LAWS OF ANTIGUA AND BAKBU1)A

Fiscal Incentives (CAP. 172 1

CHAPTER 172

THE FISCAL INCENTIVES ACT

Arrangement of Sections
Section

1. Short title.

PART I

Interpretation.
Computation of local value added.
Determination of value of content.
Non-resident.
Declaration of approved product.
Declaration of approved enterprise.
Applications for approval.
Objections to proposals to approve a product or

enterprise.
Cabinet and Minister to have absolute discretion in

respect of approval.
Classification of enterprises.
Benefits for enterprise engaged in highly capital inten-

sive industry.

PART I1

Exemption from income tax.
Depreciation allowance.
Deduction for capital expenditure.
Set-off.
Losses carried forward for purpose of set-off.
Export allowance may be granted.

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2 CAP. 172) Fiscal Incentives

19. Dividends.
20. Interest.

PART 111

2 1. Licence to import.
22. Record and inspection of articles.
23. Restriction on disposal of articles.

PART IV

24. Delay of construction or manufacture.
25. Revocation of order.
26. Restriction on use of factory.
27. Appraisal of performance of enterprise.
28. Transfer of status of approved enterprise.
29. Regulations.
30. Publication in Gazette.
31. Savings.

SCHEDULE.

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Fiscal Incentives (CAP . 172 3

FISCAL INCENTIVES

(15th December, 1975.)

1. This Act may be cited as the Fiscal Incentives Act. short title.

PART I

2. In this Act unless the context otherwise requires- Interpretation.
" approved enterprise" means an enterprise approved

by the Minister under section 7 for the purpose of
conferring a benefit under this Act;

"approved product" means a product of manufacture
approved by Cabinet under section 6 for manufac-
ture by an approved enterprise.

"benefit" means any relief granted to an approved enter-
prise under this Act;

"Comptroller" means the Comptroller of Customs;

"Common Market" and "Member State" means
respectively all and any of those States that are
parties to the Treaty establishing the Caribbean
Common Market;

"Commissioner" means the person for the time being
performing the duties of Commissioner of Inland
Revenue and includes any officer duly authorised
to act on his behalf;

"date of construction" means the date declared in an
Order under section 7;

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4 CAP. 172) Fiscal Incentives

"date of production" means the date declared in an
Order under section 7:

"Enclave Enterprise" means an enterprise producing
exclusively for export to countries outside the
Common Market;

" enterprise" means any company registered in Antigua
and Barbuda under the Companies Act;

"established industry" means an industry which sup-
plies more than 90 per centum of the domestic
market for any product;

" factory" means any premises in which, or within the
close or curtilage or precincts of which or any place
where persons are or will be employed in any pro-
cess for or incidental to any of the following
purposes-

( a ) the production of an approved product;

(6) the adapting for sale of any approved product,
being premises or any place in which, or within the close
or curtilage or precincts of which, the work is or will
be carried on by way of trade or for purposes of gain
and to or over which the approved enterprise which
employs or will employ the persons employed or to be
employed, as the case may be, therein has access or
control;

"Group I Enterprise" means an enterprise in respect
of which the local value added is at least 50 per
centum of the amount realised from the sales of
an approved product;

"Group I1 Enterprise" means an enterprise in respect
of which the local value added is at least 25 per
centum but less than 50 per centum of the amount
realised from the sales of an approved product;

"Group I11 Enterprise" means an enterprise in respect
of which the local value added is at least 10 per

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Fiscal Incentives (CAP. 172 5

centum but less than 25 per centum of the amount
realised from the sales of an approved product;

"industry" means a manufacturing or processing
industry and includes deep sea fishing and shrim-
ping where they form part of an integrated
processing operation, but does not include
agriculture or tourism;

"local value added" means the amount (expressed as
a percentage of the total sales of an approved
product) by which the amount realised from the
sales of an approved product over a continuous
period of 12 months, exceeds the aggregate amount
of the following-

(a) the value of imported raw materials, com-
ponents and parts of components, fuels and services;

(b) wages and salaries paid during the period to
persons who are not nationals of the Member States;

(c) profits distributed and remitted directly or
indirectly to persons who are not resident in a Member
State;

(6) interest, management charges and other income
payments or any of them accruing directly or indirectly
to persons not resident in a Member State other than
a branch or agency of banks not resident in a Member
State;

