eSwatini
Income Tax Order, 1975
Kings Order in Council 21 of 1975
- Assented to on 8 July 1975
- Commenced on 1 July 1975
- [This is the version of this document at 1 December 1998.]
Part I – General
1. Short title
This Order may be cited as the Income Tax Order, 1975.[Amended A.11/1985]2. Interpretation
In this Order, unless the context otherwise requires—“agent” includes a person appointed by the Commissioner under section 49 and also any partnership, company, or any other body of persons whether incorporated or not, which is acting as an agent;“amateur sporting association” means an association whose sole or main object is to foster or control any athletic sport or game and whose members consist only of amateur sports persons or affiliated associations, the members of which consist only of amateur sports persons;[Added A.7/2007]“approved bursary scheme” means a bursary scheme operated by an employer which is registered with the Commissioner and approved by him in respect of the year of assessment in question upon the following terms and conditions and such others as he may determine—(a)that the bursaries under the scheme are awarded on merit according to need to enable students to pursue secondary or high school education at public educational institutions;(b)that the children of all employees of the employer are eligible for such bursaries;(c)that a bursary awarded to any recipient shall not exceed four thousand five hundred Emalangeni per annum; and[Amended A.7/1992; A.5/2004; A.4/2008](d)that a bursary scheme is governed by properly defined rules which, together with and amendments thereto, are approved by the Commissioner.[Added A.5/1988]“approved company in the handicraft and cottage industry sector” means a company approved by and registered by the Commissioner in consultation with the Ministry of Commerce, Industry and Tourism for the relevant year of assessment;[Added A.7/1989]“approved export promotion expenditure” means any expenditure incurred by an approved company in the handicraft and cottage industry sector for the purpose of expanding exports which have been approved by the Commissioner in consultation with the Ministry of Commerce, Industry and Tourism;[Added A.7/1989]“approved export trading house” means a company engaged in the export of products of other companies in the handicraft and cottage industry sector and which is approved and registered by the Commissioner in consultation with the Ministry of Commerce, Industry and Tourism for the relevant year of assessment;[Added A.7/1989]“assessment” means—(a)the determination of an amount upon which any tax leviable under this Order is chargeable; or(b)the determination of any loss ranking for set-off;and for the purposes of Part VI includes any determination by the Commissioner in respect of any of the reductions referred to in section 8 and any decision of the Commissioner which is in terms of this Order subject to objection and appeal;“assistant Commissioner” [Deleted A.6/2000]“benefit fund” means—any fund (other than a pension fund, provident fund or retirement annuity fund) which, in respect of the year of assessment in question, the Commissioner is satisfied is a permanent fund bona fide established for the purpose of providing sickness, accident or unemployment benefits for its members or for providing benefits for the widow, children, dependants or nominees of deceased members and includes any fund which would, but for the fact that it does not provide for payment of annuities on the retirement of its members, be approved under the definition of “pension fund” in this section;“branch” means a place where a person carries on business, and includes—(a)a place where a person is carrying on business through an agent, other than a general agent of independent status acting in the ordinary course of business as such; or(b)a place where a person has, is using or is installing substantial equipment or substantial machinery; or(c)a place where a person is engaged in a construction, assembly, or installation project, including a place where a person is conducting supervisory activities in relation to such a project;[Added A.7/2007]“child” means—any child, step-child or adopted child of the taxpayer of whom he has the custody and whom he wholly maintains, provided that in the case of an adopted child such child shall have been adopted by the taxpayer—[Replaced A.11/1982](a)under the Adoption of Children Act, No. 64 of 1952;(b)in accordance with Swazi customary law, provided that proof of such adoption is supported by a certificate under the signature of a person appointed in writing and gazetted by the Minister for Home Affairs either generally or specially for such purpose; or[Amended A.11/1982](c)under the law of any country other than Swaziland, provided that the Commissioner is satisfied that the adopted child is under such law accorded the status of a legitimate child of the adoptive parent and the adoption was made at a time when the taxpayer was resident in such country;“Commissioner” means — the Commissioner of Taxes appointed under section 3;“company” includes—(a)any association incorporated by or under any law in Swaziland;(b)any association which is incorporated outside Swaziland but carries on business or has an office or place of business in Swaziland; or(c)any body corporate incorporated by any law in force in Swaziland or by any law in force in any country outside Swaziland but carrying on business in Swaziland;“court” means—a court of competent jurisdiction, save that for the purposes of Part VI it means the High Court of Swaziland;“Deputy Commissioner” means a Deputy Commissioner appointed under section 3;[Added A.6/2000]“dividend” means—any amount distributed by a company (other than a building society or any institution which is a mutual loan association) to its shareholders, and for this purpose “amount distributed” includes—[Amended K.O-I-C. 2/2003](a)in relation to a company that is being wound up or liquidated, any profits distributed, whether in cash or otherwise, other than those of a capital nature, earned before or during the winding up or liquidation;(b)in relation to a company that is not being wound up or liquidated, any