Personal Income Tax 2005
No. 1 of 2005. The Personal Income Tax Act, 2005. ANTIGUA
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ANTIGUA AND BARBUDA
No. 1 of 2005
AN ACT to impose tax on the income of individuals and to
provide for related matters.
[ Published in the Official Gazette Vol. XXV No. 21
dated 31st March, 2005 ]
ENACTED by the Parliament of Antigua and Barbuda as
follows —
PART I
PRELIMINARY
1. This Act may be cited as the Personal Income Tax Act, 2005
and shall come into operation on the 1st April, 2005.
2. In this Act, unless the context otherwise requires —
“assessable income” means an individual’s income other
than —
(a) income which is exempt from the tax by
or under this Act or any other law;
(b) income which is, under any agreement
to which the Government is a party,
exempt from the tax;
Short title.
Interpretation.
[ L.S. ]
I Assent,
James B. Carlisle,
Governor-General.
31st March, 2005
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“assessable employment income” means income derived
from any of the sources mentioned in section 11;
“chargeable income” means an individual’s income which
is chargeable to tax, being —
(a) employment income;
(b) self-employment and other income; or
(c) both employment income and self-employment
and other income.
“Commissioner” means the Commissioner of Inland
Revenue appointed pursuant to the Inland Revenue
Administration Act;
“contract of employment” means any arrangement,
whether executed by a formal contract, informal agreement,
or any other means, for the establishment of an employment
relationship;
“employee” means a person who performs services
pursuant to a contract of employment and also means a
former employee;
“employer” means a person who receives the benefit of
services performed pursuant to a contract of employment
or the person responsible for providing an employee with
income from employment and also means a former
employer;
“employment” means the provision of personal services
by an individual where:
(a) the services are provided under the control or
guidance or responsibility of the person for
whom the services are performed; and
(b) the resources required to provide the service
are mostly provided by the person for whom
the services are performed;
“employment income” means any emoluments or benefits
whether in cash or in kind accruing to or received by an
employee in respect of employment;
Cap. 217
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“income year” means —
(a) the period commencing on the 1st April, 2005 and
ending on the 31st December, 2005; and
(b) in respect of any period subsequent to 31st December,
2005, the period commencing on the 1st January and
ending on the 31st December of the same year;
“individual” includes a minor;
“Minister” means the Minister responsible for finance;
“personal allowance” means the amount of income not
liable to tax as provided in the Schedule;
“resident in Antigua and Barbuda” has the same meaning
as in section 2 of the Income Tax Act;
“self-employment and other income” means an individual’s
income other than employment income; and the expression
shall be construed either conjunctively or disjunctively,
as the case may require;
“tax” means the personal income tax imposed by section
8, and includes tax penalties and interest provided for in
this Act;
“tax tables” means tax tables referred to in section 10
3. Except to the extent provided for in this Act, the Income
Tax Act shall not apply to individual income, personal income
tax and any other matters provided for in this Act.
PART II
ADMINISTRATION
4. The Commissioner shall be responsible for the
administration, collection and enforcement of the tax and, except
where this Act provides otherwise, in accordance with the Inland
Revenue Administration Act.
5. Section 4 of the Income Tax Act relating to official secrecy
shall apply to persons having any official function under this
Act or being employed in the administration of this Act.
Cap. 212.
Restrictions on
application of
income Tax Act
Cap. 212.
Administration,
collection and
enforcement of
tax by
Commissioner
Cap. 217.
Official
secrecy
Cap. 212 .
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6. (1) Subject to subsection (3) —
(a) every individual who, under subsection (1) of
section 9, is liable, or becomes liable, to tax; and
(b) every person who is or becomes an employer, shall
apply to the Commissioner for registration —
(i) in the case of an individual or an employer
who, on the commencement of this Act, is liable
to tax or is a person who is an employer, as the
case may be, not later than the 15thApril, 2005;
or
(ii) in the case of an individual or an employer
who, at any time after the commencement of
this Act, becomes liable to tax or is a person
who becomes an employer, as the case may
be, not later than fifteen days after he first
becomes liable to tax or becomes an employer.