(e) depreciation of imports of plant, machinery and
equipment;

"national" means person who is a citizen of a Member
State and includes a person whose connection with
such a State entitles him to be regarded as belong-
ing to, or being a native or resident of the State
for the purpose of the Constitution of that State
or the law relating to immigration for the time be-
ing in force, as the case may be;

"sale" means the proceeds of sale ex-factory of an
approved product;

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6 CAP. 172) Fiscal Incentives

Computation of
local value

3 . (1) The local value added shall be weighted by the
added. wages or salaries paid to nationals of a Member State

expressed as a percentage of the total sales of the approved
product and calculated in accordance with the
formula V (100 + W).

100

(2) For the purposes of subsection (1)-

(a) "V" represents the local value added expressed
as a percentage of the total sales of the approved pro-
duct; and

(b) "W" represents the wages and salaries paid
to nationals of a Member State and expressed as a
percentage of the total sales of the approved product.

Determination of
value of content.

4. In determining the value of the content of a com-
ponent produced by a Member State for the purposes of
paragraph (a ) of the definition of local value added, no
account shall be taken of any element in the cost of that com-
ponent, except the value of the imported raw material
content.

Non-resident. 5 . (1) For the purposes of paragraphs (c) and (d) of
the definition of local value added, an enterprise shall be
deemed not to be resident in a Member State if it is con-
trolled directly or indirectly by a person who is not resident
in a Member State (hereinafter referred to as a non-resident).

(2) A non-resident shall be deemed to have control of
an enterprise if he owns or is entitled to purchase the greater
part of the ordinary paid-up share capital (not including
shares which carry no voting rights) of the enterprise.

Declaration of
approved

6. (1) Subject to section 9, Cabinet may, by Order,
product. declare that a product of manufacture shall be an approved

product for the purposes of this Act if they are satisfied that
the manufacture of the product would-

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Fiscal Incentives (CAP. 172 7

(a ) be of benefit to Antigua and Barbuda, both
economic and non-economic considerations being taken
into account; and

( b ) have a beneficial effect on employment in
numbers and gross wages.

(2) An Order may be made under subsection (1) in
respect of a product which is being manufactured in Antigua
and Barbuda at the date of the Order.

(3) Cabinet, before declaring under subsection (1) that
a product of manufacture shall be an approved product for
the purposes of this Act, shall also have regard to the follow-
ing considerations-

(a) the effect which approval would have on existing
industries;

( 6 ) whether manufacture of the product would
utilize raw materials or skills available in Antigua and
Barbuda;

(c) whether the existing capacity for manufacture
of the product is sufficient to meet the demand for the
product; and

(d) the element of risk involved in establishing a
successful manufacture of the product.

7. (1) Subject to section 9, the Minister on an Declaration of
application made by or on behalf of an enterprise, for the
purpose of establishing an industry in Antigua and Barbuda
to manufacture an approved product, or in the case of an
enterprise that, at the commencement of this Act is manufac-
turing the product declared to be an approved product by
Order under section 6 may, by Order, declare the enter-
prise to be an approved enterprise if he is satisfied that the
enterprise-

( a ) is or will be adequately financed;

( b ) has adequate trained personnel in its employ
or is able to obtain the services of such personnel;

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CAP. 172) Fiscal Incentives

( 6 ) has access to the necessary technical
information;

(6) is able to obtain adequate raw mate~ials; and
(e) possesses, or will possess, the necessary factory.

(2) In every Order made under subsection (1) a date
shall be declared to be the date on which, for the purpose
of this Act-

( a ) construction is deemed to begin; and

(b) production is deemed to begin.

(3) Every Order made under subsection (1)-

( a ) shall specify the factory in respect of which the
benefits under this Act may be enjoyed;

(b) may declare that in its application it shall be
restricted to a part of a factory or to a particular grade,
quality, description, type or classification of product; and

(c) may provide for its revocation in any case of
breach of or non-compliance with its requirements.

Applications for
approval.

