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LAWS OF FIJI
BACK INCOME TAX ACT Chapter 201 TABLE OF LEGISLATION INCORPORATED IN THIS REVISED EDITION
INCOME TAX SECTION PART I – PRELIMINARY 1. Short title 2. Interpretation 3. Commissioner of Inland Revenue and officers 3A. Office of the Commissioner 4. Official secrecy 5. Free postage 6. Basic tax 7. Normal tax 7A. Tax surcharge 7B. 1992 assessment 8 Non-resident dividend withholding tax 8A. Non-resident miscellaneous withholding tax 9 Interest withholding tax 9A. Resident interest withholding tax 10. Dividend tax 10A. Royalty withholding tax Division 1 – Amounts to be Included in Arriving at Total Income 11 Definition of total income 11A. Shares acquired under employee share schemes 11B. Benefits derived by associates of employees 11C. Benefit acquired other than for arm's length consideration 11D. Benefit received by deceased's estate 11E. Benefit received on loss etc. of office 12. Deemed distribution 13. Trading stock 14. Income deemed to be derived from Fiji 15. When income is deemed to have accrued or to have been received Tax and Normal Tax 16 Exemption of certain income from tax 16A. The film-making and audio-visual incentives in the Sixth Schedule have effect. 17. Incomes not taxable 18. Shipping profits 19. Expenses not deductible 20. Remuneration or gratuity to shareholder, director, relative, etc. 21 Expenses deductible 21A. Deduction for dividends 21B. Export income deduction 21C. Investment allowance 21D. Employee share schemes 22. Losses 23. Special provision for mining expenditure 24. Chargeable income of person other than a company, etc. 25. Allowances 26. Deductible amounts 27. Age allowance 28. Maximum number of dependants 29. Education allowance 30. Passages 31. Chargeable income of non-resident individual 32. Chargeable income of company 33. Chargeable income of deceased's estate, trust or settlement 34 Commissioner may in certain circumstances determine income of business controlled from outside Fiji 35. Taxation of other than life insurance business of insurance companies 36. Taxation of re-insurance with non-residents (other than life insurance business) 37. Taxation of life insurance business 38. Resident partner to be agent of non-resident partners 39. Trustees, assignees, executors, etc., to make return and pay tax before distribution 40. Agent, etc., for non-resident 41. Authorised officer of a company 42. Persons chargeable in the case of a trust or a settlement or income paid to a beneficiary 43. Income of a married woman 44. Return of income 45. Return of corporations 46. Return by guardian or legal representative 47. Return by employers of salary and by companies of dividends, etc. 48. Time may be extended 49. Commissioner may demand special returns and make special assessments 50. Demand for additional information 51. Partnerships-return of partners 52. Return of proprietor of a business 53. Return of company where fiscal year not calendar year 54. Returns of withholding tax or dividend tax deducted 54A. Interpretation 54B. Tax Agents' Board 54C. Proceedings of the Board 54D. Protection of members 54E. Power to require attendance of witnesses, etc. 54F. Registration of tax agents 54G. Cancellation of registration 54H. Appeals 54J. Only tax agents to accept fees 54K. Advertising 55. Notice of assessment to be sent and time for payment 56. Appointment of agent in the United Kingdom 57. Assessment may be sent to agent 58. Commissioner not bound by returns 59. Additional assessments 60. Commonwealth Development Corporation 61. Provisional tax and tax deducted from emoluments to be credited against tax assessed 62. Objection to assessment 63. Establishment of Court of Review 64. Rules of Court 65. Court sittings 66. Court of Review to decide and notify appellant and Commissioner 67. Proceedings ex parte 68. Costs 69. Appeal to [High Court] 70. Discretions Review Board 71. No assessment to be set aside for technical reasons 72. Trustees, etc., to obtain certificate before distribution 73. Tax due from agent of non-resident in respect of premiums on insurance and re-insurance 74. Persons paying tax on behalf of others to be indemnified 75. Deduction from moneys payable to a taxpayer 76. Tax a debt due to [State] 77. Collection of tax by suit 78. Refunds 79. Interpretation 80. Assessment charge on emoluments 81. Regulations 82. Amounts deducted be held in trust for [State] 83. Payment of taxes by instalments 84. Ascertainment of provisional tax payable 85. When provisional tax payable 86. Additional tax where provisional tax under-estimated 87. Special circumstances 88. Voluntary payments of additional provisional tax 89. Provisional tax payments for farmers, etc. 90. Extension of time for payment of provisional tax 91. Advance payments of tax by companies 92 Additional tax payable by companies when advance payments are less by more than 20 per cent of final liability 94. Penalty for not making return 95 Penalty for understating income or making a false claim to a deduction, allowance or relief 96. Penal provisions 97. Penalty for non-payment 98. Penalty for failing to appoint an authorised officer of a company 99. Provisional tax – penalty for late payment 100. Limitation of proceedings 101. Rebates, normal tax – general rebate 102. Allowance for double taxation relief 103. Extent of relief under Double Taxation Agreement 104. Rebate of withholding tax 105. Allowances under the Hotels Aid Act 106. Prevention of or relief from double taxation 107. Regulations 108. Contracts for avoidance of tax 109. Books of account 110. Approved funds 111. Audit First Schedule – Forms Second Schedule – Discretions Appealable under Section 70 Third Schedule – Tax Concessions in respect of Approved Enterprises Fourth Schedule – Rates of Normal Tax Fifth Schedule – Export Incentives Sixth Schedule – Film Making and Audio-Visual Incentives Seventh Schedule – Agricultural Enterprises Incentives Eighth Schedule – Tourist Vessels Investment Allowance Ninth Schedule – Supportive Projects to Tourist Industry Investment Allowance CHAPTER 201 INCOME TAX AN ACT TO RE-ENACT AND AMEND THE LAW RELATING TO INCOME TAX [1 January 1974] “agent” includes every person who in Fiji, for or on behalf of any person out of Fiji, holds or has the control, receipt or disposal of any money belonging to such person, and every person declared by the Commissioner to be an agent under this Act, and includes an authorised officer and a sub-agent; “approved fund” means a fund declared by the Governor, prior to 1 January 1961, to be an approved fund, or a fund, scheme or plan approved by the Commissioner under the provisions of section 110; “arms-length transaction” means a transaction where the following conditions do not apply:— (a) the buyer is a body of persons over whom the seller has control, or the seller is a body of persons over whom the buyer has control, or both buyer and the seller are bodies of persons, and some other person has control over both of them; or (b) it appears with respect to the sale, or with respect to transactions of which the sale is one, that the sole and main benefit which might have expected to accrue to the parties, or any of them, was the obtaining of an allowance or deduction in respect of capital expenditure. For the purpose of this definition— (i) “body of persons” includes a partnership; (ii) “control” means, in the case of a body corporate, the power of a person to secure, by means of the holding of shares or the possession of voting power in, or in relation to, that or any other body corporate, or by virtue of any powers conferred by the Articles of Association or other document regulating that or any other body corporate, that the affairs of the first-mentioned body corporate are conducted in accordance with the wishes of that person, and, in the case of a partnership, the right to a share of more than one-half of the partnership assets or income; “authorised officer” means the person appointed by a company under the provisions of section 41; “basic tax”… “Commissioner” means the Commissioner of Inland Revenue or any person authorised … to act in his stead; “company” includes all bodies or associations, corporate or unincorporate, and any company incorporated by statute or by any charter, and every unit trust; “dealing in property” and “dealing in real and personal property” include— (i) the acquisition (including a gift and transfer inter vivos or by inheritance) and sale or disposition of— (a) any land scheduled for development under the Town Planning Act either before or after acquisition where any subdivision takes place; (b) any land where permission for development is granted after acquisition; (ii) the purchase of any land scheduled for development at the date of acquisition which is sold within 3 years of acquisition; unless the taxpayer can establish that one of the prime purposes of the purchase was not to make a profit [on] resale; (iii) any transaction involving the sale or disposition [or] transfer of shares of a company to the extent that the transaction is a scheme or undertaking or part of a scheme or undertaking entered into with the intention of making a profit and the company is [the owner of any land, or of shares, either directly or indirectly, in another company which is the owner of any land, to which paragraph (i) or (ii) applies;] “dependent child” means any child, step-child or adopted child whose [own] world total income (other than income from any scholarship) in the year in respect of which the assessment is made does not exceed [$1,000] and who— (a) is under 18 years of age and is dependent on his parents for support; (b) is over 18 and under 27 years of age and is receiving full-time instruction at any university, college, school or other educational establishment, or is serving under articles or indentures with a view to qualifying in a profession or trade and is dependent on his parents for support; or (c) is over 18 years of age and is dependent on his parents for support on account of physical or mental incapacity; “hardware” for the purpose of section 21(1)(t) means the components comprising a computer, but excludes visual display units, printers, scanners and other peripherals; “income year” means, in respect of the income of any person, the year in which that income has been derived by him; “know-how payment” means payment for any scientific, technical, commercial or industrial information, techniques, knowledge or assistance likely to assist in the carrying on of a business or in the manufacture of processing of goods or materials or in the working of a mine, oil well or other source of mineral deposits (including the searching for, discovery, or testing of deposits or the winning of access thereto) or in the carrying out of any agricultural, forestry or fishing operations; “lease” includes a sub-lease and any licence, concession, permission, easement or other right granted to any person to use or over any land, and an agreement for such a transaction; “minerals” has the meaning ascribed to it by the Mining Act and shall include natural gas and oil; “mining” includes every method or process by which any mineral (including natural gas or oil) is won from the soil or any constituent thereof; “mining company” includes a company engaged in winning natural gas or oil; “non-resident” means a person who, or a company which, is not a resident; “normal tax” means the tax authorised by section 7; “owner of land” includes the owner of any interest in land; “persons employed in Fiji” means all persons who receive, directly or indirectly, salary, wages, commissions, fees or other remuneration derived from sources within Fiji for personal service any part of which is performed in Fiji; “public company”, for the purposes of paragraph (a) of subsection (2) of section 8, means— (a) any company all classes of whose shares are publicly quoted at any time within the preceding 12 months by a stock exchange in a list issued under its authority, provided the Commissioner is satisfied— (i) that the stock exchange is a recognised and bona fide stock exchange; (ii) that the memorandum and articles of association of the company contain no restriction on the right to acquire or transfer any of its shares such as are likely to preclude members of the general public from becoming shareholders in any class of the company's shares; and (iii) that the general public was throughout the income year in question beneficially interested, either directly as shareholders or indirectly as shareholders in any other company, in more than.40 per cent of every class of shares issued by the company; (b) any other company, not being a private company as defined in the Companies Act, in respect of which the Commissioner is satisfied— (i) that the general public was, throughout the income year in question, beneficially interested, either directly as shareholders in the company or indirectly as shareholders in any other company, in more than 40 per cent of every class of shares issued by the company; and (ii) that the business of the company is conducted and its profit are distributed in such a manner that no person enjoys or receives or is entitled to enjoy or receive, by reason of any shareholding, participation in the management or otherwise, any advantage which would not be enjoyed or received by such person if the company had been under the control of a board of directors acting in the best interest of all its shareholders and had been one which could have been recognised as a public company under paragraph (a): Provided that— (a) the general public shall not be deemed to be beneficially interested in any shares if they are held— (i) by any director or associate director of the company; or (ii) by any company which is under the control of any such director or associate director; or (iii) by any associated company of the company; or (iv) as part of any fund the capital or income of which is applicable or applied wholly or mainly for the benefit of the employees or directors, or past employees or directors, of the company, or of any company referred to in paragraph (ii) or (iii), or their dependants; or (v) by any relative of any director or associate director of the company, unless it is shown, to the satisfaction of the Commissioner, that such relative, if he is not the spouse or minor child of such director or associate director, has, at all times which the Commissioner considers relevant, exercised his rights as a shareholder in the company, or in any other company through which such relative is beneficially interested in the shares of the company, independently of such director or associate director; or (vi) by any man or his wife or any minor child of any man or his wife, if 1 or more of such persons are directly or indirectly beneficially interested together in more than 10 per cent of any class of shares issued by the company; or (vii) by a company resident in Fiji which is a controlled company as defined in section 12, or by a company not so resident which would be a controlled company if it were so resident, if such company is directly or indirectly beneficially interested in more than 10 per cent of any class of shares issued by the company; (b) the general public shall be deemed to be beneficially interested in any shares if they are held— (i) by any pension fund, provident fund, or any trust or institution which, in the opinion of the Commissioner, is of a public character; or (ii) by any statutory body established by or under an Act of Parliament; or (iii) by the Unit Trust of Fiji; or (iv) by the Government of Fiji; (c)“redundancy payment” means a bona fide lump sum payment, other than a retiring allowance on the occasion of the termination of employment, where— (a) in the case of an individual who is an employee and who is not a seasonal worker, the employment is terminated by the employer, the termination being attributable, wholly or mainly, to the fact that the position filled by that individual is, or will become, superfluous to the needs of the employer; or (b) in the case of an individual who is an employee and a seasonal worker, that individual's usual seasonal employment is made unavailable by the employer, the unavailability being attributable, wholly or mainly, to the fact that the individual's position or usual position is, or will become, superfluous to the needs of the employer; but does not include— (c) any payment relating to a situation solely involving a seasonal lay-off; or (d) any payment contingent on the completion of either a fixed-term engagement or an engagement to complete work specified in a contract; or (e) any payment in lieu of notice terminating the employment of the taxpayer; or (f) any payment which, if it had not been made upon termination of employment, would, in the opinion of the Commissioner, have been paid so as to constitute monetary remuneration of the employee; or (g) any payment made by a company pursuant to its articles of association to any of its directors; or (h) any payment which, in the opinion of the Commissioner, is excessively large in relation to the earnings and length of service of the employee; “resident” means— (a) a person, other than a company, who resides in Fiji, and includes a person— (i) whose domicile is in Fiji, unless the Commissioner is satisfied that his permanent place of abode is outside Fiji; (ii) who has actually been in Fiji, [continuously] or intermittently, during more than one-half of the income year, unless the Commissioner is satisfied that his usual place of abode is outside Fiji and that he does not intend to take up residence in Fiji; (b) in the case of a company, a company which is incorporated in Fiji, or in the case of a company not incorporated in Fiji, a company which carries on business in Fiji and has either its [practical] management and control in Fiji or its voting power controlled by shareholders who are residents; “scholarship” includes an exhibition, bursary, or other similar educational benefit; “shareholder” includes any registered holder or beneficial owner of a unit in a unit trust; “software” for the purposes of section 21(1)(t) includes— (a) the copyright in software; (b) the right to use the copyright in software; (c) the right to use software; and (d) a copy of a software program which has been purchased; “means any levy or tax charged under this Act and includes any rebate withdrawn under section 100A; “taxpayer” means any person paying, liable to pay, or believed by the Commissioner to be liable to pay, any tax imposed by this Act; “trading stock” includes— (a) anything produced or manufactured and anything acquired, purchased or held for purposes of manufacture, sale or exchange; (b) any livestock or produce held in connection with the occupation of land for the purposes of pastoral, agricultural or other farming operations; (c) any property where the business of the person by whom it is sold or disposed of comprises dealing in property of that nature; and (d) any property acquired for the purpose of sale or otherwise disposing of the ownership of it; “trust deed”, “trustee”, “unit holder” and “unit trust” shall have the meanings ascribed to them by the Unit Trusts Act; “withholding tax” means the tax authorised by sections 8, 9, 9A, 10 and 10A; “world total income”, for the purpose only of the definition of “dependent child” in this section, of paragraph (b) of the proviso to subsection (3) of section 25, of paragraph (a) of the proviso to subsection (4) of section 25 and of paragraph (d) of the proviso to paragraph (ii) of subsection (2) of section 29, shall include all overseas income and any dividends, interest and other sum which would otherwise be excluded in arriving at total income for the purposes of this Act; “year” means the calendar year or part of the year ended 31 December; “year-2000-compliant”, in relation to a computer means that the performance and functionality of the computer are not affected by dates prior to, during or after the year 2000; “of assessment” means the year in respect of which tax is payable. (2) The person for the time being appointed as the Chief Executive Officer of the [Fiji Islands Revenue and Customs Authority] shall hold office as the Commissioner of Inland Revenue. (3) The Commissioner may authorise any other officer or employee of the [Fiji Islands Revenue and Customs Authority] to exercise any of the powers conferred upon him by this Act except the power of delegation under this subsection. Office of the Commissioner (2) Every officer or person employed in carrying out the provisions of this Act who— (a) directly or indirectly asks for, or takes, in connection with any of his duties, any payment or reward whatsoever, whether pecuniary or otherwise, or any promise or security for any such payment or reward, not being a payment or reward which he is lawfully entitled to receive; or (b) enters into or acquiesces in any agreement to do, abstains from doing, permits, conceals, or connives at, any act or thing whereby the tax revenue is or may be defrauded, or which is contrary to the provisions of this Act or to the proper execution of his duty thereunder; or (c)in contravention of the provisions of subsection (1) or of the terms of his declaration of secrecy, and without lawful excuse, reveals to any person any document or information which has come into his possession or to his knowledge in the course of his official duties, or permits any other person to have access to any document in the possession or custody of the Commissioner in his official capacity, shall be guilty of an offence against this Act and shall be liable, on conviction, to a fine not exceeding $1,000 or to imprisonment for a term not exceeding 3 years or to both such fine and imprisonment. (3) No officer or person appointed under, or employed in carrying out the provisions of, this Act shall be required to produce in any court any return, document or assessment, or to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties under this Act, except as may be necessary for the purpose of carrying into effect the provisions of this Act, or in order to institute a prosecution, or in the course of a prosecution, for any offence committed in relation to tax. (4) Notwithstanding anything contained in this section the Commissioner may disclose to the Minister or members of the [Fiji Islands Revenue and Customs Authority] such information, records or documents as may be necessary for the purposes of this Act or the [Fiji Islands Revenue and Customs Authority Act] and the Minister or members, as the case may be, shall thereupon become subject to the provisions of this section. (5) The Auditor-General, exercising the powers and performing the duties imposed upon him by the provisions of section 111, shall be deemed to be an officer employed in carrying out the provisions of this Act for the purposes of this section. (6) Nothing in this section shall prohibit the Commissioner or any person authorised by him from communicating information to the Tax Agents' Board constituted under Part VIIA. §6 Act 6/1974, amended by §3 Act 10/1975 wef 1st January 1975, §2 Act 7/1981 wef 1st January 1981, §3 Act 3/1982 wef 1st January 1982, §3 Act 17/1984 wef 1st January 1985, §3 Act 23/1985 wef 1st January 1986, §3 Act 25/1986 wef 1st January 1987, §2 Decree 10/1990 wef 1st January 1990 Normal tax [Provided that no resident individual whose total income is below [$6,500] shall be subject to assessment under the principal Act as from 1st July 1992.] (b) a company, other than a company to which paragraph (c), (d) or (e) applies, in respect of its chargeable income derived during the year preceding the year of assessment; (c) a mutual insurance company in respect of its life insurance business derived during the year preceding the year of assessment; (d) non-resident or a non-mutual insurance company, except to the extent that the income in respect of its life insurance business is deemed to be mutual under section 37, in respect of its chargeable income derived during the year preceding the year of assessment; (e) a non-resident shipping company in respect of its chargeable income derived from Fiji during the year preceding the year of assessment. For the purposes of this section— (i) the calendar year in which more than half of the fiscal year of any company falls shall be deemed to be the year preceding the year of assessment of such company and, for all the purposes of this Act, the profits for the fiscal year shall be regarded as the profits of that calendar year; (ii) where a trade, business, profession or vocation is carried on by an individual either solely or in partnership, the income year in relation to such trade, business, profession or vocation shall be the calendar year in which more than half of the fiscal year of such trade, business, profession or vocation falls and, for all the purposes of this Act, the profits for the fiscal year shall be regarded as the profits of that calendar year; (iii) the normal tax charged under this section … is in addition to [basic tax]. (f)… (2) Any person may, with the leave of the Commissioner, adopt an accounting period being the 12 months ending on some date other than 31st day of December. His accounting period in each succeeding year shall end on the corresponding date of that year, unless with the leave of the Commissioner some other date is adopted. (3) The rates of normal tax chargeable are set out in the Fourth Schedule. Tax surcharge (2) For the purposes of this Section, unless the context otherwise requires: “Period A” means the period from 1st January 1992 to 30th June 1992; “Period B” means the period from 1st July 1992 to 31st December 1992; “Period A Income” means the income derived in or during period A; “Period B Income” means the income derived in or during period B; “Notional Annual Income” means the sum of period A income and period B income; “Notional Period A Tax” means the tax assessed on notional annual income, applying the taxes, rates of tax, allowances and rebates under this Act applicable during period A; “Notional Period B Tax” means the tax assessed on notional annual income, applying the taxes, rates of tax, allowances and rebates under this Act applicable during period B; “Notional Annual Tax” means the sum of notional period A tax and notional period B tax; “Total Tax” means the total tax due under this Act in respect of any income derived in or during the year of assessment ending 31st December 1992; “Person” means all legal persons, other than a company. (3) Where a person has period A income only, the total tax due will be deemed to be the notional period A tax. (4) Where a person has period B income only, the total tax due will be deemed to be the notional period B tax. (5) Where a person continuously derives income during the whole of period A and during the whole of period B, the total tax due is deemed to be one half of the notional annual tax. (6) If a person does not derive income in any of the circumstances defined in subsections (3), (4), or (5), the total tax due will be calculated according to the formula: where: NPAT means Notional Period A Tax NPBT means Notional Period B Tax PAI means period A Income PBI means period B Income NAI means Notional National Income. (2) Such tax shall be payable in respect of— (a) [the portion of a dividend] declared, paid or credited by a company incorporated in Fiji [and which has been paid or credited, either wholly or partly, from chargeable income upon which no tax has been paid by that company] ; for the purpose of this paragraph— “dividend” means any amount distributed by a company, whether carrying on business in Fiji or not, to its shareholders; “amount distributed” shall be deemed to include— (aa) subject to paragraph (ee), in relation to a company that is being wound up or liquidated, any profits distributed, whether in cash or otherwise, other than of a capital nature, earned before or during the winding up or liquidation; (bb)in relation to a company that is not being wound up or liquidated, any profits distributed other than realized capital profits, whether in cash or otherwise and whether of a capital nature or not, including an amount equal to the value of any debentures or securities awarded to shareholders, but excluding the nominal value of any bonus shares issued to a shareholder, other than a resident company, to the extent to which such shares have been paid up by means of the company's undistributed revenue profits ascertained in accordance with the provisions of this Act; (cc) subject to paragraph (ee), in the event of the partial reduction of the capital of a company, which is not a public 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; (dd) subject to paragraph (ee), in the event of the reconstruction, re-organisation or amalgamation of a company, which is not a public 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, re-organisation or amalgamation; (ee) in the event of the winding up or liquidation or the partial reduction of the capital or the reconstruction, re-organisation or amalgamation of a company, which is not a public company or a company to which paragraph (ff) applies, any cash or the value of any asset which. is given to a shareholder up to the nominal value of any bonus shares awarded to him after 31 December 1979, to the extent to which such shares were paid up by means of— (i) the company's undistributed revenue profits; or (ii) profit arising from the revaluation of the company's assets (other than goodwill and any other right where the profit from the sale of such right falls within the meaning of total income) not acquired for the purpose of resale at a profit; (ff) in the case of an investment company or a company whose business consists wholly or mainly in the provision of professional, technical or personal services, an amount equal to the nominal value of any bonus shares awarded to the shareholder; (gg)any money advanced by a company, either directly or indirectly, to or for the benefit of any of its shareholders or relatives of shareholders if, in the opinion of the Commissioner, the making of the advance was not a bona fide investment by the company; (hh) ….. Provided that an amount distributed shall not be deemed to include— (i) the nominal value of any bonus shares awarded to a shareholder, to the extent to which such shares have been paid up by means of the company's share premium account; (ii) the nominal value of any bonus shares (other than redeemable bonus shares) awarded to a shareholder, to the extent to which such shares have been paid up by means of profit arising from the revaluation of the company's assets (other than goodwill [and any right where the profit from the sale of such right falls within the meaning of total income]) not acquired for the purpose of resale at a profit. For the purpose of this sub-paragraph, the expression “profit arising from the revaluation” shall— (a) be deemed not to include any such profit or gain unless— (i) the assets which are revalued by the company were held by it continuously for a period of not less than 7 years immediately preceding the date of revaluation; and (ii) it is a bona fide revaluation made by a valuer acceptable to the Commissioner; (b) not include revaluation of land on the whole of which there has been no development; “development” means— (a) substantial building operations on any land; (b) re-building operations, material alterations or additions to or major structural repairs to any building or structure; (c) subdivision of any land by dividing the same and the laying out of plots, roads, drains, sewers, parks, gardens, lawns, orchards or the like, and shall include any development of land used or proposed to be used for agricultural development. For the purposes of— (i) paragraphs (cc) and (dd), where any cash or the value of any asset is given to a shareholder, such distribution shall be deemed to be firstly in respect of the nominal value of any bonus shares; and (ii) paragraph (ee), in the event of the winding up or liquidation of a company, there shall be excluded any cash or the value of any asset which is given to a shareholder, up to the nominal value of any bonus shares awarded to him, to the extent to which such shares were paid up by means of the company's profit arising from the revaluation of its assets (other than goodwill) not acquired for the purpose of wide at a profit; (b) ….. (c) ….. (d) ….. if the person in whose favour or to whom [any dividend has] been declared, paid or credited is— (i) a non-resident; or (ii) the holder, whether a resident or not, of any bearer scrip, who was either a shareholder at the date of declaration of the dividend or was entitled to the payment at the date on which it accrued due. (b) in the case of a dividend referred to in paragraph (a) of subsection (2) received by an agent in Fiji on behalf of any person, the agent receiving the dividend; (c) ….. For the purposes of this subsection— (i) a person shall, in the case of a dividend referred to in paragraph (a) of subsection (2), be deemed to be the agent of the shareholder referred to and to have received a dividend on behalf of the shareholder if that person's address 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 a shareholder shall, as regards such dividend, have and exercise all the powers, duties and responsibilities conferred or imposed by this Act on an agent of a taxpayer absent from Fiji; (ii) in the case of a dividend not payable in money, a company shall not pay it until an amount equal to the tax that would have been paid if it had been payable in money has been paid to the Commissioner. (b) any sum payable to a person referred to in paragraph (5) of section 17; (c) ….. (a) any payment made for the hire or rent of films and any sum paid for the use of such