[This is the version of this document at 1 December 1998.]
A King’s Order-in-Council to consolidate the law relating to the taxation of incomes.
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
(1)For the administration of this Order the Minister may designate a public servant as Commissioner of Taxes and public servants as Deputy Commissioners of Taxes.[Amended A.6/2000](2)A Deputy Commissioner shall perform such general official duties as he is required to perform by this Order or by the Commissioner under the control of the Commissioner, and shall, in case of illness, absence or temporary incapacity of the Commissioner, act in his name and on his behalf and while so acting shall have and may exercise all the powers conferred and shall perform the duties imposed upon the Commissioner under this Order.[Amended A.6/2000](3)Any office under this Order may be held in conjunction with any other office in the civil service.
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
(1)Every person designated under or employed in carrying out the provisions of this Order shall, subject to this section, preserve and aid in the preservation of secrecy with regard to all matters that may come to his knowledge in connection with the performance of his duties in respect of such provisions, and shall not communicate any such matter to any person other than the taxpayer or his lawful representative nor suffer any such person to have access to any records in the possession or custody of the Commissioner except in the performance of his duties under this Order or by order of a court:Provided that—(a)the Commissioner may in seeking the advice of or in instructing the Attorney-General or any legal practitioner acting on behalf of the Commissioner disclose such information and such documents as may be relevant in order to obtain such advice or in giving such instructions;(b)the Auditor-General acting under the Finance and Audit Act, No. 18 of 1967 may have access to such documents in the possession or custody of the Commissioner as are required by the Auditor-General for the performance of his powers or duties, and the Director of Statistics shall, subject to the Statistics Act, No. 14 of 1967 have a similar right in relation to the performance by him of his powers and duties under that Act;(c)the information obtained by the Commissioner in the performance of his powers and duties under this Order or any previous law relating to incometax may be used by him for the purposes of any other fiscal law administered by him;(ca)the Secretary for Customs and Excise may have access to such documents and information in the possession or custody of the Commissioner, as are required by him for the performance of his duties under the Sales Tax Act, 1983;[Added A.9/1988](d)a taxpayer may waive, expressly or by implication, any right which he may have under this Order to secrecy of any matter relating to him or his affairs.(2)Every person so designated or employed shall, before acting under this Order, take and subscribe before a Commissioner of Oaths or a Justice of the Peace, such oath of fidelity or secrecy as may be prescribed.(3)Every person who, in contravention of the true intent of the oath of fidelity or secrecy taken by him and without lawful excuse, reveals any matter or thing which has come to his knowledge in his official capacity shall be guilty of an offence and liable on conviction to a fine of five hundred Emalangeni or imprisonment for two years, or both.(4)If any person acts in the execution of his office before he has taken the prescribed oath he shall be guilty of an offence and liable on conviction to a fine of twenty Emalangeni.(5)Any person designated by competent authority to audit the assessments and accounts of the Commissioner shall for the purposes of this section be deemed to be a person appointed under or employed in the carrying out of the provisions of this Order.
Part II – Normal tax
6. Levy of normal tax and rates thereof (Third Schedule)
(1)There shall be charged, levied and paid an incometax, known as “normal tax”, in respect of the taxable income, received by or accrued to or in favour of any person during the year of assessment commencing the first day of July 1975, and each succeeding year of assessment thereafter.[Amended A.11/1985](2)Notwithstanding the provisions of subsection (1), where the taxable income of any person who is in continuous employment with the same employer for any year of assessment, is derived solely from remuneration and the employees’ tax required to be deducted or withheld from such remuneration under the Second Schedule, has been deducted or withheld from such remuneration, the normal tax payable by him in respect of such year shall be an amount equal to the sum of the amount deducted or withheld from such remuneration as employees’ tax.[Added A.6/1994](3)The rates to be levied as set out in the Third Schedule shall be fixed annually by the Minister having regard to any factors having a bearing to the adequate raising of revenue, but the rates so fixed for any year shall be deemed to continue in force until the next such annual determination.[Amended A.6/1994; A.4/2008]
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
(1)In the case of a natural person the tax payable in terms of section 6 shall, save as is otherwise provided in this Order, be reduced by—(a)an amount not exceeding the sum specified in the Third Schedule in any year of assessment:provided that no reduction shall be made under this subsection if the tax payable in terms of section 6 is subject to the rates of tax prescribed in Part III of the Third Schedule;[Amended A.9/1988; A.6/1991; repealed A.10/1991; replaced A.7/2007; A.4/2008](b)an amount equal to ten percent of the amount paid for each Lilangeni or part thereof in respect of—(i)any amount paid by way of a mortgage interest during the year of assessment:Provided that the amount to be allowed as a reduction under this subparagraph shall not exceed two thousand four hundred Emalangeni;(ii)the premium paid by a person during the year of assessment upon a policy under which that person, the spouse or child of that person is insured against death or sickness:Provided that no reduction shall be made in respect of insurance under a policy if the amount paid as premium for such policy has been allowed as a reduction from the income of the taxpayer under section 14, or has been allowed in respect of income or similar tax paid by him in a foreign country;(iii)the fee or subscription paid by a person during the year of assessment to a benefit fund or provident fund;(iv)the contribution made by a person during the year of assessment as an employee to a fund established under any law relating to unemployment insurance:Provided that the total amount to be allowed as a reduction under paragraph (b)(ii), (iii), and (iv) shall not exceed three hundred and sixty Emalangeni.(2)If the period of assessment is less than twelve months, the reductions under subsection (1)(a) shall be such amounts as bears to the full amount of the respective reduction provided for thereunder the same ratio as the period assessed bears to twelve months.[Amended A.11/1985; A.6/1987; A.7/1989; A.6/1991; A.7/1992; A.6/1994; replaced A.5/2004]
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
(1)An amount shall be deemed to have accrued to any person from a source in Swaziland notwithstanding that it may have been recovered or recouped outside Swaziland whenever it has been received by or has accrued to or in favour of such person by virtue of—(a)any agreement made by such person in Swaziland for the sale of goods, whether such goods have been delivered or are to be delivered in or out of Swaziland;(b)any service rendered or work or labour done by such person in the carrying on in Swaziland of any trade, whether the payment for such service or work or labour is made or is to be made by a person resident in or out of Swaziland;(c)any service rendered by such person to, or work or labour done by, such person for or on behalf of the Government and in accordance with an agreement of employment with the Government notwithstanding that such service is rendered or that such work or labour is done outside Swaziland;(d)any pension or annuity granted to such person in respect of services performed in Swaziland wheresoever payment of such pension or annuity is made and wheresoever the funds from which payment is made are situate:Provided that if any pension or annuity is granted in respect of services performed partly in Swaziland and partly elsewhere only that part which bears to the whole amount of such pension or annuity the same ratio as the period of service in Swaziland bears to the total period of service in respect of which such pension or annuity was granted shall be deemed to have accrued from a source within Swaziland;(e)any business carried on by such person (being a person who is ordinarily resident in Swaziland, or a company which is incorporated, managed or controlled in Swaziland) as owner or charterer of any aircraft, wheresoever such aircraft may be operated;(f)any service rendered or work or labour done by such person, being a person ordinarily resident in Swaziland, as an officer or a member of the crew of any aircraft referred to in paragraph (e), notwithstanding that such service is rendered or such work or labour is done outside Swaziland, and wheresoever payment for such service or work or labour is made or is to be made;(g)the use or right of use in Swaziland of, or the grant of permission to use in Swaziland—(i)any patent design, trade mark, copyright, model, pattern, plan, formula, or process or any other property or right of a similar nature; or(ii)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 used or intended to be used in connection with such motion picture film, film or video tape or disc;(iii)any video or audio material transmitted by satellite, cable, optic fibre, or similar technology for use in connection with television or radio broadcasting,[Added A.6/2000]wheresoever such thing or matter as is referred to in subparagraph (i), (ii) or (iii) has been produced or made, or such right of use or permission has been granted or payment for such use, right of use or grant, of permission has been made or is to be made, and whether such payment has been made or is to be made by a person resident in or out of Swaziland;[Added A.9/1979; amended A.6/2000](gg)the use of or the right to use, or the grant of permission to use in Swaziland of plant machinery, equipment or vehicles or any other movable property;[Added A.6/2000](h)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 utilization of such knowledge or information, wheresoever such knowledge or information has been obtained or such knowledge or information has been imparted or is to be imparted or such assistance or service has been rendered or is to be rendered or any such undertaking has been given, and whether payment for such knowledge, information, assistance, service or undertaking has been made or is to be made by a person resident in or out of Swaziland;[Added A.9/1979](i)a judicial order, written agreement of separation or an order of divorce, if the taxable income of such person’s spouse or former spouse has been reduced by such amount in terms of section 14(1)(x), wheresoever such judicial order or order of divorce was granted or such agreement was made or such amount is paid or payable and whether such person’s spouse or former spouse is resident in or out of Swaziland;[Added A.11/1982](j)a management charge paid by any person ordinarily resident or carrying on business in Swaziland;[Added A.6/2000](k)any interest where—(i)the debt is secured by immovable property located, or movable property used, in Swaziland;(ii)the borrower is a person ordinarily resident in Swaziland; or(iii)the borrowing relates to a business carried on in Swaziland.[Added A.5/2004](2)[Deleted A.10/1991](2)(bis)[Added A.11/1985; amended A.5/1988; A.7/1989; A.6/1991; deleted A.10/1991](3)Any income shall be deemed to have been received by the parent of any minor child, if by reason of any donation, settlement or other disposition made by such parent of such child—(a)it has been received by or accrued to or in favour of or has been deemed to have been received by or accrued to or in favour of such child or has been expended for the maintenance, education or benefit of such child; or(b)it has been accumulated for the benefit of such child.(4)Any income received by or accrued to or in favour of or deemed to have been received by or accrued to or in favour of any minor child of any person, by reason of any donation, settlement or other disposition made by any other person, shall be deemed to be the income of the parent of such minor child if such parent or his spouse has made a donation, settlement or other disposition or given some other consideration in favour directly or indirectly of such other person or his family.(5)If any person has made in any deed of donation, settlement or other disposition, a stipulation to the effect that the beneficiaries thereof, or some of them, shall not receive the income thereunder, or some portions of such income, until the happening of some event, whether fixed or contingent, so much of any income as would, in consequence of the donation, settlement or other dispostion but for such stipulation, be received by or accrued to or in favour of or be deemed to be received by or accrued to or in favour of the beneficiaries, shall until the happening of such event, or the death of such person, whichever takes place first, be deemed to be the income of such person.(6)If any deed of donation, settlement or other disposition contains any stipulation that the right to receive any income thereby conferred may, under powers retained by the person by whom such right is conferred, be revoked or conferred upon another, so much of any income as, in consequence of donation, settlement or other disposition, is received by or accrues to or in favour of or is deemed to be received by or to accrue to or in favour of the person on whom such right is conferred, shall be deemed to be the income of the person by whom it is conferred, so long as he retains those powers.(7)Any amount received by or accrued to or in favour of any person ordinarily resident in Swaziland by way of interest upon any stocks or securities issued by any Government other than the Government of Swaziland, shall if such amount is not chargeable with incometax in such country of origin, by reason of the recipient not being domiciled or resident therein, be deemed to be income derived from a source within Swaziland:Provided that in the case of a person who was not ordinarily resident in Swaziland throughout the year of assessment, there shall not be added any such interest so received by or accrued to or in favour of any such person during such portion of such year as he was not so ordinarily resident.(8)So much of any amount, which has been paid by any person as an allowance or advance to a director, manager, employee or other person in respect of expenses of travelling, entertainment or other service, as the Commissioner is not satisfied was actually expended by the recipient on such travelling, entertainment or in the performance of such service, shall be deemed to be part of the taxable income of the recipient.(9)Any interest which has been received by, or has accrued to, a person who is ordinarily resident in Swaziland in respect of a loan to, or deposit in a building society other than the building society registered under the provisions of the Building Societies Act, No. 1 of 1962, and carrying on business in Swaziland, or any dividend or share of profits distributed by such society which has been received by or has accrued to a person ordinarily resident in Swaziland, shall be deemed to have been derived from a source within Swaziland.(9A)It is further provided that—(a)any interest received by or accrued to a person who is ordinarily resident or carrying on business in Swaziland from a source outside Swaziland shall be deemed to be from a source within Swaziland notwithstanding that it may have been recovered or recouped outside Swaziland, unless the interest is effectively connected with a business carried on by the person through a branch in the other country;[Replaced A.5/2004](b)where as a result of subparagraph (a) applying, an amount of interests is included in the gross income of a person ordinarily resident or carrying on business in Swaziland, that person shall be allowed a credit for any foreign tax paid by the perion in respect of the interest, and this credit shall be applied against the person’s liability for Swaziland tax on the interest; and(c)the amount of the credit allowed under paragraph (b) is limited to the Swaziland tax payable in respect of the interest income.[Added A.6/2000](10)So much of any amount which has been paid by a company to or otherwise made available for the personal use of a shareholder or director of such company from the company’s undistributed profits, reserves or other assets by way of loan, and which amount was not repaid to the company within the year such loan or advantage was obtained, shall be deemed to be part of the taxable income of such shareholder or director for that year:Provided that this subsection shall not apply to a loan paid to or otherwise made available for use by a shareholder or director which in the opinion of the Commissioner, was made for a purpose directly connected with the business of the company.[Added A.9/1979](11)[Added A.11/1982; amended A.11/1985; repealed A.7/2007]
11bis. Trading stock
(1)There shall be taken into account, in the determination of the taxable income derived by any person, during any year of assessment, from carrying on any trade (other than farming), the value of all trading stock held and not disposed of by him (hereinafter referred to as “the value of trading stock held”) at the beginning and end of each year of assessment.(2)The cost of trading stock disposed of during the year of assessment is determined by adding to the opening value of trading stock the cost of trading stock acquired in the year, and subtracting the closing value of trading stock.(3)The value of trading stock held by any person at the beginning of any year of assessment shall be deemed to be—(a)where the person carried on trade on the last day of the previous year of assessment, the value of trading stock held on that date; or(b)where the person commenced the trade during the year of assessment, the cost to the person of any stock acquired prior to the commencement of the trade.(4)The value of trading stock held at the end of a year of assessment shall be deemed to be the lower of cost or market value to the person carrying on the trade.(5)For the purposes of this subsection, the cost of any trading stock in relation to any date shall be—(a)the cost incurred in acquiring such trading stock; and(b)any further costs incurred up to such date in getting such trading stock into its then existing condition or location.(6)Where any trading stock has been acquired by any person—(a)for a consideration which cannot be valued; or(b)otherwise than by way of a transaction at arm’s length,such trading stock shall be deemed to have been acquired at a cost equal to the price which, in the opinion of the Commissioner, was the current market price of such trading stock on the date of acquisition.(7)Where particular items of trading stock are not readily identifiable, a person may account for that trading stock on the first-in-first-out method or the average-cost method but, once chosen, a stock valuation method may be changed only with the written permission of the Commissioner.[Added A.7/2007]
12. Exemptions from normal tax
