ABST (Transitional Provision & Consequential Amendments).pmd
ANTIGUA
AND
BARBUDA
No. 6 of 2006. The Antigua and Barbuda Sales Tax
(Transitional Provisions and
Consequential Amendment) Act, 2006.
1
ANTIGUA AND BARBUDA
No. 6 of 2006
AN ACT to repeal a number of indirect taxes consequent on the
introduction of the Antigua and Barbuda Sales Tax, to set out
rules for the transition from those taxes to the Antigua and
Barbuda Sales Tax, and to provide for related matters.
[ Published in the official Gazette Vol. XXVI
No. 52 dated 14th September, 2006. ]
ENACTED by the Parliament of Antigua and Barbuda as fol-
lows—
PART I
PRELIMINARY
1. (1) This Act may be cited as the Antigua and Barbuda Sales
Tax (Transitional Provisions and Consequential Amendments)
Act, 2006.
(2) This Act comes into force on the same day as the date
appointed by the Minister for the purposes of section 1(2) of the
Antigua and Barbuda Sales Tax Act, 2006.
2. (1) Unless the context requires otherwise, words and
phrases used in this Act have the same meaning as in that Act.
(2) Without limiting subsection (1), in this Act, unless the
context requires otherwise—
Short title and
commencement.
Interpretation.
[ L.S. ]
I Assent,
James B. Carlisle,
Governor-General.
5th September, 2006.
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No. 6 of 2006.2 The Antigua and Barbuda Sales Tax
(Transitional Provisions and
Consequential Amendment) Act, 2006.
“ABST Act” means the Antigua and Barbuda Sales Tax
Act, 2006;
“ABST Regulations” means the Antigua and Barbuda
Sales Tax Regulations, 2006;
“commencement date” means the date specified for the
purposes of section 1(2);
“consumption tax” means the tax imposed under the Con-
sumption Tax Act, Cap. 98;
“hotel (bed-night) tax” means the hotel tax imposed under
paragraph 3(1)(a) of the Hotel Tax Act, Cap. 205, in re-
spect of each guest accommodated during a night or part
of a night in a hotel or guest house;
“hotel guest levy” means the tax imposed under the Hotel
Guest (Levy) Act, Cap.202;
“hotel guest tax” means the hotel tax imposed under para-
graph 3(1)(b) of the Hotel Tax Act, Cap.205, upon each
hotel bill;
“income tax laws” means the Income Tax Act, Cap.212;
“progressive or periodic supply” means—
(a) a supply of goods or services made progressively
or periodically, whether or not payment for the sup-
ply is made progressively or periodically; or
(b) a supply of goods by way of a lease, hire, or licence
(including a finance lease);
“regulated supply” means a supply occurring in the pe-
riod commencing six months before and ending one year
after the commencement date;
“repealed taxes” means the following taxes:
(a) consumption tax;
(b) hotel (bed-night) tax;
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No. 6 of 2006. The Antigua and Barbuda Sales Tax
(Transitional Provisions and
Consequential Amendment) Act, 2006.
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(c) hotel guest tax;
(d) hotel guest levy;
(e) restaurant and catering services tax; and
(f) telecommunications tax;
“repealed legislation” means the legislation referred to in
the definition of repealed taxes and repealed by section
3(2);
“restaurant and catering services tax” means the tax im-
posed under the Restaurant and Catering Services Act,
1994;
“telecommunications tax” means the tax imposed under
the Telecommunications Act, Cap. 424.
PART II
ABOLITION OF REPEALED TAXES
3. (1) The purpose of this Part is to ensure—
(a) that none of the repealed taxes is payable in relation
to an import, supply, or acquisition that is made af-
ter the date of commencement of the ABST Act; and
(b) that the repealed taxes continue to apply up to that
date, so that an import, supply, or acquisition that is
made before that date is subject to the laws under
which those taxes are imposed.
