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ESTATE AND GIFT DUTIES
Ordinances No. 6 of 1966, 42
of 1968, Legal Notice No. 112 of 1970,
Acts No. 14 of 1975, 22 of
1979, 13 of 1980, 3 of 1985
AN ACT TO
CONSOLIDATE AND AMEND THE LAW RELATING TO THE PAYMENT OF DUTIES ON THE
ESTATES OF DECEASED PERSONS AND PROPERTY DISPOSED OF BY WAY OF GIFT.
[24 February 1966]
PART I-PRELIMINARY
Short title
1. This
Act may be cited as the Estate and Gift Duties Act.
Interpretation
2. In this
Act, unless the context otherwise requires-
"administration" means any probate, letters of administration, rule or order
of the Supreme Court, or any other document whereby any person becomes
entitled at law to administer the estate of a
deceased person or
any part of his estate, and includes all probates or letters of
administration granted out of Fiji, and all exemplifications thereof, if
those probates, letters of administration or exemplifications have been
resealed in Fiji;
"administrator" means any
person to whom any probate or letters of administration have been granted or
who is entitled, by virtue of any other administration, to administer the
estate of a deceased person or any part of his estate;
"beneficiary" means any person
acquiring any beneficial interest under a gift;
"Commissioner" means such
officer as the Minister may by notice in the Gazette appoint to be
Commissioner of Estate and Gift Duties;
"contributor", in relation to a
superannuation fund, means a person by or in respect of whom contributions
have been made to the superannuation fund;
"debenture" includes debenture
stock, bonds or any other securities of a company, whether constituting a
charge on the assets of the company or not;
"debt" includes any pecuniary
liability, charge or encumbrance;
"disposition of property"
means-
(a) any conveyance, transfer,
assignment, settlement, delivery, payment or other alienation of property,
whether at law or in equity;
(b) the creation of a trust;
(c) the grant or creation of
any lease, mortgage, charge, servitude, licence, power or other right,
estate or interest in or over any property, whether at law or in equity;
(d) the release, discharge,
surrender, forfeiture or abandonment at law or in equity of any debt,
contract, or chose-in-action, or of any right, power, estate or interest in
or over any property, and, for this purpose, a debt or any other right,
estate or interest shall be deemed to have been released, or surrendered
when it has become irrecoverable or unenforceable by action through lapse of
time;
(e) the exercise of a general
power of appointment in favour of any person other than the donee of the
power;
(f) any transaction entered
into by any person with intent thereby to diminish, directly or indirectly,
the value of his own estate and to increase the value of the estate of any
other person:
Provided
that the passing by a company of a resolution which, by the extinguishment
or alteration of the rights attaching to any shares or debentures of the
company, results directly or indirectly in the estate of any shareholder or
debenture holder of the company, being increased in value at the expense of
the estate of any other shareholder or debenture holder shall
be deemed to be a transaction entered into by that
other shareholder or debenture holder if he could have prevented the passing
of the resolution by voting against it or otherwise:
Provided that a disclaimer of
an interest under a disposition made inter vivos or by will or of an
interest under an intestacy shall not constitute a disposition of property;
"donor" means any person making
a gift;
"dutiable estate" means an
estate of a deceased person computed and constituted in accordance with the
provisions of section 5;
"foreign assets" means any
property which is available or which the deceased might by his will have
made available for the payment of his debts upon his death but which by
reason of its local situation is not part of the dutiable estate of the
deceased;
"general power of appointment"
includes any power or authority which enables the donee or other holder
thereof, or would enable him if he was of full capacity, to obtain or
appoint or dispose of any property or to charge any sum of money upon any
property as he thinks fit for his own benefit, whether exercisable orally or
by instrument inter vivos or by will or otherwise howsoever, but does
not include any power exercisable by a person in a fiduciary capacity under
a disposition not made by himself, or exercisable as mortgage;
"gift" means any disposition of
property which is made otherwise than will, whether with or without an
instrument in writing, without fully adequate consideration in money or
money's worth:
Provided that, if any such
disposition of property is made for a consideration in money or money's
worth which is inadequate, the disposition shall be deemed to be a gift to
the extent of such inadequacy;
"pension" includes an annuity
or other periodical payment by whatever name it is called;
"personal property'' does not
include leaseholds or other chattel interests in land;
"real property" includes
leaseholds and other chattel interests in land;
"share" includes stock;
"succession" means the interest
to which a successor is entitled as such;
"successor" means, with respect
to any deceased person, any person who on the death of the deceased-
(a) acquires under the will of
the deceased a pecuniary legacy, the exercise of a power of appointment
otherwise howsoever, a beneficial interest in the dutiable estate of the
deceased; or
(b) acquires any beneficial
interest in the dutiable estate of the deceased under his complete or
partial intestacy; or
(c) is beneficially entitled,
in default of appointment, to any property which forms part of the dutiable
estate of the deceased, and over which the deceased possessed and has failed
to exercise a general power of appointment; or
(d) is beneficially entitled,
under a voluntary bond or covenant or any other manner whatsoever, to any
debt which is payable out of the dutiable estate of the deceased and the
payment of which by the deceased himself would have constituted a gift; or
(e) becomes beneficially
entitled to any moneys payable under any policy of life assurance effected
by the deceased on his own life, so far as those moneys are included in the
dutiable estate of the deceased; or
(f) becomes beneficially
entitled by way of survivorship to any property included in the dutiable
estate of the deceased; or
(g) is beneficially entitled to
an interest in the dutiable estate of the deceased by virtue of any
settlement, trust or other disposition of property made by the deceased.
whether before or after 24 February 1966-
(i) by
which an interest in that property or the proceeds of the sale hereof for
the life of the deceased or of any other person, or for any other period
determined by reference to the death of the
deceased or of any
other person, is reserved, either expressly or by implication, to the
deceased; or
(ii) which is accompanied by
the reservation or assurance of or a contract for any benefit to the
deceased for the term of his life or of the life of any other person, or for
any period determined by reference to the death of the deceased or of any
other person; or
(iii) by which the deceased has
reserved to himself the right, by the exercise of any power, to restore to
himself or to reclaim that property or the proceeds of the sale thereof; or
(h) has
become entitled to any property forming part of the dutiable estate of the
deceased as a
beneficiary under any gift or donatio mortis causa;
"superannuation fund" means-
(a) the Widows and Orphans
Pension Scheme established under the provisions of the Widows and Orphans
Pension Act; and
(Cap. 80.)