(1)There shall be exempt from normal tax—(a)the receipts and accruals of—(i)life assurance business (including receipts and accruals from investments) by the Swaziland Royal Insurance Corporation and other insurance companies;(ii)insurance business other than life assurance business of the Swaziland Royal Insurance Corporation to the extent that they are not distributed to shareholders and until such time as the amount of the general reserve fund for the first time is equal to twice the amount of the authorised share capital of the Corporation in terms of section 5 of the Swaziland Royal Insurance Corporation Order, No. 32 of 1973;(iii)[Amended A.6/1994; deleted A.6/2000](iv)a pension fund, a retirement annuity fund, a benefit fund or a provident fund;Provided that the provisions of this paragraph shall not be construed as requiring the taxable income of such company, society or association derived from investments to be determined at an amount greater than an amount determined to the satisfaction of the Commissioner as representing the taxable income on which such company, society or association would have been taxable under this Order if the exemption conferred by this paragraph had not been applicable;[Added A.6/1994](v)[Deleted A.6/2000](vi)any company, society or other association of persons, whether or not registered under any law, the profits or gains of which, other than profits or gains from investments, are derived solely from transactions with or on behalf of its individual members, and the constitution of which does not admit of the distribution of its profits or gains to any persons other than the members with whom or on whose behalf the transactions took place, and does not confer upon any person any benefit other than benefits accruing to that person from transactions with or on behalf of such person, except as regards any receipts or accruals from investments by any such company, society, or association of persons; and(vii)any exempt organisation other than business income that is not related to the function constituting the basis for the organisation’s existence;[Replaced A.5/2004](viii)[Deleted A.5/2004](ix)[Repealed A.11/1985; added A.6/1994; deleted A.5/2004](b)the income of any person entitled to privileges under the Diplomatic Privileges Act No. 18 of 1968 to the extent provided in such Act;(c)the salaries and emoluments of any person in respect of services rendered to the Government of any country other than Swaziland if that person is not ordinarily resident in Swaziland or is ordinarily resident solely for the purpose of performing such services;(d)war pensions or gratuities;(e)dividends received by or accrued to or in favour of—(i)any person not ordinarily resident or carrying on business in Swaziland;(ii)the estate of any deceased person who at the date of his death was not ordinarily resident or carrying on business in Swaziland, if, but for this exemption, such estate would have been liable for normal tax in respect of such dividend; and(iii)any company;(ee)[Added A.6/1991; amended A.10/1991; deleted K.O-I-C. 2/2003](f)so much of any amount received by or accrued to any person as is proved to the satisfaction of the Commissioner to be a bona fide bursary granted to enable or assist such person to study at a recognised educational or research institution;(g)any amount received by or accrued to any employee on bona fide termination of employment by reason of a written agreement of employment or of any law in force in Swaziland, by way of bonus or gratuity specified in such written agreement in respect of services rendered or performed prior to 1 July 2001:[Amended A.6/2000]Provided that—(i)the period of the agreement of employment is not less than two years; or(ii)if the period of the agreement is less than two years, the employee shall not enter into another agreement of employment with the same employer after the termination of his employment; andProvided further that such amount shall not exceed twenty-five per centum of the total amount of the actual salary received by the employee reckoned from the date of such written agreement in respect of and during the period of such employment:Provided further that the payment of such amount in respect of services rendered or performed prior to 1st July, 2000 shall not be subject to normal tax notwithstanding that such payment is made prior to the bona fide termination of such written agreement.[Added A.6/2000][Replaced A.10/1991](h)any interest received by or accrued to any person neither ordinarily resident nor carrying on business in Swaziland from stock or securities issued by the Government or any local authority in Swaziland, the Swaziland Railway Board, the Swaziland Electricity Board or any other parastatal or statutory corporation approved by the Minister:Provided that, if in the case of any such stock or securities issued in respect of a loan raised in a country outside Swaziland the Minister has given a written undertaking that the interest therefrom received by or accruing to any person not ordinarily resident in Swaziland shall be exempt from tax in Swaziland, the interest received by or accruing to such person from any such stock or securities acquired by him outside Swaziland shall be exempt from that tax, notwithstanding that he carries on business in Swaziland;(i)any interest received by or accruing to any person not ordinarily resident in Swaziland from any loan made to the Ngwenyama in trust for the Swazi Nation;(j)any amount received by or accruing to an employee on bona fide termination of employment in respect of—(i)commutation of a pension payable from a pension fund;(ii)amounts due from a provident fund or benefit fund;(iii)any amount payable, as determined in terms of the provisions of the Employment Act, as severance allowance or notice pay;[Added A.11/1985; amended A.10/1991; replaced A.6/1996; K.O-I-C. 2/2003](iv)the first sixty thousand Emalangeni of a lump sum amount referred to in section 7(c) of the meaning of “gross income” payable by reason of—(A)the termination or impending termination of the employee’s services due to the employer having ceased carrying on the business in respect of which the employee was employed;(B)the employee having become redundant in consequence of the employer having effected a general reduction or a reduction of a particular class of employees; or(C)the employee having reached the retiring age or the termination of employment of such employee is due to ill health or infirmity:Provided that any lump sum amount in excess of thirty thousand Emalangeni shall be charged tax under section 6;[Added K.O-I-C. 2/2003. Amended A.4/2008](jj)[Added A.6/1996; deleted K.O-I-C. 2/2003](k)any amount received in commutation of a retirement annuity;(l)any amount (other than his actual salary) received by or accrued to a public servant which the Government has undertaken shall be exempt from normal tax by the terms of its written agreement with such servant and any amount from whatsoever cause arising received by or accrued to a public servant which the Government has undertaken shall be exempt from normal tax by the terms of its written agreement with the Government of another state;(m)any amount received by or accrued to any person in respect of services rendered in Swaziland which the Government has undertaken shall be exempt from normal tax by the terms of its written agreement with the Government of another state or with an international or world organisation or body;(n)any allowances additional to salary payable to any public servant or representative of the Government in respect of his appointment or office if such allowances are payable and his duties are performed outside Swaziland;(o)any amount, other than the actual salary and benefits received by, or accrued to, an expatriate lecturer whom the Government has undertaken shall be exempt from normal tax in terms of a written agreement with the University of Swaziland, or an approved college or institution of higher learning;[Deleted A.6/2000; inserted A.4/2008](p)[Amended K.O-I-C. 1/1976; A.9/1979; A.11/1982; A.11/1985; A.6/1991; deleted A.6/2000](q)[Amended A.11/1982; A.11/1985; deleted A.6/2000](qq)interest or dividends received by accrued to, or in favour of, any natural person in any year of assessment not exceeding twenty-thousand Emalangeni—(i)in respect of any subscription share in a building society registered under the Building Societies Act, 1962, and carrying on business in Swaziland;(ii)from permanent or fixed period shares in a building society Registered under the Building Societies Act, 1964, and carrying on business in Swaziland;(iii)on society shares from savings with a mutual loan association or co-operative society carrying on business in Swaziland;(iv)from deposits in a financial institution or a building society or the Swaziland Development and Savings Bank established under the Swaziland Development and Savings Bank Order, 1973 and carrying business in Swaziland; or(v)from deposits in a unit trust company carrying on business in Swaziland.[Added A.6/1991; amended A.6/2000; replaced K.O-I-C. 2/2003; amended A.4/2008](r)any interest and other charges on any loan which the Government has in terms of a written undertaking concluded subsequent to the 1st December, 1977 exempted or undertaken to exempt from tax to the extent specified in such undertaking;[Added K.O-I-C. 6/1978](s)[Added A.11/1985; deleted K.O-I-C. 2/2003](t)gross income received by or accrued to any person not ordinarily resident in Swaziland where such gross income is liable to non-residents’ tax on entertainment and sports chargeable under section 32A of this Order;[Added A.11/1985](u)any royalty or management charge received by or accrued to any person not ordinarily resident or carrying on business in Swaziland which is subject to tax under section 32B of this Order;[Added A.6/2000](v)dividends received by or accrued to or in favour of any person ordinarily resident or carrying on business in Swaziland which is subject to tax under section 32D of this Order.[Added A.6/2000; replaced K.O-I-C. 2/2003](2)The exemptions provided by subsection (1)(a)(i) to (vii) inclusive shall not extend to the salaries, wages, allowances or pensions of persons employed by any such society, institution, company, board or business although they may be paid wholly or in part out of the income, revenue or funds thereof.[Amended A.6/1994; A.5/2004](3)[Amended A.11/1982; A.7/1989; A.6/1991; replaced A.10/1991; A.7/1992; A.6/1994; repealed A.5/2004](4)[Replaced A.11/1982; amended A.11/1985; A.7/1989; A.6/1991; repealed A.10/1991](5)[Added A.11/1985; amended A.9/1988; repealed A.5/2004](6)[Repealed A.5/2004]
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
(1)Notwithstanding anything contained in any other law, with effect from the 1st day of July, 2001, no public enterprise shall be exempt from taxation, except as provided for in this Act.(2)For the purposes of this section, the term “public enterprise” shall have the meaning assigned to it in the Public Enterprises (Control and Monitoring) Act, 1989.[Added A.5/2004]
13. Business extending beyond Swaziland
(1)In the case of persons whose business extends to any other country, the taxable income shall be the sum which bears the same proportion to the whole net profits as his assets in Swaziland bear to the total assets of such person:Provided that if the Commissioner or the taxpayer deems such method of estimating the income for taxation to be inequitable or inexpedient, either of them may claim the right to an assessment on the actual profits derived from sources in Swaziland.(2)For the purpose of subsection (1) assets means those “assets” actually employed to produce income the profits from which are to be apportioned.
14. Determination of taxable income
(1)For the purpose of ascertaining the taxable income of any person there shall be deducted from the income of such person—(a)expenditure and loss actually incurred in Swaziland by the taxpayer in the production of his income, including such expenses incurred outside Swaziland in the production of the taxable income as the Commissioner may allow, provided that such expenditure or loss are not of a capital nature;[Amended A.11/1985](b)expenditure actually incurred by the taxpayer during the year of assessment for the repairs of property occupied for the purpose of trade or in respect of which income is receivable and sums so expended for the repair of machinery, implements, utensils and articles employed by the taxpayer for the purposes of his trade;(c)such sum as the Commissioner may think just and reasonable as representing the diminished value by reason of wear and tear during the year of assessment of any plant, machinery, implements, utensils and articles used by the taxpayer for the purposes of his trade:Provided that the value of any machinery or plant used by the taxpayer for the purposes of his business shall be reduced by the amount of deduction which may be made under paragraph (e)(i);[Added K.O-I-C. 19/1976; replaced A.7/1989; A.5/2004](d)an amount equal to four per centum of the cost to the taxpayer of any industrial building and any improvements thereto (other than repairs) and other than buildings provided for in section 16(4)(a):[Replaced A.9/1988]Provided that the aggregate of the deductions under this paragraph and the corresponding provisions of the repealed enactments together with any deduction under paragraph (f) shall not exceed the cost to the taxpayer of such industrial building and improvements;[Commenced: 1st July, 1990](e)in respect of—(i)machinery or plant which was brought into use by the taxpayer for the first time for the purposes of his business for use by him directly in the process of manufacture, or brought into use by a taxpayer engaged in the hotel industry, an allowance (to be called “machinery initial allowance”) for the year of assessment during which such machinery or plant is first used equal to fifty percent of the cost thereof incurred by the taxpayer on or after the first day of July, 1985:[Amended A.9/1979; A.9/1988; A.5/2004]Provided that where such plant and machinery is brought into use by a taxpayer engaged in the hotel industry, the initial allowance shall apply with effect from 1st July, 1988;[Added A.9/1988](ii)infrastructural machinery, plant or facilities, including transmission equipment, lines and pipes used in the provision of infrastructural services which was brought into use by the taxpayer for the first time for the purposes of the taxpayer’s business, an allowance (to be known as “infrastructural initial allowance”) for the year of assessment during which such infrastructural machinery, plant or facilities is first used equal to fifty percent of the cost incurred by the taxpayer on or after the 1st July, 2000:Provided that the amount equivalent to the amount of any outstanding balance of any loans procured for the provision of such infrastructural assets as at the date of coming into operation of this provision shall be deemed to be the value of such assets brought into use by the taxpayer for the first time;[Added A.6/2000](iii)a building other than hotel buildings and improvements brought into use after 1st July, 1988, if such a building was wholly or mainly used by the taxpayer for the purpose of housing machinery or plant referred to in subparagraph (i), or if such building was let by the taxpayer to an occupier who so used it for purposes of the occupier’s business, an allowance (to be called a “building initial allowance”) for the year of assessment during which such building is first used equal to fifty percent of the actual cost thereof incurred by the taxpayer on or after the first day of July, 1985:[Amended K.O-I-C. 19/1976; A.9/1979; A.9/1988]Provided that in the case of machinery or plant which at the time of installation is not new or unused, the allowance shall only be deducted if the machinery or plant is installed in a building referred to in subparagraph (iii), does not replace other machinery or plant and has not previously been used in Swaziland, in which case such allowance shall be calculated on an amount which in the opinion of the Commissioner represents the depreciated value of the machinery or plant based on its original actual cost:[Amended A.5/2004]Provided further that in the case of a building, referred to in subparagraph (iii), the allowance shall only be deducted if the building is so used for the purpose of housing machinery or plant which at the time of installation, is new or unused or has not previously been used in Swaziland and which does not replace other machinery or plant;[Amended A.5/2004](iv)for the purpose of this paragraph, the expression—(A)“machinery or plant” does not include motor vehicles intended or adapted for use or capable of being used on roads; and(B)“infrastructural services” means the provision of electricity, water, sewer, rail facilities or telecommunications by a parastatal or statutory corporation whose main business is to provide services;[Added A.9/1979; amended A.6/2000; replaced A.5/2004](v)the allowances referred in subparagraphs (i), (ii) and (iii) shall not be given if the taxpayer elects otherwise;[Replaced A.11/1985; amended A.6/2000; replaced A.5/2004](f)an allowance in respect of any machinery, implements, utensils and articles used by the taxpayer for the purpose of his trade which have been scrapped by such taxpayer during the year of assessment, such allowance to be the difference between the original cost to such taxpayer of such machinery, implements, utensils or articles and the total amount arrived at by adding all the allowances made in respect thereof under paragraphs (c) and (e) to any amount or the value of any advantage accruing to the taxpayer in respect of the sale or other disposal of such machinery, implements, utensils and articles;[Replaced A.11/1985](g)in the case of a taxpayer (excluding a taxpayer who derives income from the sale of immovable property to persons who are not employed by him) who, during any year of assessment, incurs expenditure in connection with the erection of any dwelling and who satisfies the Commissioner that such dwelling will be occupied exclusively by persons, or the household of persons, who are his employees (other than employees engaged in a managerial or supervisory capacity) and are employed by him for the purposes of his own business in a process of manufacture, an allowance in respect of the first year during which such expenditure was incurred equal to twenty per centum of such expenditure and thereafter for the next succeeding eight years an allowance during each year of assessment of ten per centum thereof: Provided that—(i)such allowance in respect of any one dwelling shall not exceed the sum of twelve thousand Emalangeni for the first year and the sum of six thousand Emalangeni in respect of each of the succeeding eight years; and[Amended A.7/1989; A.7/1992](ii)the expenditure on which such allowance is made shall not include the cost of the land on which such dwelling is erected;[Replaced A.11/1985](h)in the case of a taxpayer who, incurs any capital expenditure in connection with the erection by him of a new hotel or the effecting of any beneficial improvements to the amenities of an existing hotel, a hotel initial allowance for the year of assessment during which such new hotel or the beneficial improvements into an existing hotel are first used, equal to fifty per centum of the actual cost incurred by the taxpayer on or after the 1st of July, 1988, together with an annual allowance of four per centum of such expenditure in respect of that year and each of the succeeding years, so that the total allowances for all years of assessment given under this paragraph and under the corresponding provisions of the repealed enactments in respect of such expenditure incurred in any year of assessment shall not exceed the expenditure so incurred:[Replaced A.9/1988]Provided that—(i)any expenditure in respect of which an allowance in terms of this paragraph has been made shall not qualify for an allowance under any other provision of this Order; and[Amended A.9/1988; A.4/2008](ii)in so far as the effecting of improvements is concerned, the Commissioner shall on completion of the improvements, by certificate issued under his hand, have certified them as being beneficial improvements;[Replaced A.11/1985; amended A.4/2008](i)so much of the total current contributions to any retirement annuity fund made during the year of assessment by any person as a member of the fund as does not, in the case of that person, exceed fifteen percent of taxable income accruing to that person in respect of trade carried out by that person:Provided that the total amount allowed as a deduction under this paragraph shall be reduced by any contributions made by the taxpayer to a pension fund;[Amended A.5/2004; A.4/2008][Replaced A.11/1985; amended A.7/1989; A.10/1991](j)so much of the total current contributions to any retirement annuity fund made during the year of assessment by any person as a member of the fund as does not in the case of the taxpayer exceed the greatest of—(i)fifteen per centum of the taxable income accruing to the taxpayer in respect