(2) The following Acts, which impose the repealed taxes, are
repealed with effect from the commencement date:
(a) the Consumption Tax Act, Cap.98;
(b) the Hotels Tax Act, Cap. 205;
(c) the Hotel Guest (Levy) Act, Cap. 202;
(d) the Restaurant and Catering Services Act, 1994; and
Abolition of
repealed taxes.
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Consequential Amendment) Act, 2006.
(e) the Telecommunications Act, Cap. 424.
(3) The repealed legislation, including the rules governing
the levy, payment, assessment, reporting, and recovery of those
taxes, continues to apply to an import, supply, or acquisition
taking place before the commencement date.
(4) All appointments made under the repealed legislation and
subsisting at the commencement date are treated as appoint-
ments made under the ABST Act; and an oath of secrecy taken
under the repealed legislation is treated as having been taken
under the ABST Act.
(5) Until specified otherwise by the Commissioner of Inland
Revenue or the Comptroller of Customs, all forms and docu-
ments used in relation to the repealed legislation may continue
to be used for the purposes of the ABST Act, and all references
in those forms and documents to provisions of and expressions
appropriate to the repealed legislation are taken to refer to the
corresponding provisions and expressions used in the ABST
Act.
(6) No reference in any Act, other than the ABST Act, to
consumption tax, hotel (bed-night) tax, hotel guest levy, hotel
guest tax, restaurant and catering services tax, or telecommuni-
cations tax shall be treated as a reference to tax payable under
the ABST Act, and for the avoidance of doubt, any references to
ABST as a consumption tax are intended as descriptions of the
nature of the ABST and not as references to the consumption
tax.
PART III
TRANSITIONAL PROVISIONS
4. The purpose of this Part is to ensure that—
(a) ABST is only payable on a supply or importation to
the extent that it is made on or after the commence-
ment date; and
(b) an entitlement to an input tax credit only arises on
an acquisition or importation to the extent that it is
made on or after the commencement date.
Commencement
of ABST
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5. (1) This section applies for determining when a supply,
acquisition, or import is made for the purposes of this Act, and
in particular, for determining which supplies and imports are
subject to the tax imposed by section 8 of the ABST Act.
(2) For the purpose of this Act—
(a) a supply of goods occurs:
(i) when the goods are delivered or made avail-
able to the recipient of the supply; or
(ii) if the goods are delivered or made available
before it is certain that a supply will occur,
when it becomes certain that a supply has
occurred;
(b) a supply of services occurs as and when the ser-
vices are performed.
(3) An acquisition is made at the same time as the corre-
sponding supply.
(4) If a supply or acquisition is treated as being made after
the commencement date by this Act and section 7(1) does
not apply, section 13 of the Act applies for the purposes of
determining the tax period in which the supplier or recipient
has an amount of output tax or input tax in relation to a sup-
ply or acquisition.
(5) Section 25 of the ABST Act applies for determining when
an import is made.
6. (1) Where this Act treats a supply, acquisition, or import as
being made before the commencement date, no ABST is payable
in relation to the supply or import and no amount of input tax
arises in relation to the acquisition or import.
(2) The fact that the time of supply referred to in section 13(1)
of the ABST Act occurs after the commencement date does not
alter the effect of subsection (1).
7. (1) Where this Act treats a supply or acquisition as being
made on or after the commencement date, but before that date—
Time of supply,
acquisition, or
import
Supplies made
before ABST
commences
Payment or
invoice before
ABST commences
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(Transitional Provisions and
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(a) all or part of the consideration is received for the
supply (or provided for the acquisition); or
(b) an invoice is issued in relation to the supply or ac-
quisition,
to the extent that there is an amount of output tax for the sup-
plier or input tax for the recipient in relation to the supply or
acquisition, the supply or acquisition is treated as being made
on the commencement date.
(2) Whether or not subsection (1) would otherwise apply, if
an invoice is issued in relation to the supply or acquisition, or all
or part of the consideration is received for the supply (or pro-
vided for the acquisition), more than 12 months before the com-
mencement date, to the extent of that invoice or payment, no
ABST is payable in relation to the supply and no amount of
input tax arises in relation to the acquisition.