films whether by way of purchase or long term hire; (b) subject to subsection (4), a know-how payment and any sum paid or credited for the management of or supervision in connection with the carrying on of a business, to the extent that such payment or credit does not constitute reimbursement of expenditure, that is— (i) of a kind that is deductible under this Act; and (ii) incurred in relation to the payment or credit by the person to whom the payment or credit is made; and (c) alimony and maintenance paid under an order of a court of competent jurisdiction, allowed as a deduction in arriving at total income, if the person in whose favour or to whom any such sums have been paid or credited is a non-resident. (3) For the purposes of subsection (2)(a) “films” includes— (a) motion picture films; and (b) films or video tapes for use in connection with television. (4) If a payment or credit referred to in subsection (2)(b) is made partly for any purpose other than those mentioned in that subsection, the Commissioner may, for the purposes of this subsection, determine to what extent the sum so paid or credited is for such other purpose. (9) The person who, in accordance with the provisions of subsection (6), is required to pay the tax shall remit the same to the Commissioner within 30 days, or such other period as the Commissioner may specify, of the payment or crediting of the sum specified in subsection (2). (i) any non-resident, other than a company; (ii) the estate of a deceased person who was, at the date of his death, a non-resident; or [(iii) a company not resident in Fiji, [(1A) For the purposes of subsection (1), the prescribed rate is 10 percent.] (b) Where the payer of any such interest is the estate of a deceased person, such estate shall, for the purposes of this section, be deemed to be a resident or carrying on business in Fiji if the deceased was, at the date of his death, a resident or carrying on business in Fiji. (b) interest on any amount borrowed by the debtor and paid to him outside Fiji for the sole purpose of carrying on any trade outside Fiji and not intended for use in Fiji; (c) interest which is, or under the terms of the loan is required to be, paid in Fiji on money lent in Fiji by any person who has a permanent place of business in Fiji; (d) interest accruing from the payer to any person during any calendar year which, together with any other interest accruing from him to such person during such period, does not exceed $20; (e) interest on any bill of exchange or any promissory note to the extent that such interest is payable [to the supplier] in respect of the purchase price of goods imported into Fiji [and acquired for the purpose of resale at a profit], if such bill or note is issued through a bank in possession of a valid licence granted under the provisions of the Banking Act and such bank 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; (f) interest accruing to a person referred to in paragraph (5) of section 17; (g) interest in respect of a loan made, or in respect of a specific sum agreed to be advanced under an agreement signed, on or before 30 November 1973, from a source outside Fiji; (h) ….. [(i) any interest which is exempt from [basic tax] and normal tax under item (44) of section 17.] (6) Any tax paid under the provisions of subsection (5) by any person may, notwithstanding any agreement to the contrary, be deductible or withheld from the interest which is liable to be paid and recovered by the person making the payment from the person, estate or company to whom or in whose favour the interest accrued or be retained out of any money that may be in his possession, or may come to him, as the agent of such person, estate or company, and no action shall lie against the person making any payment or deduction under the provisions of this section. (7) For the purposes of this section, interest includes discount. (a) in the year of assessment 2001 – at the rate of 34%; (b) in the year of assessment 2002 – at the rate of 32%; (c) in every subsequent year of assessment – at the rate of 30%.] (3) Resident interest withholding tax shall not be payable where— (a) the depositor in whose favour the interest accrues has provided the financial institution paying the interest with a tax identification number in accordance with subsection (5); or, (b) the depositor in whose favour the interest accrues has obtained a valid certificate of exemption in accordance with subsections (10) and (11) and furnished the said certificate to the financial institution paying the interest; or, (c) the depositor in whose favour the interest accrues is a financial institution; … (d) the interest which accrues to the depositor, in respect of each account held by the depositor, does not exceed $120 if the interest is paid or credited annually; (e) the interest which accrues to the depositor does not exceed $P if the interest is paid credited in respect of a period [less] than one year, where— $P = $120 x n/365 and n = number of days in the period. (4) The person liable for resident interest withholding tax shall be the depositor to whom or in whose favour the interest accrues. (5) Any depositor who elects to provide the financial institution with a tax identification number shall do so by providing, to the satisfaction of the financial institution, documentary evidence of the depositor's identity and tax identification number. (6) Subject to subsection (7), resident interest withholding tax shall be payable in respect of any interest which accrues to or in favour of more than one person unless [at least 2 of] such persons entitled to such interest have provided their tax identification numbers in accordance with subsection (5). (7) Notwithstanding subsection (6), where interest accrues to or in favour of a husband and wife jointly, it shall be sufficient compliance with subsection (3)(a) if the tax identification number of the husband only is provided in accordance with subsection (5). (8) Where interest accrues to or in favour of a dependent child or legally incapacitated person it shall be sufficient compliance with subsection (3)(a) if the tax identification number of that child's or person's parent, guardian or other legal representative is provided in accordance with subsection (5). (9) Where the Commissioner determines that a tax identification number provided to a financial institution is incorrect he shall notify the financial institution in writing of that fact and the financial institution shall be required, within 10 days from the date of the Commissioner's notice, to deduct tax in accordance with subsection (12) from interest thereafter accruing to the depositor in question. (10) Any person the whole of whose income is otherwise exempt from [tax] under the provisions of this or any other Act may apply in writing to the Commissioner for a Certificate of Exemption from resident interest withholding tax. (11) Upon being satisfied that any person is a person to whom subsection (10) applies, the Commissioner may grant a Certificate of Exemption from resident interest withholding tax in such form as he may determine. (12) Notwithstanding subsection (4), every financial institution when paying or crediting interest shall deduct a sum equal to the amount of resident interest withholding tax applicable thereto and remit such amount to the Commissioner within 15 days after the end of the month in which the interest is paid or credited, together with a report, in such form as may be approved by the Commissioner, containing details of tax identification numbers provided, names [and addresses] of all depositors to whom interest has accrued, amounts of interest and tax deducted therefrom. (13) Any tax paid under subsection (12) by any financial institution may, notwithstanding any agreement to the contrary, be deducted or withheld from interest which is liable to be paid or credited and recovered by the financial institution from the person to whom or in whose favour the interest accrued and no action shall lie against a financial institution making any deduction under this section. (14) Every financial institution shall furnish to the Commissioner in such form as he may prescribe an annual report as required by section 54 containing details of— (a) all tax identification numbers provided to the financial institution; (b) interest paid and amounts of tax deducted therefrom; and (c) the names [and addresses] of all depositors to whom interest has accrued. (15) Every financial institution shall, not less than once a year and in writing, notify a depositor of the amount of interest which is paid or credited to each account held by the depositor. (15A) Every financial institution shall, not later than 31st January immediately following a year of income in which it deducted tax under subsection (12), issue a notice in writing, in a form approved by the Commissioner, to the person to whom or in whose favour the interest accrued in respect of each account held by the depositor, stating— (a) the name and address of the depositor; (b) the total amount of interest paid or credited in that year; and (c) the total amount of tax deducted under this section. (16) For the purposes of this section— “depositor” means any person depositing money with a financial institution om terms under which it will be repaid with or without interest and either on demand or after a fixed period or after notice; “financial institution” means a financial institution licensed under the Banking Act 1995; “interest” means any interest paid or credited to the account of any depositor whether actually paid, credited, reinvested, accumulated, or dealt with on behalf of the depositor; “identification number” means the tax file number provided to a taxpayer by the Commissioner for the purposes of this Act. (2) ….. (3) ..… Person liable for the tax (1A) In this section "royalties" means payments of any kind to the extent to which they are made as consideration for - (a) the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trademark, or other like property or right; (b) the use of, or the right to use, any industrial, agricultural, commercial or scientific equipment; (c) the supply of scientific, technical, industrial or commercial knowledge or information; or (d) the supply of any assistance which is given as a means of enabling the application or enjoyment of, any such property or right of the kinds mentioned in paragraph (a), any such equipment as mentioned in paragraph (b) or any such knowledge or information as is mentioned in paragraph (c). (2) The person liable for the tax shall be the person to or in favour the royalty or other payment accrues. (3) Notwithstanding subsection (2), the tax shall be payable and recoverable from the person or agent by whom such royalty or other payment is made or credited. (4) Any amount payable under subsection (3) by any person or agent, otherwise than by deduction, may, not withstanding any agreement to the contrary, be recovered by such person or agent from the person entitled to the royalty or other payment. (5) The person or agent who, under the provisions of subsection (3), is required to pay the tax shall remit the same to the Commissioner within 30 days, or such other period as the Commissioner may specify, of the date upon which the royalty or other payment is or credited. (6) ..… PART IV – Division 1 – Amounts to be Included in Arriving at Total Income Definition of total income (a) any profit or gain accrued or derived from the sale or other disposition of any real or personal property or any interest therein, if the business of the taxpayer comprises dealing in such property, or if the property was acquired for the purpose of selling or otherwise disposing of the ownership of it, and any profit or gain derived from the carrying on or carrying out of any undertaking or scheme entered into or devised for the purpose of making a profit; but nevertheless, the profit or gain derived from a transaction of purchase and sale which does not form part of a series of transactions and which is not in itself in the nature of trade or business shall be excluded; (b) any rent, fine, premium or like consideration (including a payment for or in respect of the goodwill of any business or the benefit of any statutory licence or privilege) derived by the owner of land from the grant of any lease, licence, concession, permission, easement or any other right granted to any person to use or over any land, or from the grant of any right of taking the profits thereof: Provided that, where any such sum is derived by way of anticipation, the Commissioner may, in his discretion, apportion that income between the income year and any number of subsequent years, not exceeding 5, and the part so apportioned to each of those years shall be deemed to have been derived in that year and shall be chargeable with tax accordingly; (c)remuneration becoming due and payable in respect of or in relation to services rendered by any person during any year in any office or employment, and such remuneration shall be total income of that person for that year but shall not include the amount of inducement allowance, education allowance or the proportion of the gratuity payable to any designated officer by the Government of the United Kingdom under the provisions of the Overseas Service (Fiji) Agreement, 1961, as amended from time to time: Provided that, where any remuneration is received after the end of a particular year, the Commissioner may reopen such assessments as may be necessary to comply with this paragraph without the restriction as to time imposed by subsection (2) of section 59, but otherwise the provisions of that subsection shall apply to such reassessments; (d) any royalty, profit or gain derived from the extraction, removal or sale of minerals, gravel or timber reduced by an amount equal to the cost of such minerals, gravel or timber. Such royalty, profit or gain shall be deemed to include – (i) any royalty or other like payment dependent upon production from or the use of any real or personal property, whether or not such royalty or other payment is an instalment of the purchase price of any property; (ii) any profit or gain derived from the sale of any rights over, or rights, to work, minerals or to extract gravel or timber; (iii) any profit or gain derived from the sale of any option, survey or geological report or anything appertaining thereto representing valuable consideration, whether by the owner of the land from which it is obtained or by any other person; Provided that the Minister, if satisfied that it is expedient for the economic development of Fiji, may, by notice to the Commissioner, direct that the whole or any part of any profits or gains derived from the sale of any minerals, gravel or timber shall be excluded from the total income of any taxpayer for the purposes of this Act. For the purpose of this paragraph— (a) “minerals” shall have the same meaning as in the Mining Act, and shall be deemed to include natural gas, oil, clay, gravel, sand, stone or other common mineral substances; (b) [“sale” shall be deemed to include an assignment or a disposition by way of a licence or easement, or the grant of any right or taking of any profits or produce from land, or the sale of shares of a company whose major asset comprises a mining lease or tenement or the like;] (c) “timber” shall be deemed to include standing timber; Dividends (g) any amount received by a trustee of the estate of a deceased person, which would have been total income in the hands of such deceased person if it had been received by him during his lifetime; (h) subject to paragraph (37) of section 17, any sum received or receivable in respect of the sale of any bonus shares by a shareholder to whom such shares were awarded after 31 December 1979, by a company which is not defined as a public company for the purposes of paragraph (a) of subsection (2) of section 8 [and is not also a company all classes of the shares of which are publicly quoted at any time within the preceding twelve months by a stock exchange established and operating in Fiji in a list issued under its authority], to the extent to which such shares were paid up by means of the company's undistributed revenue profits, up to the nominal value of such bonus shares; (i) any income received or accrued by way of annuity or pension, including voluntary pension; (j) any amount, including any voluntary award, received or accrued, whether contractual or not, in respect of the relinquishment, termination, repudiation, loss, cancellation or variation of any office, employment or service, or of the right or claim to be appointed to any office, employment or service, otherwise than a sum to which paragraph (o) applies: Provided that any amount received [other than a redundancy payment] by or accrued to an employee or the holder of any office by way of bonus, gratuity or compensation upon and because of the termination of his services (less so much thereof as is exempt from [basic tax] and normal tax under the provisions of paragraph (13) of section 17) shall be deemed to have been received or accrued in 3 successive equal annual instalments over the last year and the 2 preceding years of service, if— (i) the termination of the services of such employee or officeholder is due to superannuation, ill-health or other infirmity; or (ii) the Commissioner is satisfied that the circumstances of the case warrant this concession; (k) the amount of any balancing charge required to be made under instructions given by the Minister in respect of allowances for depreciation and capital improvement or in respect of deductions allowed under section 21(1)(c) or section 23; (l) where a person acquired an interest in land after 31 December 1960 and— (i) he has been allowed a deduction in arriving at his total income for any year in respect of capital improvements to … land [used for agricultural or pastoral purposes]; or (ii) he has received assistance by way of subsidy payment towards the cost of planting, replanting, maintenance or extension of a coconut plantation, the amount by which the consideration for the sale or disposal of the interest in land and improvements thereto exceeds the aggregate amount consisting of the original purchase price and any expenditure on improvements for which no deduction has been allowed in calculating his total income shall be deemed to be total income derived by the taxpayer in the year in which the property is sold or disposed of, to the extent of the total of such deductions allowed and subsidies received since the acquisition of the interest in the land. The Commissioner may, in his discretion, make all necessary apportionments, including apportionment or consideration for sale or disposal, of deductions in respect of capital improvements, of subsidy payments of the original purchase price of land, and of expenditure on improvements for which no deduction has been allowed: Provided that the interest in land, together with improvements thereon, is sold or otherwise disposed of for value by the taxpayer within 10 years from the date of his acquisition of that interest[,] the taxpayer may elect that the amount which would otherwise be included in total income for the year of sale or disposal should be apportioned over the period of ownership or over a period of 5 years, that is to say, the year of sale or disposal and the immediately preceding 4 years whichever is the less; (m) a bad debt recovered which has previously been written off. Such sum shall be included in the total income of the year of recovery; (n) alimony and maintenance due and paid under … an order of a court of competent jurisdiction; (o) any lump sum or any refund of contributions received under any approved superannuation or retirement benefit scheme, including any contributions made [to the Fiji National Provident Fund in excess of the minimum contributions other than on retirement or where contributions have been made for at least 10 years], but shall not include the commuted portion of any pension paid under any such scheme or under any written law granting pensions in respect of service with the Government of Fiji. Such sum or refund shall be deemed to be income of the recipient in the year in which the lump sum or refund is received: Provided that the total tax due thereon shall not exceed the sum of— (i) the additional tax which would have been due if the contributions by the employee to the scheme which are included in the lump sum or refund had not been allowed as a deduction in arriving at chargeable income; and (ii) the tax due on any refunded contributions made by the employer as if such sums comprised additional income for the years in which the amounts were contributed; (q) any sum disallowed by the Commissioner under the provisions of section 20 which has been deemed to be income of the person thereinmentioned; (r) any interest or discount; (s) any royalty or other like payment dependent upon production from, or the use of, any real or personal property, whether or not such royalty or other payment is an instalment of the purchase price of any property; (t) in the case of any person to whom, in accordance with the terms of any agreement relating to the grant, licence, concession or permission in favour of any other person of the right to use or occupy, or over any land or buildings, or by virtue of the cession to him of any such rights, there has accrued in any year or period the right to have improvements effected on the land or to the buildings— (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 neither amount is so stipulated, an amount representing in the opinion of the Commissioner the fair and reasonable value of the improvement; (u) any know-how payment and any sum paid or credited for the management of or supervision in connection with the carrying on of a business, to the extent that such payment or credit does not constitute reimbursement of expenditure that is— (i) of a kind that is deductible under this Act; and (ii) incurred in relation to the payment or credit by the person to whom the payment or credit is made: Provided that, where the payment or credit is made partly for any purpose other than those mentioned in sub-paragraphs (i) and (ii), the Commissioner may, for the purposes of this paragraph, determine to what extent the sum so paid or credited is for such other purposes; (v)any sum and benefit in kind deemed to have been received under the provisions of this Act; (w) any sum previously allowed as a deduction under paragraph (m) of section 21 which is subsequently withdrawn and distributed to the members of any co-operative society registered under the Co-operative Societies Act; (x) any amount of [maritime] vessels investment allowance that, by virtue of paragraph 6 of the Eighth Schedule, is to be taken to be an amount to which this paragraph applies; (y) any amount of supportive projects to tourist industry investment allowance that, by virtue of paragraph 6 of the Ninth Schedule, is to be taken to be an amount to which this paragraph applies; (z) the value of any benefit or allowance, as estimated by the Commissioner having regard to the cost incurred by the employer in providing such benefit and-the market value of such benefit as ascertained by the Commissioner, granted in respect of or arising from employment, received either directly or indirectly in cash or otherwise and whether for the benefit of the person in employment, his wife, dependent children or other dependent relatives, including— (i) quarters, board, residence or other housing provided by the employer; (ii) any private use of a vehicle owned, leased or otherwise hired at the cost of the employer; (iii) private expenses such as electricity, water, telephone, gas, housemaid, medical expenses, education expenses and the like paid by the employer; (iv) any subsidy or discount on interest on any loan provided by the employer representing the difference between the market lending rate of interest and the rate actually charged by the employer; (v) the value of discount provided by an employer being the difference between the normal selling price of the item and the price at which the item is sold to the employee in respect of items forming stock-in-trade of the employer, or any discount provided under any reciprocal arrangement between two or more employers; (vi) the value of free or subsidised travel provided by the employer or received by virtue of employment which entitles such free of subsidised travel to be provided by the employer or some other person; (vii) contributions to any retirement or superannuation fund made by an employer which is in excess of the statutory minimum required to be made by the employer or in excess of the amount required to be contributed by the employer under the trust deed and rules setting up such fund, and any am6unt which the employer is entitled to recover from the employee, which is not so recovered; (viii) any entertainment allowance not expended for the purpose of the employer's business; (aa) the value of any benefit or allowance as estimated by the Commissioner, granted in respect of, or arising from any business dealings, received either directly or indirectly, in cash or otherwise, and whether for the benefit of the recipient, his wife, dependent children, or other dependent relatives or, where the recipient is a company, whether received directly or indirectly by the company, any director, shareholder, or relative of any director or shareholder, or any employee of the company; and (bb)any amount withdrawn from a cyclone reserve account in respect of which a deduction was allowed under section 21(1)(q) unless the amount withdrawn together with any interest thereon was applied towards the repair of property damaged by windstorm, tidal wave, landslide or a like catastrophe and, if required by the Commissioner, certified by the Commissioner of Insurance to have been so applied: Provided that tax shall be assessed on the amount withdrawn and interest thereon in the year of withdrawal or in the year the deposit was made and interest credited, as the [company] opts. (2) Subject to subsections (6) to (8), for the purposes of this section, sections 11D and 11E and section 21(1)(u), “discount” is the market value of a share or option at the time it was acquired by the taxpayer less any consideration paid or given by the taxpayer for the acquisition of that share or option. (3) This section applies only to shares or options acquired in a company listed on a stock exchange. (4) The market value of a share or option is the last price at which it was traded on the stock market of a stock exchange on which the share or option is quoted, either— (a) on the day the share or option was acquired; or (b) if no shares or options were traded on the day set out in paragraph (a)— on the last day traded before that day. (5) Subject to subsections (7) and (8), the discount is included in total income— (a) if there is no restriction on the sale or disposal of the share or option – the year in which the share or option was acquired; or (b) if there is a restriction on the sale or disposal of the share or option – the year in which the restriction ceases to apply. (6) If subsection (5)(b) applies, the value of the discount is the market value of the share or option at the time the restriction on the sale or disposal of the share or option ceases less any consideration paid or given by the taxpayer for the acquisition of that share or option. (7) If an option, which is not listed on a stock exchange, is sold or otherwise disposed of without the taxpayer exercising that option to purchase shares, the proceeds of the sale or disposal, less any consideration expended by the taxpayer to acquire the option, shall be included in total income in the year when the sale or disposal occurs. (8) If an option, which is not listed on a stock exchange, is exercised by the purchase of shares, the value of the discount is the market value of the share acquired at the time the option is exercised less any consideration expended by the taxpayer to acquire that share (which includes the cost if any in acquiring that option). (a) a parent, grandparent, brother, sister, uncle, aunt, nephew, niece or adopted child of that person or of his or her spouse; and (b) the spouse of that person or of any other person specified in paragraph (a). (2) For the purposes of this section, “arm's length consideration” means the consideration that might reasonably be expected to be agreed upon between independent parties operating under the same or similar conditions in the open market. (2) For the purposes of this section, any trading stock which has been disposed of otherwise than by sale shall be deemed to have been sold and any trading stock so disposed of and any trading stock which has been sold for a consideration other than cash shall be deemed to have realised the market price thereof at the date of the disposition or sale but, where there is no market price, trading stock shall be deemed to have realized such price as the Commissioner in his discretion may determine. (3) Where any trading stock is sold or otherwise disposed of without consideration in money or money's worth or for a consideration that is less than the market price or the true value thereof at the date of the sale or other disposition, the following provisions shall apply, namely— (a) the trading stock shall be deemed, for the purpose of this Act, to have been sold at and to have realised the market price thereof at the date of the sale or other disposition but, where there is no market price, shall be deemed to have been sold and to have realised such price as the Commissioner in his discretion may determine; (b) the price which, under the provisions of this section, the trading stock is deemed to have realised shall be taken into account in calculating the total income of the person selling or otherwise disposing of the trading stock; (c) the person acquiring the trading stock shall, for the purpose of calculating his total income, be deemed to have purchased the trading stock at the price which, under the provisions of this section, the trading stock is deemed to have realised. (4)Where trading stock is stolen, destroyed or in any way lost, and is the subject of an insurance or indemnity claim, any recoveries under such insurance or indemnity shall be regarded as trading or business income. Income deemed to be derived from Fiji Provided that such interest shall not be so deemed, if— (i) the loan was provided in a currency other than Fiji currency; (ii) the debtor is a resident carrying on business in Fiji; (iii) neither the lender nor the debtor has control one over the other, and no other person or persons has or have control directly or indirectly over both of them; (iv) the loan moneys have been, or, in the opinion of the Commissioner will be, employed in Fiji for the purpose either of— (a) capital construction or reconstruction of hotels, commercial, agricultural or industrial premises and similar projects, in Fiji, but excluding the cost of the land; (b) capital expenditure relating to mining and mineral exploration in Fiji; (c) capital expenditure relating to fixed assets in commercial, agricultural or industrial venture in Fiji; or (d) any other use which the Minister considers expedient to the economic benefit of Fiji; (i) not be taken into account in the determination of the taxable income of such estate; and (ii) be deemed to be expenditure incurred by such beneficiary during such year, and shall, to the extent that the deduction of expenditure of the nature of the expenditure in question is authorised by this Act, be taken into account in the determination of the taxable income of such beneficiary. Nothing in this sub-paragraph shall be construed as imposing liability for tax in respect of the same amount both in the hands of the estate or beneficiary and in the hands of such deceased person; (iii) any income deemed to accrue to any person making any gift, settlement or other disposition to which the provisions of subsection (4) of section 15 apply. When income is deemed to have accrued or to have been received Income of minor child deemed to be income of parent or grand-parent (b) it has been accumulated for the benefit of that child. Income arising from such gift, settlement or other disposition shall be regarded, for the purpose of this subsection, mutatis mutandis, as being included in such gift, settlement or other disposition. Reciprocal arrangements - minor children Revocable settlements (6) For the purposes of this section— “gift, settlement or other disposition” shall include the admission into a partnership of a minor child; “minor child” means any child, adopted child or step-child who has not attained the age of 21 years before 1 January in the year of assessment. Tax] and Normal Tax] Exemption of certain income from tax (ii)the income (in this sub-paragraph referred to as “prescribed farming income”) derived by an individual from any other farming activity, including fishing and forestry but excluding cane farming, shall be exempt from normal tax for a period of 4 years commencing on 1 January 1987 subject to the conditions that the individual shall deliver to the Commissioner a return of his total income in accordance with the provisions of this Act, and that if he has income other than prescribed farming income, such other income shall be exempt from normal tax at the average rate of normal tax applicable to the individual for the year of assessment; and for the purposes of this sub-paragraph the average rate of normal tax of the individual for the income year in question shall be the total normal tax payable by him for that income year divided by his total income (including all exempt prescribed farming