INCOME AND SALES TAX ACT, 2005
Section Arrangement of Sections
CHAPTER I - PRELIMINARY
- Short title and commencement
- Interpretation
- Associates
- Fair market value
- Resident individual
- Resident company
- Resident partnership
- Resident body of persons
- Resident trust
CHAPTER Il-INCOME TAX PART I - IMPOSITION OF INCOME TAX
- Tax on chargeable Income
- Tax on certain payments to a non-resident person
- Tax on shipping and air transport income of a non-resident person
- General provisions relating to income taxes imposed under sections 11 and 12
PART II -CHARGEABLE INCOME
14. Chargeable income
PART III - COMPUTATION OF CHARGEABLE INCOME
Sub-Part I — Gross Income Gross income Business income Employment income Employee share schemes Property income
Sub-Part II— Exempt Income
- Exempt employment income of the President
- Diplomatic and United Nations exemptions
- Exemption of military pay
- Exemptions under tax treaties and other international agreements
- Exemption of income of local authority, district authority, or Government institution
- Exempt of income of non-profit making organisations
- Exemption of retiring and death gratuities
- Exemption of income of, and lump sum payments by, approved retirement funds
- Exemption of pensions
- Exemption of certain interests
- Exemption of shipping and aircraft income
- Exemption of certain commissions and allowances
- Exemption of scholarships
- Power of the President to exempt
Sub-Part Ill — Deductions
General principles of deductibility Deductions not allowed Annual allowance for wear and tear of depreciable Assets Income and Sales Tax ACL, 2004 18 - (1)
- The value of a right or option to acquire shares under an employee share scheme granted to an employee is not chargeable to income tax.
- (2)
- Subject to subsection (3), if, in a tax year, an employee is issued with shares under an employee share scheme, including shares issued as a result of the exercise of an option or right to acquire the shares, the employment income of the employee for the year includes the fair market value of the shares at the date of issue reduced by the employee’s contribution for the shares.
- (3)
- If shares issued to an employee under an employee share scheme are subject to a restriction on the transfer of the shares –
- (a)
- no amount is included in the employment income of the employee until —
(i) the time the employee has a free right to transfer the shares, or
- (ii)
- the time the employee disposes of the shares, whichever is earlier and
- (b)
- the amount included in employment income shall be the fair market value of the shares at the time the employee has a free right to transfer the shares or disposes of the shares, as the case may be, as reduced by the employee’s contribution for the shares.
Employee share schemes
Initial allowance Intangible assets Pre-commencement expenditure Repairs Interest Bad debts - Loss reserve of banks
- Contributions to retirement and other funds
- Carry forward of business losses Sub-Part IV - Tax Accounting
- Tax year
- Method of accounting for income tax
- Cash-basis accounting
- Accrual-basis accounting
- Stock-in-trade
- Long-term contracts
- Financial leases Sub-Part V — Rules Relating to Assets
- Disposal and acquisition of assets
- Cost
- Consideration received
- Non-arms length transactions
- Non-recognition rules Sub-Part VI - General Rules Relating to Income and Deductions
- Income of joint owners
- Apportionment of deductions
- Recouped expenditure
- Cessation of source of income
- Rules to prevent double derivation and double deductions PART IV — RULES REGARDING PERSONS Sub-Part I — Individuals
- Taxation of individuals
Sub-Part II— Entities
- Taxation of trusts
- Taxation of bodies of persons
- Taxation of partnerships
- Taxation of companies
- Change in control of an entity
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
Sub-Part II— Taxation of Foreign-source Income of Resident Person
- Foreign-source employment income of resident individuals
- Foreign tax credit
- Foreign losses
Sub-Part III - Taxation of Non-Resident Persons
- Taxation of permanent establishments
- Foreign-source income of a non-resident person
Sub-Part IV - Tax Treaties
76. Tax treaties
PART VII - ANTI-TAX AVOIDANCE - Transactions between associates
- Re-characterisation of income and deductions
PART VIII- MINIMUM INCOME TAX
79. Minimum income tax WY
PART IX—INCOME TAX PROCEDURE ‘“ Sub-Part I — Income Tax Returns - Furnishing of income tax returns
- Income tax return not required Sub-Part Il—Income Tax Assessments
- Income tax assessments
- Assessment of income taxpayers who have not furnished income tax returns
- Amendment of income tax assessments
- Assessment lists
Sub-Part Ill — Payment of Income Tax
- Due date for payment of income tax
- Collection of tax from non-resident ship owners or charterers
- Collection of tax from non-resident aircraft owners or charterers
Sub-Part IV - Withholding Tax
- Withholding of tax from payments of employment income
- Withholding of tax from payments of dividends
- Withholding of tax from payments of interest
- Withholding of tax from payments to non-resident persons and payment to contactors
- Time of withholding of tax
- Payment of tax withheld
- Failure to pay tax withheld
- Recovery of tax not withheld
- Tax withholding certificate
- Withholding tax statements
- Priority of tax withheld.