profits distributed, whether in cash or otherwise, and whether of a capital nature or not, including an amount equal to the nominal value of any debentures or securities awarded to the shareholders;[Amended A.10/1991](c)in the event of the partial reduction of the capital of a company, any cash or the value of any asset which is given to a shareholder in excess of the cash equivalent of the nominal value by which the shares of that shareholder are reduced; and(d)in the event of the reconstruction of a company, any cash or the value of any asset which is given to a shareholder in excess of the nominal value of the shares held by him before the reconstruction:Provided that for the purposes of this or in definition an asset shall be deemed to have been given to a shareholder of a company if any asset or interest, benefit or advantage measurable in terms of money is given or transferred to such shareholder or if the shareholder is relieved of any obligation measurable in terms of money;“employee share acquisition scheme” means an agreement or arrangement under which—(a)a company is required to issue shares in the company to employees of the company or of an associated company; or(b)a company is required to issue shares to a trustee of a trust and under the trust deed the trustee is required to transfer the shares to employees of the company or of an associated company;[Added A.7/2007]“executor” means—any person to whom letters of administration have been granted in respect of the estate of a deceased person under any law relating to the administration of estates, and includes any person acting or authorised to act under letters of administration granted outside Swaziland and signed and sealed by the Master in accordance with the relevant provisions of the Administration of Estates Act, No. 28 of 1902 for use in Swaziland, or, in the case of where the estate is not required to be administered under the supervision of any court, the person administering the estate;“exempt organisation” means an organisation—(a)which is—(i)an amateur sporting association;[Amended A.7/2007](ii)an ecclesiastical, charitable, or educational institution of a public character; or(iii)a trade union, employees’ association, an association of employers registered under the Industrial Relations Act, or a chamber of commerce and industry;(b)which the Commissioner is satisfied that it is a genuine exempt organisation; and(c)none of the income or assets of which confers or may confer, a private benefit on any person;[Added A.5/2004]“financial year”—in relation to a company, means—(a)the period, whether of twelve months or not, commencing upon the date of the formation of such company and ending upon the last day of June immediately succeeding such date or upon such other date as the Commissioner, having regard to the circumstances of the case, may approve; or(b)any period subsequent to the period referred to in paragraph (a) commencing immediately on the day following the last day of the immediately preceding year of assessment of that company and ending after the expiration of twelve months from such date or any other period ending on such date as the Commissioner, having regard to the circumstances of the case, may approve;[Added A.11/1985]“gross income” — has the meaning assigned to it under section 7;“income” means—the amount remaining of the gross income of any person for any year or period of assessment after deducting therefrom any amounts exempt from income tax in the hands of such person;“industrial building” means any building—(a)which contains and is used solely or mainly for the purpose of operating machinery worked by steam, electricity, water or other mechanical power;(b)which is on the same premises as any other building mentioned in paragraph (a), and which, in the opinion of the Commissioner, suffers depreciation by reason of the operation of machinery installed in such other building;(c)which, in the opinion of the Commissioner, suffers depreciation by reason of the use of chemicals, corrosives, furnaces of any description or any other agent directly utilised in the particular trade or industry of which the building forms an integral and essential part;(d)erected and used for the purpose of carrying out industrial research or scientific experiments into improved or new methods of manufacture;(e)which, by reason of the trade carried on by the taxpayer is, in the opinion of the Commissioner, used for industrial purposes;“management charge” means a payment of any kind or nature, other than a payment to which the Second Schedule applies, in consideration for any services of a technical, managerial, administrative or consultancy nature;[Added A.6/2000]“married” [Deleted A.10/1991]“married person” means any person who during—(a)any portion of the period in respect of which the assessment was made was married or was a widower or a widow; or(b)the whole of such period was separated under a judicial order or written agreement;[Amended A.11/1982]“mining operations” and “mining” include — every method or process by which any mineral is won from the soil or from any substance or constituent thereof;“Minister” means — the Minister for Finance and Economic Planning;“mortgage interest” means interest paid plus fringe benefit value of any soft loan concession on a bond financing the purchase of a property as the principal private residence of the taxpayer;[Added A.5/2004]“non-resident tax” means the non-resident shareholders tax or the non-residents tax on interest, as the case may be, provided for in Part III;“normal tax” means the tax payable in terms of section 6(1);“official rate of interest”, in relation to a year of assessment, means the Central Bank of Swaziland discount rate as at the commencement of the year of assessment;[Added A.5/2004]“pension fund” means a superannuation, pension, provident, or widows’ and orphans’ fund established by law and any such fund other than a benefit fund, provident fund or retirement annuity fund not established by law which is approved by the Commissioner in respect of the year of assessment in question:Provided that the Commissioner may approve a fund subject to such limitations or conditions as he