(b) any superannuation fund
established for the benefit of the employees of any employer and approved
for the time being the Commissioner of Inland Revenue under the provisions
of section 110 of the Income Tax Act;
(Cap. 201)
"will" includes any
testamentary instrument.
(Amended by Legal Notice 112 of
1970.)
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PART II-ESTATE DUTY
Estate duty imposed
3. In the
case of every person who died after the commencement of this Act but before
12 September 1984 whether in Fiji or elsewhere, and wherever the deceased
was domiciled, there shall be payable to the Crown, on the final balance of
the estate of the deceased as determined in accordance with the provisions
of this Act, a duty (hereinafter called "estate duty") at the rate and in
accordance with the provisions of this Act.
Graduated rate of estate duty
4. Estate
duty shall be charged and assessed as a percentage of the amount of the
final balance of the estate in accordance with the graduated scale of
percentages set out in the First Schedule.
Property subject to estate duty
5.-(1) In
computing for the purposes of this Act, the final balance of the estate of a
deceased person, his estate shall be deemed to include and consist of the
following classes of property:
(a) all
property of the deceased which is situate in Fiji at his death and to which
any person becomes entitled under the will or intestacy of the deceased,
except property held by the deceased
as trustee for another person;
(b) any property comprised in
any gift made by the deceased within 5 years before his death, and whether
before or after 24 February 1966, if the property was situate in Fiji at the
time of the gift;
(c) any property comprised in
any gift made by the deceased at any time, whether before or after 24
February 1966, unless bona fide possession and enjoyment has been
assumed by the beneficiary not less than 5 years before the death of the
deceased and has been thenceforth retained to the entire exclusion of the
deceased or of any benefit to him by contract or otherwise, if the property
was situate in Fiji at the time of the gift. In the case of property being
an interest in land, or being chattels, retention or assumption by the
deceased of actual occupation of the land or actual enjoyment of an
incorporeal right over the land, or actual possession of the chattels, shall
be disregarded if for full consideration in money or money's worth paid
before or payable at the date of death of the deceased;
(d) any property comprised in a
donatio mortis causa made by the deceased at any time. whether before
or after 24 February 1966, if the property was situate in Fiji at the time
of the gift;
(e) the beneficial interest
held by the deceased immediately before his death in any property as a joint
tenant or joint owner with any other person or persons. If that property was
situate in Fiji at the death of the deceased;
(f) any
money payable under a policy of assurance effected by the deceased on his
life. whether before or after 24 February 1966, where the policy is wholly
kept up by him for the benefit of a
beneficiary (whether nominee or assignee), or a
part of that money in proportion to the
premiums paid by
him where the policy is partially kept up by him for such benefit. if (in
either case) the money so payable is property situate in Fiji at the death
of the deceased:
Provided
that no money payable under such a policy shall form part of the final
balance of the estate if the beneficiary became absolutely and indefeasibly
entitled to the benefit of the policy more than 5 years before the death of
the deceased, unless the deceased paid some premiums in the 5 years before
his death. in which event. the money payable under such policy shall form
part of the
final balance of the estate of the deceased only in the proportion of the
policy moneys corresponding to the ratio between the premiums paid by the
deceased during such 5 year period and the total premiums;
(g) any annuity or other
interest purchased or provided by the deceased, whether before or after 24
February 1966, either by himself alone or in concert or by arrangement with
any other person, to the extent of the beneficial interest accruing or
arising by survivorship or otherwise on the death of the deceased, if that
annuity or other interest is property situate in Fiji at the death of the
deceased;
(h) any property situate in
Fiji at the death of the deceased over or in respect of which the deceased
had at the time of his death a general power of appointment:
(i) any property situate in
Fiji at the death of the deceased comprised in any settlement. trust or
other disposition of property (including the proceeds of the sale or
conversion of any such property and all investments for the time being
representing the same and all property which has in any manner been
substituted therefore) made by the deceased, whether before or after 24
February 1966-
(i) by which an interest in
that property or in the proceeds of the sale thereof is reserved, either
expressly or by implication, to the deceased for his life or for the life of
any other person or for any period determined by reference to the death of
the deceased or of any other person; or
(ii) which is accompanied by
the reservation or assurance of, or a contract for, any benefit to the
deceased for the term of his life or of the life of any other person or for
any period determined by reference to the death of the deceased or of any
other person; or
(iii) by
which the deceased has reserved to himself the right by exercise of any
power to restore to himself or to
reclaim that property or the proceeds of the sale
thereof.
(2) For
the purposes of paragraph (g) of subsection (1), the following provisions
shall apply:-
(a) where an annuity or other
interest was purchased or provided partly by the deceased and partly by any
other person, so much of that annuity or other interest as was purchased or
provided by the deceased shall be deemed to be an annuity or other interest
to which such paragraph applies;
(b) the deceased shall be
deemed to have purchased or provided the proportion of any annuity or other
interest that is equivalent to the proportion contributed by the deceased of
the total amount in money or money's worth contributed towards purchasing or
providing the annuity or other interest;
(c) where the deceased has
entered into a contract for a benefit to a person who is not a party to the
contract, and the contract is enforceable by the administrator of the estate
of the deceased, then, notwithstanding that the contract is not enforceable
by the person for whose benefit the contract was made, the benefit shall be
deemed to be a beneficial interest;
(d) the extent of any
beneficial interest accruing or arising by survivorship or otherwise on the
death of the deceased shall be ascertained without regard to any interest in
expectancy that the beneficiary may have had therein before the death;
(e) where the deceased was a
contributor to a superannuation fund and. in accordance with its rules, a
pension is payable from that fund to his widow for the rest of her life or
during her widowhood, that pension shall not be deemed to be included in the
dutiable estate of the deceased, unless its amount exceeds $51,000 a year.