- Indemnity
- Credit for tax withheld
- Withholding tax as a final tax
Sub-Part V — Instalment Payments of Income Tax
103. Instalment payments of income tax
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 Il—IMPOSITION OF RESIDENTIAL RENT TAX
- Residential rent tax
- Taxable rental amount
- Residential rent tax a final tax
PART III — RESIDENTIAL RENT TAX PROCEDURE
- Furnishing of residential rent tax returns
- Residential rent tax assessments
- Due date for payment of residential rent tax
- 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 - Furnishing of fringe benefits tax returns
- Fringe benefits tax assessments
- Due date for payment of fringe benefits tax
- Instalment payments of fringe benefits tax
- CHAPTER VI- SALES TAX PART I—PRELIMINARY
- Interpretation of Chapter VI PART Il—IMPOSITION OF SALES TAX
- Sales tax PART III — SUPPLIES, IMPORTS AND EXPORTS
- Supply of goods or services
- Time of supply
- Place of supply
- Import
- Time of import
- Export PART IV — TAXABLE SUPPLIES AND TAXABLE IMPORTS
- Taxable supply of goods or services
- Exempt supply of goods
- Taxable imports
- Exempt imports PART V — VALUE OF SUPPLIES AND TAXABLE IMPORTS
- Value of supply of goods or services
- Post-sale adjustments
- Value of taxable import PART VI— REGISTRATION
- Registration
- Cancellation of registration
- PART VII— CALCULATION OF SALES TAX PAYABLE
- Calculation of sales tax payable for sales tax period
- Input tax credit
- Sales tax invoices, credit notes, and debit notes
- PART VIII— SALES TAX PROCEDURE
- Furnishing of sales tax returns
- Sales tax assessments
- Due date for payment of sales tax
- Recovery of sales tax from recipient of a supply
- Seizure of goods
- Security
- Sales tax refunds CHAPTER VII- GENERAL PROCEDURAL PROVISIONS PART II - TAX RETURNS AND OTHER DOCUMENTS
- Furnishing of tax returns and other documents
- Extension of time to furnish tax return or other document
- Certification by preparer of tax return
- Tax return or other document duly made PART III — TAXATION DECISIONS
168. Interpretation of Chapter VII - Validity of taxation decisions
- Taxation decisions correct except in Part IV proceedings
- Errors and defects in notices of taxation decisions n to affect validity PART I — PRELIMINARY PART IV — TAXATION OBJECTIONS AND APPEALS
- Objection to a taxation decision
- Review of objection decision by the Tax Tribunal
- Appeal to High Court from decision of the Tax Tribunal
- Implementation of decisions of the Tax Tribunal or High Court
- General provisions in relation to taxation objections and appeals PART V - COLLECTION AND RECOVERY OF TAX
- Payment of tax
- Tax as a debt due to the State
- Priority of tax I 84 Recovery of tax from persons holding money on behalf of a taxpayer
- Collection of tax by distress and sale
- Liquidators
- Departure prohibition certificate
- Temporary closure of business PART VI— RECORDS, INVESTIGATIONS, AND AUDIT
- Accounts and records
- Power to enter and search premises
- Notice to obtain information or evidence
- Books and records not in English language
- Audit PART VII— TAXPAYER IDENTIFICATION NUMBER
- Issuing of a Taxpayer Identification Number
- Cancellation or alteration of Taxpayer Identification Number
- Quotation of Taxpayer Identification Number PART VIII— REFUNDS
- Repayment of overpaid tax
- Representatives
- Liabilities and obligations of representatives
- Deceased individuals
- Liability for tax payable by a company or partnership with insufficient assets PART X — INTEREST, PENALTY AND OFFENCES Sub-Part I — Late Payment Interest
- Late payment interest Sub-Part II— Penalty
- Penalty for failure to submit a tax return
- Penalty for non-payment of tax
- Penalty for failure to apply for sales tax registration
- Penalty for failure to maintain proper records
- Penalty for making false or misleading statements
- Imposition of penalty Sub-Part Ill — Offences
- Failure to lodge a tax return or other document
- Offences related to sales tax registration
- Offences related to sales tax Invoices, credit notes, and debit notes
- Failure to comply with a section 184 notice
- Failure to comply with section 186
- Failure to maintain proper records
- Failure to provide reasonable assistance
- Failure to comply with a section 191 notice
- Improper use of Taxpayer Identification Number
- Making false or misleading statements
- Obstructing a revenue officer
- Aiding and abetting
- Offences by revenue officers
- Offences by companies
- PART XI— RULINGS
- Public rulings PART XII — FORMS AND NOTICES
- Forms and notices; authentication of documents
- Service of notices and other documents CHAPTER VIII— ADMINISTRATION PART I — COMMISSIONER-GENERAL AND REVENUE OFFICERS
- Appointment of Commissioner-General and revenue officers
- Delegation
- Secrecy PART II — TAX TRIBUNAL
- Establishment of Tax Tribunal
- Appointment of members
- Application for review of a reviewable decision
- Decisions of Tax Tribunal
- Appeal to High Court from decisions of the Tax Tribunal CHAPTER IX - MISCELLANEOUS PROVISIONS
- Currency translation
- Exemptions and tax provisions in other laws
- Tax clearance certificate
- Regulations
- 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