of trade carried out by the taxpayer; provided that the maximum allowable deductions in each case shall not exceed an amount of twelve thousand Emalangeni; or[Amended A.5/2004](ii)an amount of seven thousand five hundred Emalangeni less contributions made by the taxpayer to a pensions fund; or[Amended A.5/2004](iii)an amount of six thousand Emalangeni;[Amended A.5/2004][Replaced A.11/1985; amended A.7/1989; replaced A.10/1991](k)any sum contributed by the employer less the employees contribution during the year of assessment to any pension fund, provided fund or benefit fund established for the benefit of the employees of that employer as does not exceed twenty per centum:[Amended A.6/1991]Provided that—(i)if the contributions including any lump sum payments made by the employer in respect of an employee during the year of assessment to such funds exceeds twenty per centum and the Commissioner is satisfied that the aggregate of such contributions and the total remunerations accruing to that employee during the year of assessment in respect of his employment by such employer is excessive or unjustifiable in relation to the value of the services rendered by him, and having regard to other benefits, if any, derived by him from his employment by the employer only so much of such contributions as appear to the Commissioner to be reasonable, but not less than an amount equal to twenty per centum of the total remuneration accruing to that employee during the year of assessment in respect of his employment as the Commissioner considers to be fair and reasonable in relation to the value of the services rendered by him and having regard to other benefits, if any, derived by him from his employment by the employer shall be allowed to be deducted under this paragraph;[Replaced A.6/1991](ii)in respect of a lump sum contribution, the Commissioner may determine that such sum shall be deducted in a series of annual instalments, so that only a portion thereof is deducted in the year of assessment in which it is contributed, and the residue in such subsequent year of assessment, and such proportions as the Commissioner may determine, until the contributions are extinguished;[Replaced A.11/1985](l)any amount paid by way of annuity during the year of assessment by any taxpayer—(i)to a former employee who has retired from the taxpayer’s employ on grounds of old age, ill-health or infirmity; or(ii)to any person who is dependent for his maintenance upon a former employee or where such former employee is deceased, was so dependent immediately prior to his death:Provided that such deduction shall not exceed in respect of the person so dependant on any one retired or deceased employee the sum of twelve thousand Emalangeni;[Amended A.7/1989; A.5/2004][Replaced A.11/1985](m)in respect of income from mining operations an amount to be ascertained under section 16 in lieu of the allowances in paragraphs (c), (e), (f), (g), and (n);[Replaced A.11/1985; A.9/1988](n)an allowance in respect of any premium or consideration the nature of a premium paid by any taxpayer for the right of use or occupation of land or buildings, or for the right of use of any plant or machinery, or of any patent, design, trade mark or copyright or any other property which, in the opinion of the Commissioner, is of a similar nature, if the property is used or occupied for the production of income or income is derived therefrom:Provided that—(i)such allowance shall not exceed for any one year such portion of the amount of the premium or consideration so paid as is equal to such amount divided by the number of years for which the taxpayer is entitled to the use or occupation, or one twenty-fifth of such amount, whichever is the greater; and(ii)if the taxpayer is entitled to such use or occupation for an indefinite period he shall be deemed, for the purposes of this paragraph, to be entitled to such use or occupation for such period as, in the opinion of the Commissioner, represents the probable duration of such use or occupation;[Replaced A.11/1985](o)an allowance in respect of any expenditure actually incurred by the taxpayer in pursuance of an obligation to effect improvements on land or to buildings incurred under an agreement whereby the right of use or occupation of the land or buildings is granted by any other persons, if the land or buildings are used or occupied for the production of income or income is derived therefrom:Provided that—(i)the aggregate of the allowance under this paragraph shall not exceed any amount stipulated in the agreement as the value of the improvements or as the amount to be expended on the improvements or, if no amount is so stipulated, an amount representing, in the opinion of the Commissioner, the fair and reasonable value of the improvements;(ii)any such allowance shall not exceed for any one year such portion of the aggregate of the allowances under this paragraph as is equal to such aggregate divided by the number of years (calculated from the date on which the improvements are completed) for which the taxpayer is entitled to the use or occupation, or one twenty-fifth of the said aggregate, whichever is the greater; and(iii)if the taxpayer is entitled to such use or occupation for an indefinite period he shall be deemed, for the purpose of this paragraph to be entitled to such use or occupation for such period as, in the opinion of the Commissioner, represents the probable duration of such use or occupation;[Replaced A.11/1985](p)such allowance in respect of any amounts included in the taxpayer’s gross income under section 7(d) or (e), as the Commissioner may deem reasonable, having regard to any special circumstances of the case, and in case of an amount so included under section 7(e) to the original period for which the right of use or occupation was granted;[Replaced A.11/1985](q)the amount of any debts due to the taxpayer to the extent to which they are proved to the satisfaction of the Commissioner, to be bad, provided such amount is included in the current year of assessment or was included in previous years of assessment in the taxpayer’s income;[Replaced A.11/1985](r)such an allowance as may be made each year by the Commissioner in respect of such debts due to the taxpayer as he considers to be doubtful:Provided that such allowance shall be included in the income of the taxpayer in the following year of assessment;[Replaced A.11/1985](s)any interest payable on loans made to the taxpayer, including interest on debentures or debenture stock if the Commissioner is satisfied that the loan was employed in production of income or for the purposes of the trade of the taxpayer:Provided that the Commissioner shall, if the rate of interest is, in his opinion excessive, determine the deduction to be allowed in accordance with such rate of interest as he considers just and reasonable in the circumstances;[Replaced A.11/1985](t)expenditure incurred during the year of assessment by any taxpayer—(i)for the purpose of scientific research undertaken by him for the development of his business, if such expenditure is not of a capital nature; or(ii)by way of contribution to any association, institute, college or university, to be used in scientific research relating to the taxpayer’s own business if the Commissioner is satisfied that such contribution will be used in such research;(iii)by way of contributions, grants or donations to any of his employees to assist such employee in further training in his particular professional field at the University College of Swaziland, or at any other approved University or institution for the purpose of securing a recognised qualification;(iv)by way of contributions to an improved scheme;[Added A.5/1988](v)by way of contributions, grants or donations not exceeding E50 000, made to a professional body, established by law, for educational or training purposes and which the Commissioner is satisfied were paid during the year of assessment;[Added A.5/1988; amended A.7/1992; A.5/2004][Added A.11/1985](u)any contribution or donation or grant or gift made by any person during the year of assessment to an amateur sporting association, charity or educational institution of a public character within the definition of “exempt organisation”:Provided that the amount of deduction allowed under this paragraph for a year of assessment shall not exceed 5 per centum of the person’s taxable income calculated before taking into account the deduction under this section.For the purpose of this paragraph, the value of a gift of property is the lesser between—(a)the value of the property at the time of the making of the gift; or,(b)the consideration paid by the person for the property;[Amended A.9/1979; replaced A.11/1985; amended A.6/1987; A.7/1989; repealed A.10/1991; replaced A.7/2007](v)any grant made to the Government for the purpose of erecting school or hospital buildings:Provided that there shall be deducted in the year of assessment in which such grant is made such portion and in subsequent years of assessment such other portions of the residue, as the Commissioner may determine;[Added A.11/1985](vv)any grant made to an educational institution, school or hospital which is registered with the appropriate Ministry, for undertaking capital projects in the form of buildings, fittings, furniture as well as other itrems associated with capital assets is needed for the development of such educational institutuions or school or hospital:Provided that there shall be deducted in the year of assessment such other portions of the residue as the Commissioner may determine;[Added A.10/199; replaced A.5/2004](w)any amount paid by way of alimony or allowance under any judicial order or written agreement of separation or under any order of divorce:Provided that if the law applying to any such order or agreement is the law of a country other than Swaziland the deduction under this paragraph shall be reduced by the amount of any income of the taxpayer which is not subject to tax in Swaziland;[Added A.11/1985](x)expenditure incurred during the year of assessment by a taxpayer for appropriate training of any person who is employed by the taxpayer in a business the income of which is subject to tax;[Added A.11/1985; replaced A.5/2004](y)in addition to any amount otherwise deductible under this section, an amount equal to—(i)thirty-three per centum of the approved export promotion expenditure incurred during the year preceding the year of assessment by an approved company in the handicraft and cottage industry sector; or(ii)fifty per centum of the approved export promotion expenditure incurred during the year preceding the year of assessment by an approved trading house:Provided that no such deduction shall be allowed unless the Commissioner has been satisfied by proof in such manner as he may prescribe that there has been an increase in the volume of export of the products of such approved company or trading house in respect of the year following the year in which the expenditure was incurred;[Added A.7/1989; Amended A.7/1992](z)any contribution, whether in cash or in kind, made by a taxpayer and actually paid or transferred during the year of assessment to any national disaster scheme or national emergency body established by the Government:Provided that contributions made to the National Emergency Response Council on HIV and AIDS (hereinafter referred to as “NERCHA”) either for a specific project or to provide financial and material assistance to orphans and vulnerable children such contributions shall only be deductible if the project or assistance has been approved by NERCHA.[Added A.7/1992; replaced A.5/2004; A.7/2007](2)There shall be set off—(a)any balance of assessed loss incurred by the taxpayer in any previous year which has been carried forward from the preceding year of assessment:Provided that—(i)no person whose estate has been voluntarily or compulsorily sequestrated shall, unless the order of sequestration has been set aside, be entitled to carry forward any assessed loss incurred prior to the date of sequestration;(ii)the balance of assessed loss shall be reduced by the amount or value of any benefit received by or accruing to a person resulting from a concession granted by or a compromise made with his creditors whereby his liabilities to them have been reduced or extinguished, provided such liabilities arose in the ordinary course of trade;(b)any assessed loss incurred by the taxpayer during the same year of assessment in carrying on in Swaziland any other trade either alone or in partnership with others, otherwise than as a member of a company the capital whereof is divided into shares:Provided that—(i)where the property income of a taxpayer who is a natural person for a year of assessment is exceeded by deductions relating to the production of that income, the amount of the excess (referred to as an “assessed property loss”) may not be deducted against any other income of the taxpayer for the year of assessment, but shall be carried forward and deducted in determining the taxable property income of the taxpayer in subsequent years of assessment until the assessed property loss is exhausted;(ii)where the farming income of a taxpayer who is a natural person for a year of assessment is exceeded by deductions relating to the production of that income, the amount of the excess (referred to as an “assessed farming loss”) may not be deducted against any other income of the taxpayer for the year of assessment, but shall be carried forward and deducted in determining the taxable farming income of the taxpayer in subsequent years of assessment until the assessed farming loss is exhausted;(iii)where the business income of a taxpayer who is a natural person for a year of assessment is exceeded by deductions relating to the production of that income, the amount of the excess (referred to as an “assessed business loss”) may not be deducted against any other income of the taxpayer for the year of assessment, but shall be carried forward and deducted in determining the taxable business income of the taxpayer in subsequent years of assessment until the assessed business loss is exhausted; and[Added A.5/2004](c)where a taxpayer has more than one class of loss, the reduction in paragraph (a)(ii) shall be applied rateably to each class of loss.[Added A.5/2004](3)For the purpose of subsection (2) “assessed loss” means any amount, as established to the satisfaction of the Commissioner, by which the deductions admissible under this section exceed the income in respect of which they are so admissible.(4)Subsection (1)(a) and (2)(b) shall, subject to subsection (5) hereof, mutatis mutandis apply in relation to any income derived by any person in the form of dividends.(5)In respect of expenditure and losses not of a capital nature incurred by any person, other than a company, in the production of his income from dividends, the amount to be deducted under subsections (1)(a) and (2)(b) as applied by subsection (4) hereof shall be an amount which bears to the expenditure and losses, which but for this subsection would have been allowed to be deducted, the same ratio as the amount of such dividends as calculated after allowing the deduction under subsection (6) bears to the amount of such dividends as calculated before allowing such deduction.(6)In respect of listing fees payable in the year of assessment by a company in connection with the floatation of its shares on the Swaziland Stock Exchange to a Stock Broking Company licensed under the Financial Institutions (Consolidation) Order 1975, so much of the total amount of such listing fees does not exceed one third of the total fees in the year in which such listing fees become payable and the balance over the next two years succeeding the year in which such listing fees become payable.[Replaced A.6/1991]
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—(a)the cost incurred in the maintenance of any taxpayer, his family or establishment;(b)domestic or private expenses;(c)any loss or expense which is recoverable under any insurance contract or indemnity;(d)normal tax and any interest or penalty payable in consequence of the late payment of any tax or levy payable under any Act administered by the Commissioner;[Amended A.4/2008](e)income carried to any reserve fund or capitalised in any way;(f)any expenses incurred in respect of any amounts received or accrued which are not included in income;(g)as regards income derived from any trade—(i)any money to the extent to which such money was not laid our or expended for the purpose of trade;[Amended A.4/2008](ii)the rent or value or cost of repairs to any premises not occupied for the purposes of trade, or of any dwelling-house or domestic premises except such part thereof as may be occupied for such purposes;(iii)any interest which might have been made on any capital employed in trade.
16. Calculation of capital expenditure allowance in connection with mining operations
(1)Excepting in cases where the taxpayer and the Government have, in writing, agreed otherwise, the amount to be deducted each year, under section 14(1)(m) in respect of income from mining operations, shall be the capital expenditure incurred in the year of assessment after subtracting therefrom any recoupments received during the year from capital expenditure (irrespective of the date when such capital expenditure was originally incurred).(2)If separate and distinct mining operations are carried on in mines that are not contiguous, the allowance for capital expenditure shall be computed separately for each mine.(3)The amount of capital expenditure determined under subsection (1) in respect of any year of assessment in relation to any one mine shall not exceed the taxable income (as determined before the deduction of any amount allowable under section 14(1)(m)) derived by the taxpayer from mining on that mine and any amount by which such capital expenditure would, but for the provisions of this subsection have exceeded such taxable income as so determined, shall be carried forward and be deemed to be an amount of capital expenditure incurred during the next succeeding year of assessment in respect of that mine.(4)For the purposes of this section and section 17 “capital expenditure” means expenditure on—(a)shaft sinking, building, works or equipment including any renewals or replacements of equipment;(b)development, general administration and management (including any interest payable on loans utilised for mining purposes) prior to the commencement of production or during any period of non-production but excluding the cost of acquiring mineral rights;(c)“expenditure” means net expenditure after taking into account any rebates, recoupments or returns of expenditure;(d)“expenditure on shaft sinking” includes the expenditure on sumps, pump chambers, stations and/or bins, accessory to a shaft;(5)Subsections (1) to (4) are deemed to have come into effect from 1st July, 1983.[Replaced A.9/1988]
17. Calculation of capital expenditure on change of ownership of a mining property
(1)If any change of ownership in mining property takes place the Commissioner shall allow the effective value to the new owner, at the time the change of ownership takes place, of the preliminary surveys, boreholes, shafts, development and equipment included in the assets passing by such change of ownership to rank as capital expenditure for redemption by such new owner:Provided that if, in a case in which consideration is given, the effective value of the assets so passing exceeds the consideration, the amount allowed to rank for redemption by the new owner shall be such proportion of the consideration as such effective values of the preliminary surveys, boreholes, shafts, development and equipment bears to the effective value of all the assets passing.(2)The amount allowed to rank as capital expenditure for redemption by the new owner shall for the purposes of section 7(g) be deemed to be a recoupment of capital expenditure by the person from whom ownership was acquired.(3)If the value of the consideration given or of the property passing if no consideration is given is in dispute, the value shall be fixed by the Commissioner if the new owner consents thereto, and failing such consent the provisions of section 4(f) and (g) of the Transfer Duty Act, No. 8 of 1902 shall mutatis mutandis apply.(4)The effective value of the assets passing as at the time the change of ownership takes place shall be determined by the Director of Geological Survey and Mines.