in which case. it shall not be deemed to be included in the dutiable estate
to the extent of $1,000 a year:
Provided that-
(i)
where 2 or more such
pensions are payable to a widow, the amount so exempted in respect of each
pension shall, where necessary, be reduced so that the total amount exempted
in respect of all such pensions does not exceed $1,000 a year;
(ii) where the deceased has
made an election to surrender the whole or any part of any benefit from the
fund in consideration of the payment from the fund after his death of a
pension or additional pension to his widow, nothing in this paragraph shall
prevent the value of that pension or additional pension from forming part of
his dutiable estate;
(f)
where the deceased was a contributor to a superannuation fund and in
accordance with its rules, a pension is payable from that fund to or for the
benefit of in infant child of the deceased until the child attains an age
not greater than 21 years, that pension shall not be deemed to be included
in the
dutiable estate of the deceased, unless its amount exceeds $1,000 a year, in
which case, it shall not be deemed to be included in the dutiable estate to
the extent of $1,000 a year:
Provided that-
(i)
where 2 or more such pensions are payable to an infant child, the amount so
exempted in respect of each pension shall, where necessary, be reduced so
that the total amount exempted in respect of all such pensions does not
exceed $1,000 a year;
(ii) where the deceased has
made an election to surrender the whole or part of any benefit from the fund
in consideration of the payment from the fund after his death of a pension
or additional pension to his infant child, nothing in this paragraph shall
prevent the value of that pension or additional pension from forming part of
his dutiable estate.
(3)
Property shall not be subject to estate duty under the provisions of
paragraph (i) of subsection (1) by reason of the reservation or assurance
of, or any contract for, any interest or benefit, or by reason of the
reservation of any right to restore or reclaim the property or the proceeds
of the sale thereof, if, by any release, surrender, merger, cesser,
forfeiture, determination, alienation or disposition of such interest,
benefit or right (together with any interest, benefit or right, whether of
the same or of any different kind, which may have been substituted therefor)
has wholly ceased to exist or to be vested in the deceased at any time more
than 5 years before the death of the deceased (and whether before or after
24 February 1966): but otherwise than as aforesaid, no such release,
surrender, merger, cesser, forfeiture, determination, alienation, or
disposition, (whether before or after 24 February 1966) shall have any
effect in preventing the operation of the said subsection in the same manner
as if the interest, benefit or right continued to be vested in the deceased
at the date of his death.
(4) For
the purpose of paragraph (i) of subsection (1) the following provisions
shall apply:-
(a)
where, after the date of any settlement or trust or disposition of property
made by the deceased, improvements are made otherwise by or at the expense
of the deceased, to any land comprised in settlement or trust or disposition
of property, the value of the property for the purpose of
such paragraph shall be reduced by the value of those improvements as at the
date of death of the deceased;
(b)
where any settlement or trust or disposition of property was made by the
deceased for a consideration in money or money's worth paid, or payable at
the date of death of the deceased, either to the deceased for his own use
and benefit, or to any other person in satisfaction of a debt incurred by
the deceased for full consideration in money or money's worth wholly for his
own use and benefit, the value of the property comprised in the settlement
or trust or disposition of property shall for the purposes of the said
paragraph be reduced by:-
(i) the amount of any such
consideration so paid together with interest at the rate of 5 per cent per
annum on so much thereof and for such period as, in the opinion of the
Commissioner, is in all the circumstances reasonable; and
(ii) an amount equal to the
value as at the date of death of the deceased of any such consideration so
payable:
Provided that no such reduction shall be made in respect of any
consideration by way of a benefit to the deceased for the term of his life
or of the life of any person. or for any period determined by reference to
the death of the deceased or of any other person, except to the extent to
which the aggregate of the amounts paid in respect of that benefit exceeds
the aggregate of the income from the property for the period from the date
of the settlement or trust or disposition of property until the date of
death of the deceased: and, in his proviso, the expression "the aggregate of
the income from the property" means such amount as, in the opinion of the
Commissioner, is, in all the circumstances, equal to a reasonable return
from the property. (Amended by Act 13 of 1980, s. 2.)
(5) In
respect of property comprised in a gift made prior to 24 February 1966-
(a) to any institution,
organization or body of persons, whether corporate or unincorporate,
operating for charitable purposes in Fiji and not formed or carried on for
the profit of any individual, such gift being for use in Fiji; or
(b) to any educational or
agricultural institution approved by the Minister; or
(c) to the Government,
the
provisions of paragraphs (b) and (c) of subsection (1) shall be read as if
the words "1 year" were substituted for the words "5 years" herein.
(Amended by Legal Notice 112 of 1970.)
(6) The
dutiable estate of the deceased shall not include any property to which, on
a subsequent death. he becomes entitled by virtue of the provisions of
section 27 of the Wills Act. (Amended by Act 13 of 1980, s. 2.)(Cap 59)
(7)
Notwithstanding the other provisions of this Act. the dutiable estate of the
deceased shall not include any real property the rights to which, under the
provisions of any local customary law, cease at the death of the deceased.
Prohibition on dealing with
joint assets
6.-(1)
Where any shares, debentures. money on fixed deposit, policy of life
assurance, or any other property, or money in any bank (in this section
referred to as "assets") in the name of any deceased person are held jointly
with any other person as owner, no person shall deal with such assets by way
of registration or in any manner whatsoever, unless the Commissioner
certifies. in writing, that no duty is payable in respect of such assets or
that all duties in respect of such assets payable by reason of any increase
of benefit or any accruing beneficial interest by reason of the said death,
have been paid, or that proper security has been given for the payment
thereof:
Provided
that the Commissioner may authorise, in writing, any such dealing in such
manner as shall to him appear to be reasonable in order to meet the normal
living expenses of the survivor of the joint owners or the normal expenses
of carrying on a business.
(2) Where
no duty is payable in respect of such assets or when all duties mentioned in
subsection (1) shall have been paid or when security to the extent required
by the Commissioner shall have been given for the payment thereof, the
Commissioner shall give any such certificate as aforesaid. The certificate
may be given in any form approved by the Commissioner.
(3) Any
person dealing with such assets before a certificate has been given by the
Commissioner in accordance with the provisions of subsection (1) shall be
guilty of an offence and shall be liable, on conviction, to a fine not
exceeding $100.
