the case may be, by the due date set out in the notice or within such further time as the Commissioner-General may allow under section 170

(2)

If the Commissioner-General is not satisfied with a tax return, statement, certificate, or other document furnished by a taxpayer, the Commissioner-General may, by notice in writing, by notice in writing require the taxpayer to furnish by the due date set out in the notice or within such further time as the commissioner-general may allow under section 170

(a)

a further or fuller return, statement, certificate or other document; or

(b)

any information as specified in the notice.

Income and Sales Tax Act, 2004

168

170. (1) A taxpayer may apply, in writing, to the Commissioner-General for an extension of time to furnish a tax return, statement, certificate or other document (in this section referred to as “the document”).

(2)

An application under subsection (1) shall be made by the original due date for furnishing the document to which the application relates.

(3)

Subject to subsections (4) and (5), the Commissioner-General may grant an application under subsection (1) if satisfied that the applicant is unable to furnish the document by the due date for any reasonable cause.

(4)

In the case of an application for an extension of time to furnish a tax return, the Commissioner-General may grant an extension under subsection (3) only if the applicant has paid ninety per cent of the tax due under the return.

(5)

If—

(a)

a taxpayer has been granted an extension of time to furnish a tax return; and

(b)

after the return is finished, the Commissioner-General determines that the taxpayer had failed to pay ninety per- cent of the tax due at the time the extension was granted,

the extension shall be treated as having not been granted.

Income and Sales Tax Act, 2004 169

(6)

The Commissioner-General shall serve the applicant with notice of the decision on the application.

(7)

An extension of time granted under subsection (3) shall not exceed thirty days from the original due date for furnishing the document unless the Commissioner-General is satisfied that there are exceptional circumstances justifying a longer extension of time.

(8)

If an extension of time granted under subsection (3) relates to a tax return, the grant of the extension does not preclude the liability for interest under section 202 arising from the original due date for payment of the tax.

171. (1) A person who, in return for a payment, prepares or assists in the preparation of a tax return of a taxpayer (other than as an employee of the taxpayer) shall sign the return certifying that —

(a)

the person has examined the books of account and other relevant documentation of the taxpayer; and

(b)

to the best of the person’s knowledge, the return correctly reflects the information and transactions to which it relates.

(2)

If a person referred to in subsection (1) refuses to sign a tax return as required by that subsection, the person shall furnish the taxpayer with a statement, in writing, of the reasons for the refusal and the taxpayer shall include the statement with the return.

Income and Sales Tax Act, 2004 170

172. A tax return, statement, certificate, or other document purporting to be furnished by or on behalf of a taxpayer—

(a)

shall be treated as having been made by the taxpayer or with the taxpayer’s authority unless the contrary is proved; and

(b)

any person signing it shall be treated as being cognisant of all the matters stated in the return, statement, certificate or document.

PART IV - TAXATION OBJECTIONS AND APPEALS

176. (1) A taxpayer dissatisfied with a taxation decision may lodge an objection to the decision with the Commissioner-General within thirty days of service of the notice of the decision.

(2)

An objection to a taxation decision shall be in the prescribed form and shall state fully the grounds on which it is made.

(3)

A taxpayer may apply, in writing, to the Commissioner-General for an extension of time to lodge an objection.

(4)

An application for an extension of time shall be made before the expiry of the time for lodging an objection under subsection (1).

(5)

The Commissioner-General may grant an application for an extension of time if the applicant is unable to lodge the objection by the due date for any reasonable cause.

Income and Sales Tax Act, 2004

(6)

The Commissioner-General shall serve the applicant with notice of the decision on the application.

(7)

An extension of time granted under subsection (5) shall not exceed thirty days from the original due date for lodging the objection.

(8)

After consideration of the objection, the Commissioner-General may allow the objection in whole or part and amend the decision accordingly, or disallow the objection and the Commissioner-Generals decision on the objection is referred to as an ‘objection decision”.