may determine, but shall not approve a fund unless, in respect of the year of assessment in question, he is satisfied that—(a)the fund is a permanent fund bona fide established for the purpose of providing annuities for employees on retirement from employment, or mainly for such purpose, and also for the purpose of providing benefits other than annuities for employees or benefit for widows, children, dependants or nominees of deceased employees; and(b)the rules of the fund provide—(i)that all annual contributions of a recurrent nature to the fund shall be in accordance with specified scales;[Amended K.O-I-C. 39/1975](ii)that membership of the fund throughout the period of the employment shall be a condition of employment by the employer of all persons of the class specified therein who enter his employment on or after the date upon which the fund comes into operation;[Amended K.O-I-C. 1/1976](iii)that any person who immediately prior to such date was employed by the employer and who on such date falls within such class may, on application made within a period of not more than twelve months as from such date, be permitted to become a member of the fund on such conditions as may be specified in the rules;(iv)that not more than one-third of the total value of the annuity to which any employee becomes entitled may be commuted for a single payment, except where the annual amount of such annuity does not exceed one thousand five hundred Emalangeni;[Amended A.7/1992; A.5/2004](v)for the administration of the fund in such a manner as to preclude the employer from controlling the management or assets of the fund or from deriving any monetary advantage from moneys paid into or out of the fund; and(vi)that the Commissioner shall be notified of any amendment of any of the rules; and(c)the rules of the fund have been complied with;“person” includes any company, a body of persons whether incorporated or not, an insolvent estate, the estate of a deceased person and any trust;[Amended A.11/1985; A.6/2000]“provident fund” means a fund other than a pension fund, benefit fund or retirement annuity fund, which is approved by the Commissioner in respect of the year of assessment in question:[Replaced A.9/1979]Provided that the Commissioner may approve a fund subject to such limitations or conditions as he may determine but shall not approve a fund unless, in respect of the year of assessment in question he is satisfied that—(a)the fund is a permanent fund bona fide established solely for—(i)the purpose of providing benefits for employees on retirement from employment, or(ii)the purpose of providing benefits for widows, children, dependants or nominees of deceased employees, or(iii)a combination of those purposes;(b)the rules of the fund contain provisions similar in all respects to those required to be included in the rules of a pension fund as provided for in paragraph (b) to the proviso of the definition of “pension fund”, save that subparagraph (iv) thereof be omitted from such rules for the purpose of this paragraph;[Amended K.O-I-C. 1/1976](c)the rules of the fund have been complied with;“public officer” in relation to a company means the person appointed under section 51;“public servant” means the holder of any public office or emolument in the civil service of the Government of Swaziland and includes a person appointed to act in such public office;“representative taxpayer” has the meaning assigned to it in section 44;“retirement annuity fund” means any fund (other than a pension fund, provident fund or benefit fund) which is approved by the Commissioner in respect of the year of assessment in question:Provided that the Commissioner may approve a fund subject to such limitations or conditions as he may determine, but shall not approve any fund in respect of any year of assessment unless he is in respect of that year of assessment satisfied that—(a)the fund is a permanent fund bona fide established for the sole purpose of providing life annuities for the members of the fund or annuities for the widows, children, dependants or nominees of deceased members; and(b)the rules of the fund provide—(i)for periodical contributions by the members;(ii)that not more than one-third of the total value of any annuities to which any person becomes entitled, may be commuted for a single payment, except if the annual amount of such annuities does not exceed one thousand five hundred Emalangeni;[Amended K.O-I-C. 2/2003; A.7/1992; A.5/2004](iii)that no portion of any annuity payable to the widow, child, dependant and nominees of a deceased member may be commuted later than six months from the date of the death of such member;(iv)adequate security to safeguard the interests of persons who may become entitled to annuities;(v)that no member shall first become entitled to the payment of any annuity after he reaches the age of seventy years or, except in the case of a member who becomes permanently incapable through infirmity of mind or body of carrying on his occupation, before he reaches the age of fifty-five years;(vi)that if a member dies before he becomes entitled to the payment of an annuity, the benefits shall not exceed a refund to his estate or to his widow, children, dependants or nominees of the sum of the amounts (with or without reasonable interest thereon) contributed by him and an annuity or annuities to his widow, children, dependants or nominees;(vii)that if a member dies after he has become entitled to an annuity no further benefit shall be payable other than an annuity or annuities to his widow, children, dependants or nominees;(viii)that the sum of the annuities payable to the widow, children, dependants and nominees of a deceased member who was in receipt of an annuity at the time of his death shall not exceed the amount of such annuity;(ix)that a member’s contributions shall cease not later than the day before his birthday following the date on which he first becomes entitled to the payment of any annuity;(x)that a member who discontinues his contributions prematurely shall be entitled either to an annuity (payable from the date on which he would have become entitled to the payment of an annuity if he had continued his contributions) determined in relation to his actual contributions or to be reinstated as a full member under conditions prescribed in the rules of the fund;(xi)that upon the winding up of the fund a member’s interest therein must either be used to purchase a policy of insurance which the Commissioner is satisfied provides benefits similar to those provided by such fund or be paid for the member’s benefit into another approved retirement annuity fund;(xii)that save as is contemplated in subparagraph (ii) no member’s rights to benefits shall be capable of surrender, commutation or assignment or of being pledged as security for any loan;(xiii)that the Commissioner shall be notified of all amendments of the rules; and(d)the rules have been complied with;[Please note: numbering as in original.]