18. ***
[Repealed A.5/2004]
19. Income of beneficiaries and estates of deceased persons
(1)Any income received by or accrued to or in favour of any person as the executor of a deceased person and any amount so received or accrued which would have been income in the hands of the deceased person had it been received by or accrued to or in favour of such deceased person during his lifetime, shall, to the extent that the Commissioner is satisfied that such income or amount has been derived for the immediate or future benefit of any ascertained heir or legatee of such deceased person, be deemed to be income received by or accrued to such heir or legatee, and shall, to the extent that the Commissioner is not so satisfied, be deemed to be income of the estate of such deceased person.(2)So much of the amount of any expenditure incurred by or on behalf of the estate of any deceased person during any year of assessment as in the opinion of the Commissioner relates to any amount of income deemed to be income received by or accrued to an heir or legatee of such deceased person in terms of subsection (1) shall—(a)not be taken into account in the determination of the taxable income of such estate; and(b)be deemed to be expenditure incurred by such heir or legatee during such year, and shall, to the extent that the deduction of expenditure or the nature of the expenditure in question is authorised by this Order, be taken into account in the determination of the taxable income of such heir or legatee.(3)Nothing in subsection (1) shall be construed as imposing liability for tax in respect of the same amount both in the hands of the estate or heir or legatee of a deceased person and in the hands of such deceased person.(4)The decision of the Commissioner in the exercise of his discretion under subsection (1) or (2) shall be subject to objection and appeal.[Date of commencement of section 19: 12th July, 1985 (L.N.80/1985)]
19bis. Income of trusts and beneficiaries
(1)Any income received by or accrued to or in favour of any person during the year of assessment in his capacity as a trustee of a trust, shall to the extent that such income has been derived for the immediate or future benefit of any ascertained beneficiary with a vested right to such income be included in the gross income of the beneficiary.(2)Subsection (1) does not apply to—(a)income which has been subject to withholding tax on payment into the trust and, if it had been received by or accrued directly to the beneficiary, the withholding tax would be a final tax;(b)an incapacitated person’s trust, in case subsection (5) applies; or(c)a beneficiary who is above 60 years.(3)Where a beneficiary has acquired a vested right to any income referred to in subsection (1) as a result of the exercise by the trustee of a discretion vested in the trustee under a deed of trust, arrangement, or will of a deceased person, such income is deemed to have been derived for the benefit of a beneficiary.(4)A beneficiary shall be allowed a deduction in accordance with this Order for any expenditure or losses incurred by the trustee in deriving the income included in the gross income of the beneficiary under subsection (1).(5)A trustee is liable for tax on the taxable income of a trust.(6)The taxable income of a trust is so much of the income of the trust as is not included in the gross income of a beneficiary under subsection (1) or exempted under subsection (2)(a), less all deductions allowed in accordance with this Order for expenditure or losses incurred in deriving that income.(7)Trustees are jointly and severally liable for a tax liability arising in respect of taxable income of a trust that is not satisfied from trust assets; but any trustee required to meet such liability is entitled to a contribution from each of the other trustees.[Added A.7/2007]
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
(1)Where a lessor leases property to a lessee under a finance lease, for all purposes of this Order—(a)the lessee is treated as the owner of the property; and(b)the lessor is treated as having made a loan to the lessee, in respect of which the payments of interest and principal are made equal in amount to the rental payable by the lessee.(2)The interest component of each payment under the loan is considered as interest expense for the lessee and interest income for the lessor.(3)A lease of property is a finance lease if—(a)the lease transfers substantially all the risks and rewards to ownership of an asset; or(b)the lessee has an option to purchase the property for a fixed or determinable price at the expiration of the lease.(4)A finance lease entered into before the commencement of this section, which has been dealt with for purposes of the determination of taxable income other than in accordance with the provisions of subsection (1), shall be dealt with for purposes of determining taxable income in each subsequent year of assessment, on the same basis as applied in the previous years of assessment in respect of that lease until the expiry of the term of the lease.(5)Any amount received or accrued arising from the disposal of an asset which was acquired in terms of a lease which lease has been dealt with for purposes of the determination of taxable income other than in accordance with the provisions of subsection (1), shall be included into taxable income.[Added A.5/2004]
Part III – Non-resident tax
Division I – Shareholders
21. Levy of non-resident shareholders tax
(1)There shall be charged, levied and paid a tax (hereinafter referred to as a non-resident shareholders tax) in respect of the amounts specified in section 22.(2)The rate of the tax shall be fifteen per centum of the amount of any dividend:Provided that in the event of such dividend being paid or payable to a company incorporated or registered as such in Botswana, Lesotho, Namibia or the Republic of South Africa and provided that it is neither a subsidiary nor a branch of a company incorporated or registered outside any of such countries, the rate of tax for which such first-mentioned company shall be liable shall be twelve and one half per centum.[Amended A.6/2000]
22. Income subject to tax
(1)The non-resident shareholders tax shall be paid in respect of the amount of any dividend if the shareholder to whom the dividend has been paid or is payable is—(a)a person, other than a company, not ordinarily resident or carrying on business in Swaziland;(b)the estate of any deceased person referred to in section 12(1)(e)(ii) and such dividend is in terms thereof exempt from normal tax;(c)a company which has its place of effective management outside Swaziland;[Replaced A.7/1993](d)the holder of bearer scrip, irrespective of whether he is resident within or outside Swaziland;and was a shareholder as at the date of declaration of the dividend or, if some date other than the date of declaration of the dividend is specified as the date at which a shareholder is required to be registered to be entitled to the dividend, as at such other date.(2)The non-resident shareholders tax shall not be payable in respect of—(a)dividends received from any society or company registered under any law relating to agricultural co-operative societies in Botswana, Lesotho, Namibia, Swaziland or the Republic of South Africa;[Amended A.6/2000](b)dividends accruing to any ecclesiastical, charitable or educational institution of a public character, whether or not supported wholly or partly by grants from public revenue.(c)dividends accruing to a non-resident shareholder, which the Government has, in terms of a written undertaking, exempted from tax to the extent specified in such undertaking.[Added A.9/1988]
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
(1)Notwithstanding section 23, the tax shall be payable by and recoverable from the persons set out hereunder, namely—(a)in the case of dividends distributable by any company to any person whose address appearing in the share register of the company is outside Swaziland or to any holder of bearer scrip, the company by which the dividend is declared; or,(b)in the case of dividends received by any agent in Swaziland on behalf of any shareholder referred to in section 22, the agent so receiving the dividend.(2)For the purpose of this section, a person shall be deemed to be the agent of a shareholder referred to in section 22 and to have received a dividend on behalf of such shareholder if the address of such person appears in the share register of the company as the registered address of the shareholder and the dividend warrant or cheque in payment of the dividend distributable to the shareholder is delivered at that address:Provided that any person so deemed to be the agent of any shareholder shall, as regards such shareholder and in respect of any income received by or accruing to him or in his favour, have and exercise all the powers, duties and responsibilities of an agent for a taxpayer absent from Swaziland.(3)Nothing in subsection (2) shall be construed as relieving any company by which a dividend is declared from the duties and responsibilities imposed upon it by section 48 as the agent of any shareholder or member absent from Swaziland.(4)Any tax payable in terms of this section by any company or agent for any share-holder may be recovered by such company or such agent, as the case may be, from the shareholder concerned.
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
(1)The company which, in terms of section 24(1)(a), is required to pay the tax on any dividend shall pay the Commissioner the tax due on such dividend within thirty days of the date on which the dividend is payable, or within such further period as may be approved by the Commissioner, and shall furnish him with a return showing the names and addresses of the persons (with the amount in each case) to whom the dividend accrues and, in the case of dividends payable in respect of bearer scrip, the total dividends distributable to holders of such scrip.(2)The agent in Swaziland by whom the tax is payable in terms of section 24(1)(b) shall, within thirty days of the date of delivery of the dividend warrant or cheque in payment of the dividend at his address, or within such further period as may be approved by the Commissioner, pay the tax to the Commissioner and furnish him with a return showing the amount of the dividend and the name and address of the person to whom it has accrued.(3)Subsections (1) and (2) shall not prevent the Commissioner from recovering any tax from the person liable for such tax and which has not been paid and which the Commissioner may ascertain to be due, after the dates specified therein.
Division II – Interest
27. Levy of non-residents tax on interest
If any amount of interest accrues to or in favour of—(a)any person, other than a company, not ordinarily resident in Swaziland;(b)the estate of any deceased person who, at the date of his death, was not ordinarily resident in Swaziland; or(c)a company not registered in Swaziland;and the debtor in respect of such amount is ordinarily resident or carries on business in Swaziland, there shall be levied and paid a tax (in this Part referred to as non-residents tax on interest) equal to ten per centum of such amount.
28. Application of provisions
For the purpose of this Part—(a)if interest is payable or is credited to any person having an address outside Swaziland such interest shall, until the contrary is proved, be deemed to have accrued to any person, estate or company, as the case may be, referred to in section 27;(b)if the debtor in respect of any amount of interest referred to in section 27 is the estate of any deceased person, such estate shall be deemed to be ordinarily resident or to be carrying on business in Swaziland, if such person, at the date of his death, was ordinarily resident or was carrying on business in Swaziland;(c)if the debtor in respect of any amount of interest referred to in section 27 is a company, such company shall be deemed to be ordinarily resident in Swaziland if it is registered, managed or controlled in Swaziland; and(d)any amount accruing to any shareholder in a building society out of the profits of such society shall be deemed to be interest.
29. Exemptions
The non-residents tax on interest shall not be payable in respect of—(a)interest received from any society or company registered under any law relating to agricultural co-operative societies in Botswana, Lesotho, Namibia, Swaziland or the Republic of South Africa;[Amended A.6/2000](b)interest accruing to any ecclesiastical, charitable or educational institution of a public character, whether or not supported wholly or partly by grants from public revenue;(c)any interest accruing from a debtor to any person during any period of twelve months ending on the thirtieth day of June in any calendar year which together with any other amounts of interest accruing from the debtor to such person during such period, amounts to twenty Emalangeni or less;(d)interest on any bill of exchange or on any promissory note to the extent that such interest is payable in respect of the purchase price of goods imported into Swaziland if such bill or note is handled through a recognised banking institution registered under the Financial Institutions Order, 1973 or any similar banking institutions approved by the Commissioner and such bank or institution has certified on such bill or note that a bill of lading or other document covering the importation of such goods has been exhibited to it;(e)[Amended A.9/1979; deleted A.6/2000](f)the interest on any loan which the Government has in terms of a written undertaking exempted from tax to the extent specified in such undertaking.[Amended A.9/1979](g)[Added A.9/1979; deleted A.6/2000]
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
(1)Notwithstanding section 30, any debtor, in respect of any amount of interest referred to in section 30 for any person who receives payment of such amount on behalf of or in trust for the person to whom such amount accrues, shall, on behalf of the person, estate or company liable for the non-residents tax on interest, pay the Commissioner the amount of such tax payable in respect of such amount of interest under section 30:Provided that if the Commissioner is satisfied that the tax payment required to be made in terms of this paragraph in respect of such amount of interest has been or will be made by any person, the Commissioner may direct that any other person who is, in terms of this paragraph, required to make a tax payment in respect of such amount of interest, shall be relieved of the duty to make such tax payment.(2)Any person making a payment to the Commissioner in terms of subsection (1) shall, notwithstanding any agreement to the contrary, be entitled to deduct or withhold the amount of such payment from the amount of interest which he is liable to pay to such other person, or to recover the amount so paid from such other person, or to retain out of any money that may be in his possession or may come to him, as the agent of such other person, an amount equal to the amount of such payment.(3)A taxpayer on whose behalf a payment has been made to the Commissioner in terms of subsection (1) shall not be entitled to recover the amount of such payment from the person, who, under subsection (2) deducts, withholds or retains the amount of such payment, and shall, for the purpose of this Order, be deemed to have received the amount so deducted, withheld or retained.(4)Every person who is required to make a payment to the Commissioner in terms of subsection (1) shall be personally liable for making such payment, and the amount so payable shall, for the purposes of this section, be deemed to be a tax due by such person and shall be recoverable from him in the manner prescribed in section 61.
32. When non-residents tax on interest is payable
(1)The non-residents tax on interest shall be payable within fourteen days after the date of accrual of the amount of interest referred to in section 27 or within such further time as the Commissioner may approve.(2)The person paying the tax shall, at the time of payment, submit to the Commissioner a return showing the names and addresses of the persons to whom the interest accrues and the gross amount of interest payable to each.(3)If the income of any person subject to normal tax includes an amount of interest referred to in section 27 the non-residents tax on interest paid shall be deducted from the amount of normal tax payable after any reductions provided for in section 8:Provided that the deduction under this section shall not exceed so much of such normal tax as the Commissioner determines to be attributable to the inclusion of such amount in the income of such person.
Division III – Entertainers and sportsmen
[Added A.11/1985]
32A. Levy of non-residents’ tax on entertainment and sports
(1)The remuneration of a public entertainer or sportsman not ordinarily resident in Swaziland, and the gross receipts of any theatrical, musical, sports or other group of public entertainers or sportsmen from outside Swaziland derived from any performance in Swaziland (whether such performance is conducted for the joint account of all or some of the members of the group or not) shall be charged to tax at the rate of fifteen per cent of the gross remuneration or gross receipts received or accrued to such persons:Provided that where tax is imposed under this section on any group, but subject to the proviso to subsection (5), the individual members shall not be liable to tax.(2)Any person who makes any payment to any other person referred to in subsection (1) shall deduct non-residents’ entertainers tax at the rate of fifteen per cent of the gross amount and shall issue a statement to such other person showing the gross amount of payment due and the rate and amount of tax deducted.(3)Every person who makes a deduction in accordance with subsection (2) shall, within fifteen days from the date of payment, as provided for in subsection (1), remit to the Commissioner, the amount of tax so deducted.(4)Where any person who is required by subsection (2) to deduct tax in accordance with that subsection from any payment made by him, fails to deduct such tax or having deducted such tax fails to remit such tax to the Commissioner, as required by subsection (3), he shall be personally liable to pay to the Commissioner the amount of tax as if it was tax due and payable by him under Part VII of this Order.(5)Where a group of theatrical, musical, sporting or other group of public entertainers from outside Swaziland perform in Swaziland without the intervention of a local agent, promoter or any other person, every member of the group shall jointly and severally be liable for the payment of the tax due under subsection (1) and tax shall be remitted to the Commissioner within a period not exceeding seven days following every performance:Provided that the Commissioner may recover the tax due from any individual member of the group at any time where circumstances warrant it.