(9)

The Commissioner-General shall serve notice of the objection decision on the taxpayer as soon as practical after making the decision.

(10)

If the Commissioner-General has not made an objection decision within ninety days of the objection being lodged, the taxpayer may elect, by notice in writing to the Commissioner- General, to treat the Commissioner-General as having made a decision to disallow the objection.

(11)

If a taxpayer has made an election under subsection (10), the taxpayer is treated as having been served with notice of the objection decision on the day the election notice was lodged with the Commissioner-General.

(12)

In the case of an objection to a taxation assessment, the objection is not considered lodged for the purposes of this section until such time as the taxpayer pays the portion of the tax due under the assessment that is not in dispute.

Income and Sales Tax Act, 2004 173

177. (1) A taxpayer dissatisfied with an objection decision may apply to the Tax Tribunal for review of the decision.

(2) An application under subsection (1) shall be made in accordance with section

231.

(3)

For the purposes of reviewing an objection decision, the Tax Tribunal may exercise all the powers and discretions conferred by this Act on the Commissioner-General.

(4)

If the review relates to a taxation assessment, the Tax Tribunal may make an order to—

(a)

affirm, reduce, increase, or otherwise amend the assessment; or

(b)

remit the assessment to the Commissioner-General for reconsideration in accordance with the directions of the Tax Tribunal.

(5)

If the review relates to a taxation decision, other than a taxation assessment, the Tax Tribunal may make an order to affirm, vary, or set aside the decision, and issue such consequential directions as the case may require.

178. (1) A party to a proceeding before the Tax Tribunal who is dissatisfied with the decision of the Tribunal, in relation to an application to review an objection decision, may appeal against the Tribunal’s decision to the High Court.

(1) A notice of appeal shall be made in accordance with section 233.

Income and Sales Tax Act, 2004 174

(3) An appeal to the High Court may be made 4 on a question of law only, and the notice of appeal shall state the question or questions of law that will be raised on the appeal.

179. (1) The Commissioner-General shall within sixty days after —

(a) a decision of the Tax Tribunal becomes final; or

(c) being notified of a decision of the High Court,

take such action, including amending a taxation assessment, as is necessary to give effect to the decision.

(2)

For the purposes of subsection (1), if no notice of appeal is lodged with the Registrar of the High Court within the period specified in section 233, the decision of the Tribunal becomes final at the end of that period.

(3)

This section applies, notwithstanding any time limit in this Act relating to the amendment of a taxation assessment.

180. (1) In any proceeding under this Part, the burden is on the taxpayer to prove —

(a)

in the case of a taxation assessment, that the assessment is excessive; or

(b)

in the case of any other taxation decision, that the decision should not have been made or should have been made differently.

Income and Sales Tax Act. 2004

(2)

The tax payable under a taxation assessment may be recovered by the Commissioner-General notwithstanding that an objection, application for review, or a notice of appeal has been lodged in respect of the assessment.

(3)

In an application to the Tax Tribunal or appeal to the High Court, the taxpayer is limited to the grounds stated in the objection to which the objection decision relates unless the Tribunal or Court, as the case may be, grants the taxpayer leave to add new grounds to support the application or appeal.

PART V - COLLECTION AND RECOVERY OF TAX

181. (1) A taxpayer may apply, in writing, to the Commissioner-General for an extension of time to pay any tax due.

(2)

An application for an extension of time shall be made by the original due date for payment of the tax.

(3)

If an application is made under subsection (1), the Commissioner-General may, having regard to the circumstances of the case —

(a)

grant the taxpayer an extension of time for payment of the tax due; or

(b)

require the taxpayer to pay the tax due in instalments of equal or varying amounts as the Commissioner- General may determine.

(4)

The Commissioner-General shall serve the taxpayer with notice of the decision on the application.

Income and Sales Tax Act, 2004 176

(5) If a taxpayer is permitted to pay tax by instalments and the taxpayer defaults in payment of any instalment, the whole balance of the tax outstanding at the time of the default becomes immediately payable.