“Royalty” means any payment, including a premium or like consideration, made for—(a)the use of, or right of use, any patent, design, trademark, or copyright, or any model, pattern, plan, formula, or process, or any property or right of a similar nature; or(b)the use of, or right to use—(i)any motion picture film; or(ii)any video or audio material (stored on film, tape, disc, or other medium) for use in connection with television or radio broadcasting; or(iii)any sound recording or advertising matter connected with material referred to in subparagraph (i) or (ii); or(c)the use of, or the right of use, or the receipt of, or right to receive, any video or audio material transmitted by satellite, cable, optic fibre, or similar technology for use in connection with television or radio broadcasting; or(d)the insparting of, or the undertaking to impart, any scientific, technical, industrial, or commercial knowledge or information; or(e)the rendering of, or the undertaking to render assistance ancillary to a matter referred to in paragraphs (a) to (d); or(f)a total or partial forbearance with respect to a matter referred to in paragraphs (a) to (e);[Added A.6/2000]“shareholder”, in relation to any company, means the registered shareholder in respect of any share, except that if some person other than the registered shareholder is entitled, whether by virtue of any provision in the memorandum or articles of association of the company or under the terms of any agreement or testamentary disposition or otherwise to all or part of the benefits of the rights of participation in the profits or income attaching to the shares so registered, such other person to the extent that he is entitled to such benefits shall also be deemed to be a shareholder;“steamer” includes any means of public and fare-charging transport by sea;[Added A.6/2000]“tax” or “taxation” means any tax or duty leviable under this Order or any previous income tax law, as the case may be;“taxable income” means the amount remaining after deducting from the income of any person all the amounts allowed to be deducted or set off in Part II;“taxpayer” means any person chargeable with any tax or duty leviable under this Order and, for the purposes of any provision relating to any return, includes every person required by this Order to furnish such return;“trade” includes every profession, trade, business, employment, calling, occupation or venture, including the letting of any property;“trading stock” includes—(a)anything—(i)produced, manufactured, constructed, assembled, purchased or otherwise acquired for the purposes of manufacture, sale or exchange; or(ii)the proceeds from the disposal of which forms or will form part of gross income; or(b)any consumable stores and spare parts acquired by him to be used or consumed in the course of his trade; and(c)in the definition of “exempt organisation”, by replacing the words “amateur sporting organisation” with the words “amateur sporting association;[Added A.7/2007]“trustee” includes in addition to every person appointed or constituted as such by act of parties, by will, by order or declaration of Court or by operation of law, an executor or administrator, tutor or curator, and any person having the administration or control of any property subject to a trust, usufruct, fidei commissum or other limited interest, or acting in any fiduciary capacity, or having, either in a private or an official capacity, the possession, direction, control or management of any property of any person under legal disability;“this Act” includes any regulations made thereunder;“wife’s employment income” [Added A.11/1985; deleted A.10/1991]“year of assessment” means any year or other period in respect of which any tax or duty leviable under this Order is chargeable:Provided that, in the case of a company, any reference to a year of assessment commencing the first day of July shall be construed to mean the financial year of that company, commencing in the claendar year in question.[Added A.11/1985; Amended K.O-I-C. 2/2003]3. Appointment of officers
4. Delegation of functions
The Commissioner may with the approval of the Minister delegate to any public servant any duties, powers and functions by this Order conferred or imposed upon him other than such power of delegation.5. Preservation of secrecy
Part II – Normal tax
6. Levy of normal tax and rates thereof (Third Schedule)
7. Meaning of gross income
“Gross income” means the total amount whether in cash or otherwise received by or accrued to or in favour of any person, excluding such receipts or accruals of a capital nature as are not receipts or accruals referred to in paragraphs (a) to (m) herein in any year or period assessable under this Part from any source within Swaziland or deemed to be within Swaziland, and includes the following— [Amended A.9/1979; A.5/2004](a)any amount so received or accrued by way of annuity;(aa)the full value of any debt (other than debt of a capital nature) which accrues in the year of assessment but becomes payable after the end of that year of assessment;[Added A.10/1991; amended A.7/1992](b)any amount, including any voluntary award, so received or accrued in respect of services rendered or to be rendered;[Amended A.7/1989; A.6/2000](c)any amount, including any voluntary award, so received or accrued—(i)in commutation of amounts due under any contract of employment or service;(ii)in respect