(3) Subsection (2) does not apply in relation to a progressive
or periodic supply, or part of that supply, that is treated under
section 8 as occurring after the commencement date unless all of
the consideration for that supply, or for that part of the supply,
was paid more than 12 months before the commencement date.
8. (1) A progressive or periodic supply, or part of the supply,
is treated as being made at a particular time to the extent that the
thing supplied is delivered, made available, or performed at that
time, or is available for the effective use or enjoyment of the
recipient of the supply at that time.
(2) For the avoidance of doubt, a progressive or periodic
supply that is a lease, licence, or other form of supply of the use
of goods or intangible property takes place throughout the pe-
riod for which the lease, licence, or other right of use is granted.
(3) Where a progressive or periodic supply is made over a
period that starts before and ends after the commencement date,
ABST is imposed only to the extent that the supply is made after
the commencement date.
(4) Notwithstanding anything else in this Act or the ABST
Act, if construction, reconstruction, manufacture, or extension
of a building or civil engineering works is performed under a
Progressive or
periodic supplies
spanning the
commencement
of ABST.
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Consequential Amendment) Act, 2006.
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written agreement executed before the commencement date and
the building or works, or the property on which it is located, is
made available to the recipient after that date, ABST is imposed
only on the value of the work performed after the commence-
ment date.
(5) Subsection (4) does not apply unless—
(a) the value of the work completed before the com-
mencement date has been determined in a manner
approved by the Commissioner;
(b) that value is submitted to the Commissioner by the
end of the supplier’s first ABST period after the com-
mencement date; and
(c) the supplier is able to produce documentation or
other information supporting the valuation to the
satisfaction of the Commissioner.
(6) This section does not apply to the supply of a warranty
given for goods or services supplied before the commencement
date if the value of the warranty was included in the price of the
goods or services.
9. (1) If a gambling supply is made before the commencement
date in relation to a gambling event that happens on or after that
date, the gambling supply is taken to have been made on the
commencement date and the consideration for the supply is
included in “total amounts wagered” in the tax period that com-
mences on that date.
(2) For the purposes of section 20 of the ABST Act, “total
monetary prizes” does not include:
(a) monetary prizes relating to the outcome of gambling
events that happened before the commencement
date; nor
(b) amounts that would be included because of para-
graph (b) or (d) of the definition of “total monetary
prizes”, to the extent that they relate to gambling
events that happened before the commencement
date.
Gambling
supplies
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(Transitional Provisions and
Consequential Amendment) Act, 2006.
PART IV
IMPACT OF ABST ON CONTRACTS
10. (I) Where a contract was concluded between two or more
parties before the commencement date and no provision relat-
ing to ABST was made in the contract, notwithstanding any-
thing in the agreement, the supplier and recipient shall negotiate
to determine the amount, if any, by which the supplier may in-
crease the price of taxable supplies made under the contract
after the commencement date, such amount being calculated to
recover from the recipient an amount that takes account of both
the ABST due on those supplies and any tax savings resulting
to the supplier because of the abolition of the repealed taxes.
(2) Where the supplier and recipient cannot reach an agree-
ment under subsection (1)—
(a) in the case of a taxable supply of services, the sup-
plier may increase the price by the rate of ABST
applicable to the supply;
(b) in the case of a supply of goods other than real
property, the supplier may increase the price by half
the rate of ABST applicable to the supply;
(c) in the case of a taxable supply of real property, the
supplier may not increase the price of the supply.
(3) This section does not apply in relation to a taxable supply
of hotel or holiday accommodation, nor to a supply of long term
accommodation that is taxable at the rate specified in section
8(3)(b) of the ABST Act, because of a choice made by the sup-
plier under paragraph (2) of Schedule 4 of that Act.
11. (1) For the avoidance of doubt and in accordance with
section 57 of the ABST Act, which requires pricing to be ABST-
inclusive, where a contract is concluded after the commence-
ment date and does not include a provision relating to ABST,
the contract price is deemed to include ABST and the supplier
under the contract is required to account for the tax due whether
or not the supplier took its ABST liability into account when
setting the price.