(6)The grant of an extension of time to pay tax due or the grant of permission to pay tax due by instalments does not preclude the liability for interest under section 202 arising from the original due date for payment of the tax.

(7) If the Commissioner-General has reasonable grounds to believe that a taxpayer may leave The Gambia before the due date for payment of tax, the Commissioner-General may, by notice in writing, require the taxpayer to pay the tax on the date specified in the notice.

182. (1) Tax due is recoverable from the taxpayer as a debt due to the State.

(2) The Commissioner-General may recover any tax due in a Court of competent jurisdiction in the name of the State.

(3)If a taxpayer fails to pay tax by the due date, the Commissioner-General may file with the Registrar of a Court of competent jurisdiction a statement certified by the Commissioner- General specifying the amount of tax owed and that statement is treated for all purposes as a civil judgment lawfully given in that Court in favour of the Commissioner-General for a debt in the amount specified.

183. Subject to section 99, tax due under this Act has priority over all other debts of the tax payer notwithstanding anything in any other law.

Income and Sales Tax Act, 2004 177

184. (1) This section applies if a taxpayer is liable to pay an amount of tax and –

(a)

the tax has not been paid by the tax- payer by the due date for payment; or

(b)

the Commissioner-General has reasonable grounds to believe that the taxpayer will not pay the tax by the due date for payment.

(2)

If this section applies, the Commissioner- General may, by notice in writing, require any person who owes money to the taxpayer to pay the amount specified in the notice to the Commissioner-General.

(3)

The amount specified in a notice under this subsection shall not exceed the amount of tax that has not been paid or the amount that the Commissioner-General believes will not be paid by the due date.

(4)

A person (referred to as the payer) owes money (referred to as the “available amount”) to a taxpayer if the payer

(a)

owes or may subsequently owe money to the taxpayer;

(b)

holds or may subsequently hold money for, or on account of, the taxpayer

(C)

holds or may subsequently hold money on account of some other person for payment to the taxpayer; or

(d) has authority from some other person to pay money to the taxpayer.

Income and Sales Tax Act. 2004 178

(5)

Subject to subsection (7), a payer shall pay the amount specified in a notice under subsection (2) by the date specified in the notice.

(6)

The date for payment specified in the notice shall not be a date before the date that the available amount becomes due to the taxpayer or held on the taxpayer’s behalf.

(7)

A payer shall not pay an amount under this section in excess of the available amount.

(8)

The Commissioner-General shall, by notice in writing to the payer, revoke or amend a notice served under subsection (2) if the taxpayer has paid the whole or part of the tax due or has made an arrangement satisfactory to the Commissioner-General for payment of the tax.

(9)

A payer served with a notice under subsection (2) may apply, in writing, to the Commissioner-General for –

(a)

an amendment of the amount due under the notice; or

(b)

an extension of time for payment of the amount due under the notice.

(10)

The Commissioner-General shall serve an applicant under subsection (9) with notice, in writing, of the decision on the application.

(11)

A copy of a notice served on a payer under this section shall be served on the taxpayer.

Income and Sales Tax Act, 2004 179

(12)

If a notice served under this section requires the deduction of amounts from payments of employment income, the amount to be deducted by the payer from each payment shall not exceed the lesser of –

(a)

an amount equal to one-twentieth of the amount of tax that has not been paid or the Commissioner-General believes will not be paid by the due date; or

(b)

twenty per cent of the amount of each payment of employment income.

(13)

A payer who has paid an amount in compliance with a notice served under this section

(a)

shall give the taxpayer notice in writing of the fact that the payment has been made; and

(b)

is treated as having paid such amount under the authority of the taxpayer and the receipt of the Commissioner- General constitutes a good and sufficient discharge of the liability of the payer to the taxpayer to the extent of the amount referred to in the receipt.

(14)

The Commissioner-General shall apply an amount paid by a payer under this section in respect of a taxpayer against the amount of tax owing by the taxpayer.