of the relinquishment, termination, loss, repudiation, cancellation or variation of any office or employment or of any appointment (or right or claim to be appointed) to any office or employment;[Replaced K.O-I-C. 2/2003](d)any amount so received or accrued from another person as premium or like consideration paid by such other person for—(i)the use or occupation or the right of use or occupation of land or buildings; or(ii)the use or right of use of plant, machinery, equipment or vehicles; or(iii)the use or right of use of any motion picture film or any film or video tape or disc for use in connection with television or any sound recording or advertising matter connected with such motion picture film, film or video tape or disc; or(iv)the use or right of use of any patent, design, trade mark, copyright, or any model, pattern, plan, formula, or process or any property or right of a similar nature; or(v)the imparting of or the undertaking to impart any scientific, technical, industrial, or commercial knowledge or information for use in Swaziland, or the rendering of or the undertaking to render any assistance or service in connection with the application or utilisation of such knowledge or information;[Replaced A.9/1979](e)if in the case of any person to whom, in terms of any agreement relating to the grant to any other person of the right of use or occupation of land or buildings, or by the cession of any rights under such agreement, there has accrued in any such year or period the right to have improvements effected on the land or to the buildings by any other person—(i)the amount stipulated in the agreement as the value of the improvements or as the amount to be expended on the improvements; or(ii)if no amount is so stipulated, an amount representing in the opinion of the Commissioner, the fair and reasonable value of the improvements;(f)the annual value of any benefit or advantage accruing by way of employment, including that of any quarters, board or residence:Provided that in calculating the gross income of any person—(i)the value of any free medical attention or cash allowances for medical expenses provided for or paid to any employee or the holder of an office or appointment shall not be included;(ii)any free passage by rail, steamer or air provided for an employee or the holder of an office or appointment at the commencement of such employment, office or appointment shall not be included if the duration of such employment, office or appointment is two years or more or where it is less than two years, if such employment, office or appointment is not subject to renewal;[Amended A.6/2000](iii)any free passage by rail, road, steamer or air provided for an employee or the holder of an office or appointment shall, on termination of such employment, office or appointment, not be included if the employee or holder of such an office or appointment permanently returns to his place of recruitment;[Added A.6/2000](iv)fifty per cent of the total amount paid by an employer during any year of assessment directly or indirectly, by way of contribution to any approved bursary scheme for the benefit or educational assistance of the children of any employee or dependants of such employee shall not be included.[Added A.4/2008][Replaced A.6/1991](ff)for the purposes of paragraph (f), a taxable benefit shall be deemed to have been granted by an employer to his employee in respect of the employment contract between the employer and the employee, if—(a)a loan has been granted to the employee, whether by the employer or by any other person by arrangement with the employer, and either no interest is payable by the employee on such loan or interest is payable by him thereon at a rate lower than the official rate of interest; or(b)the employer has paid any subsidy in respect of the amount of interest or capital repayments payable by the employee in terms of the loan; or(c)the employer has in respect of any loan granted to the employee by any lender, paid to such lender any subsidy, being an amount which, together with any interest payable by the employee on such loan, exceeds the amount of the interest which, if calculated at the official rate of interest, would have been payable on such loan;(d)[Added A.6/1994; repealed A.5/2004](g)(i)any amount by which recoupments of capital expenditure which has been deducted under section 14(1)(m) or the corresponding provision of; previous income tax law, exceeds the residual value of such capital expenditure calculated in terms of section 14(1)(m);(ii)for the purposes of this subsection—“residual value” means the difference between the cost of capital expenditure incurred in mining operations less the total of the allowances granted in terms of section 14(1)(m) in respect of such capital expenditure;[Replaced A.9/1988](h)all amounts allowed to be deducted or set off under the provisions of section 14(1) (except paragraphs (e), (j) and (u) thereof) or section 14(2) or the corresponding provisions of any previous income tax law, whether in the current or any previous year of assessment, which have been recovered or recouped during the current year of assessment:Provided that all amounts which in terms of this section are required to be included in the taxpayer’s income shall be deemed to have been received by or to have accrued to the taxpayer from a source within Swaziland notwithstanding that such amounts may have been recovered or recouped outside Swaziland;(i)any amount so received or accrued by way of alimony or allowance or maintenance under any judicial order or written agreement of separation or any order of divorce;(j)any amount so received or accrued by way of dividends or interest on debentures or debenture stock;(k)any amount by way of allowance received by or accrued to a public servant, a Member of Parliament, a Minister, or a member of a statutory or other similar body, but excluding reimbursive allowances for appropriate official purposes;[Replaced A.9/1979; A.11/1985; A.5/2004](l)any amount received by or accured to any person as compensation for any restraint of trade imposed on such person;[Added A.5/2004](m)fifty percent of the amount by which the value of shares issued to an employee under an employee share acquisition scheme at the date of issue exceeds the consideration, if any, given by the employee for the shares, including any amount given as consideration for the grant of a right or option to acquire the shares;[Added A.7/2007](n)an amount of any gain derived by an employee on disposal of a right or option to acquire shares under an employee share acquisition scheme;[Added A.7/2007](o)an amount of any gain derived by an employee on disposal of a right or option to acquire shares under an employee share acquisition scheme.[Added A.9/1979; amended A.5/2004; A.7/2007]8. Normal tax rebate