8. An application under section 7 shall specify-
(a) the locality or proposed locality of the factory

in which the enterprise is manufacturing or intends to
manufacture the approved product;

(b) the date of construction of the factory, which
shall not be later than 12 months after the date of the
application, except that where a factory is already in
existence, the application shall contain all information
that may enable the Minister to specify the date of
construction;

(c) the date on which production is likely to begin
which shall not be later than 18 months from the date
of construction, except that where the production of an
approved product has already commenced, the applica-
tion shall contain all information that may enable the
Minister to specify the date on which production is
deemed to begin;

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Fiscal Incentives (CAP. 172 9

(6) the approved product already being manufac-
tured or intended to be manufactured; and

(e) all information, supported by documentary
evidence, relevant to the determination of the local value
added.

9. (1) Before an Order is made either under section 6 objections to
proposals to or 7 the Minister shall cause the fact that Cabinet or he, approve a

as the case may be, is about to be asked to consider whether product or
for the purposes of this Act a product for manufacture should enterprise.
be an approved product, or an enterprise an approved enter-
prise to be advertised in Antigua and Barbuda and if the
Minister thinks it necessary elsewhere.

(2) The advertisement referred to in subsection (1) shall
contain such particulars as to the product or enterprise of
which such approval is being sought as the Minister con-
siders necessary and invite objections if any thereto.

(3) The advertisement shall state the period within
which the objection to the approval of the product or the
enterprise shall be made.

(4) Every objection received by the Minister within the
time stipulated in the advertisement or within such extend-
ed time as the Minister may allow shall be considered by
Cabinet or the Miniter, as the case may be, before an Order
is made under section 6 or 7, as the case may be.

10. Cabinet or the Minister, as the case may be, shall Cabinet and
Minister to have

have an absolute discretion to grant or refuse approval in
respect of a product as an approved product or enterprise discretion in

respect of
as an approved enterprise. approval.

1 . (1) Subject to section 2 l(4) an approved enter- Classification of
Enterprises.

prise may be granted benefits under this Act for a period
not exceeding the period applicable thereto specified in the
Schedule (and hereinafter referred to as the period of the
tax holiday) if it is classified into one of the following
categories-

(a) Group I Enterprise;

( b ) Group 11 Enterprise;

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10 CAP. 172) Fiscal Incentiues

( 6 ) Group 111 Enterprise; or

(d) Enclave Enterprise.

(2) Prior to the classification of an approved enterprise
as a Group I , Group I1 or Group I11 Enterprise, the local
value added as computed in accordance with section 3 shall
be estimated.

Benefits for
enterprise 12. (1) Where an approved enterprise is engaged in
engaged in a highly capital intensive industry, the Minister may, by

capita1 Order, grant it any benefit under this Act for a period not
intensive
industry. exceeding that for which a benefit may be granted to an
Schedule. Enclave Enterprise in accordance with the Schedule.

(2) For the purpose of this section and section 27
"highly capital intensive industry" means an industry, the
capital investment in which is not less than twenty-five million
dollars.

PART I1

Exemption from
income tax.

13. Notwithstanding the provisions of the Income Tax
Cap. 212. Act, but subject to section 17 thereof, an approved enter-

prise shall be entitled to relief from the payment of income
tax on the profits arising from the sale of an approved pro-
duct from the date of production in respect of profits and
gains accruing to it for the period of the tax holiday.

Depreciation
allowance.

14. In computing the profits of an approved enter-
prise for the purpose of relief from income tax under sec-
tion 13, allowance shall be made for any depreciation in value
which would, but for the exemption, be claimable in that
year.

Deduction for
capital

15. (1) During the tax holiday period the assets of
expenditure. an approved enterprise shall be depreciated by such amounts

as are normally allowed under the Income Tax Act, for wear
and tear.

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Fiscal Incentives (CAP. 172 1 1

( 2 ) An allowance may be made not exceeding twenty
per centum of the capital expenditure incurred by the enter-
prise on plant, machinery and equipment after the expira-
tion of the tax holiday period.

16. Any loss incurred by an approved enterprise dur- Set-off.
ing the period of the tax holiday, may be set-off in accor-
dance with section 17.

17. ( 1 ) Notwithstanding section 15 of the Income Tax Ezrir;"d
Act, and section 8 of the Aid to Pioneer Industries Act, on p,rp,,e of
the expiration of the period of the tax holiday, the net losses :;;ftl2.
incurred during that period may be carried forward for the cap. 14.
purpose of set-off in computing the profits of an approved
enterprise for the 5-year period following the period of the
tax holiday.