(2) The Commissioner shall register every individual and
every employer who applies in the prescribed form for
registration under subsection (1) and, upon such registration,
assign and issue to the individual or the employer registered a
tax identification number in the prescribed form.
(3) An individual or an employer who, before the expiration of
the period applicable to him under subsection (1), is registered
under section 75A of the Income Tax Act, need not apply for
registration under this section and his tax identification number
under that Act shall be regarded as his tax identification number
for the purposes of this section until the Commissioner notifies
him, either personally or in any other manner the Commissioner
may consider appropriate, of any change in the tax identification
number.
(4) An individual’s or employer’s tax identification number
referred to in subsection (2) or (3) shall also be regarded as the
tax identification number in relation to any period prior to that
person’s date of registration or, as the case may be, prior to the
date on which subsection (3) begins to apply to him and during
which he was liable to tax or to deduct and withhold tax.
Registration of
persons liable to
tax or required to
deduct tax, and
assignment of tax
i d e n t i f i c a t i o n
numbers
Cap. 212.
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(5) The liability of a person, whether or not the person is an
individual liable to tax, in relation to an obligation imposed upon
him by this Act is not affected by the fact only that the person is
not registered under this section.
7. (1) There is hereby established a special fund to be known
as the Stabilisation Fund into which all moneys collected under
this Act shall be paid.
(2) The Stabilisation Fund shall be treated as a special fund
established under section 6 of the Finance and Audit Act and
the provisions of that Act shall apply to the Fund.
(3) The money collected under this Act is to be used by the
Government for the following purposes:
(a) the development and maintenance of physical
infrastructure;
(b) the development and maintenance of economic and
social infrastructure, systems and programms;
(c) the procurement of goods and services for the
operation of government and public administration;
(d) the maintenance of law and order.
(4) The Minister may, after consultation with the Cabinet,
transfer any money from the Fund to the Consolidated Fund.
PART III
IMPOSITION AND RATES OF TAX
8. (1) Subject to the provisions of this Act, there is hereby
imposed a tax (to be known as personal income tax) on the
chargeable income of individuals.
(2) The tax is payable at the rates specified in this Act in
relation to each income year upon the income of an individual
accruing in or derived from Antigua and Barbuda or elsewhere,
whether received in Antigua and Barbuda or not, in respect of
any or all of the following:
(a) employment income;
Establishment of
Stabilisation
Fund.
Cap. 168.
Imposition of
personal income
tax.
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(b) self-employment and other income, including
partnership income.
9. (1) Every individual who has income in an income year is
liable to the personal income tax imposed by section 8 except to
the extent to which the income is, by or under this Act or any
other law, not liable to tax.
(2) The income referred to in this subsection is exempt from
the tax, and includes:
(a) the emoluments payable to members of the
permanent consular services of foreign countries in
respect of their offices or in respect of services
rendered by them in their official capacity;
(b) gratuities granted to persons upon expiration of a
fixed period contract of service up to 12.5% of total
income for the period or at such other rate that the
Minister may by Order determine;
(c) capital sums withdrawn by individuals on retirement
from any provident society or other fund approved
by the Cabinet;
(d) income arising from a scholarship held by an
individual receiving full time instruction at a
university, college, school, or other educational
establishment; and for the purposes of this pargraph
the expression “scholarship” includes any
exhibition, bursary or any other similar educational
endowment;
(e) income arising from the business of shipping or
air transport carried on by an individual not
resident in Antigua and Barbuda provided that
the Commissioner is satisfied that an equivalent
exemption from income tax is granted by the
country in which such individual is resident to
indivduals resident in Antigua and Barbuda; and
for the purposes of this paragraph “business of
shipping or air transport” means the business
carried on by an owner or charterer of a ship or
aircraft;
Liability to tax,
exemptions etc.
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(f) interest, capital gains and dividends;
(g) a benefit, other than the chargeable income to which
paragraph (h) applies, under the Social Security Act;
(h) the amount of pension, other similar benefit or other
terminal benefit not exceeding $60,000 per annum
paid to an individual;
(i) income which is, under any agreement to which the
Government is a party, exempt from the tax;
(j) service charges and tips received by an individual
engaged in the hospitality industry.