Division IV – Royalty and management charge
[Added A.6/2000]
32B. Levying of tax Royalties and Management Charge paid to non-resident persons
(1)It is provided that—(a)there shall, separately and cumulatively or collectively where applicable, be charged, levied and paid a tax in respect of any amount of any royalty and management charge received by or accrued to or in favour of any person not ordinarily resident or carrying on business in Swaziland and;(b)the rate of tax shall be fifteen per cent of the gross amount of any royalty and fifteen per cent of the gross amount of any management charge:Provided that the tax on royalties shall not be payable in respect of royalties accruing to any ecclesiastical, charitable or educational institution of a public character, whether or not supported wholly or partly by grants from public revenue.[Added A.5/2004](2)Every person who makes any payment of royalty or management charge or both to a person not ordinarily resident or carrying on business in Swaziland shall withhold tax from such payment in accordance with the rate specified in subsection (1)(b).(3)Where tax has been withheld under subsection (2) the withholding tax shall be a final tax.(4)Every person who has withheld any tax under subsection (2) shall—(a)furnish, to the person to whom payment is made of any royalty or management charge or both as the case may be, a certificate showing the amount of the payment made and the tax withheld during the year of assessment; and(b)within fifteen days from the date of payment of such royalty or management charge, as the case may be, remit to the Commissioner the amount of tax withheld.(5)Every person making any payment to which this section applies shall maintain a record showing, in relation to each year of assessment, the payments of royalties or management charge made to each non-resident person and tax withheld from such payments, and such record shall be kept available, for the period specified under section 33(16), for examination by the Commissioner as and when required.(6)It is further provided that—(a)any person who fails to withhold tax in accordance with subsection (2), shall, in addition to any penalty for which he may be liable, be personally liable to pay the Commissioner the tax which he should have withheld as if it were tax due and payable by him under PART VII of this Order; and(b)where any person pays to the Commissioner the amount of tax which he failed to withhold, such an amount shall be deemed to have been withheld under this section.(c)[Added A.6/2000; repealed A.5/2004]
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
(1)There shall be charged, levied and paid a tax in respect of the amount of any dividend if the shareholder to whom the dividend has been paid or is payable is a person, other than a company, ordinarily resident or carrying on business in Swaziland.(2)Every person who being a resident company makes any payment of dividend to a person ordinarily resident or carrying on business in Swaziland shall withhold tax at the rate of ten percent of the gross amount of the dividend.(3)The tax withheld under subsection (2) shall be a final tax and—(a)no further tax liability shall be imposed upon the taxpayer in respect of the dividend to which the tax relates;(b)the income shall not be aggregated with the other income of the taxpayer for the purposes of ascertaining taxable income;(c)no deduction shall be allowed for any expenditure or losses actually incurred in deriving the income; and(d)no refund of tax shall be made in respect of the income.(4)Every person who has withheld any tax in accordance with subsection (2) shall, within fifteen days from the date of payment of such dividend remit to the Commissioner, the amount of tax so withheld.(5)Every person making payment to which this section applies shall maintain a record showing in relation to each dividend—(a)the payment of dividend made to each resident person;(b)the tax withheld from such payment,and such record shall be kept for the period specified under section 33(16) for examination by the Commissioner as and when required.(6)Where any person fails to withhold any tax in accordance with subsection (2) or having withheld such tax fails to remit such tax to the Commissioner, as required by subsection (4), shall, in addition to any penalty for which he may be liable under section 66, be personally liable to pay the Commissioner that amount of tax as if it were tax due and payable by such person under Part VII of this Order.(7)Where any person pays to the Commissioner the amount of tax which he failed to withhold, such amount shall be deemed to have been withheld under this section.(8)[Deleted A.5/2004][Added K.O-I-C. 2/2003]
Division VII – Branch profits tax
32E. Levy of branch profits tax on repatriated income
(1)There shall be charged, in addition to any normal tax chargeable under this Order, a tax to be known as branch profits tax at the rate of fifteen percent on the deemed repatriated income of the branch of a non-resident company carrying on business in Swaziland for any year of assessment:Provided that in the event of such branch profits tax being paid or payable to a company incorporated or registered as such in a neighbouring country and that it is neither a subsidiary nor a branch of a company incorporated or registered outside a neighbouring country, the rate of tax for which such first mentioned company shall be liable, shall be twelve and one-half percent.(2)The deemed repatriated income of a branch for a year of assessment is calculated according to the formula:A — BWhere:Ais the taxable income of the branch for the yhear of assessment; andBis the Swaziland tax payable on that taxable income of the branch for the year of assessment.(3)The tax imposed under subsection (1) is treated as normal tax for all purposes of the Order.(4)In this section, “neighbouring country” means Botswana, Lesotho, Mozambique, Namibia or the Republic of South Africa.[Added K.O-I-C. 2/2003]
Division VIII – Rental payments
32F. Withholding tax from rental payments
(1)Every person, other than a natural person, who—(a)makes a payment to a lessor (excepting a company) for the use or occupation or the right of use or occupation of land or buildings; or(b)collects such rent for or on behalf of the lessor,shall withhold tax at the rate of ten percent of the gross amount.(2)The tax withheld under subsection (1) shall be on account of the liability to tax of the lessor on the profits derived from the letting of the property.(3)Every person who has withheld any tax under subsection (1) shall—(a)within fifteen days from the date of payment remit to the Commissioner the amount of tax so withheld; and(b)furnish within thirty days after the end of the year of assessment to the person to whom the payment is made a certificate, showing the amount of the payment made and the tax withheld during the year of assessment.(4)Every person making any payment (of rent) to which this section applies shall maintain a record showing in relation to each year of assessment—(a)the payment of rent made to the lessor; and(b)the tax withheld from such payment,and such record shall be kept for the period specified under section 35bis(3) for examination by the Commissioner as and when required.(5)The deduction of tax under this section shall not relieve the lessor from the obligation to furnish a return for the assessment of the tax or any return as provided under section 33 or from any other obligation imposed by this Order.(6)A person who fails to withhold any tax under subsection (1) or having withheld such tax fails to remit such tax to the Commissioner, as required under subsection (3)(a), shall, in addition to any penalty for which he may be liable under section 66, be personally liable to pay the Commissioner that amount of tax as if it were tax due and payable by such person under Part VII of this Order.[Added A.7/2007]
Division IX – Payments to beneficiries of trusts
32G. Withholding tax on payment to beneficiaries of trusts
(1)Every trustee who makes any payment from trust income to a beneficiary who has a vested right to such income shall withhold tax at the rate of thirty-three percent of the gross amount.(2)The tax withheld under subsection (1) shall be on account of the liability to tax of such beneficiary on the income derived from the trust.(3)Every trustee who has withheld any tax under subsection (1) shall—(a)within fifteen days from the date of payment remit to the Commissioner the amount of tax so withheld; and(b)furnish within thirty days after the end of the year of assessment to the beneficiary to whom the payment is made a certificate, showing the amount of the payment made and the tax withheld during the year of assessment.(4)Every trustee making any payment to which this section applies shall maintain a record showing in relation to each year of assessment—(a)the payment made to each beneficiary; and(b)the tax withheld from such payment,and such record shall be kept for the period specified under section 35bis(3) for examination by the Commissioner as and when required.(5)The deduction of tax under this section shall not relieve a beneficiary from the obligation to furnish a return for the assessment of the tax or any return as provided under section 33 or from any other obligation imposed by this Order.(6)A trustee who fails to withhold any tax under subsection (1) or having withheld such tax fails to remit such tax to the Commissioner, as required under subsection (3)(a), shall, in addition to any penalty for which he may be liable under section 66, be personally liable to pay the Commissioner that amount of tax as if it were tax due and payable by such person under Part VII of this Order.[Added A.7/2007]
Part IV – Returns and assessments
33. Notice requiring returns and manner of furnishing returns
(1)The Commissioner shall annually give public notice that all persons liable to taxation, whether personally or in any representative capacity, are required to furnish within thirty days after the date of such notice or within such further time as the Commissioner may for good cause allow, returns for assessment of the tax.(2)Such notice shall state the places at which the approved forms may be obtained and it shall be the duty of all such persons and all persons required by this Order to furnish such returns, to apply for the approved forms of returns, and any such person failing to furnish such return shall not be relieved from any penalty by reason only of his having received no notice to furnish such return, or of the approved form not having been delivered to him; but the Commissioner may, if he deems it so advisable, cause forms to be delivered or sent by post to any person.(3)For the purposes of subsection (1), any person liable to taxation shall be deemed to include—(i)any person, other than a company, whose gross income for the year of assessment under charge consisted of or included remuneration (as defined in paragraph 1 of the Second Schedule) exceeding in total an amount to be stated by the Commissioner in the notice referred to in subsection (1);(ii)any person, other than a company, whose gross income, for the year of assessment under charge, consisted of gross income other than remuneration (as defined in paragraph 1 of the Second Schedule) if such gross income exceeded an amount to be stated by the Commissioner in the said notice;(iii)any company;(iv)any person required by the Commissioner in writing to render a return of income in respect of the year of assessment under charge.[Replaced A.11/1985](4)If in any case the Commissioner has reason to believe that any tax payable may not be recovered, he may prior to the issue of any such annual notice, require any person by notice in writing to render interim accounts for any period he may designate in such notice and may proceed to make an assessment in respect of that period.(5)Every person shall, on publication of the annual notice or on receipt of such written notice, prepare and deliver in the approved manner within the period mentioned in such notice to the person appointed to receive it, a return in the approved form signed by the taxpayer or by his duly authorised agent in that behalf, giving the particulars required and all other details in relation thereto which may be required.(6)Every person shall, on receipt of such written notice, prepare and deliver in the approved manner within the period mentioned in such notice to the person appointed to receive it, a return in the approved form signed by the taxpayer or by his duly authorised agent in that behalf giving the particulars required and such other details in relation thereto as may be required.(7)Any return furnished as contemplated in this section shall be signed by the taxpayer or by his agent duly authorized in that behalf, and any person signing any such return shall be deemed for all purposes in connection with this Order to be cognisant of all statements made therein.[Replaced A.6/1994](8)Any return made or purporting to be made or signed by or on behalf of any person for the purposes of this Order shall be deemed to be duly made and signed by the person affected unless such person proves that such return was not made or signed by him or on his behalf.(9)If any person fails to make a return, the Commissioner may appoint a person to make a return on behalf of such person, and the return made by the person so appointed shall for all purposes of this Order be deemed to be the return of the person liable to make the same.[Replaced A.6/1994](10)The returns furnished by or on behalf of every person required to furnish returns under this Order shall contain such particulars, be in such form and be furnished to the Commissioner at such time as may be required by the Commissioner.(11)The Commissioner may, when and as often as he thinks necessary require any person to make fuller or further returns respecting any matter of which a return is required or prescribed by this Order.(12)Notwithstanding any other law any return required to be furnished under this Order shall be delivered at or sent by post to the prescribed address, and shall, if marked with the words “Income Tax” and “On His Majesty’s Service”, be carried and delivered free of postal or other charges by the Post Office.(13)The return of income to be made by any person shall be based on the amount of gross income which was received by or accrued to or in his favour in respect of any year of assessment chargeable under this Order, and shall be a full and true return for the whole period of twelve months ending upon the last day of the year of assessment under charge.Provided that if it is established to the satisfaction of the Commissioner that the income of a person cannot be conveniently returned for such period, he may accept returns made up to a date agreed by him, but any such return shall be deemed for all purposes of this Order to be a return for the period covered by the year of assessment under charge:(14)If any person when called upon to furnish a return of income under this Order is unable to furnish such return, the Commissioner may accept a return of estimated income for assessment and such assessment shall be adjusted by the Commissioner when an actual return of income is furnished.(15)Persons carrying on any business in partnership shall be liable to make a joint return as partners in respect of such business together with such particulars as may from time to time be required and each such partner shall be separately and individually liable for the rendering of the joint return but they shall be liable to tax only in their separate individual capacities.(16)[Amended A.11/1985; A.6/1994; repealed A.5/2004]
33bis. Cases where return of income not required
Unless expressly requested by the Commissioner by service of a notice in writing or by public notice given in terms of section 33, no return of income shall be required from a natural person—(a)where the incometax payable on taxable income by the natural person for the year of assessment is equal to or less than the amount of the personal tax rebate allowed to such person; or(b)where gross income for the year of assessment, other than income subject to a final withholding tax under this Order, consists exclusively of remuneration derived from a single employer upon which tax has been withheld in accordance with section 58.(2)Prior to the expiry of three years after such year of assessment, a person referred to in this section may apply to the Commissioner to be assessed, whether in connection with any claim for a refund of tax overpaid or otherwise, or the Commissioner considers an assessment to be necessary so as to arrive at the correct amount of the tax to be charged upon or to be payable by that person for such a year of assessment.[Added A.6/1994; amended A.4/2008]
34. Duty of persons submitting accounts in support of returns or preparing accounts for others
(1)If any person in support of any return furnished by him under this Order, submits any balance sheet, statement of assets and liabilities or account prepared by any other person, he shall, if the Commissioner so requires, submit a certificate or statement by such other person recording the extent of the examination by such other person of the books of account and of the documents from which the books of account were written up and recording in so far as may be ascertained by such examination, whether or not the entries in such books and documents disclose the true nature of any transaction, receipt, accrual, payment or debit.(2)Any person who has prepared any balance sheet, statement of assets and liabilities or account for any other person shall at the request of such other person furnish him with the certificate or statement required under subsection (1).
34bis. Financial statements to be audited by a registered auditor
(1)Where a taxpayer’s financial statements are required to be audited in terms of the Companies Act or in terms of the taxpayer’s constitution, then such financial statements submitted in support of any return of income or provisional return of income shall be deemed not to have been submitted unless the financial statements have been audited by a registered auditor.(2)For the purpose of this section, registered auditor, shall have the meaning assigned to it in the Institute of Accountants Act of 1985.[Added A.6/1994]
34ter. Inquiry before assessment
(1)For the purpose of making an assessment under this Order, the Commissioner may serve on any person who has made a return under section 33, a notice requiring such person, within thirty days after the date of such notice or within such further time as the Commissioner may for good cause allow, calling upon such person to—(i)produce such accounts or documents as the Commissioner may require;(ii)furnish in writing and verified in the prescribed manner information in such form on such points or matters (including a statement of assets and liabilities of the taxpayer whether included in the accounts or not) as the Commissioner may require.(2)For the purpose of obtaining full information in respect of income or loss of a taxpayer, the Commissioner may make such enquiry as he considers necessary.(3)The taxpayer, shall, except where the assessment has been made under section 39(1), be given an opportunity of being heard in respect of any material gathered on the basis of an enquiry under subsection (2) and proposed to be utilised for the purpose of assessment.[Added A.6/1994]
35. Production of documents and evidence on oath
(1)For the purpose of obtaining full information in respect of any income of any taxpayer the Commissioner may require any person to produce for examination by the Commissioner or by any person appointed by him for such purpose at such time and place as may be appointed by the Commissioner any deeds, plans, instruments, books, accounts, trade lists, stock lists, or documents that may be deemed necessary for the purpose of this Order, and, if any such deeds, plans, instruments, books, accounts, lists or documents are not in English or siSwati, the Commissioner may by notice, in writing, require the taxpayer at the taxpayer’s expense to produce at such time and place as may be appointed a translation in English or siSwati prepared and certified by a sworn translator or a person other than a sworn translator approved by the Commissioner.[Amended A.11/1985](2)The Commissioner may, by written notice require any person entitled to or in receipt of any income (whether on his own behalf or as a public officer of a company or as an agent or trustee of any person), or any person whom the Commissioner may deem able to furnish information to attend at a time and place to be named by the Commissioner for the purpose of being examined on oath respecting the income of any person or any transactions or matters affecting the income of any person or any transactions or matters affecting them or any of them or any part thereof.(3)The Commissioner shall allow any person any reasonable expenses necessarily incurred by such person in attending at the place named by the Commissioner in subsection (2).(4)Any officer engaged in carrying out the provisions of this Order who has in relation to the affairs of a particular person been authorised thereto by the Commissioner in writing or by telegram, may for the purposes of this Order—(a)without any prior notice, have at all times full and free access to any premises whatsoever or place and on such premises or place search for any moneys, books, records, accounts, documents or computers;[Amended A.4/2008](b)in carrying out any such search, open or cause to be removed and opened, any article in which he suspects that any money, book, record, account or document is contained;(c)seize any such book, record, account or document as in his opinion may afford evidence which may be material in assessing the liability of any person for any tax;(d)retain any such book, record, account or document for as long as it may be required for any assessing or for any criminal or other proceedings under this Order;(e)make an extract or copy from any book, records, account, document or computer-stored information to which access is obtained under paragraph (a); or[Added A.4/2008](f)where a hard copy or computer disk of information stored on a computer is not provided, seize and retain the computer for as long as necessary to copy the information required.[Added A.4/2008](5)The powers authorised by subsection (4) may be exercised only during ordinary business hours, unless the Commissioner determines in writing that the collection of tax is in jeopardy and that the exercise of powers outside ordinary business hours is necessary to ensure the collection of the tax.[Replaced A.4/2008](6)Any officer who attempts to exercise a power under subsection (4) on behalf of the Commissioner is not entitled to enter or remain on any premises or place if, upon being requested by the occupier of the premises or place, the officer does not produce an authorisation in writing from the Commissioner to the effect that the officer is authorised to exercise that power under this section, including, in the case of an exercise outside ordinary business hours, a copy of the written determination described in subsection (5).[Inserted A.4/2008](7)The owner, manager, or any other person on the premises or place entered or proposed to be entered under this section must provide all reasonable facilities and assistance for the effective exercise of power under this section.[Inserted A.4/2008](8)The person to whose affairs any book, record, account or document seized under subsection (4) relates, shall be entitled to examine and make extracts therefrom during office hours under such supervision as the Commissioner may determine.[Amended A.4/2008]