( 2 ) Where the Order declaring an enterprise to be an
approved enterprise is revoked under section 25 such an
enterprise shall, for the purposes of carrying forward net losses
incurred prior to the revocation of the Order, be deemed
to be an approved enterprise.

(3) For the purposes of this section "net losses" means
the excess of all losses over all profits made during the period
of the tax holiday.

18. (1) Relief from income tax on the export profits ~ g ~ e ~ ~ ; ; ~ ~ e
of an enterprise accruing from export of the approved pro-
duct manufactured by it may be granted in accordance with
this section only.

(2) Relief shall not be granted under this section-

( a ) during the period the enterprise enjoys relief
granted under sections 7 and 13;

(b) to an enterprise engaged in a traditionally
export-oriented industry in respect of a product of that
industry traditionally exported;

(c) in respect of export to a Member State:

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12 CAP. 172) pi~cal Incentives

Provided that-

(i) relief may be granted for a period not
exceeding five years next after the expiration "
of the tax holiday period in case of exports to
Guyana, Jamaica and Trinidad and Tobago;

(ii) relief may be granted during the period of five
years from the 4th day of July, 1973 in respect
of exports to Guyana, Jamaica and Trinidad
and Tobago by an enterprise to which no relief
has been granted under section 7 or 13.

(3) Relief shall be granted by way of tax credits only.

(4) Relief shall be granted if the export-profits amount
to ten per centum or more of the entire profit of the enter-
prise accruing from the approved product and in accordance
with the formula laid down in the Table below.

(5) Relief granted shall not exceed the percentage (being
percentage of the whole of the tax liability on the entire
export-profits) specified in the Table below opposite the
percentage of export-profits from the sale of the approved
product:

Amount of export-profits expressed as Maximum percentage of tax relief.
a percentace of the entire profts from
the sale of approued product.

10% or more but less than 21 %
21 % or more but less than 41 %
41 % or more but less than 61 %
61 % or more

(6) The following formula shall be used to ascertain
export-profits for the purpose of this section-

E x P

where: "E" represents the proceeds from
export sales of the approved
product;

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Fzscal Incentives (CAP. 172 13

and "P" represents the profits made by the
enterprise from all sales of the
approved product for the year;

and ' ' S" represents the proceeds of all sales
$-

for the year.

19. (1) Subject to subsection (2), dividends and other Dividends.
distributions from profits accruing to an approved enterprise
as a result of the manufacture of an approved product during
the period of the tax holiday shall when paid to shareholders
or their nominees be exempt from the payment of income tax.

(2) Where a shareholder is not resident in a Member
State the exemption referred to in subsection (1) shall apply
to so much of the tax as exceeds the tax liability of the
shareholder in his country of residence.

20. Interest in whatever form on loan capital and any Interest.
other monies borrowed by an approved enterprise, whether
in the form of overdraft, debenture or otherwise, when paid
to the recipient, shall not be exempt from the payment of
income tax.

PART I11

21. (1) If the Minister is satisfied that any ~ l a n t , Licence to
import.

equipment, machinery, spare parts, raw materials or com-
ponents thereof are not available in the Common Market
at prices and qualities and in adequate quantities for export
comparable to those available from an area outside the Com-
mon Market, he may issue a licence to an approved enter-
prise to import such articles or any of them from an area
outside the Common Market.

(2) O n receipt of a licence issued under subsection (1)
an approved enterprise may import plant, equipment,
machinery, spare parts, raw materials or components thereof
free from customs duty from an area outside the Commoii
Market for the appropriate period of relief referred to in sec-
tion 13 or subsection (3) or (4) of section 27, if the Com-
ptroller is satisfied that the plant, equipment, machinery,
spare parts, raw materials or components thereof are
required-

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14 CAP. 172) Fiscal Incentives

Record and
inspection of
articles.

(a) for constructing, altering, reconstructing or
extending the approved enterprise; or

(6) for use by the enterprise in the manufacture
of an approved product.

(3) Where subsequent to the issue of a licence under
subsection (I) , there is a change in the circumstances con-
templated by that subsection, the Minister shall-

(a) revoke the licence; or

(b) alter the licence so as to exclude any of the
articles in respect of which the change exists.