Income and Sales Tax Act, 2004 180

(15) A payer who, without reasonable excuse, fails to comply with a notice under this section is personally liable for the amount specified in the notice and the Commissioner-General may recover the amount under this Part as if it were tax payable by the payer.

185. (1) The Commissioner-General may appoint a person to be a Tax Collector,

(2)

If a taxpayer fails to pay any tax by the due date, the Commissioner-General may issue a certificate for a Tax Collector to recover such tax by distress and sale of the personal property of the taxpayer.

(3)

A certificate issued under subsection (2) shall specify —

(a)

the taxpayer against whose property the distress and sale proceedings are authorised;

(b)

the property against which the proceedings are to be executed and the location of that property; and

(4)

A copy of a certificate issued under subsection (2) shall be served on the taxpayer.

(5)

A Tax Collector may, at any time, enter any premises described in a certificate issued under subsection (2) for the purposes of executing distress and sale proceedings under this section and shall require a police officer to be present while the proceedings are being executed.

181

Income and Sales Tax Act, 2004

(6)

A property distained under this section shall be —

(a)

identified by the pasting or hanging of a piece of ribbon or cloth in a
conspicuous place on the property;

(b)

kept for ten days (other than perishable goods) either at the premises where the distress is executed or at any other place that the Tax Collector may consider appropriate, at the cost of the taxpayer.

(7)

If the liability specified in a notice issued under subsection (2) is paid before the property is sold under subsection (8), the property shall be immediately released to the taxpayer.

(8)

If the taxpayer does not pay the liability specified in a certificate issued under subsection (2), together with the costs of the distress, within the time specified in paragraph (b) of subsection (6), or within such shorter period as the Tax Collector may determine in the case of perishable goods, the Tax Collector may -

(a)

in the case of goods, sell the goods by public auction;

(b)

in the case of negotiable instruments, sell the instrument through a broker at the prevailing market rate; or

(C)

in the case of money (including foreign currency), deposit the money with the Central Bank of The Gambia.

Income and Sales Tax Act, 2004 182

(9)

The proceeds of disposal or deposit of monies under subsection (8) shall be applied as follows —

(a)

first towards the cost of taking, keeping, and selling the property distained;

(b)

then towards payment of any tax and interest owed by the taxpayer and

(C)

the remainder of the proceeds, if any, shall be paid to the taxpayer within forty-five days of the sale.

(10)

Nothing in this section precludes the Commissioner-General from proceeding under section 182 with respect to the balance owed by the taxpayer if the proceeds of the distress are insufficient to meet the tax due and the costs of the distress and sale.

(11)

The taxpayer is liable for all costs incurred by the Commissioner-General in respect of any distress and sale proceedings and the Commissioner-General may recover those costs under this Part as if the costs were tax payable by the taxpayer.

186. (1) A person who is appointed a liquidator in respect of a taxpayer shall give the Commissioner-General notice of his or her appointment as, or assumption of the position of, liquidator.

(2) A notice under subsection (1) shall be in writing and lodged with the Commissioner- General within fourteen days of the earlier of being appointed as, or assuming the position of, liquidator.

Income and Sales Tax Act, 2004

(3)

The Commissioner-General shall notify the liquidator, in writing, of the amount that the Commissioner-General believes will be sufficient to pay any tax and interest that are or will become payable by the taxpayer whose assets are in the possession or control of the liquidator.

(4)

A notice under subsection (3) shall be served on the liquidator within sixty days of the Commissioner-General being served with a notice under subsection (1).

(5)

A liquidator shall not, without leave of the Commissioner-General, part with any asset held as liquidator until the liquidator has been served with a notice under subsection (3).

(6)

Subject to subsection (7), a liquidator shall set aside, out of the proceeds of sale of any asset of the taxpayer, the amount notified by the Commissioner-General under subsection (3), and the liquidator is liable to the extent of the amount set aside for the tax due by the taxpayer.