Agreements
entered into
before ABST
commences
Agreements
entered into
after ABST
commences.
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Consequential Amendment) Act, 2006.
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12. (1) Subject to subsection (3), any person who makes a
regulated supply for a price that is excessive having regard to—
(a) the introduction of the ABST Act or the abolition of
the repealed taxes;
(b) the person’s costs;
(c) whether the person is a taxable person;
(d) supply and demand conditions relevant to the sup-
ply; and
(e) any other relevant matter,
is liable to a penalty equal to $2,000 for the first breach of this
section and a penalty of $5,000 for the second and each subse-
quent breach.
(2) No liability arises for a penalty under subsection (1) if—
(a) the contravention was due to a genuine mistake;
and
(b) the person took reasonable precautions and exer-
cised due diligence to avoid making the contraven-
tion.
(3) The Commissioner must publish in the Gazette guidelines
for determining whether prices for regulated supplies are in con-
travention of subsection (1).
PART V
TRANSITIONAL RATES
13. (1) For the purposes of section 8(3)(c) of the ABST Act,
the rate of ABST applicable to a taxable supply of hotel or holi-
day accommodation is 10.5 per cent, but only if the supply is
made on or after the commencement date but before the date
occurring two calendar years after the commencement date.
(2) The Minister may by Order extend the period of the con-
cessionary rate allowed under subsection (1) for up to one fur-
ther year.
Prevention
of price
exploitation on
introduction of
ABST
Lower rate for
suppliers of
hotel and
holiday
accommodation
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(Transitional Provisions and
Consequential Amendment) Act, 2006.
PART VI
CONSEQUENTIAL AMENDMENTS
14. (1) Insert the following definitions into section 2 of the
Income Tax Act Cap. 212 immediately before the definition of
“Appeal Board”:
“ “ABST” means the Antigua and
Barbuda Sales Tax imposed under the
Antigua and Barbuda Sales Tax Act,
2006;
“ABST Act means the Antigua and
Barbuda Sales Tax Act, 2006;”
(2) Immediately following section 2 of the Income Tax Act
Cap. 212, insert the following section, to have effect from the
commencement date of this Act:
“2A. (1) This section deals with the way in
which ABST interacts with laws imposing tax
on income.
(2) For the purposes of applying this Act,
and in particular in determining the charge-
able income of a person:
(a) to the extent that an amount of
consideration received or receiv-
able by a person includes ABST
imposed under the ABST Act on
a taxable supply made by the per-
son, the ABST amount is treated
as not being received or receiv-
able by the person;
(b) to the extent that a person is en-
titled to an input tax credit under
the ABST Act for an amount paid
or payable by the person in re-
spect of a taxable acquisition or
importation made by the person,
the input tax credit amount is
Interaction of
ABST and
income taxes.
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treated as not having been paid
or payable by the person;
(c) an amount that a person is re-
quired to pay because of subsec-
tions 11(6) and (7) of the ABST
Act is treated as having been paid
in respect of an acquisition or im-
portation of the goods or services
to which the amount relates, and
the deemed payment is treated as
being made in the tax period in
which the payment is required to
be made under those subsections;
(d) if a person (the supplier) is re-
quired by section 16(2) of the
ABST Act to treat an excess
amount as output tax payable by
the person under that Act, the ex-
cess amount is allowed as a de-
duction from the person’s income
if it was treated as income of the
supplier in relation to the supply;
(e) if a person (the recipient of a sup-
ply) is allowed by section 16(3) of
the ABST Act to treat an excess
amount as an input tax credit de-
ductible by the person under that
Act, the excess amount must be
included in the income of the per-
son if it was allowable as a deduc-
tion from income in relation to the
acquisition;
(f) if a person (the supplier) is al-
lowed by section 16(4) of the
ABST Act to treat an excess
amount as an input tax credit de-
ductible by the person under that
Act, the excess amount must be
included in the income of the per-
son if it was previously excluded
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from the person’s income in rela-
tion to the supply by this section;
(g) if a person (the recipient of a sup-
ply) is required by section 16(5).
of the ABST Act to treat an ex-
cess amount as output tax pay-
able by the person under that Act,
the excess amount is allowed as a
deduction from the person’s in-
come if it was previously excluded
from the person’s deduction in
relation to the acquisition.