income) for that income year; (iii) the income derived by a taxpayer, whether an individual or not, from cane farming (in this sub-paragraph referred to as “cane farming income”) shall be exempt from normal tax for a period of five years commencing on 1 January 1986 subject to the conditions that where the Commissioner requires such return or where the taxpayer derives other income he shall deliver to the Commissioner a return of his income in accordance with the provisions of this Act, and that such other income shall be liable to tax, and the cane farming income shall be exempt from normal tax at the average rate of normal tax applicable to the taxpayer for the year of assessment; and for the purposes of this sub-paragraph the average rate of normal tax of an individual for the income year in question shall be the total normal tax payable by him for that income year divided by his total income (including all exempt cane farming income) for that income year. (2) The Minister may, either by order, or by written direction to the Commissioner, where he is satisfied that it is expedient for the economic development of Fiji— (c) specify any interest deemed under paragraph (a) of section 14 to be derived from Fiji to be exempt from tax or taxable at such reduced rate as may be specified; (d) specify [on or before 31st December 2000,] any trade and any product to be an approved trade and an approved product qualifying for an export incentive under the provisions of the Fifth Schedule and any such sum referred to in that Schedule shall be exempt from tax or chargeable at such reduced rate as may be specified; (e) ….. (f) specify [on or before 31st December 2000,] upon such conditions as he thinks fit, any company engaged in any agricultural enterprise designated by him, [or engaged solely in agricultural contracting,] as being a company to which the tax concessions contained in the Seventh Schedule shall apply, and such company shall accordingly enjoy such concessions. (3) The income arising from investments made by the Banaban Trust Fund Board in accordance with section 6C of the Banaban Settlement Act shall be exempt from normal tax. (4) A person who has been certified in accordance with sub-paragraph (1) of paragraph 3 of the Eighth Schedule shall be entitled to a deduction of [the maritime vessels] investment allowance from total income in accordance with that Schedule. Incomes not taxable (1) the emoluments of office allowed to the [President of the Republic of Fiji]; (3) the capital element repayment from any life annuity purchased and taken out by a person on his own life, being a life annuity granted for a lump sum in consideration of money or money's worth in the ordinary course of business of granting annuities on human life; (4) the income of any company, commission or association not less than 90 per cent of the stock or capital of which is owned by a town council established under the provisions of the Local Government Act and all incomes of a town council or other local or public authority other than incomes received in trust; (5) the income of any institution, body of persons or irrevocable trust of a public character established solely for the relief of the poverty or distress of the public, or for the advancement of religion or education, in so far as the Commissioner is satisfied that such income is to be expended either in Fiji or for purposes which result in benefit of the residents of Fiji: Provided that any such income which consists of profits or gains from a business shall not be exempt from [basic tax] and normal tax unless such profits or gains are applied solely for any of such purposes; (6) the income derived from any pensions granted to any member of [the State's] naval, military or air forces for any disability suffered by the pensioner while serving in any of [the State's] forces during any war, and the income derived from any pension granted to any dependent relative of any person who was killed or suffered any disability while serving in such forces during any war in respect of such death or disability; (7) the income derived by the [Reserve Bank of Fiji] … or any sinking fund in respect of the public debt; (8) The income derived from any investment in any loan raised by the Government referred to in paragraph (a) of subsection (1) of section 16; (9) the official allowances paid to the Speaker and members of the House of Representatives and to the President and members of the Senate; (10) the income of any provident fund lawfully established by a town council. (11) the income of the Civil Service Widows and Orphans Pensions Scheme, and the Non-Pensionable Employees Fund established under the Government Employees Provident Fund Ordinance; (12) the income of an approved fund; (13) (i) any capital payment received by way of death gratuity or consolidated compensation for death or injury; (ii) so much of any lump sum relating to an office or employment as [in the opinion of the Commissioner is reasonable but in any event not exceeding] $5,000, less any other amounts which have been excluded from the taxpayer's income by virtue of the provisions of this paragraph whether in the current or any previous year of assessment. “Lump-sum” for the purpose only of this sub-paragraph means any amount, other than [a redundancy payment] a contractual sum, received by or accrued to the holder of any office or employment because of the termination or impending termination of the services required to be rendered by him as the holder of that office or employment or for the relinquishment, termination, loss, repudiation, cancellation or variation of his office or employment or in respect of his appointment, or of his right or claim to be appointed to any office or employment and includes any sum paid on retirement which, in the opinion of the Commissioner is reasonable, if the holder of the office or employment [has either been a contributor to an approved fund or to the Fiji National Provident Fund provided payment is made on or before 31st December [1986] and the holder has attained the age of 55 years or more, or] has not been a contributor to an approved fund or to the Fiji National Provident Fund, but does not include— (a) any refund from an approved superannuation or retirement benefit fund, including the Fiji National Provident Fund; (b) any amount received or accrued in respect of or in commutation of any amount due under any contract or employment or service; (c) any payment in respect of or in lieu of leave; (iii) any capital payment or refund from an approved superannuation or retirement benefit fund, including the Fiji National Provident Fund, paid to a contributor, or in the case of his death to the person entitled thereto, in any of the following cases:— (a) on the death or permanent disability of a contributor; (b) where the Commissioner is satisfied that a contributor has been compulsorily retired on grounds of ill-health; (c) in the case of a female contributor, on her marriage; (d) except in the case of the Fiji National Provident Fund, on the retirement of a contributor on his attaining the age of 55 [or more] years; or (e) in the case only of the Fiji National Provident Fund in respect of all minimum statutory contributions made; (iv) for the purposes of this paragraph, the word “contributor” in relation to the Fiji National Provident Fund shall have the same meaning as “member” in the Fiji National Provident Fund Act; (14) the pay and allowances of any member of [the State's] forces serving in Fiji, in so far as such pay and allowances are derived from funds other than the funds of the Government of Fiji; (15) the pay and allowances of any member, of [the State's] forces who [is] ordinarily resident in Fiji but [is] serving outside Fiji, in so far as such pay and allowances are derived from funds other than funds of the Government of Fiji: [Provided that, with effect from 20 May 1978, payments made to a member of [the State's] Forces ordinarily resident in Fiji but serving with the United Nations Forces, which are additional to the normal pay and allowances to which such member would be entitled if serving in Fiji, shall not be chargeable to [basic tax] and normal tax, regardless of derivation;] (16) the income, other than income derived from Fiji, of a member of the armed forces of any foreign power allied with [the State], serving in Fiji; (17) the income of any society registered under the provisions of the Co-operative Societies Act, whose sole objects are accepting deposits from members and non-members and granting loans for productive or provident purposes to members, only in so far as such income is not derived from a trade or business carried on by such society; (18)the income of an association of persons established solely, for the purpose of controlling or furthering any amateur sport or game, if no part of the income or other funds of the society or association is used or available for the pecuniary profit of any proprietor, member or shareholder thereof; (19) the income arising from a scholarship awarded to a person for the of fulltime instruction at a university, college, school or other educational establishment; (20) any education allowance paid to a designated officer in pursuance of the Overseas Service (Fiji) Agreement, 1961, or to any member of the staff of the University of the South Pacific in pursuance of an agreement with any overseas government; (21) the income, other than income derived from Fiji, of a member of an official mission. approved by the Minister, of any foreign power allied with [the State], serving in Fiji; (22) the income of any trade union registered under the provisions of the Trade Unions Act, or any industrial association registered under the provisions of the Industrial Associations Act, in so far as such income is not derived from a trade or business carried on by such trade union or industrial association; (23) the income, other than income derived from Fiji, derived by any individual by reason of his service in Fiji on secondment from the Government service of another territory in such circumstances that that other territory continues to be responsible for payment of his emoluments during such secondment, if he is not also granted exemption from income tax on such income in that other territory; (24) the income of any club, society or association, organised and operated exclusively for social welfare, civic improvement, pleasure or recreation, or for any other purpose except profit, no part of the income of which is payable to, or is otherwise available for the personal benefit of any proprietor, member or shareholder thereof, in so far as such income is not derived from a trade or business carried on by such club, society or association; (25)… (26) the income of the Fiji National Provident Fund; (27) interest credited to the account of a member of the Fiji National Provident Fund under the provisions of the Fiji National Provident Fund Act; (28) compensation payable under the Compensation Scheme to a pensionable designated officer under the Overseas Service (Fiji) Agreement, 1961, who retires in the interests of localisation; (29) the income of the Fiji Development Bank; (30) the income of a member of the American Peace Corps working in Fiji; (31)… (32) any income which neither accrues in, nor is derived from or received in, Fiji by any person who satisfies the Commissioner that his permanent place of abode is outside Fiji and that he is resident in Fiji solely or mainly for the purpose of engaging in employment in Fiji under a contract of employment of not more than 3 years' duration[: Provided that such exemption shall not extend to earnings derived from any employment, the duties of which are performed outside Fiji, during any year in which such person resides in Fiji;] (33) such part of the emoluments of the office of public servants who are required to live outside Fiji in order to perform their duties as does not represent the basic salary, and any gratuity paid, in respect of their office; (34) any benefits arising from passage costs incurred by an employee and reimbursed by his employer or payable on behalf of the employee by the employer where the employee is not a Fiji citizen and was not recruited in Fiji or where terms of these conditions are not satisfied but the Commissioner considers that hardship would result if such amounts were assessed. Any such costs shall be limited to the economy airfare by the most direct route between Fiji and the territory in which he was recruited in respect of the employee and his family. The journeys other than business journeys qualifying for exemptions under this paragraph shall be limited to— (i) those on initial arrival in and final departure from Fiji; (ii) 1 return journey per annum for leave purposes; (iii) journeys made for urgent family reasons; (35) the income of the Fiji National Training Council; (36) the income of Air Pacific Limited (formerly known as Fiji Airways Limited) in respect of all income earned after 31 March 1970 and before 31 March 1975; (37) Any dividend from a company incorporated in Fiji received by or accrued to a resident company other than a unit trust; …….. (38) any sum (which in the aggregate shall not be in excess of $5,000) which the Commissioner considers to be reasonable in respect of the cancellation of passage costs which the employer would otherwise have paid by virtue of any contract or implied contract entered into prior to 1 January 1972; (39) any dividend which has been subjected to non-resident dividend withholding tax from a company incorporated in Fiji received by a non-resident; (40) any interest paid on an overseas loan to a non-resident by a bank in possession of a valid licence granted under the provisions of the Banking Act; (41)any sum paid to an employee on final retirement after a period of continuous service of not less than 10 years by a statutory corporation or by the Government of Fiji under a contract in existence at 31 December 1973; (42) any concession enjoyed under subsection (2) of section 11 of the Ordinance repealed by this Act either— (i) immediately before 1 January 1969; or (ii) under the provisions of the Income Tax (Amendment) Ordinance, 1968, until such time as such respective concessions shall expire; (43) any pension received by a [resident] from the Fiji National Provident Fund; (44) the interest payable on any loan charged on the public revenue of Fiji or any interest accruing on an account in the National Bank of Fiji to any institution, body of persons or irrevocable trust of a public character which is not a resident of Fiji and which has been established solely for the relief of poverty or distress of the public or for the advancement of religion or education; (45) the income derived by an individual who is a member of the staff of the University of the South Pacific or is the holder of any appointment sponsored by the Fiji Government which is payable under any scheme of supplementation by virtue of any agreement between the Fiji Government and the Government of another State if such income is paid, and is subject to tax, in that other State; (46) the income of Polynesian Airlines Limited in respect of all income earned after 31 March 1974 and before 31 March 1979; (47) the interest and other charges payable to the Commonwealth Development Corporation by the Fiji Electricity Authority in respect of the loan of £5,000,000 sterling raised by the Authority from the Corporation for the purposes of the Monasavu Hydro-Electric Scheme; (48) for a period of 3 years commencing on 1 January 1987, the income, equivalent to the income on which rebate would be granted under paragraph 5(i) of the Fifth Schedule, of a company which is engaged in the export of timber grown in Fiji; (49) the emoluments derived by an individual by reason of his service at the University of the South Pacific— (i) under the Australian Universities International Development Programme in such circumstances that the Programme is responsible for such emoluments and only to the extent that such emoluments are paid under the Programme and are subject to income tax in Australia; or (ii)as the holder of any appointment in respect of which emoluments are payable under any scheme of supplementation of the Government of Australia approved by the Government of Fiji, only to the extent to which such emoluments are subject to income tax in Australia; (50) Any pension received by a resident individual…; (51) the interest and other charges payable to the Commonwealth Development Corporation by the Fiji Development Bank in respect of the loan of up to five million pounds sterling raised by the Fiji Development Bank from the Commonwealth Development Corporation for the purpose of assisting the Fiji Development in its intended programme of advances by way of loans to persons in Fiji engaged in small-scale farming and fishing enterprises for the purposes of those enterprises; (52) any profits arising out of the transfer of assets and liabilities to Fiji Pine Limited pursuant to the provisions of the Fiji Pine Decree, 1990; (53) Notwithstanding the provisions of subsection (2) of section 21, any dividend which has been paid or credited in favour of a resident individual by a company holding an operating licence granted under the provisions of the Tax Free Zones Decree 1991 out of its profits attributable to export earning and that such company qualifies for relief in accordance with the Fifth Schedule of this Act: Provided that— (i) in the event of sale or disposal by any other means of shares held in such a company by a resident individual within 5 years immediately following their acquisition such dividend paid or credited by that company in any year shall not be exempt from [basic tax] and normal tax in the hands of the resident individual shareholder and shall be assessed for such tax in accordance with subsection (2) of section 21 and that such dividend shall be included as total income and apportioned over a period including the year of sale or disposal and the immediately preceding 2 years. (ii) exemption under this paragraph shall not apply on the cancellation or withdrawal of a company's operating licence within 5 years of the date the licence was granted and the resident individual shareholder shall be assessed for tax as prescribed in proviso (i) of this paragraph; (54) the income derived by the Taisei Corporation of Japan regarding the redevelopment of the Fiji School of Medicine and the Colonial War Memorial Hospital, in accordance with the Diplomatic Notes dated 23 July, 1991 exchanged between the Government of Japan and the Government of the Republic of Fiji; (55)Notwithstanding the provisions of subsection (2) of section 21, any dividend which has been paid to or credited in favour of a resident individual in respect of shares of a company listed at the [South Pacific Stock Exchange]. For the purposes of this paragraph “dividend” shall have the meaning ascribed to it by subsection (2) of section 8; (56) any dividend paid to or credited in favour of a resident individual from the Unit Trust of Fiji; (57) the nominal value of any bonus shares awarded to a shareholder to the extent to which such shares have been paid up by means of profit arising from the reconstruction or reorganisation of the company's equity structure undertaken solely for the purpose of listing on the South Pacific Stock Exchange provided that— (a)the said company is listed on the South Pacific Stock Exchange within 12 months of any such reconstruction or reorganisation or such longer period as the Commissioner may determine; and (b) the said company remains listed on the South Pacific Stock Exchange for a period of not less than three years; (2)… (58) the income of— (a) the Fiji Audio-Visual Commission established by the Fiji Audio-Visual Commission Act 2002; and (b) the Audio-Visual Collection and the Audio-Visual School established by the Fiji Audio-Visual Commission. Redundancy payments (b) on any amount in excess of $15,000 at the rate of 15%. (2) For the purpose of subsection (1)— (a) a company shall be deemed to be resident only in that country in which the central management and control of its business is situated; (b) “business of shipping” means the business carried on by an owner of ships, and, for the purpose of this definition, "owner" includes any charterer. (b) any disbursement or expense not being money wholly and exclusively laid out or expended for the purpose of the trade, business, profession, employment or vocation of the taxpayer; (c) any loss not connected with or arising out of the trade, profession, business, employment or vocation of the taxpayer; (d) any loss or expense, the deduction of which would otherwise be allowable, to the extent to which it is recoverable under any contract of insurance, guarantee, surety or indemnity; (e) the taxation levied on incomes; (f) any expense incurred in respect of— (i) any amount received, receivable, or accrued which is not included in total income or, if so included, is exempted under section 16 or 17, or is not included in chargeable, income under any of the provisions of this Act; (ii) any investment or property the income arising from which will not be included in total income or, if so included, will be exempted under section 16 or 17, or will not be included in chargeable income under any of the provisions of this Act; (g) subject to paragraph (m) of subsection (1) of section 21, income carried to any reserve fund or capitalised in any way; (h) any bad debt, except any proved to the satisfaction of the Commissioner to be bad and to have been written off in the taxpayer's books during the year; (i) any expenditure or loss of capital nature; (j) any expenditure on repairs, alterations and improvements, other than that actually incurred on the repair of property either occupied for the purposes of any trade, business, profession, employment or vocation or in respect of which income is receivable, including any expenditure so incurred on the treatment against attack by beetles and similar pests of any timber forming part of such property and sums expended for the repair of machinery, implements, utensils and other articles employed by the taxpayer for the purposes of his trade, profession, business, employment or vocation; (k) alimony or maintenance. Remuneration or gratuity to shareholder, director, relative, etc. (b) notwithstanding the provisions of sub-paragraph (ii) of paragraph (13) of section 17, an allowance, gratuity or compensation in consequence of the retirement of that person from any office or employment held by him in that company, or upon termination of such office or employment, as exceeds an amount which, in the opinion of the Commissioner, is a reasonable deduction to be allowed as a sum incurred wholly and exclusively for the purposes of the trade or business of the company shall not be allowable deduction, but nevertheless the excess shall be deemed to be remuneration payable to the recipient for all other purposes of this Act. (2) So much of any sum paid or credited by a person in trade or business, other than a company, and being or purporting to be— (a) remuneration for services rendered by any person being a relative by blood, marriage or adoption or any such person in business or of the spouse of any such person; or (b) notwithstanding the provisions of sub-paragraph (ii) of paragraph (13) of section 17, an allowance, gratuity or compensation in consequence of the retirement of that person from any office or employment held by him in the service of such person in business or upon the termination of such office or employment, as exceeds an amount which, in the opinion of the Commissioner, is a reasonable deduction to be allowed as a sum incurred wholly and exclusively for the purposes of the business shall not be an allowable deduction, and the excess shall, for all purposes of this Act, be deemed to reduce by a like amount the sum paid or credited to the recipient. (3) So much of any sum credited to a partner in a family partnership business purporting to be the share of that person in the partnership profits as exceeds the actual sums drawn by him from the business where any of the partners are related shall, for the purposes of this subsection, be apportioned by the Commissioner between and be deemed to be the income of the other partner or partners if, in the opinion of the Commissioner— (a) any partner does not hold equal authority with other partners in the business; or (b) the sum credited to any partner as his share of the partnership profits is not within his full control, authority and disposal; or (c) any partner contributes neither services nor capital to the partnership: Provided that, where this subsection is invoked by the Commissioner, the actual sums drawn from the business shall be deemed to be a sum not exceeding an amount which, in the opinion of the Commissioner, a proprietor of the business would be expected to pay to an employee of equivalent age and experience as the recipient. (4) For the purpose of subsection (3)— (a) “equal authority” includes authority exercised under a deed or written agreement and de facto management and access to the business bank account; (b)“family partnership” means a partnership in which more than 50 per cent of the profits are payable to persons who are related by blood, marriage or adoption or to the spouses of persons who are so related. (i) for depreciation of capital expenditure incurred; or (ii) for capital expenditure incurred on improvements to land use for agricultural or pastoral purposes; (ii) any contribution referred to in sub-paragraph (i) that is not an ordinary contribution, to the extent that the Commissioner considers it to be allowable, in which case it shall, as the Commissioner in his discretion may direct, be treated either as an expense incurred in the year in which the same is paid or as an expense to be spread over a number of years; (iii) notwithstanding sub-paragraphs (i) and (ii), the maximum amount to be allowed under this paragraph as an expense in any year in respect of any 1 employee shall be— (b) where contribution is made to an approved fund, an amount of $1,000: Provided that, in the event of any 1 employee being employed by more than 1 employer, the amount to be allowed under this paragraph shall be such amount in respect of each such employee as the Commissioner may, in his discretion, determine, so that however, the total amount allowed to all the employers of such employee shall not exceed the amount specified in either (a) or (b) above, as the case may be; (h) any deductions authorised under the Hotels Aid Act; an agreement to effect improvements (l)… (m) income carried to any reserve fund or capitalised in any way by any co-operative society registered under the Co-operative Societies Act; (n) [the amount] of any cash donation by a taxpayer to [the Cyclone Kina Appeal 1993 or to] the University of the South Pacific Endowment Fund, St. John's Ambulance Brigade, Fiji Red Cross Society, Fiji Crippled Children's Society, Fiji Blind Society, [Fiji Audio-Visual Commission, Audio-Visual Collection, Audio-Visual School]and such similar academic and charitable institutions as may be approved by the Commissioner: Provided that relief shall only be granted in terms of this paragraph in respect of donations which do not exceed, in aggregate $50,000; (o) ..… (p) one and one half times the amount of any expenditure approved by the Economic Development Board of Fiji as incurred towards promotion of export of any product in respect of which a deduction from chargeable income or a rebate of the tax charged has been or may be allowed in accordance with the provisions of the Fifth Schedule; (q) such amount as is deposited [by a company] in an account approved by the Commissioner specifically operated by any [financial institution licensed under the Banking Act 1995] for the purpose of providing a reserve for loss to property situated in Fiji caused by windstorm, tidal wave, landslide or a like catastrophe: Provided that— (i) the deduction allowed shall not exceed in the case of [a commercial, industrial or agricultural building] 1.5 per cent [per annum] of the replacement cost, or in the case of residential [building] the lesser of $500 or 1.5 per cent [per annum] of the replacement cost, of the property in respect of which such account is operated; (ii) any amount … which is withdrawn [from such account] and not applied towards the repair of property damaged by windstorm, tidal wave, landslide or a like catastrophe, shall be assessed together with any interest thereon, in terms of paragraph (bb) of section 11. [In this paragraph “building” includes outbuildings, walls, gates, fences and such other ancillary structures as may be approved by the Commissioner, which are on the same premises as, and used in connection with, a principal building.] (r) (i) one and one-half times the amount of any wages or salaries paid between 1 January 1997 and [31st December 2003] by any person carrying on a trade or business in Fiji to a qualifying employee: Provided that— (aa) any person wishing to claim this deduction shall first register with the Commissioner by providing such information as he may require; (bb) the wages or salaries paid to the employee in respect of whom the deduction is claimed must be not less than 72 cents per hour; (cc) the deduction under this paragraph shall not be available unless the Commissioner is satisfied such person has not terminated the employment of any employee in order to take advantage of this deduction: (ii) For the purposes of this paragraph “qualifying employee” means an additional employee who commences employment in Fiji after 31 December 1996 and who has not previously been in full-time paid employment of any person; (s) (i) one and one half times the amount of any cash donation made by a taxpayer between 1st January 1998 and 31st December 2001 to the South Pacific Games Infrastructure Fund; (ii) two times the amount of any cash donation made by a taxpayer between 1st January 2002 and 31st December 2003 to the South Pacific Games Infrastructure Fund, 2003 South Pacific Games Organising Committee and South Pacific Games Organising Committee Limited: Provided that any amount to which this paragraph applies must be deducted in the year the cash donation is made or in an equal proportion in each of any 3 out of 5 years consisting of the year in which the donation is made and the next 4 succeeding years; (t) any amount expended between 1st January 1998 and 31st December 2000 on either the modification and testing of hardware or siftware in making a computer year 2000 compliant, or the acquistion of hardware or software to make a computer year 2000 compliant: Provided that any amount to which this paragraph applies must be deducted from total income in 3 equal parts in the year of expenditure and the 2 subsequent years of income; (u) subject to section 21D, an amount, not exceeding $1,000, being the value of discount included in total income under section 11A in respect of shares or options acquired in a qualifying employee share scheme. (2) ….. (3) ….. (3) The amount of the deduction is the amount of the qualifying dividend. (4) A deduction shall not be allowed unless the taxpayer provides to the Commissioner a certificate issued by the company paying or crediting the dividend in accordance with the regulations. (2) The amount of the deduction, representing a percentage of the export income, is set out in the following Table—