(3) Tax shall not be payable in respect of any income arising
outside of Antigua and Barbuda and accruing to a person who
is in Antigua and Barbuda for some temporary purpose only and
not with any intent to establish his residence therein and who
has not actually resided in Antigua and Barbuda at one or more
times for a total period of six months or more in the relevant
income year.
10. (1) Except as otherwise provided in this Act, tax shall be
charged at the rates specified in the Schedule.
(2) For the purpose of the efficient application of the rates of
tax, the Commissioner shall prepare and publish tax tables setting
out the amounts of tax payable in respect of various periods as
appropriate.
(3) Any instalment of tax in accordance with the tax tables or
otherwise or any tax withheld from payments which are liable to
tax shall be allowed as a credit against the individual’s ultimate
tax liability.
11. Subject to this Act tax shall be paid on employment income
including —
(a) salary, wages, leave payments, overtime payments,
gratuities, commissions,and bonuses;
(b) director’s fees;
Rates of tax.
Tax on
employment
income.
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(c) any allowance, other than an allowance provided
by the employer which is wholly and exclusively
utilized in the production of the employer’s
assessable income;
(d) any payments, however described, made on
termination of employment in respect of entitlements
outstanding at the time of termination, excluding
severance payment;
(e) the reimbursement or discharge by an employer of
any expense of the employee other than an expense
wholly and exclusively incurred in the production
of the employer’s assessable income;
(f) the amount of any waiver where an employer waives
an obligation of the employee to pay an amount
owing to the employer.
12. Subject to this Act, tax shall be paid on self employment
and other income, including —
(a) gains or profits from any trade, business, profession
or vocation;
(b) the portion of any pension in excess of $60,000 per
annum;
(c) rents, royalties, and any other income, arising from
property;
(d) any annual gains or profits not falling under any of
paragraphs (a) to (c);
(e) gains or profits deemed to be income of that
individual under this Act arising outside Antigua
and Barbuda.
13. Subject to this Act, tax on to the income of a partnership
shall be paid in respect of the share of the gains or profits of
each partner and the tax shall be computed in the manner provided
in Part V.
Tax on
partnership
income.
Tax on self-
employment and
other income.
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14. Where an individual derives income from more than one
employer or from self-employment or other income the
individual’s assessable income consists of the income from all
sources and the tax is payable on the aggregate of his income.
PART IV
WITHHOLDING TAX ON ASSESSABLE
EMPLOYMENT INCOME
15. (1) Every employer shall withhold the appropriate amount
of tax from the employment income of each employee liable to
tax as set out in the tax tables.
(2) An employer who withholds an amount under this Act is
deemed to hold the amount separate and apart from the property
of the employer in trust for the Commissioner and for payment
to the Commissioner in the manner and at the time provided
under this Act.
(3) Where at any time an amount deemed to be held by an
employer in trust for the Commissioner is not paid to the
Commissioner in the manner and at the time provided under this
Act, the property of the employer, equal in value to the amount
so deemed to be held in trust shall be regarded as —
(a) being held, from the time the amount was withheld
by the employer, separate and apart from the
property of the employer, in trust for the
Commissioner, and
(b) forming no part of the estate or property of the
employer from the time the amount was so withheld,
whether or not the property has in fact been kept
separate and apart from the estate or property of the
employer; and
(c) property beneficially owned by the Commissioner
notwithstanding any security interest in such
property and in the proceeds thereof,
and the proceeds of such property if the property is sold shall
be paid to the Commissioner.
(4) An employer who fails to withhold and remit any amount
as required by this section in respect of a payment made to an
Employer to
withhold tax.
Tax on income
from more than
one employer
or from self-
employment
and other
income.
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employee is liable to pay as tax on behalf of the employee the
whole of the amount that should have been so withheld and
remitted, including any tax penalty and interest.
16. (1) Every employer shall, in respect of each of his
employees, maintain a record showing in relation to each month
and income year —
(a) the names and tax identification number of the
employee;
(b) the employment income accrued to the employee;
and
(c) the amount of tax deducted from the employment
income of the employee.