(7)

If the proceeds of sale of any asset are less than the amount notified by the Commissioner- General under subsection (3), the liquidator shall set aside the entire proceeds of sale to meet the amount notified under subsection (3).

(8)

A liquidator who fails to comply with subsection (5), (6), or (7) is personally liable to the extent of any amount required to be set aside under those subsections, and the Commissioner shall recover the amount under those sections as if it were tax payable by the taxpayer.

Income and Sales Tax Act, 2004 184

(9)

If two or more persons are liquidators in respect of a taxpayer, the obligations and liabilities under this section apply to all the liquidators but may be discharged by any of them.

187. (1) If the Commissioner-General has reasonable grounds to believe that a taxpayer may leave The Gambia without paying any tax due, the Commissioner-General may issue a departure prohibition certificate to the Director of Immigration and request the Director of Immigration to prevent the person from leaving The Gambia until that person makes -

(a)

payment of the tax due in full; or

(b)

an arrangement satisfactory to the Commissioner-General for payment of the tax due.

(2)

The Commissioner-General shall serve a copy of a departure prohibition certificate issued under subsection (1) on the taxpayer named in the certificate if it is practicable to do so.

(3)

Payment of the tax specified in a departure prohibition certificate to a customs or immigration officer or the production of a certificate signed by the Commissioner-General stating that the tax has been paid or satisfactory arrangements for payment have been made is sufficient authority for allowing the person to leave The Gambia.

188. (1) If a taxpayer

(a)

fails to pay to the Commissioner-General any sales tax;

Income and Sales Tax Act, 2004

(b)

fails to pay to the Commissioner- General any tax deducted from a payment of employment income under section 89; or

(c)

repeatedly fails to pay income tax,

on or before the due date, the Commissioner- General may, by notice in writing, inform the taxpayer of the Commissioner-General’s intention to close down part or the whole of the taxpayers business for a temporary period not exceeding fourteen days unless the taxpayer pays the tax due within a period of seven days of the date of the notice.

(2)

If a taxpayer fails to comply with a notice under subsection (1), the Commissioner- General may issue an order to close down part or the whole of the business of that person for a period not exceeding fourteen days.

(3)

The Commissioner-General may, at any time, enter any premises described in an order issued under subsection (2) for the purposes of executing the order and shall require a police officer to be present while the order is being executed.

(4)

The Commissioner-General shall affix, in a conspicuous place on the front of the premises of the business or part of the business closed under a subsection (2) order, a notice in the following words “WARNING: CLOSED TEMPORARILY UNDER SECTION 188 OF THE INCOME AND SALES TAXES ACT FOR NOT PAYING TAX”.

Income and Sales Tax Act, 2004 186

(5) If the tax due is paid within the period of closure, the Commissioner-General shall immediately arrange for removal of the notice referred to in subsection (4).

PART VI- RECORDS, INVESTIGATIONS, AND AUDIT

189. (1) A taxpayer shall maintain in The Gambia the accounts, documents, and records prescribed for the purposes of this Act.

(2) The taxpayer shall maintain the accounts, documents, and records referred to in subsection (1) for six years after the end of the tax period to which they relate.

190. (1) for the purposes of this Act, the Commissioner-General -

(a)

shall have, at all times and without any prior notice, full and free access to any premises, place, property, book, record, or computer;

(b)

may make an extract or copy, including an electronic copy, of any book, record, or computer-stored information to which access is obtained under paragraph (a);

(C)

may seize any book, record, or other document that, in the opinion of the Commissioner-General, affords evidence that may be material in determining the tax liability of any taxpayer;

Income and Sales Tax Act, 2004

(d)

may retain any book, record, or document seized under paragraph (c) for as long as it may be required for determining a taxpayer’s tax liability or for any proceeding under this Act; and

(e)

may, if a hard copy or computer disk of information stored on a computer is not provided, seize and retain the computer for as long as is necessary to copy the information required.