9. Capitalised or credited income
Income shall be deemed to have accrued to a person notwithstanding that such income has been invested, accumulated or otherwise capitalised by him or that such income has not been actually paid over to him but has been credited in account or reinvested or accumulated or capitalised or otherwise dealt with in his name or on his behalf, and a complete statement of all such income shall be included by any person in the returns rendered by him under this Order.10. Taxation of income derived from farming (First Schedule)
The taxable income of any person carrying on pastoral, agricultural, plantation or other farming operations shall, in so far as it is derived from such operations, be determined in accordance with this Order, but subject to the First Schedule.[Added K.O-I-C. 2/1977; amended A.11/1985]11. Circumstances where certain amounts are deemed to be income in Swaziland
11bis. Trading stock
12. Exemptions from normal tax
12bis. Prohibition of a double exemption
Where an amount qualifies or has qualified for an exemption under more than one provision of this Order, an exemption in respect of such amount or any portion thereof shall not be allowed more than once in the determination of taxable income of any person.[Added A.5/2004]12ter. Repeal of exemption of public enterprises
13. Business extending beyond Swaziland
14. Determination of taxable income
14A. ***
[Repealed A.5/2004]14bis. Prohibition of a double deduction
Where an amount qualifies or has qualified for a deduction under more than one provision of this Order or qualifies for rebate under section 8, a deduction in respect of such amount or any portion thereof shall not be allowed more than once in the determination of taxable income of any person.[Added A.5/2004]15. Deductions not allowable
Notwithstanding any other provisions of this Order no deduction shall in any case be made in respect of any of the following matters—16. Calculation of capital expenditure allowance in connection with mining operations
17. Calculation of capital expenditure on change of ownership of a mining property
18. ***
[Repealed A.5/2004]19. Income of beneficiaries and estates of deceased persons
19bis. Income of trusts and beneficiaries
20. Hire purchase or other instalment sale agreements
If any taxpayer has entered into any agreement with any other person in respect of any property the effect of which is that, in the case of movable property, the ownership shall pass, or, in the case of immovable property, transfer shall be passed, from the taxpayer to such other person, upon or after the receipt by the taxpayer of the whole or a certain portion of the amount payable to the taxpayer under the agreement, the whole of such amount shall, for the purpose of this Order, be deemed to have accrued to the taxpayer on the day on which the agreement was entered into:Provided that the Commissioner, taking into consideration any allowance he has made under section 14(1)(s), may make such further allowance, as under the special circumstances of the trade of the taxpayer seems to him reasonable, in respect of all amounts which are deemed to have accrued under such agreements but which have not been received at the close of the taxpayer’s accounting period:Provided further that any allowance so made shall be included as income in his returns for the following year of assessment and shall form part of the income of the taxpayer.20bis. Finance leases
Part III – Non-resident tax
Division I – Shareholders
21. Levy of non-resident shareholders tax
22. Income subject to tax
23. Person liable for tax
The person liable for the tax shall be the person to whom or in whose favour the amounts described in section 22 accrue.24. Recovery of tax
25. Determination of tax if company operates outside Swaziland
If any amount specified in section 22 has been received from a company which derives income from sources within and outside Swaziland, the tax payable in respect of that amount shall be calculated upon an amount which bears to that amount the same ratio as the sum of the net profits of the company derived from sources within Swaziland bears to the total sum of its net profits derived from all sources as last determined by the Commissioner for the purposes of this Act, or, in cases in which there has been no previous determination by the Commissioner, as estimated by the Commissioner according to such information as is available to him.[Replaced A.11/1982]26. Date of payment of tax
Division II – Interest
27. Levy of non-residents tax on interest
If any amount of interest accrues to or in favour of—28. Application of provisions
For the purpose of this Part—29. Exemptions
The non-residents tax on interest shall not be payable in respect of—30. Persons liable for non-residents tax on interest
The person liable for the non-residents tax on interest shall be the person, estate, or company to whom or in whose favour, the amount of interest referred to in section 27 accrues.31. Deduction or withholding of non-residents tax on interest
32. When non-residents tax on interest is payable
Division III – Entertainers and sportsmen
[Added A.11/1985]32A. Levy of non-residents’ tax on entertainment and sports
Division IV – Royalty and management charge
[Added A.6/2000]32B. Levying of tax Royalties and Management Charge paid to non-resident persons
Division V – Interest paid to residents
[Added A.6/2000]32C. Withholding tax from payments of interest made to persons ordinarily resident in Swaziland
[Repealed A.4/2008]Division VI – Dividends paid to residents