(3) For the purposes of this section, “export income” means [profits] derived by a taxpayer from the business of exporting goods or services. (4) The Commissioner may, where separate records for export income are not maintained, determine such income on the basis of the following formula:- A x C B Where: - A is total export sales; B is total sales; and C is total profits arising from all sales. (5) A deduction may not be claimed under this section in respect of income for which a deduction or rebate is claimed or allowed under the Fifth Schedule. Investment allowance (2) In respect of any particular asset, a taxpayer may not claim more than one investment allowance for that asset, either in the same year of assessment or any other year of assessment. (3) A taxpayer may claim an investment allowance in respect only of— (a) new capital assets purchased by the taxpayer, either in Fiji or in any other country and imported into Fiji; and (b) any capital asset purchased by the taxpayer in any country other than Fiji, and imported into Fiji. (4) If a taxpayer sells or otherwise disposes of a capital asset within 3 years of a year in which a deduction under this section was made, the amount of the deduction is deemed to be income of the taxpayer in the year that the sale or disposal took place. (5) For the purposes of this section— “agricultural, forestry or marines resources business” means a business which processes or manufactures Fiji natural resources to the extent that the resources are substantially transformed, but excludes a restaurant or a retail food outlet; “capital asset” means means any capital asset but does not include - (a) land or buildings; (b) passenger vehicles; or (c) trading stock; “natural resources” means unprocessed or raw natural produce, including timber, wholly derived in or from Fiji; “information technology business” means a business providing services specifically based on utilising information technology, and delivered by making use of open networks and tele-communications, including— (a) call centres; (b) ticketing, ordering and reservations services; (c) data base, records, and list management; (d) data entry and processing; (e) web site development and management; (f) software programming and design; (g) tele-medicine services; (h) internet service provision, excludes— (A) the retailing or wholesaling of information technology products; (B) the sale, care, repair or service of any item; “investment activity” means— (a) an agricultural, forestry or marines resources business; (b) an information technology business; or (c) a rural manufacturing business; “manufacturing” means any activity included under Major Division 3 of the Fiji Standard Industrial Classification (FSIC) codes. “qualifying expenditure” means expenditure of an amount (or total amounts) not less than $50,000 incurred for the purpose of acquiring a capital asset (or assets) for use in the carrying on of an investment activity; “qualifying year” means a year of assessment between 2001 and 2005 (both years inclusive) in which the qualifying expenditure was incurred; “rural manufacturing business” means a manufacturing business carried on in a location not less than 25 kilometres, measured by the most direct road route, from the general post office in Suva or the principal post office in Lautoka, Nadi, Nausori or Navua; “substantial transformation” means a process applied to Fiji natural resources which results in a different classification under the Harmonised System (HS) codes of the processed materials from that of the unprocessed materials, but excludes— (a) repackaging and rebottling; and (b) logging of timber. Employee share schemes (2) For the purposes of section 21(1)(u), an employee share scheme is a qualifying employee share scheme if— (a) the shares or options acquired under the scheme are ordinary shares or options to acquire ordinary shares; (b) all employees, whether full-time or part-time employees, who have at least one year's service may participate in the scheme; (c) any financial assistance provided by the employer to its employees to assist in the acquisition shall be provided on a non-discriminatory basis; and (d) acquired shares or options may not be sold or otherwise disposed of for a period of not less than 2 years, other than if the employee cease employment. (3) For the purposes of this section and section 11A— (a) “employee” includes a director and any person providing personal services to an employer; (b) a share is acquired by an employee on the date it is allotted to the employee in accordance with the rules governing the employee share scheme. (a) be set off against the taxpayer's income from other sources for the same year: Provided that – (i) no relief shall be allowed under the provisions of this paragraph in respect of any loss suffered from any transaction of trade, business, profession or vocation if a profit derived from such transaction would not have been included in chargeable income; (ii) no relief shall be allowed under the provisions of this paragraph in respect of any loss incurred as a result of an allowance or any other relief or deduction available under the Hotels Aid Act; and (b) to the extent to which it is not allowed under sub-paragraph (a), be carried forward and, subject as is hereinafter provided, be set off against what would otherwise have been [the taxpayer's] total income for the next [8] years in succession: Provided that— (i) the amount of any such loss allowed due to be set off in computing the total income of any year shall not be set off in computing the total income of any other year; (ii) the amount of such set-off allowed in any year in respect of any loss incurred in respect of an accounting period ended not later than 31 December 1973 shall not exceed one-half of the amount which, but for the set-off, would be the total income of that year; (iii) in the case of any person who commenced an agricultural or pastoral pursuit on or after 1 January 1961, this section shall apply with respect to losses incurred in such agricultural or pastoral pursuit with no restriction on the number of years for which the losses may be carried forward; such set-off to be made in the first subsequent year, and so far as, it cannot be made, then in the next year and so on; (iv) no relief shall be allowed under the provisions of this paragraph in respect of any loss suffered from any transaction of trade, business, profession or vocation, if a profit derived from such transaction would not have been included in chargeable income; (v) in the case of an allowance or any other relief or deduction available under the Hotels Aid Act, losses carried forward can only be set off against the total income of that hotel business or the total income from that hotel premises for the next 8 years in succession; (vi) a loss in respect of any trade, business, profession or vocation shall cease to be available for relief in respect of the years following the year in which such trade, business, profession or vocation is sold, ceases, or its nature changes substantially: Provided that the Minister, where he considers it to be to the economic benefit of Fiji, may determine that any such loss may be carried forward and be available for relief subject to the other provisions of this section. (2) For the purpose of this section – (a) any loss incurred by a taxpayer shall be ascertained in accordance with the provisions of this Act for the calculation of total income; and (b) the period of eight years referred to in paragraph (b) of subsection (1) shall apply to losses incurred on or after the 2001 year of income. (3) Notwithstanding subsections (1) and (2), if a company claims to carry forward to any income year (“carry forward year”) any loss incurred by it in any former income year (“loss year”), the claim must not be allowed unless the shareholders of the company during the whole of the carry forward year were substantially the same as the shareholders of the company during the whole of the loss year. (3A) For the purposes of subsection (3)— (a) the shareholders of a company during the whole of the carry forward year shall be deemed to be substantially the same as the shareholders of the company during the whole of the loss year if, at all times during the carry forward year and the loss year, not less than 51% of the voting power in and the right to receive dividends from the company was held by or on behalf of the same persons, and, at all times during those years, not less than 51% of the nominal value of the allotted shares in the company were held by or on behalf of the same persons; (b) shares in a company held by or on behalf of another company are deemed to be held by the shareholders of that other company; (c) shares held by or on behalf of the trustee of the estate of a deceased shareholder, or by or on behalf of the persons entitled to those shares as beneficiaries in the estate of a deceased shareholder, are deemed to be held by that deceased shareholder. (4)If a claim to carry forward a loss under subsection (1)(b) is not allowed by the Commissioner under subsection (3), that claim shall be allowed if the company carries on the same business in the carry forward year as it did in the loss year. (4A) For the purposes of subsection (4), a company does not carry on the same business if it derives income from— (a) a business of a kind it did not carry on when the loss was incurred; or (b) a transaction of a kind that it had not entered into in the course of its business operations when the loss was incurred; (c)a business or kind of transaction that was not carried out during the whole of the loss year. (5) Subject to the other provisions of this section, in the case of a person entitled to an allowance or any other relief or deduction under the Hotels Aid Act, the period of [8] years referred to in paragraph (b) of subsection (1) shall commence from the end of the year in which the last day of the accounting period the income tax profits which are subject to the final deduction falls: Provided that such period shall not extend beyond 5 years after the year in which the hotel commenced trading and any losses incurred up to such date shall be regarded as having been incurred in the final accounting period. Special provision for mining expenditure Provided that a deduction under paragraph (a) of subsection (1) of section 21 shall not be allowed in addition to expenditure allowed under this section. (2) The expenditure to which this section refers is— (a) capital expenditure, not claimed under paragraph (c) of subsection (1) of section 21, incurred in the development of mines and the extraction, treatment, refinement and sale of minerals therefrom; and (b) expenditure incurred in the acquisition of any mining lease or tenement: Provided that— (i) where the Commissioner is of the opinion that the sum expended, whether in cash or by means of an issue of shares or otherwise, is excessive, having regard to the lease or tenement acquired and to the other circumstances of the case, he may make such adjustment with regard to such sum as, in his opinion, is just and reasonable; (ii) this paragraph shall not apply in respect of a sale, transfer or assignment of any mining lease or tenement, if— (aa) any party or parties of the one part of the sale, transfer or assignment has or have the power (whether under the terms of the transaction or otherwise) to control directly or indirectly the entry into the transaction by, or the activities in connection with the mining rights of, a party of the other part; or (bb)any person or persons has or have the power (whether under the terms of the transaction or otherwise) to control directly or indirectly the entry into the transaction by, or the activities in connection with the mining rights of, a party of the one part and a party of the other part to the sale, transfer or assignment. For the purposes of this paragraph of, the proviso, a person shall be deemed to be in control of his spouse and of any relative of his, whether by blood, marriage or adoption, and in the case of a company the provisions of subsections (2), (4), (5) and (6) of section 12 shall apply for the purpose of determining who is in control; (iii) such expenditure as is excluded by sub-paragraph (bb) shall not be claimable under paragraph (e) of section 21. (3) Expenditure of the nature referred to in subsection (2) which has been incurred by any company at any time prior to the termination of the fiscal year 1950-51 shall, to the extent to which it appears in the annual accounts of that year as not having been written off, be deemed for the purposes of subsection (1) to have been incurred in the fiscal year 1951-52. (4) The Minister may, in relation to capital expenditure incurred in the development of a new mine, substitute such other fraction for the fraction of one-fifth set out in subsection (1) and make corresponding provision for the period during which such expenditure may be set aside. An order made under this subsection may be general or restricted to a particular person or persons. During the currency of such order, subsection (1) shall be read in relation to the expenditure referred to in this subsection and to the persons affected by the order as if varied in accordance with the provisions of the order. For the purposes of this subsection, “a new mine” means a mine which was not in production on 1 January 1952. (5) Where, in the case of any mining company, the Minister has directed that the provisions of paragraph (a) of subsection (2) of section 16 shall apply to such company for any period, then, in calculating the income of that company during such period, there shall be deducted, at the option of the company, either the set off under the provisions of this section or the deduction provided for in paragraphs (a) and (c) of subsection (1) of section 21. PART V–ASCERTAINMENT OF CHARGEABLE INCOME [Chargeable income of person other than a company, etc.] (2) Notwithstanding the provisions of section 31 and of subsection (1) …, where a person resident in Fiji solely or mainly for the purposes of engaging in any employment [has not resided in Fiji for the whole year], he shall, if he has resided in Fiji only for part or parts of that year, [be allowed, in calculating his chargeable income, only such proportion of—] [(a) the deductions specified in section 25; (b) the deductions specified in paragraphs (a), (b), (c) and (f) of section 26(1); and (c) any contributions allowable under paragraphs (d) and (e) of section 26(1),] as the total period of his residence in Fiji during that year bears to the full income year. (3) For the purpose of subsection (2)— (a) the total period of a person's residence in Fiji shall be deemed to be the whole of any period during which he actually resides in Fiji or in respect of which he derives emoluments from his employment in Fiji whichever is more favourable to the taxpayer; (b) “employment” shall have the same meaning as in section 79[;] [(c) the aggregate deduction allowable under paragraphs (a), (b), (c), (d), (e) and (f) of section 26(1), before apportionment under subsection (2), shall be restricted to $1,500.] Allowances for wife [Provided that the amount of this allowance shall be reduced by $1 for every dollar of a wife's total income which is not chargeable with tax, other than that portion of a wife's income from interest, dividends and farming which is specifically exempted from tax under the provisions of this Act;] [(b) in the case of a taxpayer who is widowed, an allowance of $1,000 must be deducted;] (c) … (d) … Provided that— (a) in the case of legally separated spouses who both have legal control and custody of a dependent child or children, the allowance of [$1,200] shall be allocated in equal proportion to each spouse; (b) the amount of this allowance shall be reduced by one dollar for every dollar of the spouse's total income which is not chargeable with tax other than that portion of the spouse's income from interest or dividend which is specifically exempted from tax under the provisions of this Act. (1)(B) In no case shall the allowance due under paragraph 1(a) of section 25 and subsection 25(1)(A) exceed [$1,200] in any one year. [(a) $500 for the first dependent child;] [(b) $500 for the second dependent child; and] [(c) $300 for the third and any subsequent dependent child:] (d)… Provided that— (i) the total allowance to a taxpayer under this subsection shall be [$1,900]; (ii) only 1 allowance may be granted in respect of the same dependent child. Where more than 1 taxpayer would, but for this proviso, be entitled to an allowance in respect of the same dependent child, such allowance shall be apportioned between them in such proportions as they agree, or in default of agreement, equally. For the purposes of this paragraph, maintenance which is payable under … an order of a court of competent jurisdiction and which has been allowed or would qualify as a deduction in arriving at total income, shall not be regarded as a contribution to a child's support. Allowance for brother or sister (4) …Deductible amounts (b)any amounts paid by the taxpayer in that year as premiums or sums for insurance on the life of [the taxpayer, his or her spouse] or dependent child (up to a maximum of 5 children) on policies taken out prior to 30 November 1973, where a capital sum is not payable at death and the policy is for a term of less than 10 years; (c) any amounts paid by the taxpayer in that year as premiums or sums for insurance on the life of [the taxpayer, his or her spouse] or dependent child (up to a maximum of 5 children) where the policy secures a capital sum payable at death and is either a whole life policy or is for a term of not less than 10 years. The amount allowable shall not exceed 7 per cent of the actual capital sum assured and, in calculating such capital sum, no account shall be taken of any sum payable on the happening of any other contingency or of the value of any premiums to be returned or of any benefit by way of bonuses or otherwise which is to be or may be received either before or after death, either by the person paying the premium or by any other person, and which is not the sum actually assured. In the event of the cessation of a policy for any reason before the expiry of 10 years, the Commissioner may, if he is not satisfied with the reasons for cancellation, disallow all premiums (if any) previously allowed in respect of such policy; (e) the annual amount of any sums recovered from the salary or wages of a taxpayer in respect of contributions on account of such taxpayer to the Fiji National Provident Fund under the provisions of the Fiji National Provident Fund Act by his employer; (f) the annual amount of any voluntary contributions made to the Fiji National Provident Fund by any taxpayer, not being an employee for the purposes of the Fiji National Provident Fund Act, but not exceeding [$480] per annum; (g) the annual amount of any contributions made by the taxpayer to the Widows and Orphans Pensions Scheme or the Government Employees Provident Fund. (a) in the case of an unmarried taxpayer – an aggregate amount of $1,500; or (b) in the case of a married man whose wife is in receipt of income exceeding $1,200 but the husband and the wife have not jointly elected to be assessed separately under section 43 – an aggregate amount of $1,500 in respect of the husband and an aggregate amount of $1,500 in respect of the wife.] (2) Where the taxpayer does not receive an allowance under section 25 in respect of a wife, the number of other dependants in respect of whom allowances may granted under the provisions of that section of this Act shall, subject to the provisions of paragraph (a) of subsection (2) of section 25, not exceed 6. (3) Where a taxpayer is entitled to the [maximum total allowance] under the provisions of subsection (2) of section 25 and may also be entitled to an allowance under section 29 in respect of education allowance, he shall indicate in respect of which children he wishes to claim an allowance under that subsection and section. Education allowance Passages Provided that— (a) where the whole or any part of the cost of any of such passages is borne by the employer of any person, no deduction shall be allowed to that person in respect of the amount so borne; (b) if the whole or any part of the cost of any of such passages is borne by the employer of any person at intervals of not more than 3 years, no deduction shall be allowed for any expenditure incurred by that person, during any intervening period, on the provision of passages for the purposes of leave outside Fiji for any of the persons in respect of whom the employer bears the whole or part of the cost as aforesaid; (c)the cost of the passages to be taken into account shall be the cost of return fares by direct route between Fiji and the country of destination up to a maximum of 3 adult air fares not more often than once every 3 years but so that the cost of the passages shall not exceed the normal air fare rate for each passenger who travels; (d) no deduction shall be allowed for passages paid by any person unless that person was resident in Fiji during the period of 24 months immediately preceding the commencement of the journey in respect of which the deduction is claimed; (e) the deduction shall be allowed in respect of the income year in which travel overseas is commenced and in each of the 2 succeeding income years and shall be equal to one-third of the cost of the passages as calculated in accordance with the provisions of this section, or an amount equal to 10 per cent of what would otherwise be the chargeable income of such person but for the making of this deduction, whichever is the less. (a) in respect of a wife living with or wholly maintained by the non-resident, an allowance of [$1,200]; and (b) in respect of a non-resident who is widowed, an allowance of $1,000. (a) one-half of the allowance for a wife shall be allowed to a married man and shall be deducted in arriving at chargeable income; or (b) a sum equal to one-half of the allowance referred to in paragraph (b) of subsection (1) shall be granted to a widow or widower … and shall be deducted in arriving at chargeable income; and (c) the full amount of the general rebate of $30 as provided in section 101 shall be deducted from the tax chargeable: Provided that a non-resident pensioner may, within 60 days after receiving notification of the amount due, furnish to the Commissioner details of his total income from all sources and elect that the provisions of subsection (1) shall apply in calculating his chargeable income. (a) in respect of a company other than a non-resident company, the total income of the company for that year, whether accruing in or derived from Fiji or elsewhere; (b) in respect of a non-resident company, the total income of the company for that year accruing in or derived from Fiji; (c) in respect of a non-resident shipping company doing business in Fiji, the total amount payable to the company in respect of all outgoing business, whether freight or passengers. Commissioner may in certain circumstances determine income of business controlled from outside Fiji (a) is controlled exclusively or principally by a non-resident; or (b) is carried on by a non-resident company or by a company which is under the control of a non-resident; or (c) is carried on by persons having control of a non-resident company, and it appears to the Commissioner from the returns made to him that the business produces no income or less than the amount of income which, in his opinion, might be expected to arise from that business, the person carrying on the business in Fiji shall, notwithstanding anything to the contrary in this Act, be assessable for and liable to pay tax on an income of such amount as the Commissioner shall determine, being, at the option of the Commissioner, either— (i) such proportion as he shall determine of the total receipts (whether cash or credit) of the business; (ii) such proportion as he shall determine of the total purchase moneys paid or payable (whether in cash or by the granting of credit) in the conduct of the business; or (iii) such other method as the Commissioner may determine. (2)For the purposes of subsection (1), the persons in control of a company shall be determined in accordance with the provisions of subsections (2), (4), (5) and (6) of section 12. (a) by taking the total of the gross premiums and interests and other income received or receivable in Fiji (less any premiums returned to any person and premiums paid on re-insurances and less any dividends which have borne tax in accordance with the provisions of this Act) during the year preceding the year of assessment; and (b) by deducting from such total a reserve for unexpired risks at the percentage adopted by the company in relation to its operations as a whole for such risks at the end of such year and adding thereto a reserve similarly calculated for unexpired risks outstanding at the commencement of such year; and (c) by deducting from the balance calculated as aforesaid the following amounts:— (i) the actual claims paid or outstanding (less the amount recovered in respect thereof); and (ii) the agency expenses in Fiji; and (iii) a fair proportion of the expenses of the head office of the company: Provided that, notwithstanding any of the other provisions of this Act, but subject to any arrangements made under the provisions of section 106, where any person carrying on business in Fiji or his agent enters into a contract of insurance in respect of any business property situated in Fiji at the time the contract was entered into with any person not carrying on business in Fiji [or the insured event is one which can happen only in Fiji], 15 per cent of the gross premiums of insurance shall be deemed to be the income of such last-mentioned person. Where any such person carrying on business in Fiji enters into a contract of insurance as aforesaid, he shall, for the purposes of this Act, be deemed to be the agent of the person with whom such contract is made and shall make returns and be assessed and chargeable to tax accordingly. (2) For the purpose of avoiding doubt, it is hereby declared that that portion of the life insurance premiums received or receivable in respect of accident, disability and similar benefits contained in combined life and accident insurance policies and premiums received or receivable in respect of accident, disability and similar insurance policies shall be deemed to be in respect of business other than life insurance business and shall be liable to tax calculated in accordance with the provisions of subsection (1). Taxation of re-insurance with non-residents (other than life insurance business) (2) A person to whom this section applies shall, as agent, furnish the Commissioner within the prescribed time as the Commissioner allows in respect of every year of income, a return showing the gross amounts of the premiums paid or credited by him to non-residents in respect of all such re-insurances. (3) Subsection (1) shall not apply in respect of premiums paid or credited on or after 8 November 1985 but before 8 November [1987]. Taxation of life insurance business (a) by taking the investment income (excluding dividends from companies incorporated in Fiji) received or receivable in respect of assets invested in Fiji and deducting therefrom the sum of the following:— (i) an amount calculated by applying to the actuarial liabilities in respect of the policies registered in Fiji at the end of the year, the actuarial valuation rate of interest adopted by the company in relation to its operations as a whole: Provided that, where, at the end of the year preceding the year of assessment, the assets of a company invested in Fiji in respect of its life insurance business are of a lesser amount than the aggregate of its actuarial and other liabilities in respect of its life insurance business in Fiji at that date, the sum to be allowed as a deduction under this paragraph shall be such proportion of the amount so calculated as the assets of the company invested in Fiji in respect of its life insurance business bear to the aggregate of such actuarial and other liabilities; and (ii) expenditure, other than expenditure of a capital nature, wholly and exclusively laid out or expended in gaining this investment income (excluding such dividends as aforesaid); and (iii) the proportion which the investment income in Fiji (excluding such dividends as aforesaid) bears to the total gross income received or receivable in Fiji (including dividends and life insurance premiums) of the following, that is to say:— (aa) expenditure other than expenditure of a capital nature, incurred in the general management of the life insurance business of the company in Fiji including contributions made to an approved fund; and (bb) a fair proportion of the expenditure incurred in the general management of the life insurance business at the head office of the company or at any branch of the company controlling and supervising the life insurance business in Fiji, including a proportion of contributions made to an approved fund: Provided that such expenditure shall be deemed to exclude all payments made under life insurance policies, any expenses wholly and exclusively incurred in connection with new business, and any commissions paid to any person; and (b) by reducing the resulting amount calculated in accordance with the provisions of paragraph (a) proportionately by the formula X/Y where— X — is so much of the amount calculated under sub-paragraph (i) of paragraph (a) as is referable to the company's superannuation business in Fiji; and Y — is the amount calculated under sub-paragraph (i) of paragraph (a). For the purposes of this formula, “superannuation business” means that part of the life insurance business of the company in Fiji effected under the rules or conditions of any superannuation fund or superannuation scheme approved under the provisions of section 110: Provided that— (a) in the case of a non-mutual company— (i)such proportion of the resulting amount calculated in accordance with the foregoing provisions of this subsection as is represented by the following formula shall be deemed to be the income referable to the share capital of the company; that is to say— , where— —is profits allocated to shareholders' funds; S— is profits allocated to life assurance funds for distribution to policy holders by way of reversionary bonuses or otherwise, and to shareholders' funds. figures for R and S are those which relate to the company's operations as a whole-both within and outside Fiji). T— is income in respect of the life insurance business calculated in accordance with paragraph (a) of this subsection, the balance of such resulting amount shall be deemed to be the “mutual” income of such a company; (ii) where no profits in respect of the company's life insurance business are divided between or among either shareholders or policy holders (or allocated to either shareholders' funds or life assurance funds) in respect of the income year, but by virtue of the company's Memorandum or Articles of Association or any rules or other document constituting the company or governing its activities, any profits to be divided among or allocated to the life insurance policy holders of the company are required to be not less than a specified proportion or percentage and not greater than a specified proportion or percentage of the total profits to be divided or allocated-the lower of such proportions or percentages of the income in respect of the life insurance business calculated in accordance with this subsection shall be deemed to be the “mutual” income of the company for that year; and (b) for the purpose of paragraph (a) of this proviso, any State-owned corporation or similar institution transacting life insurance business in Fiji shall be deemed to be a non-mutual company and reference in that paragraph to terms generally applicable to a company such as to share capital, divisions or allocation among shareholders, and the company's Memorandum or Articles of Association shall respectively be deemed to refer to the capital or like funds of such corporation or institution, to divisions or allocations among other than its policyholders, and to the legal enactment or other instrument governing its incorporation, or as may otherwise be appropriate to bring such corporation or institution within the operation of such proviso. (2) Where the proportion calculated under the proviso to sub-paragraph (i) of paragraph (a) of subsection (1) is less than 1 to 2, the income of such a company shall be deemed to be 20 per cent of the gross amount of the life insurance premiums received or receivable in respect of policies registered in Fiji without any deduction whatsoever therefrom. (3) Where an insurance company carried on life insurance business in conjunction with any other insurance business, the assessment of the income on which tax is payable shall be made in one sum but the income arising from the life insurance business shall be computed in accordance with the provisions of this section as if such life insurance business were a separate business from the other insurance business carried on by the company. Agent, etc., for non-resident (a) an authorised officer shall be appointed by the company within 3 months after the date when this Act becomes law or within 3 months after the company commences carrying on business or to derive income in Fiji; (b) the company shall at all times keep the office of its authorised officer filled; (c) no appointment of an authorised officer shall be deemed to be duly made until after a notice thereof in writing specifying the name of the authorised officer and his address for service has been given to the Commissioner; (d) service of any document at his address for service or personally on the authorised officer shall be sufficient service upon the company for all the purposes of this Act, and if, at any time, there is no authorised officer, then service upon any person acting or appearing to act in the business of the company shall be sufficient; (e) the authorised officer shall be answerable for the doing of all such things as are required to be done by the company under this Act, and in case of default shall be liable to the same penalties; (f) everything done by the authorised officer which he is required to do in his representative capacity shall be deemed to have been done by the company. The absence or non-appointment of its authorised officer shall not excuse the company from the necessity of complying with any of the provisions of this Act or from any penalty for failure to comply therewith, but the company shall be liable to the provisions of this Act as if there were no requirement to appoint an authorised officer; (g) any notice given to or requisition made upon its authorised officer shall be deemed to be given or made upon the company; (h) the company shall be liable to be proceeded against as a principal in respect of any act or default under this Act of its authorised officer; (i) notwithstanding anything contained in this section, and without in any way limiting, altering or transferring the liability of the company or of its authorised officer, every notice or process which under this Act may be given to or served upon the company or its authorised officer may, if the Commissioner thinks fit, be given to or served upon any director, secretary, officer, attorney or agent who shall thereupon have the same liability in respect of that notice or process as the company or its authorised officer would have had if it had been given to or served in accordance with the provisions of paragraph (d). (2) Sums regarded as income of a beneficiary of the estate of a deceased person, a trust or settlement shall be taxed in the hands of such beneficiary and any such sums shall not also be taxed in the hands of the trustee or other like persons. (3) Income derived by or accruing to a minor may be taxable in the hands of the trustee or