(2)

A revenue officer exercising the Commissioner-General’s powers under this section is not entitled to enter or remain on any premises or place if, upon request by the occupier, the officer is unable to produce the Commissioner-General’s written authorisation permitting the officer to exercise powers under subsection (1).

(3)

The Commissioner-General shall require a police officer to be present for the purposes of exercising powers under this section.

(4)

The occupier of the premises or place to which an exercise of power under subsection (1) relates shall provide all reasonable facilities and assistance for the effective exercise of the power.

(5)

A person whose books, records, or computer have been seized under subsection

(1)

may examine them and make copies or extracts from them, at the person’s expense, during regular office hours under such supervision as the Commissioner-General may determine.

Income and Sales Tax Act, 2004 188

(6)

All records, books, or computers seized under subsection (1) shall be signed for by the Commissioner-General and shall be returned to the owner as soon as is practicable after the Commissioner-General’s investigation of the person’s affairs and any related proceedings have been concluded.

(7)

This section has effect notwithstanding —

(a)

any rule of law relating to privilege or the public interest with respect to access to premises or places, or the production of any property, book, record, or computer-stored information;

(b)

any contractual duty of confidentiality.

(8)

In this section, “occupier in relation to premises or a place means the owner, manager. or any other person lawfully on the premises or at the place.

191. (1) For the purposes of this Act, the Commissioner-General may, by notice in writing, require any person, whether or not a taxpayer to -

(a)

furnish, within the time specified in the notice, any information that may be required by the notice; or

Income and Sales Tax Act, 2004

(b)

attend at the time and place designated in the notice for the purpose of being examined on oath by the Commissioner-General, concerning the tax affairs of that person or any other person and, for that purpose, the Commissioner-General may require the person examined to produce any book, record, or computer-stored information under the control of the person.

(2)

If a notice served under subsection (1) requires the production of a book, record, or computer-stored information, it is sufficient that the book, record, or computer-stored information is described in the notice with reasonable certainty.

(3)

A notice issued under this section shall be served by, or at the direction of, the Commissioner-General by a signed copy delivered by hand to the person to whom it is directed or left at the person’s last known or usual place of business or abode.

(4)

The certificate of service signed by the person serving a notice under this section is evidence of the facts stated in the certificate.

(5)

This section has effect notwithstanding —

(a)

a rule of law relating to privilege or the public interest with respect to the giving of information or the production of books, records, or computer-stored information; or

(b)

a contractual duty of confidentiality.

Income and Sales Tax Act, 2004 190

1. If a book, record, or computer-stored information referred to in section 189, 190, or 191 is not in the English language, the Commissioner-General may, by notice in writing, require the person keeping the book, record, or computer-stored information to provide, at the person’s expense, a translation into the English language by a translator approved by the Commissioner-General.
2. (1) The Commissioner-General may select any person for an audit of the person’s tax affairs for the purpose of this Act having regard to —

(a)

the person’s history of compliance or non compliance with this Act;

(b)

the amount of tax payable by the person;

(c)

the class of business conducted by the person; or

(d)

any other matter that the Commissioner- General considers relevant relating to the assurance of revenue collection under this Act.

(2)

The fact that a person has been audited in a tax year does not preclude the person from being audited again in the next and following years if there are reasonable grounds for the audits, particularly having regard to the matters referred to in subsection (1). PART VII- TAXPAYER IDENTIFICATION NUMBER

194. (1) For the purposes of identification and cross-checking, the Commissioner-General may require taxpayers to apply for a Taxpayer Identification Number.

Income and Sales Tax Act, 2004

(2)

An application for a Taxpayer Identification Number shall be in the prescribed form, be accompanied by documentary evidence of the person’s identity, and be lodged in the prescribed manner.

(3)

If the Commissioner-General is satisfied that the identity of an applicant under subsection (1) has been established, the Commissioner- General shall issue a Taxpayer Identification Number to the applicant.