Final balance of estate
7.-(1) The
final balance of the estate of the deceased shall be computed as being the
total value of his dutiable estate, after making such allowances as are
hereinafter authorised in respect of the debts of the deceased and in
respect of other charges.
(2) All
such property shall be valued as at the date of the death of the deceased,
save that, where, by section 5, it is provided that the local situation if
any such property shall be determined as at any other date, the value of
that property shall be determined as at the same date.
(3) The
amount of the final balance of any estate shall be deemed and taken to be
its amount in complete dollars. (Amended by Ordinance 42 of 1968, s. 2.)
Personal property of persons
domiciled in Fiji liable to estate duty wherever situate
8. Where
the deceased was domiciled in Fiji at the date by reference to which the
local situation of any personal properly be determined. such personal
property shall be deemed for the purpose of his Act to be situate in Fiji at
that date.
Mode of determining situation
of property of persons domiciled out of Fiji
9. Where
the deceased, died domiciled elsewhere than in Fiji, the local situation of
any of the classes of property hereinafter in this section referred to shall
be determined as follows:-
(a) any chattel personal the
physical situation of which is in Fiji shall be deemed to be situate in
Fiji;
(b) a sea-going ship or any
share or interest in such a ship shall be deemed to be property situate in
Fiji if the ship is registered in Fiji;
(c) property at sea (other than
a sea-going ship) shall be deemed to be situate in Fiji if in course of
transit directly or indirectly to Fiji;
(d) a debt owing by a
corporation, whether incorporated in Fiji or elsewhere, shall he deemed to
be property situate in Fiji if the debt was incurred or is payable in Fiji
and the corporation has any office or place of business in Fiji;
(e) a
debt owing by any
person or persons other than a corporation shall be deemed to be property
situate in Fiji if the debtor or any of the debtors is resident in Fiji;
(f) a debt owing by the Crown
in respect of the Government of Fiji shall be deemed to be property situate
in Fiji if it is incurred or payable in Fiji;
(g) notwithstanding anything
hereinbefore in this section contained, a debt which is secured by mortgage,
charge or otherwise on any property situate or deemed to be situate in Fiji
shall itself be deemed to be property situate in Fiji, but, if the value of
the security is less than the value of the debt, the debt shall not by
reason of the existence of the security be deemed to be situate in Fiji
except to the extent of the value of the security;
(h) shares in a company
incorporated in Fiji shall be deemed to be property situate in Fiji, save in
the case of shares registered in a branch register in any other part of the
Commonwealth in accordance with the provisions of the Companies Act;
(i)
shares in a company incorporated under the provisions or the law of any
country outside Fiji shall be deemed
to be property situate outside Fiji, except in the case of shares registered
in a branch register of the company in Fiji.
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Allowance to be made for debts
10.-(1) In
computing the final balance of the deceased, allowance shall, save so far as
otherwise provided by this Act, be made for all debts owing by the deceased
at his death.
(2) No
such allowance shall be made-
(a) for debts incurred by the
deceased otherwise than or full consideration in money or money's worth
wholly for his own use and benefit; or
(b) for debts in respect
whereof there is a right of reimbursement from any other estate or person
except to the extent to reimbursement cannot be obtained; or
(c) more than once for the same
debt charged upon different portions of the estate; or
(d) for
contingent debts or
any other debts the amount of which is, in the opinion of
the Commissioner, incapable of estimation.
(3) If any
debt for which. by reason of the provisions of paragraph (d) of subsection
(2), an allowance has not been made becomes, it any time within 3 years
after the death of the deceased, actually payable- or, in the opinion of the
Commissioner capable of estimation, an allowance shall be made therefor, and
a refund of any estate duty paid in excess under this Act shall be made to
the person entitled thereto; but no action for the recovery of any such
refund shall be except within years after the payment of the duty so paid in
excess.
Apportionment of debts between
dutiable estate and foreign assets
11.-(1)
The allowance to be made for debts shall extend to all dents, whether
incurred or payable in Fiji or elsewhere, save that, where there are any
foreign assets, the total debts of the deceased in respect of which an
allowance would otherwise be made shall be apportioned between those foreign
assets and the dutiable estate of the deceased in proportion to their
respective values, and an allowance shall be made only in respect of the
proportion so apportioned to the dutiable estate.
(2) The
apportionment provided for in this section shall be irrespective of the fact
that debts of the deceased or any of them are charged by mortgage or
otherwise upon any part of the dutiable estate or foreign assets, and the
apportionment shall, in any such case, be made in the same manner as if no
such charge existed.
Funeral and administration
expenses
12. In
computing the final balance of the estate of the deceased, an allowance
shall be made for the reasonable expenses of the funeral of the deceased in
the same manner and to the same extent as if those expenses constituted a
debt of the deceased, but no allowance shall be made in respect of the
expenses of the administration of the estate, or in respect of commission or
other remuneration payable to an administrator, or in respect of the amount
of the estate duty payable under the provisions of this Act.
Valuation of contingent
interests
13.-(1)
For the purposes of estate duty, every contingency affecting the interest of
the deceased in any property forming part of his dutiable estate shall be
deemed to have determined in the manner in which, in the opinion of the
Commissioner, it probably will determine, and the interest shall be valued
and estate duty assessed and paid accordingly.
(2) If, in
the actual event, at any time hereafter the contingency determines in a
manner different from that assumed as the basis of assessment under the
provisions of subsection (1), estate duty shall thereupon be reassessed by
the Commissioner on the basis of the actual event and is of the date of the
death of the deceased.
(3) If, on
that reassessment, it appears that too much has been paid by way of estate
duty, a refund of the excess, together with interest thereon at the rate of
5 per cent per annum from the date of payment of the duty, shall be made to
the person who would have been entitled to recover the excess of duty had it
been paid in error.