other like person acting in a similar capacity. Provided that— (a) where a married woman is in receipt of income exceeding [$1,200] in any year, she and her husband may jointly elect to be assessed separately and such persons shall, subject to the other provisions of this section, thereupon be assessed as if they were unmarried. Such election shall state whether the husband or the wife is to be the person to whom allowances, if any, under the provisions of section 25 or 31 may be made and only the person so stated shall be entitled to receive any such allowance; (b) a married woman separated from her husband under an order of a court of competent jurisdiction or a written agreement or in such circumstances that the separation is likely to be permanent shall be treated as an unmarried person [, subject to the provisions of section 25(1)(A)]. (2) (a) In no case shall the total of the allowances referred to in paragraph (a) of the proviso to subsection (1) or of the allowances, if any, available under the provisions of this Act exceed the total of such allowances or deductions as would be available to the husband [and, under section 26, to the wife] but for the election to be assessed separately. (b) The deductions permitted under the provisions of section 26 shall be allowed to the spouse entitled in accordance with that section …. (c) The total tax due on aggregation of the joint chargeable income shall be apportioned in the ratio of each spouse's chargeable income and the respective apportioned sums shall be the tax due from each spouse: Provided that nothing in this paragraph shall prevent the operation of collection processes within sections 75, 76 and 77 against the husband in respect of tax due from his wife; (d) the rebate permitted under section 100A shall be allowed to the spouse entitled in accordance with that section, but, should the limitation imposed by this subsection apply to reduce the rebate to either or both husband and wife, the rebate shall be apportioned in terms of their respective entitlement in such manner as they may agree or, in default of agreement, in such manner as appears to the Commissioner to be reasonable. (3) In any year in respect of which an election under the provisions of subsection (1) is effective, the income of the wife shall be assessed separately as her income and shall not be assessed as the income of the husband. (4) An election under the provisions of this section shall be made in writing to the Commissioner not later than 31 March in the year immediately following the year of income. (5) Where an election is made in respect of any year, it shall be irrevocable in respect of such year and such election shall continue to apply in respect of subsequent years until the election is revoked in respect thereof. (6) Where an election is revoked after 31 March in any year, the revocation shall not have effect in respect of that year but shall affect subsequent years. (7) Revocation of an election shall not prohibit a further election under the provisions of paragraph (a) of the proviso to subsection (1). (8) The Commissioner may, at any time, extend the date for election under subsection (4) or for revocation under subsection (6). (9) An election made under this section shall not be effective in respect of any year in which the income of the married woman is not in excess of [$1,200]. (10) Where an election for separate assessment has been made, the tax assessed separately shall not be less than the tax which would have been assessed on the spouses' joint incomes if no election had been made [, but where a wife is in receipt of— (a) earnings (or a pension pertaining thereto) or profits relating to personal exertion income in which her own skills are used; or (b) income which arises from inheritance or from her own savings, or assets acquired from her own savings, and such earnings, profits or income arise or accrue from a source which is unconnected with any funds provided by her husband or any trade, business, profession or vocation carried on by her husband, either individually or in association with any other person, or by a company in which the husband has an interest and to which subsection (1) of section 12 applies, that tax payable shall not exceed the sum of the tax payable on— (i) the joint income, excluding the wife's earnings, profits and income described in this subsection, taxed as a single person; and (ii) the wife's earnings, profits and income, as so described, taxed as a single person … but with a deduction of [$1,200] in respect of the allowance for the wife.] Provided that any person whose only source of income is from emoluments as defined in section 79 and who is not liable to have any deductions of tax made and who has not had such deductions as aforesaid lawfully made from such emoluments in accordance with any regulation made under the provisions of section 81 and any person whose only liability has been for deduction of [basic tax] shall not be required to lodge a return of such income unless required to do so by notice or demand sent to him by the Commissioner. Such notice or demand may be sent to that person by serving it on him personally or by posting it to the address for service as specified in this section or under any regulation made under the provisions of section 81 and, in the case of posting, shall be deemed to have been received by that person upon the expiry of 28 days from the date of posting. (2) Any such return shall be made in Fiji currency. (3) If any income is derived by a taxpayer from a business carried on in a country other than Fiji— (a) that income must be expressed in Fiji currency at a rate equal to the average exchange rates applicable from time to time during the year that the income is derived; and (b) any foreign tax paid in that other country in respect of that income must be expressed in Fiji currency at the exchange rate applicable at the time when the tax was paid. (4) If any income is derived by a taxpayer from employment in a country other than Fiji— (a) that income must be expressed in Fiji currency at a rate equal to the average exchange rates applicable from time to time during the whole or part of the year that the income is derived; and (b) any foreign tax paid in that other country in respect of that income must be expressed in Fiji currency at the exchange rate applicable at the time when the tax was paid. (5) If any income, other than income to which subsection (3) or (4) applies, is derived by a taxpayer from a country other than Fiji, that income and any foreign tax paid in that other country in respect of that income, shall be expressed in Fiji currency at the exchange rate applying— (a) if all of the income is remitted to Fiji – on the day it is remitted; (b) if part of the income is remitted to Fiji – on the day it is remitted; or (c) in any other case – at the end of the relevant year of income. (6) For the purposes of subsections (3), (4) and (5)— (a) the day an amount is remitted is the day that it is received in Fiji; and (b) “exchange rate” means the telegraphic transfer buying rate issued by a financial institution licensed under the Banking Act 1995. Return by guardian or legal representative Provided that, to the extent to which any person is required under other provisions of this Act or under any regulation made under the provisions of section 81 or 107 to furnish similar information in respect of any other person, then, to that extent, such person is relieved of his requirement to make a return under this section. (a) an agent, non-resident trader or person believed by the Commissioner to be about to discontinue the carrying on of business in Fiji unless such agent, trader or person satisfies the Commissioner that he intends to continue residing in Fiji; (b) a person who is believed by the Commissioner to be about to leave Fiji; (c) a non-resident who has ceased to carry on business in Fiji or to derive income therefrom; (d) the executors or administrators of a deceased taxpayer in respect of income derived by him in his lifetime; (e) a person who has become bankrupt, or a company which is in the course of being wound up. (2) The Commissioner may, if he thinks fit, at any time during the income year or in any subsequent year, require any person to whom this section applies to make a return of income derived from any specified transaction or transactions, or during any specified period, and may assess him for tax on the income so returned, or when default is made in making any such return, or the Commissioner is dissatisfied therewith, then on a sum estimated according to the best of the Commissioner's judgment, and shall give notice of the assessment to the person so assessed. (3) Any person so assessed shall have the same right of objection as is conferred by section 62. (4) Tax so assessed shall be payable by the date specified by the Commissioner in the notice of assessment and the tax shall be recoverable in the same manner as tax assessed under section 55. (5) If any such assessment of tax on income is made during the income year, the assessment under this section shall be made in accordance with the law in force and the rate of tax applicable at the date of the making of the assessment. (6) No assessment made under this section shall, in any manner, preclude a subsequent assessment of the same person in the ordinary course in respect of the whole of the income derived by him during the income year with respect to which the assessment under this section was made, but, in any such case, credit shall be given against the tax charged in the subsequent assessment for that paid under the earlier assessment. Demand for additional information Production of letters, accounts, etc. (3) The Commissioner may require and demand the production or the production on oath by any person or his agent or officer of any letters, accounts, invoices, statements, books or documents held by such person, agent or officer for the purpose of arriving at the tax believed to be payable by any other person, and the same shall be produced within the time determined by such demand. (b) The Commissioner or any officer authorised by him may, for the purposes of any inspection under this subsection, require the production of any book or document by any person in whose custody or control such book or document may be and may require any such person to give all reasonable assistance in the inspection and to answer all proper questions relating thereto. Partnerships – return of partners Provided that a husband and wife carrying on business together shall be deemed not to be partners for any purpose under this Act. (2) A member of a partnership of a business of which the fiscal year is other than the calendar year shall make a return of the income of the business within 3 months of the end of such fiscal year. “application” means an application to the Board under this Part; “Board” means the Tax Agents' Board constituted under section 54B; “person” means a natural person; “tax agent” means any person registered as a tax agent under this Part. Tax Agents' Board (a) the Auditor-General, who shall be Chairman of the Board; (b) a member of the Fiji Institute of Accountants nominated by the Council of that Institute; and (c) a person with accounting knowledge and experience nominated by the Minister. (2) A member of the Board shall be paid such expenses as the Minister may direct. Board under this Part. (2) Each application to the Board for registration as a tax agent shall be accompanied by the prescribed fee. (3) Registration as a tax agent, if granted by the Board, shall be valid for a period of up to and including the thirty-first day of December of the year in which the application was granted. (4) Any registered person who, upon the expiry of his registration, wishes to be registered for the following year shall submit his application, together with the prescribed fee, for registration to the Board within twenty-one days of the date of expiry of his registration, failing which his registration shall be deemed to be cancelled. (5) Subject to subsection (6), if an applicant satisfies the Board that he is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters he shall be entitled to registration as a tax agent. (6) If an applicant for registration does not possess an academic qualification acceptable to the Board, the Board may request the Fiji Institute of Accountants to conduct on its behalf an examination to determine whether the applicant's knowledge of accounting and of income tax law and practice is sufficient to entitle him to registration. (a) any return to the Commissioner which has been prepared by the tax agent is false in any material particular, unless he establishes to the satisfaction of the Board that the false statement was not wilfully or negligently made; (b) the tax agent has become bankrupt; (c) the tax agent has ceased to carry on business as a tax agent; (d) the tax agent has failed to maintain his personal tax affairs in a satisfactory state; (e) for any other reason, the tax agent has ceased to be a fit and proper person to remain registered. (2) The cancellation of a registration under this section shall not take effect in any case until the expiration of 60 days from the date of notification of the decision of the Board and, if, within that period, the person affected gives notice of his intention to appeal against the decision, shall not take effect until and unless the cancellation is confirmed by the Minister. (2) Any appeal under subsection (1) shall be in writing and, after considering the appeal, the Minister may confirm or reverse the decision of the Board. (a) the preparation of any return to the Commissioner; (b) any objection to any assessment; (c) the transaction of any business on behalf of any person in respect of any of that person's rights or obligations under this Act. (2) This section shall not apply to any barrister and solicitor performing legal work in connection with income tax matters. (2) If it appears to the Commissioner that any error has occurred in the accounts or computations, he may refer the report back for further consideration. (3) Nothing in this section shall affect the right of objection and appeal conferred by section 62. (2) In addition to any powers conferred upon the Commissioner under subsection (1), the Commissioner may re-open any assessment within 6 years of the end of the year of assessment and may, where the amount of tat assessed under such assessment is less than the amount which ought properly to have been assessed, amend such assessment. Where the Commissioner amends an assessment under the provisions of this subsection, he shall fix the date of payment of any tax outstanding thereunder. An objection shall lie from the amended assessment in the same manner as if it were an original assessment but subject to the proviso to subsection (1) of section 62. Provided that the provisions of this section shall only operate to the extent that any saving in tax to the company paying the dividend is passed on to the Corporation or Company. Provisional tax and tax deducted from emoluments to be credited against tax assessed (a) if the sum of the said amounts of tax deducted from emoluments and provisional tax exceeds the amount due in respect of the said liability, the excess shall, subject to the other provisions of this section, be refunded to the taxpayer as soon as practicable thereafter; or (b) if the amount due in respect of the said liability exceeds the sum of the said amounts of tax deducted from emolument income and of provisional tax, the excess shall, subject to the other provisions of this section, be payable by the taxpayer. (2) If, in respect of any person to whom there is an excess amount to be refunded in accordance with paragraph (a) of subsection (1), there is an amount due to the Commissioner by that person in respect of any tax, penalty, interest of costs [under this Act, or the Value Added Tax Decree 1991, or the Gambling Turnover Tax Decree 1991] for that year or any other year of assessment, then such excess shall first be applied towards such other liability and only any then remaining excess shall be refunded to the taxpayer. (3) In the making of any refund to a taxpayer or in the recovery of any further amount payable by a taxpayer in accordance with the provisions of this section, any amount of less than $2 shall be ignored by the Commissioner. PART IX – APPEALS Provided that, where the assessment is an amended assessment, the taxpayer shall have no further right of objection except to the extent to which, by reason of the amendment, a fresh liability in respect of any particular is imposed on him or an existing liability in respect of any particular is increased. (2) The Commissioner may, in his discretion, extend the time for giving notice of objection under subsection (1). (3) On receipt of the notice of objection referred to in subsection (1), the Commissioner may require the taxpayer to furnish such particulars as the Commissioner may deem necessary with respect to his income and to produce all books or other documents in his custody or under his control relating to such income, and may summon any person who, he thinks, is able to give evidence respecting the assessment to attend before him and may examine such person (except the clerk, agent, servant or other person confidentially employed in the affairs of the taxpayer) on oath or otherwise. (4) The Commissioner shall consider the objection and shall either allow or disallow it wholly or in part. (5) The Commissioner shall give written notice of his allowance or disallowance of the objection to the person objecting and shall state in such notice the time, not being less than [35] days, within which such person may exercise the right of appeal given to him in subsection (6) or in subsection (7) of section 70. [Any notice required to be given under this subsection shall be sent by registered post and the period within which an appeal may be lodged shall commence upon the date of posting of the notice.] (5A) Where, before the expiration of the time specified in a notice is given under subsection (5), the person to whom the notice is given makes application in writing to the Commissioner for an extension of that time, the Commissioner may, in his discretion, extend that time for such period as he thinks fit and shall, as soon as practicable, give notice in writing to the applicant of his decision, and, where the time is so extended, a reference in this Act to the time specified in a notice given under subsection (5) shall be deemed to include a reference to that time as so extended. (6) Any person objecting to the decision of the Commissioner under subsection (4) may, within the time determined under subsection (5), appeal to the Court of Review and such appeal shall be heard and determined as hereinafter provided. Save with the leave of the Court of Review, no person may appeal to the Court of Review upon any ground other than a ground stated in the objection to the Commissioner. (7) The obligation to pay and the right to receive and recover any tax chargeable under this Act (including any interest, costs and penalties) shall not, unless the Commissioner so directs, be suspended by any objection or appeal or pending the decision of the Court of Review under section 63, 69 or 70 but, if any assessment is altered on objection or appeal or in conformity with any such decision, a due adjustment shall be made, amounts paid in excess being refunded and amounts shortpaid being recoverable. (8) Where no objection is made within the time for objecting set out in subsection (1) or where that time is extended by the Commissioner, within the time so extended, the assessment shall stand and shall be valid and binding upon the taxpayer, notwithstanding any defect, error or omission that may have been made therein or in any proceeding required by this Act or any regulation thereunder. (2) Section 102 of the Constitution shall apply to the office of the Court of Review. Rules of Court Provided that the hearing of the appeal by the Court of Review shall not commence until after the expiration of not less than 30 days from such notification as aforesaid. (2) The Court of Review shall have power to increase the assessment in any case before it. (3) The Court of Review shall send a copy of its decision by registered mail to the Commissioner and to the appellant or its agent or officer. Appeal to [High Court] Discretions Review Board Provided that no appeal shall lie to the Board save in a case where the taxpayer has lodged an objection with the Commissioner under section 62 and the Commissioner has disallowed such objection either wholly or in part. (2) The Chairman of the Board shall be appointed by the Judicial and Legal Services Commission and shall be a barrister and solicitor of at least 6 years' standing. (3) The Judicial and Legal Services Commission shall appoint a panel of 6 members of the Board in addition to the Chairman, being persons with legal, accountancy, banking, commercial or other such qualifications as may seem suitable. (4) Section 102 of the Constitution shall apply to the office of Chairman of the Board and to the office of member of the Board. (5) The Chairman and members of the Board may be paid such remuneration as the Minister may allow. (6) For each appeal, the Board shall be constituted by the Chairman and shall consist of 3 members, 1 of whom shall be the Chairman, or, if he is for any reason unable to sit, such member as he may nominate to act as Chairman for that appeal. (7) Any taxpayer dissatisfied with an exercise of discretion by the Commissioner in respect of any of the matters specified in the Second Schedule may personally or by his agent, within the time determined by the Commissioner under the provisions of subsection (5) of section 62, file with the Chairman of the Board and serve on the Commissioner a notice of appeal in writing in the form set out in Form 5 in the First Schedule, together with such copies thereof as may be required, stating clearly and concisely the grounds on which he is dissatisfied with the Commissioner's decision, and together with a fee of $2. Save with the leave of the Board, no person may rely on any ground of appeal before the Board, other than a ground stated in the objection to the Commissioner. (8) The Board shall have all the powers of a Court as to taking evidence on oath, issuing summonses, awarding costs and other matters. The Commissioner and the taxpayer may appear before the Board personally or by means of a barrister and solicitor or agent. Subject to the provisions of this section, the Board may regulate its own procedure. (9) Appeals to the Board shall be by way of rehearing. Notwithstanding that the Board may consider that the Commissioner has made no error in law and acted on no wrong principle in exercising his discretion, the Board may substitute its own discretion for the discretion of the Commissioner. For the purpose of exercising its powers, the Board shall have all the powers which the Commissioner has in making assessments, determinations and decisions, including decisions on objections, under the provisions of this Act. (10) A taxpayer shall not appeal both to the Court of Review and to the Board in respect of the same matter. (11) The decision of the majority of the members of the Board hearing an appeal shall be the decision of the Board. The Chairman shall have a deliberative but not a casting vote. (12) A decision of the Board in an appeal under this section shall be given in writing, stating shortly the grounds for the decision, and may either confirm, reduce or increase the amount determined by the Commissioner in exercise of his discretion. The Board's decision shall be final and conclusive and shall not be subject to any further appeal. The Board shall notify its decision to the Commissioner and the Commissioner shall make such amendments to the assessment as may be necessary to give effect to such decision. (13) The provisions of subsection (7) of section 62 and subsection (3) of section 71 shall apply to the proceedings of the Board as they apply to objection proceedings and the proceedings of a court respectively. Onus of proof on taxpayer before payment (a) he shall, for all purposes of this Act, be deemed to have received the premium in his representative capacity immediately before it was so paid or credited; and (b)if he pays or credits the premium before arrangements have been made to the satisfaction of the Commissioner for the payment of any tax which may be assessed in respect of that premium, he shall be personally liable to pay that tax. (2) When any such amount of moneys includes a pension, salary, wages or other remuneration or reward payable at certain fixed intervals, the notice shall state that the sum specified shall be paid by deductions not exceeding one-fifth of the amount payable at every such interval. (3) Any amount lawfully so deducted shall be deemed to have been deducted with the consent of the taxpayer and no action shall lie against any person merely by reason of the making of such deduction. (4) The sum deducted from any amount pursuant to a notice under the provisions of this section shall be deemed to be held in trust for the [State], and, without prejudice to any other remedies against the debtor or any other person, shall be recoverable in the same manner in all respects as if it were tax payable by the debtor. (5) Any person receiving such notice of deduction as aforesaid who is unable to comply therewith on account of the fact that the moneys in question do not come into his possession within the period specified in such notice shall notify the Commissioner within 14 days of the expiration of such period, acquainting him with the facts. If the person receiving the notice is the employer of the taxpayer, he shall notify the Commissioner within 14 days if the taxpayer leaves his employment during the currency of the order. (6) (a)The provisions of this section shall bind the [State]. (a) Any such notice of deduction in respect of any amount of moneys which are payable or may become payable to the [State] to any taxpayer shall be sent to the head of the appropriate department. (b) For the purposes of subsection (1), any amount (including the penalty payable if any) referred to in [subsection (1)] of section [93] shall be deemed to be tax payable under any assessment by the person who fails to deduct or to remit or pay the amount in accordance with regulations made under the provisions of section 81 or 107 and the date upon which such person so failed to deduct or to remit or pay the amount, as the case may be, shall be deemed to be the date when such assessment becomes valid and binding. (8) For the purposes of subsection (1), any provisional tax certified by the Commissioner as payable under the provisions of Part XII shall be deemed to be tax payable under an assessment which had become valid and binding under the provisions of section 62 by the person who fails to remit, pay or deduct the amount in accordance with Part XII. The date upon which such amount is due shall be deemed to be the date upon which such amount should have been paid, remitted or deducted under the provisions of that Part and the provisions of this section and of sections 76 and 77 shall be regarded as applicable to such amount. (9) For the purposes of subsection (1), notice shall be served upon a taxpayer by— (a) delivering, it personally to the taxpayer; or (b) posting to the address furnished by the taxpayer under subsection (1) of section 44; or (c) in the case of a non-resident, by delivering it personally or posting it to the agent of the non-resident, and, where such notice has been posted, it shall be deemed to have been received by the taxpayer or his agent, as the case may be, upon the expiry of 28 days from the date of posting. Recovery of tax Taxes, etc., charge upon property (6) A charge on any real property shall he registered by the Registrar of Titles without fee against the title of the land charged upon the filing with him by the Commissioner of a memorandum under the hand of the Commissioner setting forth the description of the land so charged and the amount payable. (7) When any such charge as aforesaid has been satisfied, the Commissioner shall deposit with the Registrar of Titles a memorandum of satisfaction and the Registrar of Titles shall, without fee, register the same against the title of the land. (8) If any taxes, interest, costs and penalties are in arrear and constitute, by virtue of subsection (3), a charge on any property, the Commissioner may apply by petition to the [High Court] for the enforcement of the charge and the Court may make such order in the premises as it thinks just, either by sale of that property or any part thereof or for the appointment of a receiver of the rents, profits or income thereof and for the payment of the amount in arrear and the costs of the Commissioner out of the proceeds of the sale or out of the said rents, profits or income. (2) In any suit under subsection (1), the production of a certificate signed by the Commissioner giving the name and address of the defendant and the amount of tax due by him shall be sufficient evidence that such amount of tax is due by such person and sufficient authority for the Court to give judgment for such amount. Provided that no claims shall be admissible where a person has failed to deliver a return under subsection (1) of section 44 [and] to submit a formal application for relief or refund within 3 years after the end of the year of assessment for which a refund is due, unless such refund is attributable to an error or mistake in the Commissioner's office. (2) Instead of making a refund which might otherwise be made under this section, the Commissioner may, where the person is liable or about to become liable to make another payment under this Act, apply the amount of the overpayment to that other liability and notify such person of that action. (3) Nothing in this section shall operate to extend or reduce any time limit for objection, appeal or repayment specified in any other section or to validate any objection or appeal which is otherwise invalid, or to authorise the revision of any assessment or other matter which has become valid and binding. (4) Where a refund due to a person in respect of an assessment is not made within 6 months of the date of furnishing the return of income, there shall be paid to such person, in addition to the amount of the refund due, a further sum equal to 5% per annum of the amount of the refund, calculated from the expiry of 6 months from the date of lodgement of such return to the date on which the refund is made, provided that the delay is entirely in the office of the Commissioner. PART XI – PAY AS YOU EARN “emoluments” means all salary, wages, overtime, bonus, remuneration, gratuities, including the estimated annual value of any quarters or board or residence or of any other allowance granted in respect of employment whether in money or otherwise, stipend, commission, or other amounts for services, directors' fees, retiring allowances or pension, accruing in, derived from or received in Fiji, and which are assessable to tax, but shall not include any salary or share of profits arising from a trade, business, profession or vocation carried on by any person either by himself or in partnership with any other persons; “employment” means the position of an individual in the service of some other person, including the [State], and shall include an office or a position entitling the holder thereof to a fixed or ascertainable stipend or remuneration, and includes any other office the holder of which is elected by popular vote or is elected or appointed in a representative capacity and also includes the position of a director of a company. Provided that, if any question arises as to whether any emoluments are or are not emoluments within the meaning of section 79, such question shall be determined by the Commissioner, and the provisions of this Act relating to objections and appeals shall apply to any determination of the Commissioner under this section. (a) for requiring any person making any payment of, or on account of, any such emoluments, when he makes the payment, to make deduction of tax calculated by reference to tax tables prepared by the Commissioner and for rendering persons who are required to make any such deductions accountable to the Commissioner. The said tax tables shall be constructed with a view to securing that, as far as possible, the total tax payable in respect of any emoluments for any year is deducted from the emoluments paid during that year; (b) for the production to, and inspection by, the Commissioner, or any officer authorised by him in writing upon the production of his written authority, of wages sheets and other documents and records for the purpose of satisfying the Commissioner that tax has been and is being deducted and accounted for in accordance with the regulations; (c) for the collection and recovery, whether by deduction from income paid in any later year or otherwise, of tax in respect of emoluments to which this Act applies which has not been deducted or otherwise recovered during the year; (d) for the making of assessments in respect of emoluments and for other matters dealing with the recovery of underpayments or the refund of overpayments arising therefrom and for ignoring any amount of less than, $2 in the amounts so ascertained of any underpayments to be recovered or overpayments to be refunded and for the manner in which amounts of excess tax are to be refunded under the provisions of section 78; (e) for appeals with respect to matters arising under the regulations which would not otherwise be the