(4) Notwithstanding subsections (I), (2) and (3) and sec-
tion 11, an Enclave Enterprise may, until such time as it
ceases to be an Enclave Enterprise, import any article men-
tioned therein without obtaining a licence under subsection
(1) thereof.

22. (1) An approved enterprise which-
(a) imports into Antigua and Barbuda from a coun-

try outside the Common Market; or

(b) purchases within the Common Market,
any articles in respect of which it has been granted relief
from customs duty under section 21 (2) shall-

(i) keep a record of the articles so imported or
purchased in such form and containing such
particulars as the Comptroller may require;

(ii) cause the articles to be marked in such man-
ner as the Comptroller may require; and

(iii) permit the Comptroller or a person authoris-
ed by him for the purpose, at reasonable times,
to inspect such record and to have access to
any factory or warehouse under its control for
the purpose of examining any such article
which the Comptroller has reason to believe
to be therein and of the accuracy of the par-
ticulars contained in the record.

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Fiscal Incentives (CAP. 172 15

(2) An approved enterprise which contravenes any of
the provisions of this section shall be guilty of an offence
and liable, on summary conviction to a fine of three thou-
sand dollars.

23. (1) An article purchased by an approved enter- Restriction on
disposal of

prise under section 21 (2) shall not be sold, or otherwise art;,les,
disposed of by the enterprise except-

( a ) to the transferee, in the case of a transfer of
ownership of a factory belonging to the enterprise;

(b) where the approved enterprise pays or gives
security to the satisfaction of the Comptroller for the
payment of an amount equivalent to the amount of
customs duty which but for section 21 (2) would have
been payable on importation of such article, where the
article was so imported by the enterprise; or

(c) after the expiration of five years from the date
of purchase of the article.

(2) An approved enterprise which contravenes any of
the provisions of this section is guilty of an offence and liable,
on summary conviction, to a fine of three thousand dollars.

PART IV

24. (1) Where an approved enterprise fails or zA;~,",'t~~~ or
neglects- manufacture.

(a) to commence construction of a factory on or
before the date of construction; or

(b) to commence manufacture at the factory of an
approved product in marketable quantities, on or before
the date of production,

the Minister may issue a notice in writing requiring it within
30 days of the date of such notice either-

(i) to commence construction of a factory or the
manufacture of the approved product in
marketable quantities, as the case may be; or

(ii) to prove to the satisfaction of the Minister that
the failure or neglect is attributable to a cause

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16 CAP. 172) Fiscal Incentives

beyond its control and that there is a
reasonable prospect of its commencing con-
struction or manufacture, as the case may be,
within such time as the Minister considers
reasonable.

( 2 ) Where an approved enterprise satisfies the re-
quirements of subparagraph (ii) of subsection (I) , the
Minister shall by Order, substitute for the date of construc-
tion or the date of production as the case may be, some other
specified day and thereupon the provisions of this Act shall
take effect as if the day specified in such Order was the date
of construction or the date of production as the case may
be, specified in the order made under section 7.

Revocation of
Order.

25. ( 1 ) The Minister may, having regard to all the
circumstances of the case, if he thinks it expedient so to do,
by Order revoke an Order made under section 7, where an
approved enterprise-

(a) contravenes any of the provisions of this Act
or any regulations made hereunder; or

(b) fails to comply with the requirements of a notice
issued under section 24.

(2) Subject to section 17 (2) upon the revocation of an
Order made under section 7, the provisions of sections 12
and 20 shall be deemed never to have applied to the enter-
prise, and such enterprise shall notwithstanding anything con-
tained in the Income Tax Act or the Customs Duties Act,
pay to the Commissioner and the Comptroller any sums
which but for sections 13 and 21 ( 2 ) would have been payable
as income tax and customs duty.

(3) Notwithstanding subsection ( 2 ) , the Minister may,
if he thinks that the payment of any such sums would cause
undue hardship, or if for any other reason he deems it
expedient to do so, remit the whole or part of any such sums
payable by the enterprise.

( 4 ) All sums payable under this section may be
recovered in the same manner as if they were sums due under
the Income Tax Act or the Customs Duties Act, as the case
may be.

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Fiscal Incentives (CAP. 172 17

26. ( 1 ) Subject to subsection ( 3 ) , no factory belong- Restriction
use of factory. ing to an enterprise which is being used or is intended to

be used for the manufacture of an approved product shall
during the period of the tax holiday, without the prior
approval of the Minister, be used for purposes other than
the manufacture of the approved product.