(2) An employer shall retain the records relating to each
employee for a period of seven years from the date on which the
person first became an employee.
17. (1) An employer who, under subsection (1) of section 15,
is required to withhold any amount of tax shall, not later than
fifteen 15 days after the last day of each, remit the amount to the
Commissioner and the remittance shall be accompanied by a
return in the prescribed form.
(2) An employer who, under section 15 is required to withold
tax shall, not later than the 15th February in each year, submit to
the Commissioner an annual return in the prescribed form in
respect of the preceding income year.
(3) An employer shall provide each of his employees, whether
or not tax has been withheld from the employee’s income —
(a) at the time of payment, a record showing:
(i) the amount of employment income;
(ii) the amount of tax, if any, withheld from the
employee’s income in respect of the previous
month; and
(b) not later than the 15th February in each year or
twenty-one days after he ceases to be the employer
of a particular employee, a record showing:
Employer to
maintain record.
Employer to
remit tax and
submit monthly
and annual
returns to
Commissioner.
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(i) the amount of employment income;
(ii) the amount of tax if any, withheld during the
income year to which the employment relates.
18. Where pursuant to section 15, an amount of tax is withheld
by an employer, the amount shall be regarded as satisfaction of
the tax liability of the employee to the extent of the amount so
withheld.
19. For the purposes of determining the assessable income
of an individual liable to tax —
(a) where income —
(i) accrues to or is received by the individual
before 1st April, 2005 in respect of services to
be provided by the individual on or after 1st
April, 2005; or
(ii) accrues to or is received by the individual in
respect of any matter for which that income
would, in the normal course, have accrued or
been received by the individual on or after 1st
April, 2005,
the income shall be treated as having accrued or been received
on or after that date; and
(b) where income —
(i) accrues to or is received by the individual after
1st April, 2005 in respect of services provided
by the individual before 1st April, 2005; or
(ii) accrues to or is received by the individual on
or after 1st April, 2005 in respect of any matter
for which the income would, in the normal
course have accrued or been received before
1st April, 2005,
the income shall be treated as having accrued or been received
before that date.
Withheld tax to
be satisfaction of
individual’s
tax liability.
Attribution of
income in respect
of prepayment
or post-payment.
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PART V
PERSONAL INCOME TAX ON ASSESSABLE
SELF-EMPLOYMENT OR OTHER INCOME
20. (1) An individual’s assessable self-employment or other
income for an income year is the individual’s gross self-
employment or other income for the income year computed under
this Act.
(2) For the purpose of ascertaining the chargeable self-
employment or other income of an individual, the provisions of
sections 10, 11, 12, 13, 14 and 15 of the Income Tax Act shall apply.
21. (1) An individual who, on or after the 1st April, 2005,
derives on self-employment or other income in an income year
shall estimate the amount of tax that he is liable to remit, on the
following basis and shall remit the amount in monthly
instalments:
(a) for the income years 2005 and 2006 —
(i) one percent of the gross income in excess of
the personal allowance for each month; or
(ii) an amount for each month as determined on
an assessment from an income tax return;
(b) for the income year 2007 and subsequent years, one-
twelfth of the tax liability of the latest income of the
year for each month; as determined on an assessment
or otherwise approved by the Commissioner.
(2) The Commissioner, after consultation with an individual
who commences to derive self-employment or other income on
or after 1st April, 2005, shall determine the amount of tax to be
remitted each month.
(3) Where the Commissioner is satisfied, on reasonable
grounds, that the amount remitted exceeds or is less than the
amount that ought to have been remitted, he may determine the
amount to be remitted and issue to the individual an assessment
of the amount to be remitted.
Estimated tax
on self-
employment or
other income.
Assessable self-
employment or
other income.
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22. An individual who derives self-employment or other income
shall remit to the Commissioner, not later than the last day of each
month, the amount of tax calculated in accordance with section 21
in respect of the previous month and the remittance shall be
accompanied by the prescribed form.