subject of an appeal; for the charging of fees on the issue of duplicate exemption cards and other documents, and any such regulations shall have effect notwithstanding anything in this Act contained: Provided that such regulations shall not affect any right of appeal which any person would otherwise have apart from the regulations. (2) Any regulations made under the provisions of subsection (1) may prescribe in respect of any contravention of or failure to comply with any provision thereof, on conviction, a fine not exceeding [$2,000] or to imprisonment not exceeding [1 year] or to both such fine and imprisonment. PART XII – PROVISIONAL TAX (2) The provisions of this section shall not apply to any person whose income is derived wholly or mainly from primary industry, or to any other class of person, in respect of whom the Commissioner may, in his discretion, consider an alternative type of provisional tax scheme more appropriate. (a) for each year the amount of provisional tax payable by each person to whom these provisions shall apply shall be an amount equal to the tax assessed in respect of the income of the immediately preceding income year, less the amount of any tax which was deducted in accordance with the provisions of section 80 from any emolument income included in the total income of that person for that preceding year: Provided that, in any case where the amount of tax in respect of the immediately preceding income year has not been assessed by the date set down in subsection (1) of section 85 for payment of any instalment, the amount of the instalment which then becomes payable shall be based upon the amount of provisional tax payable in respect of the immediately preceding income year. Any underpayment or overpayment of any instalment of provisional tax which arises in these circumstances shall be adjusted upon payment of the next instalment of provisional tax; (b) in any case where a person commenced, during the year immediately preceding the income year, to derive income from any source, the amount of provisional tax payable by that person shall be an amount as estimated by the Commissioner and notified to that person. Provided that, where the Commissioner has agreed to the reduction in the amount of provisional tax payment in any year before the payment of the second and third instalments or after the payment of the second instalment and before the payment of the third instalment, the amount payable on those instalments shall be varied accordingly. (2) Where the amount of provisional tax payable by a person is less than $20 then payment shall be made in 1 amount on or before 31 August. Additional tax where provisional tax underestimated (a) the amount of tax calculated on 80 per cent of his actual income for the year; and (b) the amount of tax calculated on the basis of the full amount of the aforesaid estimate: Provided that, where emolument income is derived in that year, any deductions made therefrom in accordance with the provisions of section 80 shall be deducted from (a) and (b). (2) Where the Commissioner is satisfied that any person has become liable to pay additional tax under this section by reason of his income for that year being affected by circumstances of which he was not or could not reasonably have been aware at the time of making the estimate referred to in subsection (2) of section 84, the Commissioner may, in his discretion, remit the additional tax or any part thereof. (3) Additional tax payable under this section shall, for all purposes, be deemed to be of the same nature as the tax that is assessed to the taxpayer in respect of the income of the income year and shall be recoverable accordingly and the provisions of sections 75, 76 and 77 shall apply thereto. Special circumstances Voluntary payments of additional provisional tax (a) amounts in excess of provisional tax payable by him in respect of the income of the income year; or (b) amounts in respect of an income year where no provisional tax is payable by him in respect of that year. (2) For the purpose of facilitating the making of such arrangements, the Commissioner is authorised to nominate, at his discretion, the person who shall be responsible for making the deduction at source of the instalments to be paid in respect of provisional tax and the person so nominated is hereby required to make and to account for such deductions in such manner as the Commissioner shall require. (3) Any person who is required by the Commissioner to make such deductions and who fails so to do in the manner required shall be guilty of an offence and shall be subject to the like penalties as are set out in section 93. (4) The provisions of sections 61 and 87 shall apply to persons whose provisional tax payments are arranged under the provisions of this section. (5) Any amount lawfully deducted under any arrangement made under the provisions of this section shall be deemed to have been deducted with the consent of the taxpayer and no action shall lie against any person merely by reason of the making of such deductions. Extension of time for payment of provisional tax Advance payment of tax by companies (a) not later than the last day of its fiscal year, [33¯] per cent of the amount of tax which it estimates will be payable upon the income of that company for that fiscal year; and (b) within 3 months after the last day of its fiscal year, [66°] per cent of the amount of tax estimated as aforesaid less the amount paid in terms of paragraph (a). (2) When, in accordance with the provisions of section 55, a notice of assessment is sent to the company by the Commissioner in the ordinary course of events, credit shall be given against the amount of that assessment for the advance payments of tax made as provided in subsection (1). (2) The Commissioner may, where it is shown to his satisfaction that the failure to make an advance payment or a sufficient advance payment was due to circumstances which were not or could not reasonably have been foreseen by the company at the time such payments were due, remit the whole or any part of the penalty provided for in this section. PART XIII – OFFENCES AND PENALTIES (a) to deduct any amount required to be deducted by him under section 8, 9, [9A,] 10 or [10A] or under the regulations made pursuant to the provisions of section 81 or 107; or (b) to remit or pay to the Commissioner, or as the Commissioner should so direct, any amount which has been deducted by him under sections 8, 9, [9A,] 10 or [10A] or under the regulations made pursuant to the provisions of sections 81 and 107 by such date or dates as may be prescribed by those sections or regulations, such person shall be liable to pay every such amount to the Commissioner and, in addition, shall be liable to a penalty of 25 per cent of each such amount or $2 whichever is the greater sum, unless the Commissioner otherwise directs, and every such amount and every such penalty shall be payable as if the same were tax payable by such person on the date when such amount was required to be deducted, remitted or paid, as the case may be, and the provisions of sections 75, 76 and 77 shall apply thereto; and any person so failing as aforesaid shall be guilty of an offence and shall be liable, on conviction, to a fine of [$2,000] or to imprisonment for [1 year] or to both such fine and imprisonment in respect of each such offence. (2) If any person fails to deliver personally or send by post any certificate, form or other document, account or return within such time or times as may be prescribed by section [9A or] 54 or by regulations made under the provisions of section 81 or 107, he shall be guilty of an offence and liable, on conviction therefor, to a fine of $10 for every day during which such failure shall continue: Provided that it shall be a good and sufficient defence to any complaint brought under this subsection that any such failure was not due to the neglect or default of the defendant or of any person acting on his behalf. Penalty for not making return (2) Any person liable to pay any tax under this Act who makes, or permits to be made on his behalf, a false statement in a claim for allowances, deductions and reliefs under any section of this Act, shall pay to [the State] the additional amount of tax due and, in addition, interest at a rate of 10 per cent per annum upon such amount from the last date prescribed for making such return until the same is paid. If the amount of the claim for allowances, deductions and reliefs from his return exceeds 10 per cent of the correct allowances, deductions and reliefs, but is under 20 per cent of the same, such person shall pay to [the State] an additional amount equal to one half of the amount of such excessive allowances, deductions and reliefs and, if the excessive allowances, deductions and reliefs amount to 20 per cent or more of the correct allowances, deductions and reliefs, such person shall pay to [the State] an additional amount equal to the amount of such allowances, deductions and reliefs. The penalties specified in this subsection are additional penalties and not in lieu of any penalty that may be, imposed under the provisions of section 96. All penalties and interest under this subsection shall be assessed and collected from the person liable therefor in the same manner in which tax is assessed and collected. (3) For the purpose of subsection (1), “income” means total income before any deductions in terms of section 21(1)(h), section 22 and section 105. 95A-(1) If any company overestimates the percentage of dividend subject to corporate tax by an amount of 20 per cent or more of the correct percentage, that company shall be liable to an additional tax equal to the amount of the shortfall in tax so determined under the Dividend Regulations. (2) The additional tax prescribed under subsection (1) is payable within 30 days of the date of written notification by the Commissioner. (3) The additional tax prescribed under subsection (1) shall be reduced by 75 per cent if the company informs the Commissioner by way of voluntary disclosure of the shortfall so determined in regulation 10 of the Dividend Regulations. (2) Any person who wilfully with intent to evade or to assist any other person to evade any tax imposed by this Act— (a) omits from a return made by him or on his behalf under this Act any income which should be included; or (b) makes any false statement or entry in any return or claim to allowances, deductions and reliefs made by him or on his behalf under this Act; or (c) gives any false answer, whether orally or in writing, to any question or request for information asked or made in accordance with the provisions of this Act; or (d) 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 (e)makes use of any fraud, art or contrivance whatsoever or authorises the use of any such fraud, art or contrivance; or (f) makes or furnishes a declaration which may be filed under any regulation made in accordance with the provisions of section 81 knowing or having reasonable cause to believe the same to be false, shall be guilty of an offence and shall for each such offence be liable to a fine of $400 and treble the amount of tax for which he is liable under this Act for the year of assessment in respect of or during which the offence was committed, or to imprisonment for 6 months or to both such fine and imprisonment. The Commissioner may compound any offence under this subsection and may before judgment stay or compound any proceedings thereunder. (3) Any person who contravenes the provisions of section 54J or 54K shall be guilty of an offence and shall be liable, on conviction, to a fine or $200 or to imprisonment for 6 months or to both such fine and imprisonment. (a) Any person who receives a notice of deductions under subsection (1) of section 75 from the Commissioner and without lawful excuse— (i) fails to comply with the provisions therewith; (ii) fails to notify the Commissioner within 14 days of the expiration of the period specified in the notice of deduction acquainting him with the facts; or (iii) fails to notify the Commissioner within 14 days of the taxpayer leaving his employment, shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding $100; (b) without prejudice to the meaning of the words “lawful excuse” in this subsection, these words shall include the inability to pay any amount specified in such notice of deduction on account of the fact that such amount does not come into the possession of the person receiving such notice within the time specified therein, and, in the case of a person carrying on business at more than 1 branch in Fiji, shall also include any failure to deduct, where payment to a taxpayer in respect of whom a notice under this section has been issued, is properly made by a branch other than that through which the payment would normally be expected to be made and the Commissioner has not served a copy of the notice of deduction on that branch; (c) for the purposes of subsection (1) of section 75, and of this section, “tax” shall also include interest and penalties properly imposed under this Act and also costs. 97A. If any company fails to pay the shortfall of the tax liability calculated under the Dividend Regulations, or fail to pay the additional tax in accordance with the provisions of section 95A of the Act, the company shall pay in addition to any other penalties, a penalty of $2 or one quarter of the tax unpaid, whichever is the greater sum. Penalty for failing to appoint an authorised officer of a company Provisional tax – penalty for late payment (3) Any person who— (i) obstructs or refuses to permit the entry of the Commissioner or any officer authorised by him upon any land, building or place for the purpose of any inspection under subsection (5) of section 50; (ii) obstructs the Commissioner or any officer authorised by him when carrying out such inspection; (iii) refuses to produce any book or document in his custody or control on being so required by the Commissioner or any officer authorised by him for the purpose of any such inspection; (iv) fails to give reasonable assistance to the Commissioner or any officer authorised by him in any such inspection upon being required so to do; or (v) refuses to answer any proper question relating to such inspection, shall be guilty of an offence and, upon conviction, shall be liable to a fine not exceeding $100: Provided that a person shall not be convicted both under this subsection and under section 96 in respect of the same facts. Limitation of proceedings (2) Save in respect of the penalty imposed by a Court under the provisions of section 96, the Commissioner may, in his discretion, mitigate or remit any penalty which may be assessed, recovered or imposed under this Act. PART XIV – REBATES FROM TAX CHARGED Provided that only 1 rebate shall be due where an election is made under section 43 for separate assessments. (2) A rebate given under this section shall be withdrawn if, in any year of income, there is a decrease in savings in relation to the immediately preceding year. (3) The Minister shall make such regulations as he considers necessary in relation to the operation of home ownership savings accounts and such regulations may, in particular, include provision for— (a) the maximum amount of saving that will be subject to rebate in any year of income; (b) the aggregate amount of savings which will be eligible for a rebate; (c) the manner in which any increase of decrease in savings will be determined for each year of income; (d) the nomination of financial institutions which may operate home ownership savings accounts; (e) the circumstances and the manner in which a rebate given under this section may be withdrawn. (4) For the purposes of this section, “home ownership savings account” means a savings account under that name with a financial institution authorised to operate such accounts in terms of regulations made under section (3). “ 101.Save as is otherwise provided in this Act, there shall, in the case of an individual …, be deducted from the amount of tax payable under section 7 a sum of [$70] which shall be called a general rebate: Provided that— (a) where the taxpayer is a married person who has elected separate assessment under the provisions of section 43, the general rebate shall be apportioned between husband and wife on the same basis as that elected under paragraph (c) of subsection (2) of that section and a separate general rebate shall not be due to the wife; (b) where a taxpayer has been divorced or separated under an order of court of competent jurisdiction, or under a written agreement or in such circumstances that the separation is likely to be permanent, the rebate shall be granted to each spouse with effect from the effective date of the order, agreement or separation; (c) the Commissioner may apportion the rebate due to a taxpayer so that, in the case of a change of circumstances in any year, no more than, $30 shall be granted to any taxpayer: Provided that nothing in this paragraph shall prevent a single woman or a widow from receiving the fix amount of the rebate for the year in which she is married as a deduction from the tax payable notwithstanding that she may be entitled to a part of the rebate for the same year in respect of her income derived or accrued from the date of marriage; (d) in the case of a non-resident individual, the rebate shall be apportioned in the same manner as allowances under the proviso to section (1) of section 31.” (a) in respect of income derived from a territory with arrangements have been made regarding relief from double taxation, relief shall be given in accordance with that arrangement; (b) in respect of income derived from a territory with arrangements have not been made regarding relief from double taxation, such income shall be exempt from tax to the extent that it is chargeable with income tax in that other territory: Provided that— (i) the taxpayer shall furnish evidence satisfactory to the Commissioner showing the amount of tax paid and the particulars of income; (ii) such income not be exempt if, under the law of that other territory, tax is deducted therefrom at source but such person has the right thereafter of making a return of that income and being assessed to tax thereon with relief in proper circumstances for the whole or any part of the tax already deducted at source and he does not exercise that right; and a certificate purporting to be signed by an officer of the Taxation Department of that other territory shall be prima facie evidence that such a right exists and of the exercise or non-exercise thereof by the taxpayer. Extent of relief under Double Taxation Agreement (i) relief shall only be granted to persons who are resident in Fiji for the year of assessment; (ii) credit shall not be allowed by virtue of section 102 for overseas tax on a dividend unless the overseas tax is directly charged on the dividend, whether by charge to tax, deduction of tax at source or otherwise and the whole of it represents tax which neither the company nor the recipient would have borne if the dividend had not been paid; (iii)the amount of the credit for overseas tax which is to be allowed to a person against income tax for any year of assessment shall not exceed the difference between the amounts of income tax which would be borne by him for the year (no credit being allowed for overseas tax)— (a) if he were charged to tax on his total income, computed in accordance with this Act; and (b) if he were charged to tax on the same income, computed in the same way but excluding the income in respect of which the credit is to be allowed. (iv) credit for overseas tax is to be allowed in respect of income from more than 1 source, this basis shall be applied successively to the income from each source but so that, on each successive application, paragraph (a) shall apply to total income exclusive of the income to which this paragraph has already been applied; (v) where credit is to be allowed against the Fiji tax payable in respect of the overseas tax, such overseas tax, whether payable directly or by deduction on profit or income, from sources within the overseas territory (excluding, in the case of a dividend, tax payable in respect of the profits out of which the dividend is paid), shall be computed by reference to the same profits or income by reference to which the overseas tax is computed; (a) notwithstanding anything contained in this Act or in any agreement entered into by the Minister under section 106, “credit”, for the purpose of this section, shall not exceed the lesser of the following amounts:— (b) the amount of Fiji tax payable on the same overseas income which is appropriate to the income which has been charged to tax in the overseas territory for the same year; or (vi) the amount of overseas tax payable on the same overseas income which is appropriate to the income which has been charged to tax in Fiji for the same year; (2) the Commissioner may satisfy himself regarding the amount of overseas tax paid or deducted by demanding production of any relevant notices of assessment or other confirmatory evidence. (2) For the purpose of this section “overseas tax” means tax under the law of a territory outside Fiji. Rebate of withholding tax Provided that— (d) where, at the end of the period of 5 years following the year in which the extension was completed, any investment allowance in respect of the extension has not been claimed as a remission of tax, the amount of such unclaimed investment allowance may be set off by a hotel owner against total income arising to him from any hotel business or total income from any hotel premises owner by him; (e) where the hotel owner is a company, no investment allowance shall be granted if, in any year, the Commissioner is satisfied that the shareholders of the company are not substantially the same as on the date on which provisional approval was granted, unless prior approval from the Minister for the changes of shareholders has been obtained. (2) For the purposes of this section— (a)the shareholders of a company at any date shall be deemed not to be substantially the same as the shareholders on any other date unless, on both those dates, not less than 30 per cent of the voting power in and the right to receive dividends from the company was held by or on behalf of the same persons, nor unless, on both those dates, not less than 30 per cent of the nominal value of the allotted shares in the company were held by or on behalf of the same persons. Shares in a company held by or on behalf of another company shall be deemed to be held by the shareholders of the last-mentioned company and shares held by or on behalf of the trustee of the estate of a deceased shareholder, or by or on behalf of the persons entitled to those shares as beneficiaries in the estate of a deceased shareholder, shall be deemed to be held by that deceased shareholder; (b) the following words:— “extension”; “hotel owner”; and “project”, shall have the meanings as are assigned to them respectively in the Hotels Aid Act. PART XV – MISCELLANEOUS (2) Without limiting the generality of the foregoing provisions, it is hereby declared that any arrangements to which effect is given under this section may contain provisions in relation to any of those taxes— (a) for relief from tax; (b) for charging the income derived from any sources in Fiji to persons not resident in Fiji; (c) for determining the income to be attributed to persons not resident in Fiji and other agencies, branches, or establishments in Fiji; (d) for determining the income to be attributed to persons resident in Fiji who have special relationships with persons not so resident. (3) Any such arrangements may include provisions for relief from tax for periods before 1 January 1974 or before the making of the arrangements, and provisions as to income which is not itself subject to double taxation. (5) The Minister may, at any time, revoke any such notification in the Gazette and whereupon the arrangements thereby notified shall cease to have effect [from such date as may be appropriate under the terms of such agreement], but the revocation shall not affect the validity of anything previously done. (6) The obligation as to secrecy imposed by section 4 shall not prevent the disclosure to any authorised officer of the Government of the country or territory with which the arrangements are made by virtue of this section of such information as is required to be disclosed under such arrangements. Regulations (a) the assessment, charge, collection, recovery and repayment— (i) of [basic tax] on all total income; and (ii) of provisional tax, as provided for in this Act; and (b) any other matters deemed necessary for carrying this Act into effect, such regulations may, in particular, include provision— (i) for making, in any case or class of case, special arrangements to facilitate the deduction, collection or payment of tax and for making rules to govern the operation of such arrangements; (ii) for the production to and inspection by the Commissioner (or any officer authorised by him in writing upon the production of his written authority) of all necessary records and documents for the purpose of satisfying the Commissioner that tax has been and is being properly accounted for in accordance with the regulations; (iii) for the collection and recovery whether by deduction from income derived in any later year or otherwise of tax in respect of income to which this Act applies which has not been accounted for during the year; (iv) for the making of assessments and for other matters dealing with the recovery of underpayments or the refund of overpayments arising therefrom and for ignoring odd cents in the amounts so ascertained of any underpayments to be recovered or overpayments to be refunded and for the manner in which amounts of excess tax are to be refunded under the provisions of section 78; (v) for appeals with respect to matters arising under the regulations which would not otherwise be the subject of an appeal, and any such regulations shall have effect notwithstanding any other provisions of this Act: Provided that such regulations shall not affect any right of appeal which any person would otherwise have apart from the regulations. (2) Any regulations made under the provisions of subsection (1) may prescribe in respect of any contravention of or failure to comply with any provisions thereof, on conviction, the like penalties as are provided for under section 81. Contracts for avoidance of tax (a) altering the incidence of any tax; (b) relieving any person from liability to pay any tax or make any return; (c) defeating, evading or avoiding any duty or liability imposed on any person by this Act; or (d) preventing the operation of this Act in any respect, be absolutely void, as against the Commissioner, or in regard to any proceeding under this Act, but without prejudice to such validity as it may have in any other respect or for any other purpose. (2) Every taxpayer carrying on any trade, business or profession shall keep or cause to be kept proper books of account sufficient to record all transactions necessary in order to ascertain the profit or gain made or the loss incurred in each such trade, business or profession. (3) Every book of account and every document including vouchers, invoices and receipts which are essential to explain any entry in such book of account relating to such trade, business or profession shall be preserved for a period of not less than 7 years after the end of the income year to which such books of account or documents relate: Provided that— (a) the requirement for the preservation of any book of account or document may be dispensed with— (i) if the Commissioner gives written notice to any person to whom subsection (2) applies that its preservation is not required; or (ii)in the case of a company which has gone into liquidation and has been finally dissolved or in the case of the cessation of a business other than 1 carried on by a company, on the expiration of 3 months from the date on which the person having custody of the books of account or documents relating to such company or business, as the case may be, informs the Commissioner by registered letter that he proposes to destroy them and the Commissioner does not issue any directions for their preservation; (b) the provisions of this paragraph shall apply to all books of account and documents kept in accordance with the provisions of subsection (2) after 23 December 1963 and to all such records relating to that trade, business or profession in existence at that date. (4) For the purposes of [subsection (2)], a taxpayer shall be deemed not to have kept or caused to have been kept proper books of account, if he has not kept such books or accounts as are necessary to exhibit or explain his transactions and financial position in his trade, business or profession, including a book or books containing entries from day to day in sufficient detail of all cash received and cash paid, and, where the trade or business has involved dealing in goods, statements of annual stock-takings and accounts of all goods sold and purchased. Approved funds (a) the fund, scheme or plan is bona fide established under irrevocable trusts in connection with some trade or undertaking carried on in Fiji by a person residing therein; (b) the fund, scheme or plan has, as its sole purpose, the provision of annuities or lump sums for all or any of the following persons in the events respectively specified, that is to say, for persons employed in the trade or undertaking, either on retirement or at a specific age, or on becoming incapacitated at some earlier age, or for the widows, children or dependants of persons who are or have been so employed, on the death of those persons; and (c) the employer in the trade or undertaking is a contributor to the fund, scheme or plan: Provided that the Commissioner may, if he thinks fit and subject to such conditions, if any, as he thinks proper to attach to the approval, approve a fund, scheme or plan or any part of a fund, scheme or plan— (i) notwithstanding that the rules of the fund, scheme or plan provide for the return in certain contingencies of contributions paid to the fund, scheme or plan; or (ii) if the main purpose of the fund, scheme or plan is the provision of such annuities or lump sums as aforesaid, notwithstanding that such provision is not its sole purpose; or (iii) notwithstanding that the trade or undertaking in connection with which the fund, scheme or plan is established is carried on only partly in Fiji and by a person not residing therein. (2) (a) Where there is any alteration to the instrument establishing any approved fund or to any regulations relating to any such fund, then the trustees of the fund shall, prior to the making thereof, inform the Commissioner in writing of the proposed alteration; and, if the Commissioner is not so informed, the approval of such fund shall be deemed to have been withdrawn from the date of such alteration, unless the Commissioner is satisfied that the alteration is of such a nature as not to affect his approval under subsection (1). (b) The Commissioner may, at any time, by notice in writing to the trustees of the fund, withdraw his approval of any approved fund, if, in his opinion— (i) the conditions on which the approval of such fund was granted have not been complied with; or (ii) there has been any alteration to the instrument establishing such fund or to any regulations relating to any such fund. (c) Paragraphs (a) and (b) shall apply to all funds, whether approved by the Commissioner under the provisions of this section or heretofore declared by the Minister to be approved funds. (3) The Commissioner may approve any fidelity guarantee fund for the purposes of this Act, subject to such conditions as he may think fit. (4) The Commissioner may approve any superannuation fund, superannuation scheme, pension or provident fund or retiring plan operated by any Government, or by any quasi-Government body or local authority of another territory within the Commonwealth for the purposes of this Act, subject to such conditions as he may think fit. Audit (2) The Auditor-General shall make such examinations as he thinks fit with respect to the correctness of the sums brought to account in respect of such revenue aforesaid. FIRST SCHEDULE ________ (Section 4) ________ I make oath and swear that I shall regard and deal with all documents, returns, assessments and information relating to the income of any person which may come into my possession or to my knowledge in the course of my official duty, as secret, and that I shall not reveal any such document or information to any person or permit any person to have access to any such document, return or assessment, save in the circumstances in which I am permitted to do so under the Income Tax Act. Sworn before me this day of 19 Magistrate. Form 2. ________ (Section 62) ________ Reference Number: To the Commissioner of Inland Revenue: I hereby give notice that I object to the amount for which I am assessed, for the following reasons:— Dated this day of 19 Signature. [HIGH COURT] ________ (Section 69) ________ Name of Taxpayer: Reference Number: To the Commissioner of Inland Revenue: I hereby give notice that I am dissatisfied with the decision given by the Court of Review in this matter for the following reasons:— and that I desire to appeal to the [High Court] of Fiji. Dated this day of 19 Signature. TO [HIGH COURT] ________ (Section 69) ________ In the matter of assessment of By virtue of the powers vested in me in this behalf under the Income Tax Act, I hereby refer the appeal of (or my appeal) against the decision of the Court of Review to the [High Court] of Fiji for adjudication thereon.