(4) If, on
any such reassessment as aforesaid, it appears that too little estate duty
has been paid, the deficiency, together with interest thereon at the rate of
5 per cent per annum is from the date upon which the duty originally paid
became due, shall thereupon become due and payable, and shall, for all
purposes, be deemed to be estate duty which has remained unpaid in error:
Provided
that-
(a) the
administrator shall not be personally liable for any such additional duty by
reason of having administered
and distributed the estate of the deceased before the determination of the
said contingency, without retaining assets sufficient to satisfy that duty;
(b) the Commissioner may, if he
thinks fit, reduce, remit, or refund the interest payable on any deficiency
of estate duty under this subsection where he is satisfied that the payment
of the interest would create a hardship: but no such refund shall be made
unless application therefor is received by the Commissioner within 6 months
after the date of payment of the interest.
Valuation of property subject
to encumbrances
14. For
the purpose of computing the value of any succession, no deduction shall be
allowed in respect of any mortgage, charge, encumbrance, or liability
affecting or incident to the property comprised in the succession if and so
far as the successor is entitled, as against any other person or property,
to any available right of contribution or indemnity in respect of that
mortgage, charge, encumbrance or liability.
Valuation of successions to be
taken as at date of death
15. The
value of any succession shall be deemed and taken to be the present value
thereof at the death of the deceased:
Provided
that the value of any succession acquired by way of gift and coming within
the provisions of paragraph (h) of the definition of the word "successor"
shall be deemed and taken to be the present value thereof at the date of
that gift.
Apportionment of successions
between the dutiable estate and foreign assets
16.-(1) If
the interest of a successor consists of a pecuniary legacy or other
pecuniary claim which may be lawfully paid or satisfied either out of the
dutiable estate of the deceased or out of foreign assets, the value of that
interest shall be apportioned between the dutiable estate so available to
satisfy the same and the foreign assets so available to satisfy the same in
proportion to their relative values and only that part of the interest which
is so apportioned to the dutiable estate shall be taken into account in
calculating the value of the succession.
(2) The
burden of proving the existence and value of any such foreign assets shall
lie on the successor and not upon the Commissioner.
Illegitimate relationship to be
taken into account
17. For
the purposes of estate duty only, illegitimate relationship shall be
recognized as equivalent to legitimate relationship in cases in which proof
is given to the satisfaction of the Commissioner of the illegitimate
relationship of the successor to the deceased.
Relief from successive estate
duties
18.-(1)
For the purposes of this section-
"deceased successor" means a
person who has become entitled to any property
"predecessor" in relation to a
deceased successor means a person who has died within 5 years before the
death of the deceased successor.
(2) Where
the Commissioner is satisfied that the dutiable estate of a deceased
successor includes any property identified as being or representing property
to which the deceased successor has become entitled as a successor to a
predecessor, the Commissioner shall reduce the net amount of the estate duty
payable in the estate of the deceased successor in respect of that property
as follows:-
(a) if the deceased successor
has died within the first period of 4 months after the death of the
predecessor, by 75 per cent;
(b) if the deceased successor
has died within the second period of 4 months after the death of the
predecessor, by 60 per cent;
(c) if the deceased successor
has died within the third period of 4 months after the death of the
predecessor, by 50 per cent;
(d) if the deceased successor
has died within the second year after the death of the predecessor, by 40
per cent;
(e) it the deceased successor
has died within the third year after the death of the predecessor, by 30 per
cent;
(f) if the deceased successor
has died within the fourth year after the death of the predecessor, by 20
per cent;
(g) if the deceased successor
has died within the fifth year after the death of the predecessor, by 10 per
cent:
Provided
that, where the net amount of the estate duty payable in the estate of the
deceased successor in respect of that property (before making any reduction
under this section) exceeds the net amount of the estate duty payable in the
estate of the predecessor in respect of that property or the property that
it represents, the reduction to be made under this section shall be the
appropriate percentage of the last mentioned amount.
Remission of estate duty in
case of property passing more than once owing to deaths caused by war
19.-(1)
This section shall apply where-
(a) any person is killed while
on active service, or dies from wounds inflicted, accident occurring, or
disease contracted or aggravated, within 3 years before death, while on
active service against an enemy, whether on sea, land or air, or on service
when, in the opinion of the Minister, is of a warlike nature or involves the
same risks as active service, and was when killed, or when the wounds were
inflicted, the accident occurred or the disease was contracted or
aggravated, subject to any naval, military or air force law; or
(b) any person other than a
person referred to in paragraph (a) is killed in circumstances which, in the
opinion of the Minister, are attributable to the operations of war, or dies
from injuries received, or disease contracted or aggravated, within 3 years
of his death and which were, in the opinion of the Minister, caused by the
operations of war. (Amended by Legal Notice 112 of 1970.)
(2) Where
the Minister is satisfied that estate duty is leviable under this Act has
become payable on any property passing on the death of any person to which
this section applies, and that subsequently such estate duty has again
become payable on the same property or any part thereof passing on the death
of some other person to whom this section applies, the whole of such estate
duty payable on such subsequent death in respect of the property so passing
shall be remitted, or, in case such estate duty has been paid, repaid, and
the property shall not be aggregated with any property passing on such
subsequent death for the purpose of determining the rate of such duties.
(Amended by Legal Notice 112 of 1970.)
(3) This
section shall apply whether or not on any such death any property passes to
the widow, lineal descendants, lineal ancestors, brothers or sisters, or the
descendants of such brothers or sisters of the deceased.
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PART III -
ASSESSMENT AND COLLECTION OF ESTATE DUTY
Estate duty to be payable by
the administrator
20.-(1)
The amount of the estate duty payable under this Act shall constitute a debt
payable to the Crown out of the estate of the deceased in the same manner as
the debts of the deceased, and that duty shall be paid by the administrator
accordingly out of all real or personal property vested in him and forming
part of the dutiable estate of the deceased, whether that property is
available for the payment of other debts of the deceased or not, and whether
the property in respect of which the duty or any part thereof has been
assessed is vested in the administrator or not.
(2) For
the purpose of paying estate duty, the administrator shall have the same
power of selling, leasing or mortgaging any real or personal property vested
in him as in the case of a sale, lease or mortgage for the payment of the
debts of the deceased.
Estate duty to become due 12
months after death of deceased
21.-(1)
Estate duty shall become due and payable on the assessment thereof by the
Commissioner, or, if not duly so assessed within 12 months from the date of
the death of the deceased, then on the expiration of that period of 12
months.