(4)

Each Taxpayer Identification Number issued shall be unique and used in accordance with section 196 or as prescribed.

(5)

The Commissioner-General shall refuse an application for a Taxpayer Identification Number if —

(a)

the Commissioner-General is satisfied as to the applicant’s identity; or

(b)

the applicant has already been issued with a Taxpayer Identification Number that is still in force.

(6)

The Commissioner-General shall serve the applicant with written notice of the decision to refuse an application under this section.

(7)

The Commissioner-General may, without an application being made, issue a Taxpayer Identification Number to any person liable for tax under this Act.

Income and Sales Tax Act. 2004 192

(8)

The Commissioner-General shall issue a Taxpayer Identification Number to a person by serving the person with written notice of the Number.

195. (1) The Commissioner-General shall, by notice in writing, cancel a Taxpayer Identification Number if the Number has been issued to —

(a)

a person under an identity that is not the person’s true identity; or

(b)

a person who has already been issued with a Taxpayer Identification Number that is still in force.

(2)

The Commissioner-General may, by notice in writing, withdraw a Taxpayer Identification Number issued to a taxpayer and issue the taxpayer with a new Taxpayer Identification Number.

196. A taxpayer shall state the taxpayer’s Taxpayer Identification Number in any tax return, notice, or other document used for the purposes of this Act, the Customs laws or the excise laws.

PART VIII - REFUNDS

197. (1) Subject to this Act, a taxpayer who has paid tax in excess of the amount for which the taxpayer is property chargeable under this Act may apply to the Commissioner-General for a refund of the excess.

(2)

An application for a refund under subsection (1) shall —

(a)

be in the prescribed form;

Income and Sales Tax Act, 2004

(b)

state the information required by the form;

(c)

be signed by the taxpayer or the taxpayer’s representative; and

(d)

be furnished in the prescribed manner within three years of the date on which the tax was paid.

(3)

If the Commissioner-General is satisfied that tax has been overpaid, the Commissioner- General shall -

(a)

apply the amount overpaid in reduction of any other tax, if any, due by the taxpayer under this Act; and

(b)

refund the remainder, if any, to the taxpayer.

(4)

The Commissioner-General shall serve the taxpayer with notice, in writing, of the Commissioner-General’s decision on the application for a refund.

PART IX - REPRESENTATIVES

198. (1) For the purposes of this Act, “representative” in respect of a person, means

(a)

if the person is an individual under a legal disability, the guardian or manager who receives or is entitled to receive income on behalf, or for the benefit of the individual;

(b)

if the person is a company, the principal officer of the company;

Income and Sales Tax Act, 2004 194

(c)

if the person is a partnership, any partner in the partnership;

(d)

if the person is a trust, any trustee of the trust;

(e)

if the person is the Government of The Gambia, a local authority in The Gambia, or a body of persons, any individual responsible for accounting for the receipt or payment of moneys or funds on behalf of the Government, authority, or body;

(f)

if the person is a public international organisation, or a foreign government or political subdivision of a foreign government, any individual responsible for accounting for the receipt or payment of moneys or funds in The Gambia on behalf of the organisation, government, or political subdivision of the government;

(g)

if the person is a non-resident person, any person controlling the person’s affairs in The Gambia, including any manager of any business of the person in The Gambia; or

(h)

if there is a liquidator in respect of the person, the liquidator.

(2)

The Commissioner-General may, by notice in writing, declare an individual to be a representative of a person for the purposes of this Act.

Income and Sales Tax Act, 2004

199. (1) A representative of a person is responsible for performing any duty or obligation imposed by this Act on the person, including the payment of tax.

(2)

Subject to subsection (4), any tax that, by virtue of subsection (1), is payable by a representative of a taxpayer is recoverable from the representative only to the extent of the assets of the taxpayer that are in the possession or under the control of the representative.

(3)

A representative of a taxpayer who pays any tax owing by the taxpayer is entitled to recover the amount so paid from the taxpayer or to retain the amount so paid out of

any moneys of the taxpayer that are in the representative’s possession or under the representative’s control.