32D. Levying of tax on dividends paid to resident persons
Division VII – Branch profits tax
32E. Levy of branch profits tax on repatriated income
Division VIII – Rental payments
32F. Withholding tax from rental payments
Division IX – Payments to beneficiries of trusts
32G. Withholding tax on payment to beneficiaries of trusts
Part IV – Returns and assessments
33. Notice requiring returns and manner of furnishing returns
33bis. Cases where return of income not required
34. Duty of persons submitting accounts in support of returns or preparing accounts for others
34bis. Financial statements to be audited by a registered auditor
34ter. Inquiry before assessment
35. Production of documents and evidence on oath
35bis. The keeping of business and other records
36. Power of inspection
37. Duty to furnish information or returns
37bis. Compliance with certain provisions notwithstanding privilege or public interest
Sections 34ter, 35, 36, 37, 38, 49 and 59B shall have effect notwithstanding anything contained in any other law to the contrary relating to privilege, confidentiality or the public interest in relation to the production of or access to documents or information or appointment of agent.[Inserted A.4/2008]38. Duty to furnish information on request
Any person, whether liable for taxation under this Order or not, to whom any notice or request for information is sent by the Commissioner or by any officer acting under the authority of the Commissioner, shall comply with the terms of such notice or furnish the information so requested.39. Estimated assessments
40. Additional tax in case of default or omission
40bis. Additional tax in relation to the withholding of taxes
41. Additional assessments
42. Assessments and the recording thereof
43. Inspection of assessments
Particulars of income tax assessments shall not be open to public inspection, but every taxpayer shall be entitled to copies certified by or on behalf of the Commissioner of such entries as relate to the assessment of his own income.Part V – Representative taxpayers
44. Representative taxpayers
In this Order unless the context otherwise requires—“representative taxpayer” means—(a)in respect of the income of any company, the public officer thereof;(b)in respect of the income of any person permanently or temporarily absent from or resident out of Swaziland, the agent of such person, and for the purpose of this paragraph every person in Swaziland having the receipt, management or control of any income on behalf of any person so absent or resident, or remitting or paying any income to or receiving any money for such person, shall be deemed to be the agent of such person;(c)in respect of the income of trust or any minor or mentally disordered and defective person or any other person under legal disability, the trustee, guardian, curator or other person entitled for the time being to the receipt, management, disposal or control of such income or remitting or paying to or receiving any money on behalf of such person under disability;(d)in respect of income paid under a decree or order of any court to any receiver or other person, such receiver or person, whoever may be entitled to the benefit of such income, and whether or not it accrues to any person on a contingency or any uncertain event;(e)in respect of the income received by or accrued to any deceased person during his lifetime and the income received by or accrued to the estate of any deceased person, the executor or administrator of the estate of such deceased person:Provided that this definition shall not be construed as relieving any person from any liability, responsibility or duty imposed upon him by this Order.45. Liability of representative taxpayer
Every representative taxpayer, as regards the income to which he is entitled in his representative capacity or of which in such capacity he has the management, receipt, disposal, remittance, payment or control, shall be chargeable with the taxation imposed by this Order and shall be subject in all respects to the same duties, responsibilities and liabilities as if the income were income received by or accruing to or in favour of him beneficially, except that no representative taxpayer (not being a public officer or a company) shall, save as provided by section 47, be personally liable for the payment of any tax beyond the amount of the income of which he has the management, receipt, disposal or control in such capacity:Provided that nothing herein shall, if the representative taxpayer acts as an agent or trustee or in any other capacity for several persons, prevent him from claiming that each agency or trust or other capacity shall be treated separately for the purpose of claiming any exemption or deduction provided by this Order.46. Right of representative taxpayer to indemnity
Every representative taxpayer who, as such, pays any tax shall be entitled to recover it from the person on whose behalf it is paid or to retain out of any moneys that may be in his possession or may come to him in his representative capacity so much as is required to indemnify him in respect of such payment.47. Personal liability of representative taxpayer
Ever representative taxpayer shall be personally liable for any tax payable in respect of any assessment made upon him in his representative capacity if, while it remains unpaid—48. Absent shareholder
If a shareholder or a member of a company is absent from Swaziland, such company shall, for the purpose of this Order, be deemed to be the agent for such shareholder or member, and shall, as regards such shareholder or member and in respect of any income received by or accruing to him or in his favour as shareholder or member, have and exercise all the powers, duties and responsibilities of an agent for a taxpayer absent from Swaziland.49. Commissioner’s power to appoint agents
50. Remedy against property
The Commissioner or any person empowered under this Order shall have such and the like remedies against all property of any kind vested in or under the control or management of any agent or trustee as he would have against the property of any person liable to pay any tax and in as full and ample a manner.51. Public officers of companies