( 2 ) An enterprise which contravenes the provisions of
subsection ( 1 ) shall be guilty of an offence and liable on sum-
mary conviction to a fine of three thousand dollars and in
the case of a continuing offence to a further fine of seven
hundred and fifty dollars in respect of each day or part thereof
during which the offence continues after conviction thereof.

( 3 ) This section shall not apply to an enterprise which
ceases to be an approved enterprise and in respect of which
all sums payable to the Commissioner and the Comptroller
in respect of income tax and customs duty have been paid.

27. (1) The Minister shall- Appraisal of
performance of

( a ) at the expiration of 3 years from the date of enterpri"'
production, and

( b ) thereafter at intervals of 2 years until the cessa-
tion of all benefits under this Act,

appraise the performance of an approved enterprise other
than an Enclave Enterprise for the purpose of determining
whether any change in its classification is necessary.

( 2 ) Where on an appraisal under subsection ( 1 ) an
approved enterprise-

( a ) fails to maintain its classification and cannot
be re-classified into any of the other Groups specified
in the Schedule, that enterprise shall with effect from Schedule
the date of the notice of the decision of the Minister
under subsection (5) be no longer treated as an approv-
ed enterprise for the purposes of sections 13 and 2 1 (2);

(6) maintains its classification or is re-classified into
any of the other Groups specified in the Schedule, that S ~ h ~ d ~ l f .
enterprise shall continue as an approv_ed enterprise and
paragraph ( 6 ) of subsection ( I ) , shall continue to apply.

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CAP. 172) Fiscal Incentives

(3) Where as a result of the re-classification of an
approved enterprise into a lower Group, the period of the
tax holiday exceeds the maximum period permitted in that
group, the Minister shall by Order, reduce the period so
as not to exceed the maximum period permitted in the lower
Group to which the approved enterprise has been re-classified.

(4) Where an approved enterprise is re-classified into
a higher Group, the Minister may by order increase the
period of the tax holiday so as not to exceed the maximum
period permitted in the Group to which the approved enter-
prise has been re-classified.

(5) The Minister shall as soon as practicable after an
appraisal under subsection (1) serve notice of his decision
on the approved enterprise.

(6) This section shall not apply to a highly capital
intensive industry.

Transfer of status
of approved 28. (1) The Minister may, by notice published in the
enterprise. Gazette, transfer the status of an approved enterprise to

another enterprise where-

(a) an approved enterprise merges with or is taken
over by another enterprise, or forms part of an enter-
prise's reconstruction; or

(b) in his opinion, it is equitable or in the public
interest to do so.

(2) Prior to the issue of a notice under subsection (1)
the Minister may require the enterprise to which the status
of an approved enterprise is to be transferred to comply with
such conditions and to give such undertalungs and assurances
and in such form as he may consider desirable having regard
to the public interest.

(3) O n the issue of a notice under subsection (1) all
rights, privileges, benefits, immunities, duties and obliga-
tions conferred or imposed by or under this Act on the former
enterprise may be transferred to the latter enterprise.

Regulations. 29. The Minister may make such regulations as he
thinks necessary for giving effect to the provisions of this Act.

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Fiscal Incentives (CAP. 172 19

30. All Orders made by Cabinet or the Minister Publication in
Gazette.

under this Act shall be published in the Gazette.

3 1. (1) The Minister may not, after the commence- Savings.
ment of this Act, declare an industry to be a Pioneer Industry
or a person to be a Pioneer Manufacturer for the purposes Cap. 14.
of the Aid to Pioneer Industries Act.

(2) Where prior to the commencement of this Act an
application for Pioneer status was made under the Aid to
Pioneer Industries Act, and the application is at the com-
mencement of this Act pending, the application shall be
treated as if it were an application for a declaration of an
approved product or an approved enterprise, as the case may
be, and were made under this Act, and the provisions of
this Act shall apply accordingly.

SCHEDULE (Section 11)

PERIOD OF TAX HOLIDAY

Classifiation o f Approved Enterprise Period o f tax holiday

GROUPS
Group I Enterprise
Group I1 Enterprise
Group 111 Enterprise
Enclave Enterprise