(4)

A representative is personally liable for the payment of any tax due by the representative in a representative capacity if, while the amount remains unpaid, the representative -

(a)

alienates, charges, or disposes of any moneys received or accrued in respect of which the tax is payable; or

(b)

disposes of or parts with any moneys or funds belonging to the taxpayer that are in the possession of the representative or which come to the representative after the tax is payable, if the tax could legally have been paid from or out of the moneys or funds.

Income and Sales Tax Act, 2004 196

(5)

Nothing in this section relieves a person from performing any duty or obligation imposed by this Act on the person that the representative of the person has failed to perform.

(6)

If there are two or more representatives of a person, the duties and obligations referred to in subsection (1) apply to all representatives but may be discharged by any of them.

200. (1) The executor of the estate of a deceased person is liable for any tax that the deceased would have become liable for in respect of income derived or transactions entered into before the deceased died.

(2) Section 64 applies to the income of a deceased estate.

201. (1) This section applies if—

(a)

an arrangement has been entered into with the effect that a company or partnership is unable to satisfy a current or future tax liability of the company or partnership under this Act; and

(b)

a purpose of the arrangement is to have the effect specified in paragraph (a).

(2)

Subject to subsection (3), if this section applies, a person who was a director or controlling shareholder of the company or a partner in the partnership, at the time the arrangement was entered into, is jointly and severally liable for the tax liability of the company or partnership.

Income and Sales Tax Act. 2004 197

(3)

‘A director of a company or partner in a partnership is not liable under this section for the tax liability of a company or partnership if the Commissioner-General is satisfied that the director or partner derived no financial or other benefit from the arrangement and either —

(a)

the director or partner has, as soon as becoming aware of the arrangement, formally recorded with the company or partnership his or her dissent from the arrangement and notified the Commissioner-General in wilting of the arrangement; or

(b)

the director or partner satisfies the Commissioner-General that, at the time the arrangement was entered into, the director or partner had no knowledge of, and could not reasonably have been expected to know of the arrangement.

(4)

In this section —

‘arrangement” means any contract, agreement, plan, or understanding whether express or implied and whether or not enforceable in legal proceedings;

“controlling shareholder”, in relation to a company, means any person who beneficially holds, either alone or together with an associate or associates –

(a)

fifty per cent or more of the voting rights in the company;

(b)

fifty per cent or more of the rights to dividends; or

Income and Sales Tax Act, 2004 198

(C) fifty per cent or more of the rights to capital; and

“director’, in relation to a company, means any person occupying the position,, of director of the company, by whatever named called.

PART X - INTEREST, PENALTY TAX, AND OFFENCES Sub-Part I - Late Payment Interest

202. (1) A person who fails to pay —

(a)

a tax; or

(b)

an amount specified in a notice served on the person under section 184,’

on or before the due date for payment is liable for interest at the prescribed rate on the amount unpaid, computed for the period commencing on the date on which the payment was due and ending on the date on which the payment is made.

(2)

An interest paid by a person under subsection (1) shall be refunded to the person to the extent that the amount to which the interest. Relates is found not to have been payable.

(3)

Interest payable by a person —

(a)

in respect of tax referred to in paragraph (C) of the definition of tax in section 168; or

(b)

in respect of any amount referred to in paragraph (b) of subsection (1),

shall be borne personally by the person and is not recoverable from any other person.

Income and Sales Tax Act, 2004 199

(4)

Interest payable under this section computed as simple interest.

(5)

The Commissioner-General may review interest payable by a person under Part \ Chapter as if it were tax payable by the people

(6)

Interest payable under this section addition to any penalty imposed under S II of this Part or any fine imposed un& Part Ill of this Part in respect of the same omission.

(7)

In this section, “prescribed rate” means Central Bank of The Gambia rediscount at the commencement of the first day period for which interest is computed subsection

(1)

increased by five percent points.