23. (1) An individual who has self-employment or other income
in an income year shall, not later than 31st March in each year,
submit to the Commissioner an annual return in respect of the
preceding income year in the prescribed form, determine his tax
liablity and pay any outstanding amount in respect of the
proceeding year.
(2) The Commissioner shall review the annual return submitted
under subsection (1) to determine the ultimate tax liability of the
individual under Part VI.
24. (1) Every individual who is liable to tax in respect of self-
employment or other income shall create and maintain records
suitable to determine his liability to pay tax and, the amount of
the tax.
(2) The individual shall retain the records in respect of each
income year for a period of seven years from 1st April, 2005 or, as
the case may be, from the date on which he first engages in a
trade, business, profession or vocation.
(3) This section shall not apply to an individual who is
engaged in a trade and whose annual gross sales do not exceed
$50,000 unless the Commissioner so directs.
25. (1) For the purpose of this Act, where a trade, business,
or profession carried on jointly by two or more individuals, the
individuals carrying on the trade, business or profession shall
be considered as partners.
(2) The income of a partner who is employed by the
partnership shall be treated in the same manner as employment
income and is subject to the provisions of this Act relating to
employment income.
(3) Where in an income year a partnership in existence prior
to 1st April, 2005 has gains or profits —
(a) for the income years 2005 and 2006, the partnership
shall remit to the Commissioner on behalf of the
partners, an amount equal to one percent of the
Income arising
from partner-
ships.
Annual returns
and assessment.
Monthly
remittance of
tax on self-
employment or
other income.
Individual to
maintain
records.
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gross income for each month, apportioned according
to the partnership agreement;
(b) for the income year 2007 and subsequent years, the
partnership shall remit to the Commissioner on behalf
of the partners one-twelfth of the tax liability of the
latest income year apportioned according to the
partnership agreement for each month as determined
on an assessment or otherwise approved by the
Commissioner.
(4) In the case of a partnership formed on or after 1st April,
2005, the Commissioner shall determine the amount of the
monthly instalment to be remitted by the partnership on behalf
of the partners, such amount being calculated with due regard
to the proportionate share of the gains or profits of each partner
in accordance with the partnership agreement.
(5) Where the Commissioner is satisfied, on reasonable
grounds, that the amount remitted exceeds or is less than the
amount that ought to have been remitted, he may determine the
amount to be remitted and issue to the partnership an assessment
of the amount to be remitted on a monthly basis on behalf of the
partners.
26. (1) Where a person in Antigua and Barbuda pays to an
individual not resident in Antigua and Barbuda mortgage or
debenture interest or any rent, annuity or other payment
which the payer is entitled to deduct under section 10(1) of
the Income Tax Act (as provided under section 20(2) of this
Act) in arriving at the payer’s chargeable income, the payer
shall upon paying the interest, rent, annuity or other payment
withhold tax at the rate of twenty-five percent on every dollar
of such payment and the payer shall no later than the 15th
day of the month subsequent to the month in which the
payment was made, remit to the Commissioner the amount of
tax withheld; and the amount withheld shall be credited
towards the non-resident’s ultimate tax liability.
(2) Where a person in Antigua and Barbuda pays to an
individual not resident in Antigua and Barbuda or his agent,
factor or trustee a payment of a nature not referred to in
subsection (1) but which under the provisions of section 8
would, in the hands of such non-resident individual, fall to
Other income of
non-residents.
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be regarded as income chargeable to tax in Antigua and
Barbuda the person shall, on making the payment, withhold
tax at the rate of twenty-five percent on every dollar; and the
amount withheld shall be credited towards the non-resident’s
ultimate tax liability.
PART VI
DETERMINATION OF ULTIMATE TAX LIABILITY
27. (1)The Commissioner may, by notice in writing, require
any person liable to tax or to remit tax or furnish a return or such
other information for the purpose of enabling the Commissioner
to compute or determine the tax liability or the amount of tax to
be remitted by that person.
(2) Where an individual derives income from more than one
employer or from self employment or other income, the individual
shall, not later than 31st March in each year determine his tax
liability, submit to the Commissioner an annual return in the
prescribed form and remit any outstanding amount of tax in
respect of the preceding income year.