(3) Where paragraphs (2)(d) to (2)(g) apply, the relevant de-
duction or inclusion is taken to occur when the relevant amount
was required or allowed to be included in the person’s ABST
return.
(4) Where paragraph (2)(e) applies in respect of an acquisi-
tion of an asset that is treated as capital for the purposes of this
Act, or in respect of which expenditure is otherwise not immedi-
ately deductible under this Act—
(a) the amount treated as an input tax credit is sub-
tracted from any remaining amount for which a de-
duction is or may be allowed section 12 or 14, or any
other provision providing a capital allowance, un-
less that asset has already been fully deducted
through such capital allowance, in which case the
amount is included in income as stated in the appli-
cable paragraph;
(b) no deduction is allowed under this Act in relation to
the acquisition of the asset, paragraph (2)(e) does
not apply.
(5) Where paragraph (2)(g) applies in respect of an acquisi-
tion of an asset that is treated as capital for the purposes of this
Act, or in respect of which expenditure is otherwise not deduct-
ible under this Act—
(a) the amount treated as output tax is added to the
remaining amount (if any) for which a capital allow-
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ance is or may be available under this Act, unless
that asset has already been fully deducted through
such capital allowance, in which case the amount is
deductible as stated in the applicable paragraph;
(b) if no deduction is allowed under this Act in relation
to the acquisition of the asset, paragraph (2)(g) does
not apply.”
PART VII
ADMINISTRATION AND REGULATIONS
15. For the purposes of giving effect to this Act, the Act
should be treated as if it were part of the ABST Act, and in
particular, any powers or duties of the Commissioner of Inland
Revenue or the Comptroller of Customs under the ABST Act
apply also for the purposes of this Act.
16. The Minister may make regulations for transitional mea-
sures relating to the abolition of the repealed taxes, the start of
ABST, the transition from the repealed taxes to ABST, and any
other related matters.
This Act forms
part of the
ABST Act.
Regulations.
____________
Printed at the Government Printing Office, Antigua and Barbuda,
by Eric T. Bennett, Government Printer
—By Authority, 2006.
800—9.06 [ Price $5.75 ]
Passed by the Senate this 21st
day of August, 2006.
Hazlyn M. Francis,
President.
Yvonne Henry,
Clerk to the Senate.
Passed by the House of Representatives
this 1st day of August, 2006.
D. Giselle Isaac-Arrindell,
Speaker.
Yvonne Henry,
Clerk to the House of Representatives.
ANTIGUA AND BARBUDA SALES TAX
(TRANSITIONAL PROVISIONS AND
CONSEQUENTIAL AMENDMENTS) ACT, 2006
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Sections
1. Short title and commencement
2. Interpretation
PART II
ABOLITION OF REPEALED TAXES
3. Abolition of repealed taxes
PART III
TRANSITIONAL PROVISIONS
4. Commencement of ABST
5. Time of supply, acquisition, or import
6. Supplies made before ABST commences
7. Payment or invoice before ABST commences
8. Progressive or periodic supplies spanning the commencement of ABST
9. Gambling supplies
PART IV
IMPACT OF ABST ON CONTRACTS
10. Agreements entered into before ABST commences
11. Agreements entered into after ABST commences
12. Prevention of price exploitation on introduction of ABST
PART V
TRANSITIONAL RATES
13. Lower rate for suppliers of hotel and holiday accommodation
PART VI
CONSEQUENTIAL AMENDMENTS
14. Interaction of ABST and income taxes
PART VII
ADMINISTRATION AND REGULATIONS
15. This Act forms part of the ABST Act.
16. Regulations