35bis. The keeping of business and other records
(1)For the purposes of this section, the term “records” includes books of account (whether contained in a manual, mechanical, or electronic format) recording receipts or payments or income or expenditure, and also includes vouchers, ledgers, journals, bank statements, cash books, cheque books, deposit slips, paid cheques, invoices, receipts, deeds, plans, instruments, trade lists, stock lists, and such other documents as are necessary to verify the entries in any such books of account.(2)Without limiting the generality of subsection (1) of this section the records required to be kept and retained, pursuant to subsection (3) of this section, in respect of any trade carried on during any year of assessment by any person, shall contain—(a)a record of the assets and liabilities of the person (in relation to that trade); and(b)a record of all entries from day to day of all sums of money received and expended by the person (in relation to that trade) and the matters in respect of which the receipt and expenditure takes place; and(c)where that trade involves dealing in goods—(i)a record of goods purchased and of all goods sold in the carrying on of that trade showing the goods, and the sellers and buyers or, as the case may be, the agents of the sellers and buyers in sufficient detail to enable the goods and the sellers and buyers, and the said agents to be readily identified by the Commissioner; and all invoices relating thereto; and(ii)statements (including quantities and values) of trading stock held by the person at the end of each year of assessment, and all records of stock takings from which any such statement of trading stock has been, or is to be, prepared; and(d)where that trade involves the provision of services, records of the services provided and all invoices relating thereto;(e)the charts and codes of accounts, the accounting instruction manuals, and the system and programme documentation which describes the accounting system used in each year of assessment in the carrying on of that trade; and(f)a fixed asset register recording all the tangible assets (excluding stock) of the business, showing the respective dates of acquisition and the cost thereof amounts of any revaluation and the dates of any disposals and the consideration thereof.[Replaced A.4/2008](3)Subject to subsection (6) of this section, every person who—(a)carries on trade in Swaziland;(b)carries on any other activity (not being the carrying on of employment as an employee) in Swaziland in the production of income;(c)makes, holds, or disposes of, for the purpose of producing income, any investment,shall keep in Swaziland at the place where the trade is carried on original records in the English or Siswati language (regard being had to the occupation of the person concerned and the scale on which the trade is carried on) to enable the ascertainment readily by the Commissioner, or any other officer authorised by him in that behalf, of—(d)the taxable income derived by that person from, as the case may be, the carrying on of that trade, or the carrying on of that activity, or the making or holding or disposing of that investment; and(e)the deductions allowable in the calculating of that taxable income,and shall retain in Swaziland all such records for a period at least five years after the end of the year of assessment to which they relate or as long as it remains material to the administration of this Order.(4)Where a person who is required in terms of subsection (3) to retain records lodges an objection or appeal against an assessment, that person shall retain all records relevant to that objection or appeal until that assessment becomes final.(5)The Commissioner may disallow a claim for a deduction if the taxpayer is unable without reasonable excuse to produce a receipt or other record of the transaction, or to produce evidence relating to the circumstances giving rise to the claim for deduction.(6)This section shall not require the retention of any records—(a)in respect of which the Commissioner has given notice in writing that retention is not required;(b)of any company which has been wound up and finally dissolved.[Added A.5/2004]
36. Power of inspection
(1)Notwithstanding anything contrary contained in any other provision of this Order, any officer engaged in the carrying out of the provisions of this Order relative to the affairs of a particular taxpayer, may enter any place at which a business or trade is carried on (whether such place be the principal place of the said business or trade or not) and require the taxpayer or public officer or any other person who may at that time and place be attending in any manner to or keeping in the carrying on of such business or trade to afford him—(a)the necessary facility to inspect such books of account or other documents as he may require and which may be available at the place;(b)the necessary facility to verify cash, stock or other valuable article or thing which may be found therein;(c)such information as he may require as to any matter which may be relevant to any proceeding under this Order.(2)The officer acting under this section may enter any place of business or trade referred to in subsection (1) only during the hours at which such place is open for conduct of business or trade, and in the case of any other place, during normal business hours.(3)The officer acting under this section may—(a)if he so deems necessary, place marks of identification on the books of account or other documents inspected by him or make or cause to be made extracts or copies therefrom;(b)make an inventory of any cash, stock or other valuable article or thing checked and verified by him;(c)record the statement of any person which may be relevant to any proceeding under the Order.(4)Any officer exercising any power under this section shall not remove or cause to be removed from such place any books of account or other documents or any cash, stock or other valuable article or thing found therein.(5)Any person obstructing or hindering an officer in the discharge of his duties, under this section shall be guilty of an offence under section 66(1) of the Order.[Replaced A.11/1985; deleted A.10/1991; added A.6/1994]
37. Duty to furnish information or returns
(1)Every person shall, if required by the Commissioner, furnish to him, in such form and within such time as the Commissioner may require, returns showing—(a)the names and addresses of all or any particular class of persons employed by him, and the earnings, salary, wages, allowances or benefits or pensions, whether in money or otherwise, received by or accrued to or in favour of each such person in respect of such employment;(b)all amounts received by or accrued to or in favour of any person in respect of any share or interest in any business carried on by the person furnishing the return;(c)all moneys received by the person furnishing the return from any person for investment or on loan or on deposit with or without interest;(d)all interest or rent received by or accrued to or in favour of any person from the person furnishing the return or from any business carried on by the last-mentioned person in Swaziland;(e)all interest, rent or dividends collected for or on behalf of any person by the person furnishing the return;(f)all such other information in his possession with regard to the income received by or accrued to or in favour of any person as may be required by the Commissioner.(2)In addition to the returns specified in subsection (1), every person shall, if required by the Commissioner—(a)furnish the Commissioner with information reflecting—(i)the full name and address; and(ii)in the case of—(aa)any natural person, the identification number of such person; or(bb)any person other than a natural person, the tax number,in relation to the amounts received by or accrued to such person as contemplated in this section; and(b)supply such information and furnish such returns or such further or other returns as the Commissioner may require.(3)Every person to whom a return or a written request for information is sent by the Commissioner shall complete the return or comply with the written request for information in accordance with the requirements of the Commissioner and shall return the completed form or furnish the information to the Commissioner at such time and place as the Commissioner may direct.[Replaced A.5/2004]
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
(1)In every case in which any taxpayer makes default in furnishing any return or information, or if the Commissioner is not satisfied with the return or information furnished by any taxpayer, the Commissioner may make an assessment in such sum as in the Commissioner’s judgment ought to be charged in accordance with this Order, and thereupon shall give notice thereof to the taxpayer to be charged, and such taxpayer shall be liable to pay the tax upon such sum.[Replaced A.6/1994](2)Any such assessment shall be subject to objection and appeal as provided in this Order.(3)If it appears to the Commissioner that any person is unable from any cause to furnish an accurate return of his income, the Commissioner may agree with such person as to what shall be the taxable income of such person and any taxable income so agreed shall not be subject to any objection or appeal.(4)Notwithstanding an agreement as contemplated in subsection (3), if the Commissioner is subsequently of the opinion that a person referred to in that subsection withheld vital information at the time an estimate of the taxable income was agreed, the Commissioner may increase the agreed estimate.[Added A.4/2008]
40. Additional tax in case of default or omission
(1)Subject to subsection (3), the Commissioner shall require a taxpayer to pay in addition to the tax chargeable in respect of his taxable income—(a)if he makes default in rendering a return in respect of any year of assessment, an amount equal to twice the tax chargeable in respect of his taxable income for such year of assessment;(b)if he omits from his return any amount which ought to have been included therein, an amount equal to twice the difference between the tax as calculated in respect of the taxable income returned by him and the tax properly chargeable in respect of his taxable income as finally determined after including the amount omitted; or(c)if he makes any incorrect statement in any return rendered by him which results or would if accepted result in the assessment of the normal tax at an amount which is less than the tax properly chargeable, an amount equal to twice the difference between the tax as assessed in accordance with the return made by him and the tax properly chargeable if the incorrect statement had not been made.(2)The additional amounts of tax payable under this section may be chargeable whether the taxable income or any part thereof is estimated by the Commissioner in terms of section 39, or agreed with the taxpayer in terms of subsection (3) thereof, or such taxable income or any part thereof as is determined from accounts rendered by the taxpayer.(3)(a)If the Commissioner is satisfied that the default in rendering the return was not due to any intent either to defraud the revenue or to postpone the payment by the taxpayer of the tax chargeable or that any such omission or incorrect statement was not due to any intent to evade taxation on the part of the taxpayer, he may waive or remit such part or all of such additional charge as he may think fit.(b)In the event the Commissioner deciding not to remit the whole of the additional charge imposed under subsection (1), his decision shall be subject to objection and appeal.(c)Notwithstanding the provisions of this subsection, the Commissioner may either before or after an assessment is issued agree with the taxpayer on the amount of the additional charge to be paid, and the amount so agreed upon shall not be subject to objection and appeal.[Amended A.6/1994](4)The powers conferred upon the Commissioner by this section shall be in addition to any right conferred upon him by this Order to take proceedings for the recovery of any penalties for evading or avoiding assessment of the payment of tax or attempting to do so.(5)Any taxpayer, who in determining his taxable income as disclosed by his return, deducts or sets off any amount the deduction or set off whereof is not permissible under this Order or shows as an expenditure or loss any amount which he has in fact not expended or lost, shall be deemed for the purpose of this section to have omitted such amount from his return.(6)Any taxpayer who wilfully fails to disclose in any return made by him any facts which should be disclosed and the disclosure of which would result in the taxation of the taxpayer’s income on an amount which is higher than the amount upon which such income would be taxable on such return, shall be deemed, for the purpose of this section, to have omitted from his return the amount by which the former amount exceeds the latter.(7)If in any year of assessment in which the determination of the taxable income of the taxpayer does not result in an assessed loss, he is entitled to the set-off of a balance of assessed loss from the previous year of assessment and such balance is less than it would have been had it been calculated on the basis of the returns rendered by him, he shall be deemed, for the purpose of this section, to have omitted from his return for the first-mentioned year of assessment an amount equal to the difference between the amount at which such balance is finally determined and the amount at which it would have been determined on such basis.(8)A taxpayer who makes default in rendering a return in respect of any year of assessment in which the determination of the taxable income of the taxpayer results in an assessed loss shall, while such default continues, be liable to a penalty not exceeding twenty emalangeni for each day during which the default continues.[Added A.5/2004]
40bis. Additional tax in relation to the withholding of taxes
(1)Every person liable to withhold tax as required under any provisions contained in this Order who fails to withhold tax is liable for additional tax of twenty percent of the amount of tax not withheld.(2)Every person who fails to remit any tax withheld to the Commissioner shall be liable for additional tax of—(a)if the tax which that person has failed to pay to the Commissioner is paid within less than thirty days from the date on which the tax should have been paid, ten percent of the tax;(b)if the tax which that person has failed to pay to the Commissioner is paid thirty or more days after the date on which the tax should have been paid, but less than ninety days after the due date, fifteen percent of the tax;(c)if the tax to which that person has failed to pay to the Commissioner is paid ninety or more days after the date on which the tax should have been paid, but less than 180 days after the due date, twenty per cent of the tax; and(d)if the tax which that person has failed to pay to the Commissioner is paid one hundred and eighty or more days after the date on which the tax should have been paid,twenty-five percent of the tax.(3)Additional tax recoverable under subsection (1) or (2) is borne personally by the person on whom it is levied, and no part thereof is recoverable from the person who received the payment from which tax should have been withheld.[Added A.5/2004]
41. Additional assessments
(1)Notwithstanding section 52(4) if at any time the Commissioner is satisfied that any amounts which should have been subject to tax have not been assessed to tax under this Order or any previous income tax law, or than any amount of tax which was chargeable and should have been assessed under this Order has not been assessed, he may raise assessments in respect of such amounts notwithstanding that assessments may have been made upon the person concerned in respect of the year or years of assessment in respect of which the amounts in question are assessable:[Amended A.6/1987]Provided that the Commissioner shall not raise any assessment under this subsection—(a)after the expiry of six years from the date of assessment in terms of which any amount which should have been assessed to tax under such assessment was not so assessed unless he is satisfied that the amount was not so assessed because of fraud or misrepresentation or nor non-disclosure of material facts;(b)if the amount which should have been subject to tax was not assessed to tax, in accordance with the practice generally prevailing at the time when the assessment was made; or(c)in respect of any amount, if any previous assessment made on the person concerned for the year of assessment in question has in respect of such amount been amended or reduced pursuant to any order of court unless such order was obtained by fraud or misrepresentation or non-disclosure of material facts.(2)Sections 39 and 40 shall apply to any assessment or additional assessments made by the Commissioner under the powers conferred by this section.
42. Assessments and the recording thereof
(1)The particulars of every assessment and the amount of tax payable thereon shall be recorded or filed and kept in the office of the Commissioner.(2)Upon recording or filing of the particulars of any assessment, the Commissioner shall give notice of the assessment to the taxpayer whose income has been assessed.(3)Such notice shall be sent to the taxpayer by post or delivered to such person in such other manner as the Commissioner may consider necessary or convenient.(4)The Commissioner shall in the notice of assessment give notice to the taxpayer that any objection to the assessment made must be sent to him within twenty one days after the date of such notice or within such further time as he or the court may for good cause allow.
43. Inspection of assessments
Particulars of incometax 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—(a)he alienates, charges or disposes of the income in respect of which the tax is chargeable; or(b)he disposes of or parts with any fund or money which is in his possession or comes to him after the tax is payable when from or out of such fund or money the tax could legally have been paid.
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
(1)The Commissioner may declare any person to be an agent of any other person and the person so declared an agent shall be the agent for the purpose of this Order and may be required to pay to the Commissioner any tax due from any money which—(a)is due or may become due to the person whose agent he has been declared;(b)the person holds or may subsequently hold for or on account of the person whose agent he has been declared; or(c)the person has authority from some other person to pay to the person whose agent he has been declared, within fifteen days of the date of service of the notice of declaration or, if on such date no money is due from him to, or is held by him for or on account of, that person, within fifteen days of the date on which such money becomes due to, or available for or on account of that person, the amount specified in such declaration, or, if such amount is less than the amount specified, the whole of the money due, held or available.(2)Without prejudice to the liability of the taxpayer under this Order, if an agent after receipt of a notice parts with any money to which the notice relates, he shall be liable pro tanto for the tax due by such person.[Replaced A.11/1982]
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
(1)Every company carrying on business or having office in Swaziland shall at all times be represented by an individual residing therein, who shall be known as the “public officer” of such company.(2)The public officer of a company shall be appointed by the company or by an agent or attorney who has authority to make such appointment and shall be approved by the Commissioner.(3)In the case of a company which commences business or which first has an office in Swaziland after the commencement of this Order, the public officer shall be appointed within one month after such commencement or having an office, and in default of any appointment the Commissioner may designate a managing director, director, secretary or other officer of the company as its public officer.(4)Every company shall within the period prescribed by subsection (3) appoint a place within Swaziland at which any notices or other instruments under this Order affecting the company may be served or delivered or to which any such notices or documents may be sent.(5)No appointment shall be deemed to have been made under subsections (3) or (4) until notice thereof specifying the name of the public officer and an address for service or delivery of notices and documents has been given to the Commissioner.(6)Every company shall keep the office of public officer constantly filled and shall at all times maintain a place for the service or delivery of notices in accordance with subsection (4).(7)Every company shall notify the Commissioner of any change in the person of its public officer or of the place for the service or delivery of notices within fourteen days of such change taking place.(8)Any company which fails to comply with subsections (3), (4), (6) or (7) and every person who acts within Swaziland as agent or manager or representative of such company shall, while such failure continues, be liable to a penalty not exceeding sixty Emalangeni for every day during which the fault continues and such penalty shall be recoverable by the Commissioner by action in any court.[Amended A.11/1985; A.5/2004](9)Any notice, process or proceeding which may under this Order be given to, served upon, or taken against any company, may be given to, served upon or taken against its public officer and if at any time there is no public officer then any such notice, process or proceeding may be given to, served upon, or taken against any officer or person acting or appearing to act in the management of the business or affairs of such company or as agent for such company.(10)Every public officer shall—(a)within two months of the registration by the Registrar of Companies of the company of which he is the public officer file with the Commissioner a copy of the memorandum and articles of association of such company;(b)within thirty days of the registration by the Registrar of Companies of any prospectus proposed to be issued by such company file with the Commissioner a copy of such prospectus;(c)within two months of any amendment of the memorandum and articles of association of such company file with the Commissioner a certified copy of such amendment.(11)Every public officer shall be answerable for doing of all such acts, matters or things as are required to be done under this Order by a taxpayer, and in case of default, shall be liable to the penalties provided in respect of defaults by a taxpayer.(12)Everything done by any public officer which he is required to do in his representative capacity shall be deemed to have been done by the company which he represents.(13)The absence or non-appointment of a public officer shall not exonerate any company from the necessity of complying with this Order, but the company shall in all respects be subject to and liable to comply with this Order as if there were no requirement to appoint such officer.(14)Any public officer appointed under the Income Tax (Consolidation) Act, No. 84 of 1959 shall, unless the Commissioner disapproves of his appointment, be deemed to be appointed under this Order:Provided that if the Commissioner so disapproves the company shall appoint another person in his stead as its public officer.