(2)
Interest at the rate of 10 per cent annum shall be payable upon all estate
duty unpaid at the expiration of 12 months from the date of the death of the
deceased person and shall be computed from the date of the expiration
period.
(3) Such
interest shall be deemed to be estate duty and shall be chargeable and
recoverable accordingly.
(4) If, in
any case, it is proved to the satisfaction of the Commissioner that the
delay in the payment of estate duty is not due to the fault of the
administrator the Commissioner may remit the whole or any part of the
interest payable under the provisions of this section.
Penalty for default in payment
of Estate duty
22. If the
full amount of estate duty is not paid within 6 months after notice has been
given to the administrator of the assessment thereof by the Commissioner or
within such extended period as the Commissioner thinks fit to allow on the
application of the administrator made before the expiration of the said
period of 6 months, there shall be added by way of penalty a further sum
equal to 5 per cent of the duty so unpaid, and the additional sum shall be
deemed to be estate duty and shall be chargeable and recoverable
accordingly.
Estate duty to be payable
although no grant of administration
23. The
estate of a deceased person shall not be exempt from estate duty by reason
merely of the fact that no grant of administration has been or need be or
can be made in Fiji in respect of that estate and, in any such case, all the
provisions of this Act shall, so far as is applicable, apply notwithstanding
the fact that there is no administrator of the estate.
Estate duty to be a charge on
the dutiable estate
24.-(1)
Estate duty payable under the provisions of this Act shall constitute, as
from the death of the deceased, a charge upon the whole dutiable estate of
the deceased and upon all property included that estate, whether vested in
the administrator or not, but no such charge shall affect the title of any
purchaser for value (whether before or after the death of the deceased)
without actual notice of the existence of the charge.
(2) Any
successor or other person whose interest is affected by the realization or
enforcement of any such charge shall, save so far as otherwise provided by
this Act or by the will of the deceased, have a right of indemnity as
against the administrator of the estate to the extent of all assets which
are or have been available in the hands of the administrator for the payment
of estate duty.
Proportion of estate duty also
to be recoverable from each successor
25.
Without excluding the liability of the administrator under the foregoing
provisions of this Act, the estate duty payable on the dutiable estate of
the deceased shall constitute a debt due to the Crown by every successor of
the deceased, and by the trustee of any such successor:
Provided
that-
(a) each successor and his
trustee shall be so liable only for the same proportion of the estate duty
as the value of his succession bears to the aggregate value of all the
successions;
(b) where the interest of any
successor is a future interest, he shall not become so liable for estate
duty until his interest becomes an interest in possession.
As between successors estate
duty to be paid by each successor in proportion to the value of his interest
26.-(1) As
between the several successors of the deceased, and without affecting the
rights and remedies of the Crown under the foregoing provisions of this Act,
the provisions of this section shall be applicable.
(2) Estate
duty shall be payable in accordance with the directions of the will of the
deceased so far as regards any property which is subject to the dispositions
of that will and, subject to any such directions, estate duty shall be
payable out of the property comprised in each succession, whether that
property is vested in the administrator or not, or out of any money,
investments or other property for the time being representing that property,
in the same proportion that the value of that succession bears to the
aggregate value of all the successions.
(3) If any
estate duty is, in the first instance, paid by the administrator or by any
successor or the trustee of any successor otherwise than in accordance with
the provisions of this section, the person by whom duty is so paid may
recover the same by action in any court of competent jurisdiction (together
with such interest thereon as the court thinks just) from, the successor or
the trustee of the successor out of whose property the duty was payable in
accordance with the provisions of this section:
Provided
that, where the interest of the last-mentioned successor is a future
interest, he shall not become so liable until his interest becomes an
interest in possession.
(4) If any
estate duty is paid in the first instance otherwise than in accordance with
the provisions of this section, every person whose interest is thereby
affected shall have a right of indemnity against the property out of which
that duty was payable in accordance with the provisions of this section.
(5) For
the purpose of carrying into effect the provisions of this section, the
Supreme Court may, on the application of the administrator or of any, person
interested, make such orders as it deems just with respect to the
administration of the dutiable estate of the deceased, and may, by any such
order, impose on any Part of that estate, or on any money, investments or
other property for the time being representing the same, a charge in favour
of any person who is entitled to any such right of indemnity as aforesaid,
and every such charge shall bear such interest, if any, as the Court thinks
just.
(6) On the
application of the administrator or of any person interested for the
enforcement of any such charge, the Supreme Court may make such order as it
thinks just, either for the sale of the property charge or of any part
thereof or for the appointment of a receiver of the rents, profits or income
thereof.
(7) When
any property has been sold under any such order the Supreme Court may make
an order vesting the property in the purchaser.
(8) Every
such vesting order shall have the same effect as if all persons entitled to
the property had been free from all disability and had duly executed all
proper conveyances, transfers and assignments of the property for such
estate or interest as is specified in the order, and the order shall be
subject to stamp duty accordingly.
Deduction to be made of duty
paid in any other country on property situate in that country
27.-(1)
Where the Commissioner is satisfied that, in any country outside Fiji, duty
is payable by reason of a death in respect of any property situate in such
country and passing on such death, he shall allow a sum equal to the amount
of such duty or to the amount of duty payable under the provisions of this
Act in respect of the same property on the same death, whichever sum shall
be the less, to be deducted from the entire amount of duty payable.
(2) For
the purposes of this section, the local situation of property shall be
determined in the same manner as hereinbefore provided in this Act, save
that the local situation of property shall not be determined for this
purpose by reference to the domicile of the deceased. (Amended by Act 13
of 1980, s. 3.)
(3) No
such deduction as is provided for in this section shall be made until and
unless the duty so payable in another country has been actually paid and, in
the meantime, the full amount of duty shall be assessed and payable and on
payment of the duty in that other country a refund of the amount thereof
shall be made accordingly in the same manner as in the case of duty paid in
excess.
Statement to be delivered to
Commissioner by administrator
28.-(1) In
order to ascertain the amount payable as estate duty under the provisions of
this Act, every administrator shall, within 6 months from the grant of
administration, deliver to the Commissioner a statement in writing in the
prescribed form, or in such form as the Commissioner may, in his discretion,
permit, containing the prescribed particulars with respect to the dutiable
estate of the deceased and with respect to the interests of the several
successors of the deceased and containing such other particulars, if any, as
may be prescribed for the purposes of this Act.