Commissioner of Inland Revenue. Form 5. DISCRECTIONS REVIEW BOARD ________ (Section 70) ________ Reference Number: To the Chairman, Discretions Review Board, I hereby give notice that I am dissatisfied with the exercise of the Commissioner's discretion under section in the matter of in connection with the assessment under the above reference, for the following reasons:— [Here state clearly and concisely the reasons for dissatisfaction.] and that I desire to appeal to the Discretions Review Board. I have made an objection to the Commissioner in respect of the above matter and my objection was wholly/partly disallowed by notice dated the day of 19 I enclose my fee of $2. Dated the day of , 19 Signature. SECOND SCHEDULE (Section 70) ________
(Section 16 (2)) ________ TAX CONCESSIONS IN RESPECT OF APPROVED ENTERPRISES ________ Tax free concessions Provided that such period way be extended with the authority of the Minister and upon such conditions as he thinks fit by a period not exceeding 3 years in respect of the operations of the approved enterprise in such area or areas as the Minister may direct: Provided further that no concession shall be granted under paragraph (b) of subsection (2) of section 16 for any year, if the Commissioner is not satisfied that the shareholders of the company are substantially the same as on the date when the concession was granted. For the purposes of this paragraph, the shareholders of a company shall not be deemed to be substantially the same if 30 per cent or more of the voting power or the right to receive dividends is not held by the same person. Provided that the company shall not be obliged to claim initial allowances but such election shall in that event continue for the whole of the tax free period. (a) the paid up equity capital of the company relating to the enterprise; or (b) the total fixed capital investment of the company relating to the enterprise, at the commencement of each of the normal accounting years of the company covering the period specified by the Minister. In determining the capital relating to the enterprise, the Minister may make such apportionments as he deems necessary: [Provided that— (i) where an approved enterprise engages more than 25 full time employees during the year or, where employees are required for seasonal work or the like, engages the equivalent of more than 25 full time employees, the figure of 15 per cent mentioned above shall be substituted by a figure of 20 per cent; or (ii) where an approved enterprise engages more than 50 full time employees during the year or, where employees are required for seasonal work or the like, engages the equivalent of more than 50 full time employees, the figure of 15 per cent mentioned above shall be substituted by a figure of 25 per cent.] 5. Notwithstanding the provisions of section 22, relief in respect of losses of an approved enterprise shall be computed in the same manner as profits and shall be available for set off against subsequent profits of the approved enterprise up to the 6 successive years immediately following the end of the tax concession period during which the loss was incurred. Where the end of the tax concession period does not coincide with the last day of an accounting period, the period to the end of such accounting period shall be regarded as the first successive year. (a) the proposed paid-up equity capital relating to the enterprise; (b) the total fixed capital investment relating to the enterprise proposed by the company; (c) full details of the extent to which the following factors will be involved:— (i) what foreign earnings are anticipated; (ii) the curtailment of existing imports; (iii) the labour intensity of the enterprise; (iv) to what extent local raw material will be utilised. The Minister responsible for economic planning and development and the Minister may call for such further information as they deem necessary. (b) Where the company is already trading in Fiji, nothing in this Act shall prevent the Minister approving an enterprise of the company to be an approved enterprise where the company incurs substantial capital expenditure connected with expansion of production of the original product or of an approved new product. In such case, the approved enterprise, for the purposes of this Schedule, shall relate to the expansion, the additional capital and the increase in profits attributable to such increase in profits as if the additional equity capital related to a separate company except that reference to “[$8,000] per annum or if greater” shall be regarded as having been deleted from that paragraph. In computing the profits attributable to expansion, the Commissioner may make such allocations and apportionments as he considers to be reasonable. (c) Any concessions granted under the Fifth Schedule of the Income Tax Ordinance shall continue to apply to the conditions obtaining at the date the concession was granted. (2) Where the date of revocation does not coincide with the end of ail accounting period of the company, then the full profits or gains of the approved enterprise for the accounting period in which such revocation falls shall be subject to tax as if no such concession had been granted. Definitions “paid up equity capital” means the total paid up share capital of the company relating to the approved enterprise excluding bonus shares, scrip and similar issues, unless the issues are made out of reserves. The Minister may, at [his] discretion, include in the paid up equity share capital debentures or loans, provided that such debentures or loans have been provided [from] funds outside Fiji, that such debentures or loans have been negotiated and the credit made available in Fiji and that the interest thereon is liable to normal tax in Fiji, whereupon the Minister may deem such debentures or loans to be paid up equity share capital for the purposes of this Schedule. “Total fixed capital investment” means the total cost or written down values— (a) for the first year, at the commencement of the enterprise; and (b) for subsequent years, on the last day of the previous accounting period, of all the assets in use which qualify for depreciation allowance under the First and Second Schedules of the instructions issued by the Governor-in-Council under section 30 of the Ordinance repealed by this Act, as depreciated at that date. Such total shall, however, exclude— (a) the cost of written down values of all private motor vehicles and ships; (b) all private dwellings except those built for estate workers on plantations or in remote areas, provided that the cost of a single dwelling does not exceed $3,000 and, at the discretion of the Commissioner, a limited number of houses for technical and supervisory staff built for non-Fiji citizens; (c) in the case of buildings, the cost of the land, tunnelling and site preparation; (d) in the case of second-hand plant, machinery, equipment and utensils, the cost shall include the cost of freight, insurance and duty but shall not exceed the sum of such items and the written down values of such items based on original cost when new. Any items previously used for productive purposes in Fiji shall be excluded. The cost of constructing or taking the following services to the site, may, at the discretion of the Commissioner, be included in the total fixed investment— (a)electricity; (b)water; (c)telephone; (d)drainage; (e) service roads. For the purposes of this Schedule— “approved enterprise” means an enterprise which has been approved by the Minister under paragraph 7 and the company has been specified under the provisions of paragraph (b) of subsection (2) of section 16; “enterprise” means any project for which a concession is applied for under the provisions of paragraph 1. (Section 7) RATES OF NORMAL TAX ESTATES OF DECEASED INDIVIDUALS, TRUSTS, SETTLEMENTS AND RESIDENT INDIVIDUALS Table A1 – Year of assessment 2001
Table A2 – Year of assessment 2002
Table A3 – Year of assessment 2003 and subsequent years
B. NON-RESIDENT INDIVIDUALS Table B1 – Year of assessment 2001
Table B2 – Year of assessment 2002
Table B3 – Year of assessment 2003 and subsequent years
C. COMPANIES Table C1 – Year of assessment 2001
Table C2 – Year of assessment 2002
Table C3 –Year of assessment 2003 and subsequent years
FIFTH SCHEDULE (Section 16(2)(d)) ________ EXPORT INCENTIVES 1 Preliminary: Where the Minister has specified [, on or before 31st December 2000,]1 any trade and product as an approved trade or product under paragraph (d) of subsection (2) of section 16, a deduction from chargeable income or a rebate of the tax charged may be allowed in accordance with the provisions of this Schedule. 2 Commencement: These provisions shall apply to any fiscal year ending after 1 January 1974. 3 Application for Approval: (a) Every company resident in Fiji for the fiscal year of any year of assessment which desires to avail itself of the deduction under this Schedule shall apply to the Minister for approval to be treated as a company eligible for a deduction or rebate for that year, (b) The Minister may require a company which applies for approval under (a) to furnish him with particulars which he considers necessary for the purpose of considering the application including, inter alia— (i) the name and address of the company; (ii) the nature of the trade in respect of which approval is sought; (iii) the nature of the product in respect of which approval is sought; (iv) details of manufacture or production including capacity and amount available, for export and to which countries the company expects to export. 4 Nature of Trade and Products to be Approved and other Requirements: (i) The trade and product which the Minister will approve shall be a product of manufacturing, processing, or assembly including the provision of services, the manufacture or produce of deep-sea fishing or of production of minor agricultural commodities. Minor agricultural commodities shall be such commodities as the Minister may approve, but will not include sugar or copra but derivatives of manufacture from these commodities may be considered by the Minister as manufactures. (ii) An approved trade or product may include a product manufactured, processed or assembled wholly or substantially for export although not directly exported by the company seeking approval, in which case both the manufacturer and exporter as separate entities may be eligible for deduction and both entities may seek approval in respect of the same trade or product. (iii) No deduction will be due in respect of [the] deduction relating to the increase in exports for any fiscal year in which total export sales of approved products do not exceed … $10,000. 5. Method of Relief: (i) Subject to paragraph 11, in respect of an approved product, a rebate in respect of the export profits relating to such approved product for the fiscal year in which approval is first given and the [12] subsequent fiscal years, the full amount of the tax chargeable on the export profits. rebate due for any year of assessment shall be limited to the amount calculated under this sub-paragraph or the tax payable for that income year whichever is the less. (ii) Where a deduction under this Schedule is admissible in addition to an exemption under the Third Schedule the exemption under the Third Schedule shall first be allowed and a deduction under this Schedule will be applied to any balance of profits which have not been exempted. Any apportionment or computation under this paragraph shall be applied as if the net profit chargeable were the total profits of the trade. (iv) Any concession granted under this Schedule prior to 1st January 1988 shall continue to apply and the rebate, commencing from the year of assessment 1988, shall be computed in accordance with sub-paragraph (i). (v) Where the Minister considers that an approved product has not been adequately marketed overseas and further government assistance is desirable to facilitate substantial foreign exchange earnings, he may by direction to the Commissioner extend the [13] year period referred to in sub-paragraph (i), upon such conditions as he thinks fit, by a period not exceeding 5 years. 6 Time Limits: (i) Except in respect of an application made during the year 1974 in respect of a fiscal year ending in that year, an application for an export incentive deduction shall be submitted to the Minister not later than [9] months after the commencement of the fiscal year the profits of which are to be the subject of an application. (ii) Provided that satisfactory records are maintained, a taxpayer may continue to claim relief for the year of claim and the [12] subsequent fiscal years. 7 Termination: The Minister may, on the recommendation of the Commissioner, terminate his approval, if— (a) inadequate records are maintained or insufficient information is furnished to the Commissioner; (b) in the event of an inadequate supply to the Fiji market of the approved product, satisfactory arrangements are not made to expand or divert production. 8Determination of Export Profits: Where a trade is approved which manufactures or processes both qualifying and non-qualifying products, the trader shall satisfy the Commissioner that separate records of output, sale and expenditure to the Minister's requirements are maintained. The Commissioner may, where separate records for export profits are not maintained, determine such profits on the basis of the following formula: Where:— is total export sales of the qualifying product; B is total sales of all products; and is total profits arising from sales of all products manufactured by a person qualifying for this relief. In the case of export sales of [timber grown in Fiji], the export profits may be deemed to be equal to 10 per cent of the Free On Board value of all armslength sales, with the maximum export profit equivalent to 50 per cent of the chargeable income arising in the income year from sales of [timber grown in Fiji]. 9. Definition: “Manufacturing” means any product wholly manufactured [or produced] in Fiji or any product which includes components which are imported but the additional costs relating to assembly, processing, further manufacturing or treatment represent an addition to cost of not less than 30 per cent or such percentage as the Minister may direct. “Exports” shall not include re-exports except to the extent referred to in the meaning of “Manufacturing”. 10. Certificate by Comptroller of Customs and Excise: The amount of exports shall be certified by the Comptroller of Customs and Excise. The Commissioner may also call for any books, documents, bills of lading or any other information which he may require for the purposes of examining a claim under this Schedule. 11. Tax Free Zone: (i) Notwithstanding the other paragraphs of this Schedule where a trade, product or service is approved in accordance with paragraph 4 and such trade, product or service is exported to the extent of [seventy] percent or more of the annual production thereof by the company, such an enterprise shall be designated a Tax Free Zone and shall enjoy full relief in accordance with paragraph 5 but so that the full period is extended to 13 years commencing from the fiscal year of approval and persisting for the 12 subsequent fiscal years, provided it continues to meet the [seventy] percent criteria: Provided further that where it is considered appropriate by the Minister the [seventy] percent export criteria may be reduced in accordance with subsection 3 of Section 7 of the Tax Free Zones Decree, 1991. (ii) Any enterprise engaged in re-export to the extent of [seventy] percent or more of activities conducted by it may for the purpose of this paragraph be designated as a Tax Free Zone and enjoy the relief as in sub-paragraph (i). (iii) Any enterprise engaged in an approved trade or product or service which supplies [seventy] percent or more of its annual output to a Tax Free Zone may itself be eligible for designation as a Tax Free Zone under this paragraph. SIXTH SCHEDULE (Section 16A) __________ FILM-MAKING AND AUDIO-VISUAL INCENTIVES __________ PART I – GENERAL “Islands Audio-Visual Commission” means the corporation of that name established by section 3 of the Fiji Islands Audio-Visual Commission Act 2002; “FAVC” means the Fiji Islands Audio-Visual Commission. “applicant” means a film company which makes an application under paragraph 5; “application” means an application made under paragraph 5; “film” means a cinematographic or digital or analogue film made or intended for public exhibition or for use in connection with television; “film company” means a non-resident company engaged, or intending to be engaged, in making a film in the Fiji Islands; “local goods and services” means— (a) emoluments paid to employees who are citizens or are permanently resident in the Fiji Islands; and (b) the cost of goods produced in their entirety in the Fiji Islands except that, if goods acquired in the Fiji Islands have foreign and local cost contents, the estimated foreign cost content is excluded; “qualifying employee” means an employee of a film company who, other than in relation to being in the Fiji Islands for the purpose of the film company making a film, is a non-resident, and includes an individual engaged by a film company to work in the Fiji Islands on a contract for services either with that individual or with any other person. (a)exempt from tax; or (b)taxed at a reduced rate specified by the Minister, for a period determined by the Minister. Application for approval (2) An application under subparagraph (1) must be in the prescribed form and must include— (a) the full name and address of the film company; (b) the full name, address, nationality and country of usual residence of each qualifying employee concerned and the amount of emoluments payable by the film company while the employee is engaged in the Fiji Islands; (c) the total amount of emoluments that the film company proposes to pay to local employees who would be engaged by it; (d) the total amount the film company proposes to expend on local goods and services and a brief description of the goods and services in respect of which this amount will be used; (e) the duration for which the film company will be engaged in making a film in the Fiji Islands; (f) the title of the film and brief particulars of the script; and (g) the location where the film company will be engaged during the making of the film in the Fiji Islands. (2) The FAVC may, before making a recommendation to the Minister, require an applicant to provide additional information or particulars in order that it may properly consider the application. (2) The Minister's approval under subparagraph (1)(a) must specify— (a) the qualifying employees whose income is exempt from tax; (b) the qualifying employees whose income is chargeable to tax at a reduced rate; (c) in respect of subparagraph 4(b) – the reduced rate of tax determined by the Minister; and (d) the period during which the exemption or reduced rate of tax applies. FAVC must inform applicant (a) inform the applicant of the Minister's decision; and (b) if the Minister approves an application, provide the Commissioner with a copy of the approval. (a) the amount of tax assessed in accordance with the general provisions of this Act; or (b) the amount of tax assessed in accordance with the Minister's approval under paragraph 4. Division 1 – INTERPRETATION “applicant” means an applicant for a provisional or final certificate who is a resident individual, a resident partnership or a company incorporated in the Fiji Islands but excludes— (a) a holder of a broadcast licence in television or radio in the Fiji Islands or any associated company or individual with substantial holdings in a broadcast licence in the Fiji Islands; and (b) a theatrical exhibitor in the Fiji Islands or any associated company or individual with substantial holdings in a theatre or group of theatres in the Fiji Islands; “approved financing charges” means the reasonable budgeted and approved cost of financing an audio-visual production and includes legal fees for financing, brokerage for financing, prospectus or offer document costs and disbursements if those charges do not exceed 8% of the production budget of an audio-visual production; “approved marketing materials costs” means the reasonable budgeted and approved cost of generating matters for marketing materials if not less than 85% of the expenditure to produce such items is spent in the Fiji Islands and the budgets have been approved by the FAVC; “audio recording” means an audio recording for commercial sale on disk, audio cassette or on-line services and includes music, a voice recording of spoken word, a book on tape or CD and a dramatic performance in any language; “Audio-Visual Collection” means an archive of international standard to preserve, maintain and manage the audio-visual production of the Fiji Islands established by the FAVC; “audio-visual production” has the meaning given to it in paragraph 12; “audio-visual production account” means, in relation to an audio-visual production, an account that opened in a Fiji Islands bank for the purpose of audio-visual production and from which withdrawals may only be made for expending audio-visual production costs; “audio-visual production costs” means, in relation to an audio-visual production, monies expended directly— (a)in producing the audio-visual production; (b)on approved financing charges; and (c) on approved marketing materials costs; “audio-visual production levy” means a fee prescribed by the FAVC included in the budget of every qualifying audio-visual production payable to the FAVC to support its operations and the educational aims of the Audio-Visual School and activities of the Audio-Visual Collection; “Audio-Visual School” means an educational tertiary institute for citizens and citizens of other Pacific island countries to provide education in the skills of the audio-visual industry established by the FAVC; “AVP” means audio-visual production; “broadcast television programmes” means programmes produced on film or video tape, or digitally recorded for broadcast on free-to-air, free satellite or pay television, and includes television movies, mini series, drama series, situation comedy series, documentaries and documentary series, educational programmes and series, animation series and current affairs series; “citizen” means a citizen of the State; “completion bond” means an insurance policy ensuring completion of an audio-visual production for the benefit of the production entity and investors; “completion bond company” means a company specialising in insuring and managing the risk associated with audio-visual production with operations and offices in the Fiji Islands which has in place necessary underwriting arrangements with internationally recognised insurance companies; “computer software” means an interactive product or instruction set, operating system, manufacturing system, manufacturer controller set or communications protocol for use in or use such as computers, modems, play stations and other games consoles, televisions, video players, digital equipment, telecommunication devices, web servers, CD rom drives and stored on media including CD disk, Zip disk, computer disk, digital video disk, computer chip or online or any other electronic equipment and includes games, educational products and business products produced for sale, products for research and design and development, and the establishment software costs of a commercial operation, online e-commerce businesses, websites or internet businesses; “direct to video or video disk programme” means a programme produced for marketing to the public by retail sale produced specifically for home use; “audio-visual production” means an audio-visual production which qualifies under Division 4; “audio-visual production” means an audio-visual production which qualifies under Division 4; “Islands bank” means a financial institution licensed under the Banking Act 1995; “final certificate” means a certificate issued under Division 3; “gross international and domestic revenues” means the revenues derived from the commercial exploitation of an audio-visual production (including advances, licence fees and royalties) collected by a collection agent or by other FAVC approved arrangements on behalf of international sales agents, distributors (including the production company where it performs that function) and their sub-agents (including associated companies or entities operating at arm's length); “large format film” means a film produced in 70mm for exhibition in IMAX, IWERKS, SHOWSCAN and other 15/70, 81/70 and 4/70 large format theatres and ride simulators; “marketing materials”, in relation to an audio-visual production, includes— (a) broadcast television commercials (no more than 2 commercials per audio-visual production); (b) radio commercials (no more than 2 commercial per audio-visual production); (c) film art for advertising including posters, (d) press kit masters; (e) electronic press kits; (f) internet websites; and (g) film trailers; “production entity” means an applicant entity which has been granted a provisional certificate or a final certificate; “provisional certificate” means a certificate issued under Division 2; “qualifying audio-visual production” means an F1 or F2 audio-visual production that has been made— (a) wholly or substantially in the Fiji Islands and has significant and substantial Fiji Islands content; or (b) in pursuance of an agreement or arrangement entered into between the Fiji Government or an authority of the Fiji Government and the Government or an authority of the Government of another country; “relevant 24 months period” in relation to an audio-visual production, means the period of 24 months after the end of the year of assessment in which monies of a capital nature were first expended as audio-visual production costs, or by way of contribution to those costs; “short film” means a film produced for exhibition in theatres and at festivals with a running time of less than 60 minutes and intended primarily as a demonstration of new and emerging film-making talent; “studio city company” means the company that owns or leases the land declared as a studio city zone; “studio city zone” means the land (including any buildings situated or erected on that land) declared as such by the Minister under paragraph 45, and includes a temporary studio city zone; “temporary studio city zone” means land (including any buildings situated or erected on that land) declared as such by the Minister under paragraph 45; “theatrical feature film” or “feature film” means a film intended to be produced for initial release in theatres. (2) For the purposes of the definition of “gross international and domestic revenues”, the income is net of any deduction of the distributor in a specific country/place but no other deductions. Audio-visual productions (a) a large format film in large format theatres; (b) a theatrical film or a short film in cinemas; (c) broadcast television programmes by— (i) broadcast on free-to-air, satellite or pay television; or (ii) internet broadcast; (d) a direct-to-video and video disk programme; (e) an audio recording; (f) computer software; and (g) interactive websites and other e-commerce and telecommunications operations. Exclusions from references to audio-visual productions (a) an audio-visual production for exhibition as an advertising programme or a commercial other than where that advertising programme or commercial is part of the marketing budget of an audio-visual production and is only advertising the audio-visual production which has funded it; (b) an audio-visual production for exhibition as a discussion programme, a quiz programme, a panel programme, a variety programme or a programme of like nature; (c) an audio-visual production which is substantially (more than 50%) of a public event; and (d) an audio-visual production produced principally as a training aid. (a) an extension of broadcast television programmes beyond the first 26 episodes of a continuing series; (b) an extension of broadcast television programmes and television movies beyond 2 full length films in a continuing series; (c) more than 2 audio recordings by the same artist or substantially the same artist; (d) more than one short film by an individual director. (a) in the prescribed form and accompanied by the prescribed fee; (b) signed by or on behalf of the applicant; and (c) accompanied by such information as the FAVC requires. (2) The FAVC must not approve an application unless it is satisfied that— (a) the proposed audio-visual production, when complete, will be a qualifying Fiji Islands audio-visual production; and (b) having regard to the role of the applicant in the proposed production of the audio-visual production, the applicant is an appropriate individual, partnership or company to whom a provisional certificate should be issued in respect of the proposed audio-visual production. (a) if it approves the application - issue a provisional certificate to the applicant in respect of the proposed audio-visual production; or (b) if it refuses the application - give written notice to the applicant of its refusal of the application. (a) at any time after the issue of the certificate, the FAVC becomes satisfied that the proposed audio-visual production in respect of which the certificate was issued does not comply with the certificate in any respect; or (b) the production entity fails to comply with a request for information made by the FAVC under paragraph 21, FAVC may, by written notice to the person to whom the provisional certificate was issued — (i) revoke the provisional certificate with effect from the date of the certificate's issue; or (ii) in the case of a qualifying audio-visual production which is an F1 AVP – vary its audio-visual production status be varied from F1 to F2. (a) in the prescribed form and accompanied by the prescribed fee; (b) signed by or on behalf of the applicant; and (c) accompanied by such information as the FAVC requires. (2) The FAVC must not approve an application unless it is satisfied that - (a) the audio-visual production is a qualifying audio-visual production; and (b) having regard to the role of the applicant in the production of the audio-visual production, the applicant is an appropriate individual, partnership or company to whom a final certificate should be issued. FAVC to issue final certificate or give notice of refusal (a) if it approves the application – issue a final certificate to the applicant in respect of the audio-visual production; or (b) if it refuses the application – give written notice to the applicant of its refusal of the application. (a) at any time after the issue of the certificate, the FAVC becomes satisfied that the audio-visual production in respect of which the certificate was issued does not comply with the certificate in any respect; or (b) the production entity fails to comply with a request for information made by the FAVC under paragraph 30, the FAVC may, by written notice to the person to whom the final certificate was issued - (i) revoke the final certificate with effect from the date of the certificate's issue; or (ii) in the case of a qualifying audio-visual production which is an F1 AVP - vary its audio-visual production status from F1 to F2. (a) it satisfies the minimum prerequisites set out in paragraph 35; and (b) it satisfies the additional criteria set out in paragraph 36, in the case of F1 AVPs, or paragraph 37, in the case of F2 AVPs. Minimum prerequisites for F1 and F2 AVPs (a) 100% of the production budget must be deposited in an audio-visual production account prior to the commencement of the production; (b) 100% of the gross international and domestic revenues disbursed to investors, distributors and sales agents, producers, creative profit participants and any other parties must pass through a Fiji bank account prior to any disbursement and the Commissioner is provided with half yearly statements of income and disbursement; (c) either— (i) in the case of an audio-visual production – the appropriate audio-visual production levy must be paid on the first day of pre-production or full financing, whichever is the sooner; or— (ii) in the case of a proposed audio-visual production – the production budget contains an audio-visual production levy which must be paid on the first day of pre-production or full financing, whichever is the sooner; (d) the audio-visual production is not, in the opinion of the FAVC, culturally derogative in its portrayal of the Fiji Islands or the people of the Fiji Islands; (e) the audio-visual production must be produced by a production entity; (f) the audio-visual production must have a completion bond from a company at arm's length to the production company and approved by the FAVC as an acceptable completion bond company; (g) the audio-visual production has a certificate from the completion bond company confirming that— (i) the budget does not contain fees or costs which are not commercial; (ii)either— (aa) in the case of a completed audio-visual production – the production entity has in its best endeavours used suitably qualified Fiji Islands employees and facilities and locations; or— (bb) in the case of a proposed audio-visual production – the production entity has in its best endeavours budgeted and researched to use suitably qualified Fiji Islands employees and facilities and locations; (iii) producer fees and overheads paid or payable to the production entity for services of production do not exceed 12½% of the total budget; (iv) expenses paid to the production entity or non-arm's length parties associated with the production are or will be genuine and reasonable reimbursement of costs; (v) approved financing charges and approved marketing materials costs will be, or have been, spent in accordance with this Part; (vi) all expenses, allowances, wages and fees for service in the budget are commercial and have been, or will be, paid for services rendered on the audio-visual production; and (vii) the audio-visual production has been, or will be able to be, completed within the relevant 24 months period. (a) one of the following criteria is satisfied— (i) a large format film, a feature film, a short film, broadcast television, a direct to video or video disk programme is directed, written or based on the creative idea of a citizen or a resident; (ii) an audio recording is produced or composed by or is the performance principally of a resident or citizen; (iii) computer software is based on the original creative idea developed by a resident or citizen; or (iv) the content satisfies the guidelines set down by the FAVC from time to time for being a portrayal of the Fiji Islands, the history and life of the people of the Fiji Islands and Fiji's flora and fauna, and— (b) the following criteria are satisfied— (i) the production entity has secured for the audio-visual production, to the satisfaction of the FAVC and on commercial terms, distribution for the production when complete both in the Fiji Islands and in at least one significant international market; and (ii) one of the levels of expenditure in subparagraph (2) has been, or is budgeted to be, spent in the Fiji Islands. (2) The levels of expenditure for the purposes of subparagraph (1)(b)(ii) are— (a) for an audio-visual production which commences production between 1st January 2001 and 31st December 2004 (both dates inclusive) – not less than— (i) 35% for a large format film, a feature film or broadcast television programmes; (ii) 45% for a direct to video programme or video disk programme; and (iii) 50% for an audio recording or a computer software; (b) for an audio-visual production which commences production between 1st January 2005 and 31st December 2008 (both dates inclusive) – not less than— (i) 55% for a large format film, a feature film or broadcast television programmes; (ii) 75% for a direct to video programme or video disk programme; and (iii) 80% for an audio recording or computer software; (c) for an audio-visual production which commences production on or after 1st January 2009 – not less than— (i) 65% for a large format film, a feature film or broadcast television programme; (ii) 85% for a direct to video programme or video disk programme; and (iii) 80% for an audio recording or a computer software. (a) the production entity has secured for the audio-visual production, to the satisfaction of the FAVC and on commercial terms, distribution for the production when completed both in the Fiji Islands and in at least 2 significant international markets; (b) one of the following amounts is guaranteed as a secured minimum return on investment from international distribution to Fiji Islands investors— (i) for an audio-visual production which commences production between 1st January 2001 and 31st December 2004 (both dates inclusive) – not less than— (aa) 5% for a large format film; (bb) 15% for a feature film; (cc) 20% for broadcast television programmes; (dd) 25% for a direct to video programme or video disk programme; and (ee) 15% for an audio recording or a computer software. (ii) for an audio-visual production which commences production between 1st January 2005 and 31st December 2008 (both dates inclusive) – not less than— (aa) 25% for a large format film; (bb) 35% for a feature film; (cc) 40% for broadcast television programmes; (dd) 45% for a direct to video programme or video disk programme; and (ee) 30% for an audio recording or a computer software; (iii) for an audio-visual production which commences production on or after 1st January 2009 – not less than 45%; and (c) one of the following levels of expenditure has been, or is budgeted to be, spent in the Fiji Islands — (i) for an audio-visual production which commences production between 1st January 2001 and 31st December 2004 (both dates inclusive) – not less than— (aa) 35% for a large format film, a feature film or broadcast television programmes; (bb) 40% for a direct to video programme or video disk programme; and (cc) 45% for an audio recording or a computer software; (ii) for an audio-visual production which commences production between 1st January 2005 and 31st December 2008 (both dates inclusive) – not less than— (aa) 45% for a large format film, a feature film or broadcast television programmes; (bb) 55% for a direct to video programme or video disk programme; and (cc) 60% for an audio recording or a computer software; (iii) for an audio-visual production which commences production on or after 1st January 2009 not less than— (aa) 55% for a large format film, a feature film or a broadcast television programmes; (bb) 65% for a direct to video programme or video disk programme; and (cc) 65% for an audio recording or a computer software. (a) the subject matter of the audio-visual production; (b) the place where the audio-visual production was, or will be, made; (c) the nationalities and places of residence of— (i) the persons who took part, or will take part, in the making of the audio-visual production (including actors, authors, composers, designers, directors, editors, musicians, producers, script writers, singers and technicians); (ii) the persons who are, or will be, the beneficial owners of the copyright in the audio-visual production; and (iii) the persons who are, or will be, the beneficial owners in any shares in any company concerned in the making of the audio-visual production; (d) the source from which monies that were used in the making of the audio-visual production were, or that are to be used in the making of the proposed audio-visual production will be, derived; (e) details of the production expenditure incurred, or the budgeted production expenditure to be incurred, in