Part VI – Objections and appeals
52. Time and manner of lodging objections
(1)Any objection to any assessment made under this Order shall be made within twenty-one days after the date of the assessment notice or within such further time as the Commissioner may for good cause allow in the prescribed manner and under the prescribed terms by any taxpayer who is aggrieved by any assessment in which he is interested.(2)Every objection shall be in writing and shall specify in detail the grounds upon which such objection is made.Provided that the taxpayer, for the purpose of the objection, shall not be entitled to rely on any evidence whether oral or documentary, other than the evidence produced by him during the course of the assessment except in the following circumstances—(a)where the Commissioner has refused to admit evidence which ought to have been admitted;(b)where the taxpayer was prevented by sufficient cause from producing the evidence which he was called upon to produce; and(c)where the assessment was made without giving sufficient opportunity to the taxpayer to adduce evidence relevant to any ground of objection.[Amended A.6/1994](3)On receipt of a notice of objection to an assessment, the Commissioner may reduce or alter the assessment or may disallow the objection and shall send the taxpayer notice of such alteration, reduction or disallowance and shall record in the assessment register any alteration or reduction made in the assessment.(4)If no objection is made to any assessment or if an objection has been allowed or withdrawn, such assessment or altered or reduced assessment, as the case may be, shall, subject to the right of appeal provided in this Part and subject to section 41(1), be final and conclusive.
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
(1)Any taxpayer who is dissatisfied with any decision of the Commissioner as notified in the notice of alteration or reduction of an assessment or disallowance of an objection may appeal therefrom to the court:Provided that no such notice of appeal shall be of any force and effect, unless it is lodged with the Commissioner within the period prescribed in subsection (2).(2)Notice of such appeal shall be in writing and shall be lodged with the Commissioner within twenty-one days after the date of any notice of alteration, reduction or disallow-ance referred to in section 52(3), or within such further time as the Commissioner or the court may for good cause allow.(3)On the hearing of any such appeal the taxpayer shall be limited to the grounds stated in his notice of objection.(4)If the assessment has been altered or reduced, the assessment so altered or reduced shall be deemed to be the assessment against which the appeal is made.(5)The Commissioner shall as soon as is practicable apply to the Registrar of the High Court in accordance with the High Court Rules for the appeal to be set down for hearing by the court:Provided that such application shall be accompanied by a summary of the facts and questions of law, if any, in issue, a copy of the notice of assessment objected against, a copy of the taxpayer’s objection thereto, a copy of the Commissioner’s reply to such objection and a copy of the notice of appeal:Provided further that if the Commissioner has failed to make such application within three months of the date upon which the taxpayer has lodged the notice of appeal in terms of subsection (2) the taxpayer may apply to the Registrar of the High Court for the appeal to be set down for such hearing and the Registrar shall immediately thereupon call upon the Commissioner to lodge with him a summary of the facts and questions of law, if any, in issue, a copy of the notice of assessment objected against, a copy of the taxpayer’s objection thereto, a copy of the Commissioner’s reply to such objection and a copy of the notice of appeal within ten days from the date of such request.(6)At least twenty-one days before the date fixed for the hearing of the appeal the Registrar of the High Court shall send the Commissioner, the Attorney-General and the taxpayer or his duly authorised attorney or representative a written notice of the time and place appointed for the hearing of such appeal.(7)The sittings of the court for the hearing of any appeal under this section shall not be public and the court shall at any time on the application of the appellant exclude any person whose attendance is not necessary for the hearing of the appeal under consideration from such sitting or require him to withdraw therefrom:Provided that the court may authorise the publication of the whole or any part of its judgment in any law report or legal journal without mention of the name of the taxpayer concerned:Provided further that this subsection shall not apply to an appeal to the Court of Appeal, except to such extent as the Court of Appeal may direct.(8)The Commissioner or any person authorised by him may appear in support of the assessment on the hearing of any appeal and the appellant and any person who is interested in such appeal may appear in person or by his counsel, attorney or agent.(9)The Court may alter or order the alteration of the assessment in accordance with the decision given on any appeal but may only make an order as to costs if the claim of the Commissioner is held to be unreasonable or the grounds of appeal are held to be frivolous.(10)The Chief Justice may make rules of the High Court prescribing the procedure to be observed in the conduct of appeals under this Order before it.
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
(1)Any tax chargeable under this Order shall be paid on such days and at such places as notified by the Commissioner or as specified in this Order, and may be paid in one sum or, upon written application by the taxpayer, in instalments of equal or varying amounts as the Commissioner may determine having regard o the circumstances of the case.Provided that—(a)where tax is permitted to be paid by instalments and there is default in payment of any instalment, the whole balance of the tax outstanding shall become immediately payable;(b)where permission is granted under subsection (1) to pay tax by instalments interest arising under subsection (2) shall be payable on the unpaid balance of the tax due.(2)If the taxpayer fails to pay any tax in full within the period for payment notified by the Commissioner in the notice of assessment or within the period for payment as prescribed by this Order, he shall be liable for interest calculated at the rate of eighteen per centum per annum from the date on which the payment was due until the date on which payment is made:Provided that the Minister may by notice in the Gazette reduce or increase the rate of such interest.(3)Where the Commissioner has allowed for the payment in instalments of equal or varying amounts under subsection (1), interest shall be calculated upon the unpaid tax from the date the payment should have been made if not for the granting of an extension.[Amended A.6/1987; A.10/1991; A6/1994; replaced A.5/2004]
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)
(1)Provisional tax shall be paid in accordance with the provisions of the Fourth Schedule at such place as may be notified by the Commissioner, and such payments which relate to a taxpayer shall, for the purposes of this Order, and subject to the provisions of paragraphs 14 and 15 of the said Schedule, be deemed to have been made in respect of his liability for taxes as defined in subsection (3), whether or not such an assessment has been made at the date of any payment.(2)If any amount of provisional tax is not paid in full within the relevant period prescribed for payment of such amount by paragraphs 7, 8 or 9, interest shall be paid by the person liable to pay the amount in question at the rate prescribed in section 57(2) of this Order on so much of such amount as remains unpaid in respect of the period (reckoned from the end of the relevant period prescribed as aforesaid for payment of such amount) during which the amount underpaid remains unpaid.(3)For the purposes of this section, “taxes” means the taxes as defined in section 2, excluding non-resident shareholders tax, non-resident tax on interest and non-resident tax on entertainers and sportsmen.[Added A.11/1985]
59. Withholding of tax from payments to non-resident contractors
[Amended A.7/1989; A.6/2000](1)For the purposes of this section—“agreement” means a single agreement or a series of agreements; and“non-resident person” means any person whose principal place of business is outside Swaziland.(2)Every person who makes payment to a non-resident person under an agreement relating to construction operations shall withhold tax from such payments at the rate specified under subsection (3).(3)The amount of tax to be withheld in respect of subsection (2) shall be fifteen per cent of so much of the payment as is not shown to represent the direct cost (to any other person) for materials used or to be used in carrying out the construction operations to which the agreement relates(4)The tax withheld under subsection (3) shall be on account of the liability to tax of the non-resident person.(5)Every person who has withheld any tax under subsection (3) shall—(a)furnish the non-resident person to whom any payment is made with a certificate showing the amount of the payment due under the agreement and the tax deducted therefrom;(b)within fifteen days from the date of payment remit to the Commissioner the amount of tax withheld.(6)No deduction of tax under this section shall relieve the non-resident person from the obligation to furnish any return for the assessment of the tax under section 33 or from any other obligation imposed by this Order.(7)Every person making any payment to which this section applies shall maintain a record showing, in relation to each year of assessment the amounts of payments made and the amounts of tax withheld, and such record shall be kept available, for the period specified under section 33(16), for examination by the Commissioner as and when required.(8)Every person to whom this section applies shall within thirty days after the end of the year of assessment or within such further time as the Commissioner may allow, furnish to the Commissioner a return showing the total—(a)amount of tax withheld by such person during the year of assessment; and(b)payments of such tax which have been made to the Commissioner and the total amount, in terms of this section, which ought to have been paid over to the Commissioner respecting the tax.(9)Any person who fails to withhold tax in terms of this section or who fails to remit the tax in accordance with subsection (5) shall, in addition to any penalty for which he may be liable to under section 66, be personally liable to pay the Commissioner the tax which he should have withheld as if it were tax due and payable by him under Part VII of this Order.[Amended K.O-I-C. 1/1976; A.11/1985; A.7/1989; replaced A.6/2000]
59A. Withholding tax on payments to non-resident persons
(1)For the purposes of this section—“Swaziland source services contract” means a contract (other than an employment contract)—(a)under which the principal purpose of the contract is the performance of services which gives rise to Swaziland-source income; and(b)where any goods supplied under the contract are only incidental to that purpose;“non-resident person” has the meaning assigned to it under section 59(1).(2)A non-resident person shall be liable to withholding tax at the rate of fifteen percent on the gross amount of any payment derived by the non-resident under a Swaziland-source services contract.(3)Subsection (1) shall not apply to a royalty or management charge subject to withholding tax under section 32B or payments subject to withholding under section 59.(4)Any person (the payer) who makes any payment to any other person (the payee) referred to in subsection (2) shall withhold tax at the rate of fifteen percent of the gross amount and shall issue a statement to the payee showing the gross amount of payment due and the rate and amount of tax withheld.(5)Every person who withholds tax in accordance with subsection (4) shall, within fifteen days from the date of payment, remit to the Commissioner, the amount of tax so withheld or deducted.(6)Where tax withheld under this section shall be on account of the liability to tax of the non-resident person on the profits derived from the contract—(a)no further tax liability shall be imposed upon the taxpayer in respect of the income to which the tax relates; and(b)the income shall not be aggregate with the other income of the taxpayer for the purposes of ascertaining taxable income; and(c)no deduction shall be allowed for any expenditure or losses actually incurred in deriving the income; and(d)no refund of tax shall be made in respect of the income.[Amended A.4/2008](7)Every person making any payment to which this section applies shall maintain, and keep available for the period specified under section 33(16) for inspection by the Commissioner, records showing, in relation to each year of assessment—(a)payments made to the non-resident persons; and(b)tax withheld from such payments.(8)Every person (the payer) to whom this section applies shall within thirty days after the end of the year of assessment or within such further time as the Commissioner may allow, furnish to the Commissioner a return showing—(a)the amounts paid or payable to the non-resident person;(b)the amounts of tax withheld; and(c)such other information as the Commissioner may, in writing, by notice or other means, require.(8a)The deduction of tax under this section shall not relieve the person liable to taxation from the obligation to deliver a return for the assessment of the tax or any return as provided under section 33 or from any obligation imposed by this Order.[Inserted A.4/2008](9)Where any person who is required to withhold tax from any payment made by him, fails to withhold such tax or having withheld such tax fails to remit such tax to the Commissioner, as required, shall, in addition to any penalty for which he may be liable under section 66, be personally liable to pay to the Commissioner the amount of tax, which he failed to withhold or remit, as if it were tax due and payable by him under Part VII of this Order.[Added A.6/2000]
59B. Issuance of a directive to withhold tax in certain cases of non-compliance
(1)Where the Commissioner detects that there is non-compliance by any person or persons with the obligations imposed by this Order, the Commissioner may issue a directive to any person, or a directive of a general nature to all persons to withhold tax from any money which—(a)is due or may become due to the person or persons liable to taxation;(b)the person or persons hold or may subsequently hold for or on account of the person or persons liable to taxation; or(c)the person or persons has authority from some other person to pay to the person or persons liable to taxation,at the rate specified under subsection (2).(2)The amount of tax to be withheld in respect of a directive issued under subsection (1) shall be at the rate of ten per cent on the amount due as contemplated in subsection (1).(3)Where, upon application by the person affected by a directive given under subsection (1), the Commissioner is satisfied that the tax directed to be deducted is excessive in relation to the tax likely to be charged upon assessment, the Commissioner may—(a)vary the amount to be deducted; or(b)cancel the directive and accept such security for payment as appears to him to be reasonable.(4)Every person who has deducted any tax under subsection (2) shall—(a)furnish to such person from whom tax has been deducted a certificate showing the amount of the tax deducted;(b)remit to the Commissioner the amount of tax deducted within fifteen days of the date of service of the directive or, if on such date no money is due from him to, or is held by him for or on account of, that person, within fifteen days of the date on which such money becomes due to, or available for or on account of that person.(5)Every person making any payment to which this section applies shall maintain a record showing in relation to each year of assessment—(a)the amounts deducted, in respect of which a directive has been given; and(b)the amounts of tax deducted under such directive,and such record shall be kept for the period specified under section 35bis(3) for examination by the Commissioner as and when required.(6)The deduction of tax under this section shall not relieve the person or persons liable to taxation from the obligation to deliver a return for the assessment of the tax or any return as provided under section 33 or from any obligation imposed by this Order.(7)Where the Commissioner has issued a directive of a general nature under subsection (1) the Commissioner shall on application made to him by any person to whom the withholding tax applies by reason of the provisions of subsection (1), issue to such person a certificate of exemption if the person satisfies the Commissioner that he has regularly complied with the obligations imposed on such person under the Order.(8)Any person who fails to deduct tax in accordance with subsection (1), shall, in addition to any penalty for which he may be liable under section 66, be personally liable to pay the Commissioner the tax which he should have deducted as if it were tax due and payable by him under Part VII of this Order.[Added A.5/2004; amended A.4/2008]
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—(a)the nature of such agreement;(b)the commencement and likely duration of the agreement;(c)the total amount estimated to be payable under the agreement to the non-resident person; and(d)the name, postal and physical address of the non-resident person to whom payments under the agreement will accrue.[Added A.7/2007]
60. Persons by whom the tax is payable
Subject to this Order, the taxes leviable shall be payable—(a)by the representative taxpayer in respect of any income received or controlled by him in his representative capacity;(b)in respect of every other income and in all other cases, but subject to section 59, by the person by whom the income is received or to whom or in whose favour it accrues or is deemed to accrue or who is legally entitled to the receipt thereof:Provided that any person who is required under the Order to include in his income any income which has been received by or in favour of his minor child shall be entitled to recover from the funds held by or on behalf of such child such proportion of the taxation paid by him under this Order as is due to the inclusion in his income of the income of such child.
61. Recovery of tax
(1)Any tax, (including any interest or penalty payable to the Commissioner under this Order) shall, when it becomes due or is payable, be deemed to be a debt due to the Government and shall be payable to the Commissioner in the manner and at the place prescribed.(2)If any person fails to pay any tax when it becomes due or is payable by him, the Commissioner may file with the clerk or registrar of any court a statement certified by him as correct and setting forth the amount of the tax so due or payable by such person, and such statement shall thereupon have all the effects of, and any proceedings may be taken thereon, as if it were a civil judgment lawfully given in such court in favour of the Commissioner for a liquid debt of the amount specified in the statement.(3)Notwithstanding anything in the Magistrate’s Court Act, No. 66 of 1938 a statement for any amount whatsoever may be filed in terms of subsection (2) with the clerk of a Magistrate’s Court having jurisdiction in respect of the person by whom such amount is payable in accordance with this Order.(4)The Commissioner may institute proceedings for the sequestration of the estate of any taxpayer and shall for the purposes of such proceedings be deemed to be the creditor in respect of any tax due by such taxpayer and any interest payable by him.[Deleted A.6/1994; replaced A.7/2007](5)So much of any tax payable by any person under this Order as is due to the inclusion in his income of any income deemed to have been received by him or to be his income, as the case may be, in terms of sections 11(3), (4), (5) or (6) may be recovered from the assets by which the income so included was produced.(6)Notwithstanding the provisions of section 12, the Minister may remit, wholly or in part any tax payable by any person, in terms of this Order if he is satisfied that it will be just and equitable to do so.[Amended A.6/1996]
61bis. Collection of taxes under agreements made under section 68
(1)Where an international agreement provides for reciprocal assistance in the collection of taxes and the Commissioner has received a request from another country pursuant to that agreement for the collection from any person in Swaziland of an amount due by that person under the incometax laws of that other country, the Commissioner may by notice in writing require the person to pay the amount on the date specified in the notice to the Commissioner for transmission to the competent authority in that other country.(2)If a person fails to comply with a notice issued under subsection (1), the amount in question may be recovered for transmission to the competent authority in that other country as if it were tax payable by the person under this Order.[Added A.7/2007]
62. Tax to be a liquid debt
(1)Proceedings in any court for the recovery of any tax shall be deemed to be proceedings for the recovery of a liquid debt.(2)It shall not be competent for any person in any proceedings in any court for the recovery of any tax to question the correctness of the assessment or any certified extract therefrom.