(2) The
Commissioner may, upon application, extend the time within which such
statement must be delivered, and may also permit or require the statement to
be amended.
(3) Every
such statement and every amendment thereof shall be verified by statutory
declaration in the prescribed form and manner.
(4) Any
administrator who fails to deliver a statement to the Commissioner within
the time prescribed by this section or to deliver an amended statement when
required by the Commissioner so to do shall be liable to a fine of $100.
(5)
Subject to subsection (6), no administrator shall be exempt from the
requirements of this section on the ground that no estate duty is payable,
and this section shall be complied with in respect of the estate of any
person who died on or after 12 September 1984 as if the imposition of estate
duty had not been discontinued in respect of such estate.
(6) The
Minister may by Order prescribe a date or dates from which the provisions of
this section and, sections 29, 30 and 31, or any part thereof,
shall cease to be in force in respect of the estate of any person who died
on or after 12 September 1984.
(Amended by Act 3 of 1985.)
Estate duty to be assessed by
Commissioner
29-(1) On
the delivery of the statement in accordance with the provisions of
section 28 by the administrator, the Commissioner shall proceed to
assess the estate duty payable and shall give notice of his assessment to
the administrator. If the Commissioner is of opinion that no such duty is
payable, he shall certify to the administrator accordingly.
(2) If
the administrator fails to deliver a statement within the time limited by
this Act in that behalf, or, if no grant of administration is made within 6
months after the death of the deceased, the Commissioner may proceed to
assess the estate duty payable and to recover payment of the duty so
assessed in the same manner with all necessary modifications as if a
statement had been duly filed by an administrator.
Administration to be sent by
Court to the Commissioner
30-(1)
Every administration shall immediately upon the grant thereof, be sent to
the Commissioner by the Chief Registrar of the Supreme Court, and the
Commissioner shall issue the same to the person entitled to receive it on
payment of the estate duty assessed and payable.
(2) The
Commissioner, if he thinks fit, may issue an administration before payment
of duty, if the administrator gives security to the satisfaction of the
Commissioner for the payment of the full duty, either by mortgage of some
portion of the property affected by the administration sufficient in the
opinion of the Commissioner, to secure the payment of the duty, or by bond
to Her Majesty the Queen, either with or without sureties, for the payment
of the full duty within 6 months from the date of the grant of
administration or
(3) The
penalty of any such bond shall be twice the estimated duty computed upon the
approximate value of the dutiable estate and of the interests of the
successors as verified, if the Commissioner so requires, by the statutory
declaration of the administrator or of any other person.
(4) Where
the Public Trustee is the administrator, it shall not be necessary for him
to give any such security, and the Commissioner may, if he thinks fit, issue
the administration without payment of duty accordingly.
Dealing with estate of deceased
person without administration
31.-(1) If any person takes
possession of or in any manner deals with any part of the estate of any
deceased person without obtaining administration of his estate within 6
months after his decease, or within 2 months after the termination of any
action or dispute respecting the grant of administration of the estate, or
within such further time as may be allowed by the Commissioner on
application, the Commissioner may apply to the Supreme Court for an order
that the person so taking possession or dealing as aforesaid deliver to the
Commissioner, within such time as the Commissioner may determine, a
statement as required by subsection (1) of section 28, and to pay
such duty as would have been payable if administration had been obtained,
together with the cost of the proceedings, or to show cause to the contrary.
(2) If no
cause or no sufficient cause is shown to the contrary, the person so
offending shall, in addition to the duty payable by him as aforesaid,
forfeit a sum not exceeding $1,000, in the discretion of the Supreme Court;
but, if cause is shown, such order shall be as seems just.
(3)
Nothing in this section or elsewhere in this Act shall affect the special
provisions of any enactment for the time being in force authorising the
payment of money belonging to the estate of any deceased person without
requiring administration of the estate to be obtained.
PART IV-GIFT DUTY
Liability for Gift Duty
32.-(1)
Subject to the exceptions provided for in this Act, a duty (in this Act
referred to as gift duty) shall be chargeable in respect of every gift made
after the commencement of this Act but before 12 September 1984.
(2)
Nothing in this Act shall apply to any gift made on or after 12 September
1984. (Inserted by
Act 3 of 1985.)
Exemption of certain gifts from
gift and estate duty
33. A gift
shall not be taken into account as such either for the purposes of gift duty
or for the purposes of estate duty if the Commissioner is satisfied-
(a) that the gift, together
with all other gifts made by the same donor to the same beneficiary in the
same calendar year, does not exceed in the aggregate $400 in value and is
made in good faith as part of the normal expenditure of the donor; or
(b) that the gift is made for
or towards the maintenance of the wife, husband or any relative of the
donor, and is not excessive in amount having regard to the legal or moral
obligation of the donor to afford such maintenance.
Voluntary contracts to be
deemed gifts in
certain cases
34.-(1) In
this Part, the term "voluntary contract" means a contract entered into,
whether with or without an instrument in writing, without fully adequate
consideration in money or money's worth. If any contract is made for a
consideration in money or money's worth which is inadequate, the contract
shall be deemed to be voluntary to the extent of that inadequacy.
(2) A disposition of property made
in performance or satisfaction of a voluntary contract shall be deemed to be
a gift, whether the contract or disposition was made before or after 24
February 1966.
(3) A
voluntary contract, whether made before or after 24 February 1966, shall not
in itself constitute a gift within the meaning of this Act, but shall become
or be deemed to have become a gift so soon and so far as it has attached to
and affected the legal or equitable title to any property to which it
relates.
No gift duty except on property
situate in Fiji
35.-(1)
The provisions of this Act as to gift duty shall apply to every gift of
property situate in Fiji at the time the gift was made, whether such gift is
made in Fiji or elsewhere, but, if the gift is made out of Fiji, the period
of 3 months from the making thereof shall be substituted for the period of 1
month from the making thereof wherever the last-mentioned period is fixed
for any purpose under the provisions of this Act.