Part VI – Objections and appeals
52. Time and manner of lodging objections
53. Onus of proof as to exemptions, etc.
The burden of proof that any amount is exempt from or not liable to any tax chargeable under this Order or is subject to any deduction or set-off, shall be upon the person claiming such exemption, non-liability, deduction or set-off, and upon the hearing of any appeal from any decision of the Commissioner, the decision shall not be reversed or altered unless it is shown by the appellant that the decision is wrong.54. Appeal against Commissioner’s decision
55. Obligation to pay not suspended pending appeal
The obligation to pay and the right to receive and recover any tax chargeable under this Order shall not, unless the Commissioner so directs, be suspended by any appeal or pending the decision of the court under section 56, but if any assessment is altered on appeal or in conformity with any such decision, a due adjustment shall be made, for which purpose any amount paid in excess shall be refunded and any amount shortpaid shall be recoverable.56. Questions of law
If a question of law arises with regard to any assessment or altered or reduced assessment under this Order, the Commissioner may, within thirty days after receipt of any notice of objection or any notice of appeal under this Order, of his own motion or at the request of the taxpayer concerned, state a case for the determination of such question by the court.Part VII – Payment and recovery of tax
57. Appointment of day for payment of tax and interest on overdue payments
58. Payments of employees tax (Second Schedule)
Payments in respect of the liability (whether or not such liability has been ascertained or determined at the date of any payment) of every employee, as defined in the Second Schedule, for any tax shall be made in accordance with the Second Schedule, and any such payment may be made at such place as may be notified by the Commissioner.58A. Payment of provisional tax (Fourth Schedule)
59. Withholding of tax from payments to non-resident contractors
[Amended A.7/1989; A.6/2000]59A. Withholding tax on payments to non-resident persons
59B. Issuance of a directive to withhold tax in certain cases of non-compliance
59C. Notification to the Commissioner on agreements entered into with non-resident persons.
Every person who enters into an agreement with a non-resident person, as defined in section 59, for services to be performed or rendered in Swaziland under which payments (other than payments to which the Second Schedule applies) will be made to a non-resident person shall, within thirty days of the date of entering into such agreement, notify the Commissioner in writing of—60. Persons by whom the tax is payable
Subject to this Order, the taxes leviable shall be payable—61. Recovery of tax
61bis. Collection of taxes under agreements made under section 68
62. Tax to be a liquid debt
63. Conclusive evidence of making of assessment
The production of any document under the hand of the Commissioner purporting to be a copy of or extract from any assessment shall be conclusive evidence of the making of the assessment and, except in the case of proceedings on appeal against the assessment, shall be conclusive evidence that the amount and all the particulars of such assessment appearing in such document are correct.Part VIII – Miscellaneous
64. Refunds and set-off
65. Transactions, operations or schemes for purposes of avoiding or postponing liability for or reducing amounts of taxes on income
66. Offences
67. Authentication and service of documents
68. Double taxation agreements
69. Regulations
69bis. Commissioner’s annual report
The Commissioner shall, not later than six months after the end of each financial year, prepare and submit to the Minister, an annual report setting out information relating to the operation of this Order during that financial year and such other information as the Minister may require[Added A.9/1979]69ter. Taxpayer identification number
The Commissioner may require a taxpayer to include the taxpayer identification number issued by the Commissioner to that taxpayer or in the case of a natural person his or her personal identification number in any return, notice, or other document used for the purposes of this Order.[Added A.5/2004]69quat. Transitional
70. Repeal
The Income Tax (Consolidation) Act, No. 84 of 1959, is hereby repealed:Provided that any tax or other amount which but for such repeal would have been capable of being levied, assessed or recovered and which has not been levied, assessed or recovered at the commencement of this Order, and all notices and returns issued or published in connection therewith, may be levied, assessed, recovered, issued or published as if such repeal had not been effected:Provided further that paragraphs 3, 4, 5 and 11(2) of the First Schedule to the repealed Act shall continue to apply to any farmer to whom paragraph 2 of the First Schedule hereto applies.History of this document
01 December 1998 this version
Consolidation
08 July 1975
Assented to
01 July 1975
Commenced
Cited documents 8
Legislation 8
1. | Administration of Estates Act, 1908 | 685 citations |
2. | Magistrate’s Courts Act | 79 citations |
3. | Finance Management and Audit Act, 1967 | 54 citations |
4. | Transfer Duty Act, 1902 | 19 citations |
5. | Building Societies Act, 1962 | 12 citations |
6. | Adoption of Children Act, 1952 | 7 citations |
7. | Diplomatic Privileges Act, 1968 | 2 citations |
8. | Statistics Act, 1967 | 1 citation |