respect of the audio-visual production; and (f) any other matter the FAVC considers relevant. AUDIO-VISUAL PRODUCTIONS (a) at the time when the monies were expended a provisional certificate or a final certificate was in force in relation to the audio-visual production; (b) the Commissioner is satisfied that, when the monies were expended— (i) the taxpayer expected to become the first owner, or one of the first owners, in the copyright in the audio-visual production when the copyright came into existence; and (ii) the taxpayer intended to use that copyright, or the taxpayer's interest in that copyright, for the purpose of producing income from the commercial exploitation of the copyright; (c) by reason of the monies being expended, the taxpayer became the first owner, or one of the first owners, of the copyright in the audio-visual production ; and (d) either of the following conditions is applicable— (i) the taxpayer has used the copyright, or the taxpayer's interest in the copyright, for the purpose of producing income from the commercial exploitation of the copyright; (ii) the taxpayer derived income under an agreement entered into before the copyright came into existence under which the taxpayer agreed, upon the copyright coming into existence, to grant rights to another person to exploit the copyright in a commercial manner, an amount must be allowed as a deduction in the assessment of the taxpayer in respect of the income in the year the monies are expended, being an amount equal to— (A) in the case of an F1 AVP – 150% of the monies expended; or (B) in the case of an F2 AVP – 125% of the monies expended. (a) before the taxpayer died, the taxpayer derived income under an agreement under which the taxpayer agreed, upon the copyright coming in to existence, to grant rights to another person to commercially exploit the copyright; or (b) the Commissioner is satisfied that, if the taxpayer had not died— (i) the taxpayer would have become the first owner, or one of the first owners, in the copyright in the audio-visual production by reason of the monies having been expended; and (ii)the taxpayer would have used that copyright or the taxpayer's interest in that copyright for the purpose of producing income from the commercial exploitation of that copyright, an amount must be allowed as a deduction in the assessment of the taxpayer's estate in respect of the year of income in which the taxpayer died, being an amount equal to— (A) in the case of an F1 AVP – 150% of the monies expended; or (B) in the case of an F2 AVP – 125% of the monies expended. (a) in the case of an F1 AVP – 60% of the monies expended; or (b) in the case of an F2 AVP – 50% of the monies expended, and thereafter all income so derived must be included in total income. “applicant” means a sole proprietor, a partnership or a company which makes an application for an audio-visual operating licence; “audio-visual operating licence” means a licence issued under paragraph 49; “company” means a company incorporated in the Fiji Islands carrying on a business of audio-visual production or supplying services to audio-visual productions in the Fiji Islands and which has as its primary operating location the studio city zone; “licensee” means a sole proprietor, a partnership or a company holding an audio-visual operating licence; “partnership” means a partnership of 2 or more residents carrying on a business in the Fiji Islands of audio-visual production or supplying services to audio-visual productions in the Fiji Islands and which has as its primary operating location the studio city zone; “production activity” means any activity in the production, world-wide distribution, conduct of business or supply of services to the production of audio-visual productions in the Fiji Islands; “proprietor” means a resident carrying on a business in the Fiji Islands of audio-visual production or supplying services to audio-visual productions in the Fiji Islands and whose business has as its primary operating location the studio city zone. (2)Subject to the issue of a licence required under any written law, a studio city zone may be declared for the purposes of the development of infrastructure, services and resources for the audio-visual industry and tourist attractions, hotels, residential accommodation, sporting facilities and amusement parks. (3) The Minister may declare, by notice published in the Gazette, any area of land (including buildings situated or erected on that land) in the Fiji Islands to be incorporated into and to form part of the studio city zone. (4) The Minister may not declare more than one studio city zone at any time. (5) The Minister may declare, by notice published in the Gazette, any area of land (including any buildings situated or erected on that land) in the Fiji Islands to be a temporary studio city zone for the purposes of this Part in order that the land (and buildings) may be used by a licensee as an interim facility prior to the construction and completion of the relevant facility in the studio city zone. (6) A temporary studio city zone ceases upon the completion of the studio city zone in respect of which the temporary studio city zone is used as an interim facility. (a) made to the FAVC in writing in the prescribed form and accompanied by the prescribed fee; (b) signed by or on behalf of the applicant; and (c) accompanied by such information as the FAVC requires. (2) The FAVC must not approve an application unless it is satisfied that— (a) the applicant has entered into a contract to operate from facilities in the studio city zone and will produce, distribute or contribute specialised services to the production and distribution of audio-visual productions; (b) the applicant's production activity will generate employment opportunities for the people of the Fiji Islands; and (c) the applicant's production activity will enhance, expand and improve the technological and trading capability and capacity of the economy of the Fiji Islands. (3)The FAVC may approve an application subject to the applicant complying with any other condition the FAVC considers to be appropriate. (a) if it approves an application – issue an audio-visual operating licence, including any conditions imposed by it; or (b) if it refuses the application – give written notice to the applicant of its refusal of the application. (2) The FAVC must, by written notice, inform a licensee of a variation in the conditions of the licensee's audio-visual operating licence and the variation is deemed to be effective from the date the notice is received by the licensee. (2) The FAVC may require the licensee or the proposed transferee to provide any other information as the FAVC requires in order for it to consider the transfer application. (3) The FAVC may - (a) approve the transfer of the licensee's audio-visual operating licence; or (b) refuse the application. (4) The FAVC may not approve a transfer of an audio-visual operating licence unless it is satisfied that the proposed transferee satisfies the criteria set out in paragraph 48(2). (5) The FAVC must give written notice to the licensee of its decision under subparagraph (3). (a) there has been a breach of the audio-visual operating licence; (b) there has been non-compliance with any condition of the audio-visual operating licence; or (c) the licensee is convicted of an offence against this Act, the Value Added Tax Decree 1991 or the Customs Act 1986. (2) If the FAVC gives written notice under subparagraph (1), it must inform the licensee of the licensee's right to make representations to the FAVC on or before a date specified by the FAVC, being not less than 21 days from the day that notice is given under subparagraph (1). (3) If a licensee makes representations under subparagraph (2), the FAVC must consider them and may by written notice to the licensee, withdraw its notice under subparagraph (1). (4) If the FAVC does not withdraw its recommendation in accordance with subparagraph (3), or the licensee does not make any representations by the specified date the FAVC may, by written notice to the licensee, revoke the audio-visual operating licence from a date (being not less than 14 days and not more than 42 days from the date of the notice). (a) the date of commencement of the audio-visual operating licence; (b) the name, registered address and authorised representative of the sole proprietor, partnership or company to which the audio-visual operating licence was granted; and (c) the production activity relating to the audio-visual operating licence. (2) The register must be kept at the FAVC's principal office and be open to inspection during the times the FAVC directs, subject to the payment of the prescribed fee for each inspection. (a) the sale of shares in a licensee ; or (b) the sale of the licensee's business or part of a business, if the sale occurs less than 8 years after the commencement of the business. (2) The rate at which tax must be assessed, levied and paid under subsection (1) is— (a) if the sale occurs within 2 years after the commencement of the business –20%; (b) if the sale occurs within 4 years after the commencement of the business – 15%; (c) if the sale occurs within 6 years after the commencement of the business –10%; or (d) if the sale occurs within 8 years after the commencement of the business –2½%. “audio-visual earnings” means— (a) income derived from work in AVPs including contracted fees, wages, royalties and distributions of profits from AVPs but does not include any income from an AVP in respect of which a deduction has been claimed under Division 5; and (b) income from sports performances including prize money, performance fees and endorsements. (a) the individual indicates his or her intention to reside in the studio city zone; (b) the individual derives audio-visual earnings; and (c) the individual complies with the requirements of this Division. (2) The earnings derived by an individual approved by the FAVC under subparagraph (1) are exempt from tax. (a) confirmation that the applicant's country of citizenship is other than the Fiji Islands; (b) confirmation of a contract to take up residence at the studio city zone; (c) confirmation and certification by a chartered accountant holding a certificate of public practice of— (i) pre-tax annual audio-visual earnings in excess of $100,000; and (ii) assets held in the studio city zone in excess of $250,000 in either real estate, tangible business assets including stock, plant and equipment and tools of trade, or other valuable and confirmable assets excluding cash and other liquid assets. (a) is resident in the studio city zone for a period or periods in aggregate of at least 60 days in the year of assessment; (b) maintains a permanent place of residence in the studio city zone during the year of assessment; and (c) provides to the Commissioner confirmation and certification by a chartered accountant holding a certificate of public practice of— (i) pre-tax audio-visual earnings in excess of $100,000 in the year of assessment; and (ii) assets held during the year of assessment in the studio city zone in excess of $250,000 in either real estate, tangible business assets including stock, plant and equipment and tools of trade, or other valuable and confirmable assets excluding cash and other liquid assets. (a) confirmation of a contract to take up residence in the studio city zone; (b) confirmation and certification by a chartered accountant holding a certificate of public practice of— (i) pre-tax annual audio-visual earnings in excess of $100,000; and (ii) assets held in the studio city zone in excess of $250,000 in either real estate, tangible business assets including but not limited to stock, plant and equipment and tools of trade, or other valuable and confirmable assets excluding cash and other liquid assets. (a) is resident in the studio city zone for a period or periods in aggregate of at least 183 days in the year of assessment; or, in the case of a citizen who derives a minimum of 80% of audio visual earnings from outside Fiji, is resident in the studio city zone for a period or periods in aggregate of at least 60 days in the year of assessment; (b) maintains a primary place of residence in the studio city zone during the year of assessment; and (c) provides to the Commissioner confirmation and certification by a chartered accountant holding a certificate of public practice of— (i) pre-tax audio-visual earnings in excess of $100,000 in the year of assessment; (ii) the source of audio visual earnings whether from within Fiji or from outside Fiji; and (iii) assets held during the year of assessment in the studio city zone in excess of $250,000 in either real estate, tangible business assets including stock, plant and equipment and tools of trade, or other valuable and confirmable assets excluding cash and other liquid assets. (2) The FAVC must not approve an application unless - (a) it is satisfied that it is expedient for the development of the audio-visual industry in the Fiji Islands; (b) the work in audio-visual productions from which income is derived is original and creative and has cultural or creative merit; and (c) the applicant has complied with all the requirements of this Division. (3) The FAVC must give written notice to an applicant of its decision under subparagraph (1). SEVENTH SCHEDULE (Section 16(2)(f)) ________ ________ 2. During the period from the date appointed by the Minister under the provisions of paragraph 1 to the end of the accounting period in which the last day of the tax-free period falls, such depreciation shall be written off the assets of that company in calculating its profits or gains as would have been available to it under the provisions of this Act (other than the initial allowances which might have been claimed in respect of expenditure on plant and machinery, etc., and buildings; and an allowance for improvements contained in Part VI of the Allowances for Depreciation and Improvement Instructions issued under section 21(1)(a)) if the company were not in receipt of the concession provided by this Schedule, and the written down values of such depreciable assets at the end of the accounting period in which the last day of the tax-free period falls shall be calculated accordingly. 3. If the end of the tax-free period does not coincide with the end of an accounting period of the company, the profits or gains for the accounting period in which the last day of the tax-free period falls shall be apportioned between the parts of the accounting period which precede and follow the end of such tax-free period on a time basis, and the profits or gains so attributed to the part which precedes the end of the tax-free period shall be exempt from tax. 4. Notwithstanding the provisions of section 22, if a loss is incurred in any accounting period by a company in respect of any enterprise for which concessions have been granted under this Schedule, such loss or accumulation of losses, if there be more than 1 accounting period involved, shall, for the purposes of carry forward be available for set off for a period of 10 years commencing from the date as may be appointed by the Minister as the date on which the company is deemed to have commenced commercial production, against: (i) any profits or gains of the company derived during the tax-free period but not exempted from tax under the concessions provided for by this Schedule; (ii) any profits or gains of a corn any which, at the end of the relevant year, of assessment is the holding company, or an associated company, of a company which is engaged solely or mainly in coconut growing, rice growing, dairy farming, beef production, or goat farming; (iii) any profits or gains liable to tax upon an apportionment being necessary in accordance with the provisions of paragraph 3. To the extent that losses are not wholly set off under sub-paragraphs (i), (ii) and (iii) above, the balance shall be available for carry forward and may be set off against the profits or gains of the company enjoying relief under this Schedule during the successive years immediately following the end of the relevant accounting period, with no restriction on the number of years for which the losses may be carried forward. 5. Any company wishing to apply for the benefit of the concessions contained in this Schedule shall provide the Minister responsible for economic planning and development with such details as he may, in his discretion, require of the agricultural enterprise in which the company is engaged or proposes to engage, whereupon the Minister responsible for economic planning and development shall make his recommendation to the Minister of Finance who may specify the company pursuant to section 16(2)(f), upon such conditions as he thinks fit, as a company to which the concessions contained in this Schedule apply. 6. There shall be submitted to the Minister, within 9 months of the end of each accounting period of a company to which the concessions contained in this Schedule apply, a copy of the accounts of the company for that period, duly audited by an auditor approved by the Minister, together with such further information as the Minister may, in his discretion, require. 7.—(1) If the Minister is satisfied that any company to which the concessions contained in this Schedule apply has contravened any of the provisions of this Schedule or conditions imposed by the Minister in specifying the company under section 16(2)(f) he may, by notice in the Gazette, revoke the concessions and the company shall cease to enjoy such concessions from the date to be specified in such notice, which may be any date from the date on which the company is deemed to have commenced commercial production. (2) Where the date of revocation does not coincide with the end of an accounting period of the company, then the full profits or gains of the accounting period in which such revocation date falls shall be subject to tax as if the concessions had not been granted. 8. Any company to which concessions contained in this Schedule apply which fails to furnish the accounts or further information required by the Minister in accordance with the provisions of paragraph 6 shall be subject to a like penalty to that provided for in section 93 which penalty shall be assessed and collected accordingly. 9.—(1) A company shall not be entitled to the concessions contained in this Schedule if 20 per cent or more of the issued and paid up capital in that company is beneficially owned either directly or indirectly by a person who is himself a shareholder of the company, or— (a) a relative by blood, marriage or adoption of such a shareholder; or (b) the spouse of such a shareholder; or (c) a relative by blood, marriage or adoption of the spouse of such a shareholder, if that person is, or previously has been, engaged in any business which, in the opinion of the Minister, is similar to that of the enterprise in respect of which the concessions contained in this Schedule are applied for. (2) For the purposes of paragraph (1)— (a) if 20 per cent of more of the shares in a company applying for the concessions contained in this Schedule are held by another company (in this paragraph referred to as the “second company”); or (b) if, in circumstances where sub-paragraph (a) applies, 20 per cent or more of the shares in the second company are held by another company (in this sub-paragraph referred to as the “third company”) then individuals who are shareholders in either the second company or the third company shall be deemed indirectly to beneficially own shares in the company applying for the concessions: [Provided that where the Minister considers that it shall be expedient for the economic development of Fiji, he may direct— (a) that the reference in this paragraph to 20 per cent or more of the issued and paid up capital of a company be substituted by a reference to 51 per cent or more of the issued and paid up capital of such company; (b) that any existing company, engaged in any of the activities described in paragraph 10, which incurs substantial expenditure in the expansion of any such activities shall be entitled to the concessions contained in this Schedule upon such conditions as the Minister may specify.] 10. Any company engaged in any of the farming activities specified in sub-paragraphs (i) and (ii) of paragraph (c) of section 16(1), or in processing agricultural produce, or in exporting agricultural produce, or engaged solely in agricultural contracting may qualify for the concessions contained in this Schedule. 11. The provisions of paragraph (l) of the proviso to section 11 shall not apply to any company which, in accordance with sub-paragraph (ii) of paragraph 4, is permitted to set off losses incurred by it in any year during the tax-free period against any profits or gains of the holding company or against any profits or gains of an associated company. In the event of such a company disposing of its assets in respect of which deductions were allowed for improvements under Part VI of the Allowances for Depreciation and Improvements Instructions or the sale by any shareholder of his shares in the company, the deductions granted shall fall to be recouped and dealt with in accordance with paragraph (k) of the proviso to section 11, and, for the purposes of that paragraph, a shareholder who disposes of his interest in the company shall be deemed to be the owner or part owner of the company's land or interest in land, and to be disposing of that proportion of the ownership of such land or interest in land which his interest in the company bears to the total issued capital of the company, provided that recoupment made previously in respect of the sale of the same shares is not duplicated. 12. In this Schedule, unless the context otherwise requires— [“agricultural contracting” means the carrying on of a trade by any company which has incurred substantial capital expenditure on the purchase of plant and machinery which is predominantly used in carrying on such trade, being a trade which consists of all or any of the following activities:— (a) the clearing, ploughing or preparing for agricultural purposes land not in the occupation of the company; (b) engaging in any other agricultural operation on such land;] “associated company” means a company in which the shareholders are common to another company, and, in determining whether shareholders are common, shares in 1 company held by another company, shall be deemed to be held by shareholders in the last mentioned company; “exporting agricultural produce” means being engaged solely or mainly in the export of local produce; “holding company” means a company which holds not less than 80 per cent of the issued and paid up capital of a subsidiary company; (Sections 11 (x) and 16(4)) ________ [MARITIME] VESSELS INVESTMENT ALLOWANCE Applications for investment allowance (2) An application under sub-paragraph (1) shall— (a)contain— (i) the information specified in sub-paragraph (3); (ii) particulars of the relevant area; (iii) particulars of the method of financing the construction of the vessel; and (iv) such other information as may be required by the Tourism Minister; and (b) be accompanied by— (i) a complete set of drawings of the vessel; and (ii) such other documents as may be required by the Tourism Minister. (3) The information referred to in sub-item (i) of item (a) of sub-paragraph (2) is the following information in relation to the vessel:— (a) its overall size, including its length and beam; (b) its tonnage; (c) a description of its main propulsion system, with the following particulars:— (i) whether single or twin screw or otherwise; (ii) name, model and horse-power rating of main engine or engines; (d) its estimated (or, where known, actual) fuel consumption per hour; (e) its estimated (or, where known, actual) service speed in knots; (f) its passenger capacity, with the following particulars:— (i) the number of suites; (ii) the number of twin cabins; (iii) the number of single cabins; (iv) the overall seating capacity otherwise than in suites, cabins and dining rooms; (v) the dining room capacity; (vi) the number of toilets, showers and similar facilities; (vii) any other amenities; (g) its construction (whether steel, timber or otherwise); (h) its total estimated (or, where known, actual) cost; (i) the name of its builder. (a) reject the application; (b) give provisional approval to the application, with or without such conditions as he considers reasonable; or (c) give provisional approval to a part, and reject the remainder, of the application, imposing such conditions in relation to his partial provisional approval as he considers reasonable. (2) In arriving at his decision under sub-paragraph (1), the Minister shall take into consideration the following matters, that is to say:— (a) the requirements for such a vessel in the relevant area; (b) whether the vessel is likely to make an adequate contribution to the meeting of those requirements in the relevant area; (c) whether the vessel is, or is to be, of suitable size and standard for operations in the relevant area; (d) whether the facilities proposed to be provided in the vessel would be adequate for the comfort and safety of passengers, but shall, in all other respects, exercise his own discretion. (3) Without prejudice to his powers under sub-paragraphs (1) and (2), the Minister may specify particular requirements applicable to any particular area of operation in Fiji. (4) The decision of the Minister under sub-paragraph (1) shall be final but, in case of rejection (whether total or partial), shall not preclude the applicant from submitting a fresh application or amending his original application. (a) the construction of a vessel is completed in accordance with provisional approval granted to a person; and (b) the Minister is satisfied that it is expedient for the economic development of Fiji that that person should be entitled to a [maritime] vessels investment allowance in respect of that vessel, the Minister may, either by order or by written direction to the Commissioner, certify that person, upon such conditions as he thinks fit, to be entitled to a [maritime] vessels investment allowance in respect of that vessel. (2) Subject to sub-paragraphs (3), (4) and (5) and paragraph 6, the investment allowance in respect of a vessel is a deduction from total income arising from the use of that vessel in accordance with the conditions (if any) referred to in sub-paragraph (1), for … operations over the primary allowance period of amounts not exceeding in the aggregate an amount equal to 55% of the total capital expenditure incurred in the construction of the vessel, as approved by the Minister. (3) Where, at the expiration of the primary allowance period, any part of the investment allowance in respect of the vessel has not been claimed, the owner of the vessel may set off against total income derived by him in succeeding fiscal years from [other] business conducted by him … amounts not exceeding in the aggregate the amount of that unclaimed part of the investment allowance. (4) Where income is derived by the owner of the vessel from the use of other vessels … , the profit in respect of the first-mentioned vessel shall be deemed to be— (a) except where item (b) applies, an amount that bears to the total profit derived by him from the use of [all such] vessels … the same proportion as the gross income derived by him from the first-mentioned vessel bears to the total gross income derived by him from the use of [all such] vessels …; or (b) where the Commissioner so directs, an amount ascertained on such other basis as the Commissioner may determine. (5) Where the owner of the vessel is a company, no deduction from total income by way of investment allowance shall be allowed in relation to a fiscal year of that company if the Commissioner is satisfied that, in that year, the shareholders of the company are not substantially the same as on the date on which the provisional approval was granted unless prior approval from the Minister for the changes of shareholders has been obtained. (6) For the purposes of sub-paragraph (5), the test to be applied to determine whether there has been a substantial change in shareholding shall be the same as that applied under paragraph (a) of subsection (2) of section 105. (2) For the purposes of sub-paragraph (1), the reference in that sub-paragraph to the proceeds in relation to the sale, transfer, loss, destruction or other disposal of a vessel shall, without limiting the generality of that reference, be taken to include, in particular— (a) the market value of any consideration received otherwise than in cash; and (b) any moneys received— (i) under any policy of insurance; (ii) by way of indemnity; (iii) by way of damages; or (iv) in settlement of any claim, in relation to that sale, transfer, loss, destruction or other disposal. (3) If, during the primary allowance period, the nature of the use of the vessel changes substantially, an amount equal to the aggregate of deductions from total income by way of investment allowance already allowed shall be taken, for the purposes of ascertaining the total income of its owner, to be an amount to which paragraph (x) of the proviso to section 11 applies in the year in which the change occurred. (4) Sub-paragraphs (1) and (3) shall not be taken to affect the operation of paragraph (k) of the proviso to section 11 in respect of any balancing charge arising in respect of the vessel. (5) The Minister may, where he considers it warranted, upon application by the owner of a vessel, direct that an amount that, in accordance with sub-paragraph (1) or (3), is to be taken to be an amount to which paragraph (x) of the proviso to section 11 applies be reduced to such extent as he deems fit. “eligible vessel”, in relation to a person, means a sea-going vessel that has been, is being or is to be built in Fiji by or on behalf of that person at a cost of not less than [$250,000]; “investment allowance” means the [maritime] vessels investment allowance referred to in sub-paragraph (1) of paragraph 3; “primary allowance period” in relation to a person who is certified under sub-paragraph (1) of paragraph 3 to be entitled to the investment allowance in respect of a vessel, means the 5 fiscal years of that person commencing with the fiscal year in which the vessel is completed in accordance with the relevant provisional approval; “provisional approval” means an approval in principle given by the Minister under paragraph 2; “relevant area”, in relation to a vessel that is the subject of an application under paragraph 2 or a provisional approval, means the area over which it is proposed in the application or the provisional approval, as the case requires, that the vessel be used …; “Tourism Minister” means the Minister for the time being having responsibility for tourism; “tourist operations” … (Sections 11(y) and 16(5)) ________ ALLOWANCE (2) An application under sub-paragraph (1) shall— (a)contain— (i) a detailed description of the site on which it is proposed to carry out the project, including, in particular, its location and principal features; (ii) a detailed description of the proposed project; (iii) a detailed description of the buildings to be constructed for the purposes of the proposed project and of the use to which it is proposed that they be put; (iv) an analysis of the estimated cost of establishing the facilities comprised in the project, setting out, in particular, the respective costs of the acquisition of the site, preparation of the site, construction of buildings and other items of a capital nature; (v) particulars of the proposed method of financing the project; and (vi) an estimate of the number of employees who will be engaged on a full-time basis in the operation of the facilities comprised in the project; and (b) be accompanied by— (i) a set of drawings showing, in detail satisfactory to the Tourism Minister, the site and the layout of the proposed facilities; and (ii) such other documents as may be required by the Tourism Minister. (a) reject the application; (b) give provisional approval to the application, with or without such conditions as he considers reasonable; or (c) give provisional approval to a part, and reject the remainder, of the application, imposing such conditions in relation to his partial provisional approval as he considers reasonable. (2) In arriving at his decision under sub-paragraph (1), the Minister shall take into consideration the following matters, that is to say:— (a) the requirements for facilities of the kind comprised in the proposed project; (b) whether the proposed project is likely to make an adequate contribution to the meeting of those requirements in the area in which it is proposed to be carried out, but shall, in all other respects, exercise his own discretion. (3) Without prejudice to his powers under sub-paragraphs (1) and (2), the Minister may specify particular requirements applicable to the carrying out of a project in any particular area in Fiji. (4) The decision of the Minister under sub-paragraphs (1) shall be final but, in case of rejection (whether total or partial), shall not preclude the applicant from submitting a fresh application or amending his original application. (a) the establishment of the facilities comprised in a project is completed in accordance with provisional approval granted to a person; and (b) the Minister is satisfied that it is expedient for the economic development of Fiji that that person should be entitled to a supportive projects to tourist industry investment allowance in respect of that project, the Minister may, either by order or by written direction to the Commissioner, certify that person, upon such conditions as he thinks fit, to be entitled to a supportive projects to tourist industry investment allowance in respect of. that project. (2) Subject to sub-paragraph (3) and paragraph 6, the investment allowance in respect of a project is a deduction from total, income of the promoter arising, in accordance with the conditions (if any) referred to in sub-paragraph (1), from that project and other sources related to tourism of amounts not exceeding in the aggregate an amount equal to 55% of the total qualifying expenditure incurred in the establishment of the facilities comprised in the project, as approved by the Minister. (3) Where a promoter is a company, no deduction from total income by way of investment allowance shall be allowed in relation to a fiscal year of that company if the Commissioner is satisfied that, in that year, the shareholders of the company are not substantially the same as on the date on which the provisional approval was granted unless prior approval from the Minister for the changes of shareholders has been obtained. (4) For the purposes of sub-paragraph (3), the test to be applied to determine whether there has been a substantial change in shareholding shall be the same as that applied under paragraph (a) of subsection (2) of section 105. (2) For the purposes of sub-paragraph (1), the reference in that sub-paragraph to the proceeds in relation to the sale, transfer, destruction or other disposal of facilities shall, without limiting the generality of that reference, be taken to include, in particular— (a) the market value of any consideration received otherwise than in cash; and (b) any moneys received— (i) under any policy of insurance; (ii) by way of indemnity; (iii) by way of damages; or (iv) in settlement of any claim, in relation to that sale, transfer, destruction or other disposal. (3) If, during the prescribed period, the nature of a project changes substantially, an amount equal to the aggregate of deductions from total income by way of investment allowance already allowed shall be taken, for the purposes of ascertaining the total income of the promoter, to be an amount to which paragraph (y) of the proviso to section 11 applies in the year in which the change occurred. (4) Sub-paragraphs (1) and (3) shall not be taken to affect the operation of paragraph (k) of the proviso to section 11 in respect of any balancing charge arising in respect of the project. (5) The Minister may, where he considers it warranted, upon application by a promoter, direct that an amount that, in accordance with sub-paragraph (1) or (3), is to be taken to be an amount to which paragraph (y) of the proviso to section 11 applies be reduced to such extent as he deems fit. “investment allowance” means the supportive projects to tourist industry investment allowance referred to in sub-paragraph (1) of paragraph 3; “prescribed period”, in relation to the promoter of a project, means the 5 fiscal years of that promoter commencing with the fiscal year in which the establishment of the facilities comprised in the project is completed in accordance with the relevant provisional approval; “project” means the establishment and operation, at a site in Fiji of facilities of a permanent nature for the public presentation, especially to overseas visitors to Fiji, of matter of interest to tourists that relates to Fiji, including, in particular and without derogating from the generality of the foregoing, matters relating to— (a) the flora, fauna and other natural characteristics of Fiji; and (b) the history, traditions, cultures and ways of life of its peoples; “promoter”, in relation to a project, means the person (if any) who is entitled, in accordance with sub-paragraph (1) of paragraph 3 to an investment allowance in respect of that project; “provisional approval” means an approval in principle given by the Minister under paragraph 2; “qualifying expenditure” means capital expenditure on— (a) landscaping, buildings, plant and machinery; and (b) stocks of animals, plants and artifacts for display purposes, but does not include the cost of— (c) the acquisition of land; (d) site preparation; or (e) buildings, plant, machinery and fixtures that— (i) are used for the provision of goods which are generally available to the public; and (ii) do not form an integral part of the project; “qualifying period” means the period commencing on 1 January [1989], and ending on 31 December [1993]; “Tourism Minister” means the Minister for the time being having responsibility for tourism. APPENDIX A TAX RATES FOR YEARS OF INCOME 1974 – 2003 RATES OF NORMAL TAX
Fourth Schedule RATES OF NORMAL TAX
COMPANIES
III. Years of income 1977, 1978, 1979
IV. Year of income 1980
VI. Years of income 1981, 1982, 1983, 1984, 1985
VI. Years of income 1986, 1987, 1988, 1989
VII. Years of income 1990, 1991, 1992 (1st January-30th June)
VIII. Years of income 1992 (1st July-31st December), 1993, 1994 RATES OF NORMAL TAX FOR INDIVIDUALS, ESTATES OF DECEASED PERSONS, TRUSTS AND SETTLEMENTS
B. NON-RESIDENTS
C.COMPANIES
IX.Years of income 1995, 1996, 1997, 1998 RATES OF NORMAL TAX FOR INDIVIDUALS, ESTATES OF DECEASED PERSONS, TRUSTS AND SETTLEMENTS
NON-RESIDENTS
C. COMPANIES
X.Years of income 1999, 2000 RATES OF NORMAL TAX FOR INDIVIDUALS, ESTATES OF DECEASED PERSONS, TRUSTS AND SETTLEMENTS
B.NON-RESIDENTS
C.COMPANIES
XI. Year of income 2001, 2002, 2003 Fourth Schedule RATES OF NORMAL TAX Table A1- Year of assessment 2001
Table A2- Year of assessment 2002
Table A3- Year of assessment 2003and subsequent years
B. NON-RESIDENTS Table B1 - Year of assessment 2001
Table B2 - Year of assessment 2002
Table B3 - Year of assessment 2003 and subsequent years
C. COMPANIES Table C1
Table C2
Table C3
APPENDIX B PERSONAL ALLOWANCES AND DEDUCTIONS FOR YEARS OF INCOME 1974 – 2002 I Years of income 1974, 1975, 1976, 1977, 1978, 1979
II Years of income 1980, 1981
III Years of income 1982, 1983
IV Years of income 1984, 1985
V Years of income 1986, 1987, 1988, 1989
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