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
(1)Any amount paid by any person in terms of the provisions of this Order shall be refundable to the extent that such amount exceeds—(a)in the case where the amount was paid in respect of assessment, the amount so assessed; or(b)in any other case, the amount properly chargeable under this Order.(2)The Commissioner shall not authorise a refund under subsection (1)(b), where—(a)that amount was paid in accordance with the practice generally prevailing at the date of the payment; or(b)the refund is claimed by that person—(i)after a period of three years after the end of that year of assessment, in the case where—(A)that amount constitutes an amount of employees’ tax withheld during any year of assessment from the remuneration of that person under the provisions of the Second Schedule;(B)that person’s income for that year of assessment consisted solely of remuneration as defined in the Second Schedule; or(C)that person was not required under any provision of this Order to furnish a return of income for that year of assessment and did not render such a return during the period of three years since the end of the year of assessment; or(ii)in any other case, after a period of three years from the date of the official receipt acknowledging such payment or, where more than one such payment was made, the date of the official receipt acknowleding the latest of such payments.(3)Where any refund contemplated in subsection (1) is due to any person who has failed to pay any amount of tax, additional tax, duty, levy, charge, interest or penalty levied or imposed under this Order or any other law administered by the Commissioner, within the period prescribed for payment of the amount, the Commissioner may set off against the amount which the person has failed to pay, any amount which has become refundable to the person under this section.[Added A.7/2007]
65. Transactions, operations or schemes for purposes of avoiding or postponing liability for or reducing amounts of taxes on income
(1)If any transaction, operation or scheme (whether entered into or carried out before or after the commencement of this Order, including a transaction, operation or scheme involving the alienation of property) has been entered into or carried out which has the effect of avoiding or postponing liability for any tax, duty or levy on income (including any such tax, duty or levy imposed by any previous law), or of reducing the amount thereof, and which, in the opinion of the Commissioner, having regard to the circumstances under which the transaction, operation or scheme was entered into or carried out—(a)was entered into or carried out by means or in a manner which would not normally be employed in the entering into or carrying out of a transaction, operation or scheme of the nature of the transaction, operation or scheme in question; or(b)has created rights or obligations which would not normally be created between persons dealing at arm’s length under any transaction, operation or scheme of the nature of the transaction, operation or scheme in question;and the Commissioner is of the opinion that the avoidance or the postponement of such liability, or the reduction of the amount of such liability was the sole or one of the main purposes of the transaction, operation or scheme, the Commissioner shall determine the liability for any tax, duty or levy on income and the amount thereof as if the transaction, operation or scheme had not been entered into or carried out or in such manner as in the circumstances of the case he deems appropriate for the prevention or diminution of such avoidance, postponement or reduction.(2)If the Commissioner is satisfied that any agreement or any change in the shareholding of a company, as a direct or indirect result of which income has been received by or has accrued to such company during any year of assessment, has, at any time before or after the commencement of this Order, been entered into or effected by any person solely or mainly for the purpose of utilising any assessed loss or any balance of assessed loss incurred by the company in order to avoid liability on the part of such company or any other person for the payment of any tax, duty or levy on income, or to reduce the amount thereof, the set-off of any such assessed loss or balance of assessed loss against any such income shall be disallowed.(3)For the purposes of subsection (1), any transaction, operation or scheme, whether entered into or carried out before or after the commencement of this Order, whereby any person, other than a company, who is ordinarily resident or carrying on business in Swaziland, has disposed of shares held by such person or such company in any company registered or incorporated in Swaziland to any person, other than a company, not ordinarily resident nor carrying on business in Swaziland or to any company registered outside Swaziland, shall, unless it is proved to the satisfaction of the Commissioner that the parties are independent persons dealing at arm’s length with each other, be deemed to be a transaction, an operation or a scheme entered into or carried out by means or in a manner not normally employed in the entering into or carrying out of such transaction, operation or scheme in question.(4)Any decision of the Commissioner under subsection (1), (2) or (3) shall be subject to objection and appeal, and if in any proceedings relating thereto it is proved that the transaction, operation, scheme, agreement or change in shareholding in question would result in the avoidance or the postponement of liability for payment of any tax, duty or levy on income or in the reduction of the amount thereof, it shall be presumed, until the contrary is proved—(a)in the case of any such transaction, operation or scheme, that its sole or one of its main purposes was the avoidance or the postponement of such liability or the reduction of the amount of such liability; or(b)in the case of any such agreement or change in shareholding, that it has been entered into or effected solely or mainly for the purpose of utilising the assessed loss or balance of assessed loss in question in order to avoid or postpone such liability or to reduce the amount thereof.
66. Offences
(1)A person who—(a)fails or neglects to furnish, file or submit any return or document as and when required by or under this Order;(b)without just cause shown by him, refuses or neglects to—(i)furnish, produce or make available any information or document;(ii)reply to or answer truly and fully, any questions put to him;(iii)produce any books or papers required of him by the Commissioner or any officer; or(iv)attend and give evidence,as when required in terms of this Order;(c)fails to show in any return made by him any portion of the gross income received by or accrued to or in favour of himself or fails to disclose to the Commissioner when making such return any material facts which should have been disclosed;(d)fails to show in any return prepared or rendered by him on behalf of any other person any portion of the gross income received by or accrued to or in favour of such other person or fails to disclose to the Commissioner, when preparing or making such return, any facts which if so disclosed, might result in increased taxation;(e)obstructs or hinders any officer in the discharge of his duties under this Order;(f)holds himself out as an officer engaged in carrying out the provisions of this Order;(g)submits or furnishes a false certificate or statement under section 34;(h)fails to keep a proper record of his transactions as required by section 35bis;(i)without just cause fails to comply with the provisions of section 49, where that person has been declared to be the agent of any other person as contemplated in that section;(j)without just cause fails to comply with the provisions of section 34ter, 36 or 59C; or(k)not being a person whose gross income consists solely of salary, wages or similar compensation for personal services, without just cause shown by him, fails to retain for a period of five years from the date of the last entry therein all legders, cash books, journals, cheque books, paid cheques, bank statements, invoices, stock list and all other books of account relating to any trade carried on by him and recording the details from which returns for the assessment of taxes under this Order were prepared,commits an offence and shall be liable on conviction to a fine not exceeding ten thousand emalangeni, or to imprisonment for a term not exceeding one year, or to both such fine and term of improsnment.(2)A person who—(a)fails to withhold, remit and account for any withholding tax imposed under this Order;(b)fails to comply with the provisions of section 32E; or(c)has in any manner, evaded or defeated, or attempted to evade or defeat, tax imposed by this Order, or the payment or collection of such tax,commits an offence and, in addition to any penalty otherwise provided, shall be liable on conviction to a fine not exceeding fifty thousand emalangeni, or to imprisonment for a term not exceeding five years or to both such fine and term of imprisonment.(3)A person who has been convicted under subsection (1) or subsection (2) of failing to furnish any return, information or reply who thereafter fails within any period deemed by the Commissioner to be reasonable and of which notice has been given to him by the Commissioner, to furnish the return, information or reply in respect of which the offence was committed, commits an offence and shall be liable, on conviction, to a fine of fifty Emalangeni for each day during which such default continues or to imprisonment without the option of a fine for a period not exceeding one year.(4)A person who, with intent to evade or to assist any other person to evade assessment or taxation—(a)makes or causes or allows to be made any false statement of entry in any return rendered in terms of this Order or signs any statement or return so rendered without reasonable grounds for believing it to be true;(b)gives any false answer, whether orally or in writing, to any request for information made under this Order by the Commissioner or any person duly authorised by him or any officer referred to in section 4;(c)prepares or maintains or authorises the preparation or maintenance of any false books of account or other records or falsifies or authorises the falsification of any books of account or records; or(d)makes use of any fraud, art or contrivance whatsoever, or authorises the use of any such fraud, art or contrivance,commits an offence and, in addition to any penalty otherwise provided, shall be liable on conviction to a fine not exceeding fifty thousand Emalangeni, or to imprisonment for a term not exceeding five years, or to both such fine and term of improsonment.(5)If, in any proceeding under this section it is proved that any false statement or entry is made in any return rendered under this Order by or on behalf of any taxpayer or in any books of account or other records of any taxpayer, such taxpayer shall be presumed, until the contrary is proved, to have made or to have caused or allowed to be made such false statement or entry with intent to evade assessment or taxation, and any other person who made any such false statement or entry shall be presumed, until the contrary is proved, to have made such false statement or entry with intent to assist the taxpayer to evade assessment or taxation.(6)The Commissioner may transfer information or documents concerning any person to the Director of Public Prosecutions to enable the Director to bring charges against the person in respect of an offence set out in this section.[Amended A.11/1985; A.7/1992; A.6/2000; A.5/2004; replaced A.7/2007]
67. Authentication and service of documents
(1)Every form, notice, demand or other document issued or given by or on behalf of the Commissioner or other officer under this Order shall be sufficiently authenticated if the name of the Commissioner or officer by whom it is issued or given is stamped or printed thereon.(2)Any notice required or authorised under this Order to be served upon any person shall be sufficiently and effectively served—(a)if personally served upon him; or(b)if left at his usual or last place of abode or office or place of business in Swaziland; or(c)if sent in a registered letter addressed to such place of abode, office or place of business or to his usual or last known postal address:[Amended A.9/1988]Provided that in the case of a company, it shall be sufficiently and effectively served if personally served on the public officer of the company or delivered to him or left at the company’s address for service under this Order, or, if the company has lodged no address for service as required by this Order, then if the notice is left at or sent in a registered letter by post addressed to any office of the company in Swaziland or any premises therein where it carries on business.
68. Double taxation agreements
(1)The Minister may enter into an agreement on behalf of the Government of Swaziland with the Government of any other country with a view to the prevention, mitigation or discontinuance of the levying under the laws of Swaziland and of the other country of tax on income in respect of the same income or to the rendering of reciprocal assistance in the administration of and in the collection of taxes under the tax laws of Swaziland and of the other country relating to income.(2)As soon as practical after the conclusion of any such agreement the Minister shall by notice in the Gazette publish a copy thereof, whereupon the terms and conditions of such agreement shall as far as they relate to immunity, exemption or relief in respect of the Swaziland tax on income have effect as if enacted in this Order, but only if and for so long as such terms and conditions as far as they relate to immunity, exemption or relief in respect of such tax levied or leviable in the other country have the effect of law in such other country.(3)The Minister may at any time revoke any notice under subsection (2) by a further notice in the Gazette, and the agreement notified in such earlier notice shall cease to have effect upon a date fixed in such later notice, but the revocation of any notice shall not affect the validity of anything previously done thereunder.(4)This section shall apply to any agreement of the kind referred to in subsection (1) which was in force at the date of the commencement of this Order.(5)Notwithstanding section 5, there may be disclosed to any authorised officer of the country mentioned in any notice issued in terms of subsection (2), the facts, knowledge of which is necessary to enable it to be determined whether immunity, exemption or relief ought to be given or which it is necessary to disclose or to render or receive any assistance in accordance with the arrangements notified in such notice.
69. Regulations
(1)The Minister may make regulations for all or any of the following purposes—(a)prescribing the duties of all persons engaged or employed in the administration of this Order;(b)defining the limits of areas within which such persons are to act;(c)prescribing the nature of the accounts to be rendered by any taxpayer in support of any return rendered under this Order and the manner in which such accounts shall be authenticated;(d)providing that, to avoid duplicate payment in Swaziland in any case in respect of the same year or period, the Commissioner may make such allowance or refund as he shall deem just and in such manner as may be prescribed;(e)generally for giving effect to the purposes of this Order.(2)(a)Notwithstanding any other provisions of this Order, where the Minister is satisfied that a new business is beneficial to the development of the economy, he may, with the prior consent of Cabinet, nominate such business as a development enterprise, and he may issue an order, known as “development approval order” in respect of such business, granting additional tax concessions to such business;(b)(i)Any person seeking tax concession under this subsection shall, prior to the commencement of business, apply to the Minister in a manner prescribed by him;(ii)The Minister may, upon examination of such application, grant or refuse to grant, in writing, a tax concession for the purposes of this subsection.(iii)The Minister’s decision under paragraph (ii) shall be final.(c)A development approval order may be issued subject to such conditions, and for such period of time, as the Minister deems fit;(d)The Minister shall, within twenty one ‘days of the issue of a development order under paragraph (a), cause to be published, by notice in the Gazette, the name and address of the business nominated as a development enterprise under paragraph (a);(e)The Minister may, at any time, with the concurrence of Cabinet, amend or revoke a development approval order issued in terms of this subsection:Provided that where the Minister has cause to revoke a development approval order, he shall, within a period of twenty one days, cause such revocation to be published, by notice, in the Gazette.(f)Paragraphs (a) to (e) are deemed to have come into effect from 1st July, 1984.[Replaced A.9/1988](3)(a)Notwithstanding any other provision contained in this Order or in any other law, the Minister may, by notice published in the Gazette, make regulations requiring persons to obtain a tax clearance certificate for the purposes mentioned in such regulations.(b)Every notice, published under paragraph (a), shall be submitted for the approval of Parliament, within fifteen days of the notice being made and if Parliament is not meeting, within fifteen days after it next meets.(c)If any such notice is not submitted to Parliament within the time specified in paragraph (b), or, if so submitted, is not approved by Parliament, the notice shall thereupon lapse but without detracting from the validity of such notice before it so lapsed.(d)Subject to paragraph (f), a person requiring a tax clearance certificate shall apply for such certificate either by himself or through his representative or agent to the Commissioner and a certificate granted under this section shall state that no tax is outstanding against the person or that satisfactory arrangements have been made by such person with the Commissioner for the payment of outstanding tax.[Amended L.N.4/2008; Added A.11/1985](e)The Commissioner shall no issue a tax certificate where—(i)tax is outstanding against such person and that person has not made satisfactory arrangements with the Commissioner for the payment of the outstanding tax; and(ii)in addition to any other reasons as the Commissioner may determine, the person has not rendered returns of income in respect of any year of assessment or part thereof.(f)The Commissioner shall, on application made to him by any person to whom paragraph (d) applies by reason of the provisions of subsection (3)(a), issue to such person a tax clearance certificate if the person satisfies the Commissioner that he has regularly complied with the obligations imposed on such person under the Order.[Added A.4/2008]
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
(1)After 30 June 2004, a person who was exempted from tax under the repealed section 12(5) of the Order may elect for the continuation of the benefit or right conferred to him under that section until the benefit of the exemption expires in accordance with the terms of the exemption or such grant.(2)An election under section (1) shall be made in writing to the Commissioner by 31 July 2004.[Added A.5/2004]
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.
First Schedule (Under section 10)
Computation of taxable income derived from pastoral, agricultural, plantation or other farming operations
1.For the purposes of this Schedule “farmer” means any person carrying on pastoral, agricultural, plantation or other farming operations.2.(1)Every farmer who, in accordance with paragraph 2 of the First Schedule to the repealed Proclamation exercised an option not to have the values of livestock and produce held by him and not disposed of at the beginning and end of each year of assessment taken into account in the determination of the taxable income derived by him from farming shall, unless he elects otherwise, not have such values so taken into account.(2)Every farmer (other than a company) who commences or recommences farming operations on or after 1st July, 1975 and who has not in respect of such farming operations previously exercised an option whether the values of livestock and produce held by him and not disposed of at the beginning and end of each year of assessment shall or shall not be taken into account in the determination of the taxable income derived by him from such farming operations shall be entitled to exercise such option and every such farmer shall, unless he elects otherwise, not have such values so taken into account.(3)Paragraphs 3, 4, 5 and 11(2) of the First Schedule to the repealed Proclamation shall mutatis mutandis continue to apply to the determination of the taxable income derived from farming operations by any farmer who does not exercise his option under this paragraph and elect otherwise.[Amended K.O-I-C. 6/1977]3.Every farmer, other than a farmer to whom paragraph 2 applies shall include in his return rendered under section 33 the value of all livestock and produce held and not disposed of at the beginning and end of the year of assessment:[Amended K.O-I-C. 6/1977]Provided that the values of all livestock and produce held by him at the beginning of the year of assessment 1976 to be included in the return for that year shall be the values included in the assessment at the end of the preceding year of assessment.[Added K.O-I-C. 6/1977]4.Subject to paragraph 3, the standard values to be placed upon livestock (other than pedigree livestock acquired for breeding only) whether acquired by purchase or natural increase, held by any farmer at the beginning and end of a year of assessment shall be the standard values applicable to such livestock as are set out in the table hereunder.