28. (1)Where, in respect of a year of income, the Commissioner
is satisfied that —
(a) the tax payable by an individual has not been paid;
(b) the amount of tax remitted by or on behalf of an
individual is incorrect because it was underpaid or
overpaid; or for any other reason;
(c) a person required to submit a return has failed to do
so;
(d) the information provided in any return that is
required by this Act is incorrect or false in any
material particular and would give rise to an
underpayment of tax;
(e) a person required to remit tax has failed to remit the
tax;
the Commissioner shall take the appropriate steps provided for
in subsection (2).
Commissioner
may require
return or
information to
be furnished.
Determination
ultimate tax
liability.
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(2) Pursuant to subsection (1), the Commissioner shall —
(a) in any case other than a case of an overpayment of
the tax —
(i) assess and determine the amount of tax to be
paid; and
(ii) serve the individual, or as the case may be,
the person liable to remit the tax with a notice
of assessment in the prescribed form requiring
the person concerned to remit the proper
amount of tax, and any tax penalty and interest
within 30 days after the date of the assessment
notice or such longer period as the
Commissioner may direct;
(b) in the case of an overpayment of the tax, notify the
individual, in the prescribed form, and make a refund
of the excess amount or, with the consent of the
individual, credit the excess amount in favour of the
individual to the following income year.
(3) The Commissioner may, by further notice in writing, amend
or revoke a notice given under subsection (1).
(4) Without prejudice to the power of the Commissioner under
paragraph (b) of subsection (2) of section 28, an individual, in
respect of his employment income, submit to the Commissioner
an annual return in the prescribed form claiming a refund of an
amount of tax remitted by the employer which the employee
considers to be in excess of the amount that ought to have been
remitted.
29. The Commissioner shall examine the individual’s personal
income tax return for an income year, assess the tax for the year,
and interest and penalties, if any, and determine —
(a) the amount of refund, if any, to which the individual
may be entitled by virtue of this Act for the income
year; or
(b) the amount of tax owing, if any, deemed by this Act
to be paid on account of the individual’s tax payable
for the year.
Calculation of
ultimate tax
liability.
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30. An individual who has an ultimate tax liability as determined
under section 29 shall remit the tax due within 30 days after the
date of the of assessment notice or such longer period as the
Commissioner may direct.
31. (1) For the purpose of inquiring into, or ascertaining, the
liability of a person to tax under this Act, the Commissioner may,
by notice in writing, require any person, whether or not that
person is liable to tax or required under this Act to withhold tax,
or to remit tax to do any of the following:
(a) to furnish the Commissioner with such information
as the Commissioner may require;
(b) to attend and give evidence, either orally or in
writing, before the Commissioner or before an officer
authorized by the Commissioner for that purpose;
(c) to produce any books of account or any other
documents or records in the custody or under the
control of the person.
(2) The Commissioner, an officer of the of Inland Revenue
Department or a person authorised by the Commissioner in
writing for any purpose relating to the administration or
enforcement of this Act, may, at any reasonable time, enter into
any premises or place that is relevant to an investigation and —
(a) audit or examine the books, records and any other
document relating to the information relevant for
the determination of tax liability;
(b) inspect any property, process or matter which may,
in his opinion, assist in the determination of tax
liability;
(c) require the owner or manager of the property or
business and any other person on the premises or
place to give him all reasonable assistance for the
purposes of discharging his functions under this
subsection; or
(d) do any other reasonable thing as appears necessary
for enabling him to perform his functions in relation
to the investigation.
Payment of tax
after assessment.
Commissioner
may carry out
inquiry or audit.
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32. For the purposes of this Act, the Commissioner, an officer
of the Inland Revenue Department or any person authorised in
writing by the Commissioner to exercise powers under this
section, may at all reasonable times and on production of that
authority —
(a) enter any building or place in which he has reason
to believe that business is being carried on or that
there are any books of account, documents or other
papers relating to the business and take copies of
any such books, documents or papers; and
(b) inspect the building or place where any business is
being carried on.
33. (1) The Commissioner may permit payment of tax to be
made by instalments within such time as the Commissioner
considers appropriate.