(2) For
the purposes of gift duty, the local situation of property shall be
determined in the manner following:-
(a) if the donor is domiciled
in Fiji at the date of the gift or is a body corporate incorporated in Fiji,
all personal property comprised in the gift shall be deemed to be situate in
Fiji;
(b)
subject to the provisions of paragraph (a), the local situation of any
property shall be determined in the
same manner as is provided in section 9 with
respect to estate duty.
No gift duty on antenuptial
marriage settlements
36.-(1) No
marriage settlement made before and in consideration of marriage, or made
after marriage in pursuance of a binding antenuptial contract, shall be
liable to gift duty with respect to any beneficial interests acquired
thereunder by either party to the marriage or by the children or remoter
issue of the marriage.
(2)
Notwithstanding anything in this section contained, a covenant or contract
contained in a marriage settlement, whether before or after 24 February
1966, to pay money or to make any disposition of future-acquired property
shall be deemed to be a voluntary contract, and all the provisions of
section 34 shall apply thereto and gift duty shall be payable
accordingly.
No gift duty on gift to
charity, etc.
37. No gift duty shall be
payable on-
(a) any gift to any
institution, organization or body of persons, whether corporate or
unincorporate, operating for charitable purposes in Fiji and not formed or
carried on for the profit of any individuals, such gift being for use within
Fiji;
(b) any gift to any educational
or agricultural institution approved by the Minister;
(c) any gift to the Government;
(d)
contributions by an employer
to a fund established for the purpose of providing retiring allowances or
pensions for his employees or any class or classes of his employees or for
the purpose of providing benefits on or after the death of his employees or
any class or classes of his employees;
(e) payments made by an
employer to an employee in consequence of the retirement of that employee
from the service of the employer, and any gratuity or bonus paid by an
employer to an employee during the continuance of the employment in
recognition of special or faithful services rendered, if
(i) the employer is a body
corporate other than an incorporated company; or
(ii) the employer is an incorporated company and the
Commissioner is satisfied that more than 50 per cent of the stock or shares
comprising the capital of the employer company, or comprising the capital of
a company which controls the voting power of the employer company, is held
for the benefit of a person or persons other than the employee, the spouse
of the employee, and relatives of the employee of or within the second
degree of relationship, or
(iii) the employer is an
unincorporated firm or an individual, and the Commissioner is satisfied that
the employee is not a relative of or within the second degree of
relationship or a spouse of the employer or any of the employers;
(f) payments made to a widow by
a person who has been her deceased husband's employer, if
(i) the employer is a body
corporate other than an incorporated company; or
(ii) the employer is an
incorporated company and the Commissioner is satisfied that more than 50 per
cent of the stock or shares comprising the capital of the employer company,
or comprising the capital of a company which controls the voting power of
the employer company, is held for the benefit of a person or persons other
than the widow and the relatives of or within the second degree of
relationship of the widow or of her deceased husband; or
(iii) the employer is an
unincorporated firm or an individual, and the Commissioner is satisfied that
the widow is not and her deceased husband was not a relative of or within
the second degree of relationship of the employer or any of the employers;
(g) any
gift made by a donor domiciled in Fiji at the date of the gift to the spouse
of the donor:
Provided that the Commissioner may, for the
purposes of paragraphs (d) and (e), if he is satisfied that any payment made
to any employee or the widow of any employee being a relative of the
employer of or within the second degree of relationship is a payment made in
consideration of genuine services rendered by such employee to such
employer, allow such payment to be free of gift duty.
(Amended by Legal Notice 112 of
1970; Act 13 of 1980, s.4.)
No deduction to be made from
value of gift in respect to benefit of donor
38.-(1) When any gift is made in
consideration or with the reservation of any benefit or advantage to or in
favour of a donor, whether by way of any estate or interest in the same or
any other property, or by way of mortgage or charge, or by way of any
annuity or other payment, whether periodical or not, or by way of any
contract for the benefit of the donor, or by way of any condition or power
of revocation or other disposition, or in any other manner whatsoever,
whether that benefit or advantage is charged upon or otherwise affects the
property comprised in the gift or not, no deduction or allowance shall be
made in respect of that benefit or advantage in computing the value of the
gift, and the gift shall be valued and gift duty shall be paid as if the
gift had been made without any such consideration or reservation:
Provided that-
(a)
notwithstanding the
provisions of section 49, where an instrument is presented to the
Commissioner of Stamp Duties under the provisions of the Stamp Duties Act,
the Commissioner may permit the instrument to be withdrawn for the purpose
of cancelling or altering it, if application in writing in that behalf is
made to him by the parties to the instrument within 6 months after the date
of the instrument or within such extended time as he thinks fit to allow;
(Cap. 205.)
(b) on evidence to the
satisfaction of the Commissioner being produced of any such cancellation or
alteration, the gift shall be deemed not to have been made except to the
extent to which, the transaction as altered constitutes a gift, and the
benefit or advantage shall be deemed not to have been created or reserved
except to the extent to which the transaction as altered creates or reserves
a benefit or. advantage; and the Commissioner shall reassess the gift duty
accordingly.
(2) This
section shall not apply to a gift made in consideration of any benefit or
advantage to or in favour of a donor by way of any annuity or other payment,
whether periodical or not, if and so far as the annuity or payment-
(a) is of a fixed or
ascertainable amount in money payable over a fixed or ascertainable period
or at a fixed or ascertainable date or dates or on demand; and
(b) is secured to the donor under an instrument executed by the beneficiary
either creating a mortgage, encumbrance or charge over the property
comprised in the gift or being an agreement for the sale and purchase of
land comprised in the gift, or is secured to the donor under a deed executed
by the beneficiary.
(3) For
the purposes of this section, the expression "ascertainable" means
ascertainable, to the satisfaction of the Commissioner, as at the date of
the gift.
Subsequent gift of reserved
benefit
39. Where
the donor of a gift to which section 38 applies (in this section
referred to as "the original gift") makes a further gift of the whole or any
part of the benefit or advantage created or reserved on the making of the
original gift, there shall be deducted from the gift duty which would
otherwise be payable in respect of the further gift (so far as that gift
duty extends) an amount bearing the same proportion to the gift duty paid on
the original gift as the value of the further gift bears to the value of the
original gift, and only the residue,