(2) Permission to pay tax by instalments may be given subject
to such conditions as the Commissioner thinks appropriate but
without prejudice to the provisions of this Act.
34. (1) Where any person to which this Act applies enters
into any transaction or arrangement or series of transactions or
arrangements that have as the main object or the main effect an
evasion of tax liability, the Commissioner may —
(a) disregard any transaction or arrangement or part of
any transaction or arrangement with the main object
or effect as described; and
(b) treat all persons affected by the transaction or
arrangement as if the disregarded transaction or
arrangement or disregarded part of the transaction
or arrangement had not taken place.
(2) Where the Commissioner applies subsection (1) to
disregard any transaction or arrangement or part of any
transaction or arrangement, he shall apply the provisions of this
Act as if the person or persons who had entered into the
transaction or arrangement had instead entered into the
transaction most likely to have been pursued if the transaction
or arrangement had been conducted not for the purpose of
evasion or reduction of tax liability.
Powers of entry.
Payment by
instalments.
Ta x - a v o i d a n c e
transactions or
arrangements.
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PART VII
OBJECTIONS AND APPEALS
35. An individual who disputes a decision in relation to his
tax liability or liability to withhold tax or in relation to an
assessment made by the Commissioner may apply to the
Commissioner, by notice of objection in writing, to review and
revise the decision or assessment made upon him, and section
56 of the Income Tax Act shall apply to objections pursuant to
this section.
36. (1) A person aggrieved by —
(a) a decision of the Commissioner in relation to his
liability to tax or to withhold tax;
(b) an assessment made upon him by the
Commissioner,
may appeal against the decision or assessment to the Appeal
Board established under the Income Tax Act.
(2) A person aggrieved by a decision of the Appeal Board
may appeal to a Judge as provided in the Income Tax Act.
(3) The provisions of the Income Tax Act relating to appeals
shall apply to appeals pursuant to subsections (1) and (2) in the
same manner as they apply to appeals under that Act.
(4) Where in any case —
(a) pursuant to section 35, a notice of objection has
been filed with the Commissioner; or
(b) pursuant to this section, a notice of appeal has been
filed before the Appeal Board or a Judge,
the collection of the tax shall remain in abeyance until the
Commissioner’s decision on the objection or the decision in the
appeal, upholding liability to tax or to remit tax, becomes final
and binding:
Provided that the Commissioner may, in any such case, enforce
payment of that portion of the tax which is not in dispute.
Objections.
Appeals to
Appeal Board
and to a Judge.
Cap-212.
Cap. 212.
Cap. 212.
Cap. 212.
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(5) Subsection (4) also applies to a case stated for the
consideration of the Court of Appeal under the Income Tax
(Appeals) Rules as applied in subsection (3).
PART VIII
TAX PENALTIES AND INTEREST
37. (1) In this Act, a tax penalty means a penalty or interest,
as the case may be, imposed under this Part.
(2) A tax penalty is recoverable as a civil debt due to the
Government in the same manner as the principal amount of the
tax to which it relates.
(3) A tax penalty shall not be construed as a bar to criminal
proceedings under Part X.
38. Where a person who is required to submit a tax form fails
to do so by the due date, he shall be liable to a tax penalty of
$500.
39. Where an employer who is required to withhold or remit
tax withheld in respect of the employment income of that person’s
employee fails to remit all or part of such tax by the due date, that
employer shall be liable to a tax penalty of fifteen percent of the
tax not paid by the due date and an interest at two percent per
month or part thereof of the tax that remains unpaid.
40. Where a person who is required to remit tax, fails to deliver
all or part of such tax by the due date, he shall be liable to a tax
penalty of ten percent of the tax not paid by the due date and
interest at two percent per month or part thereof of the tax that
remains unpaid.
41. Where a person who is required to submit a withholding
tax return form has understated the amount of tax required to be
shown on that tax return, that person shall be liable to a tax
penalty of fifteen percent of the amount by which the tax was
understated and interest at the rate of two percent per month or
part thereof on the amount by which the tax is understated.
42. Where an individual who is required to submit an annual
return under section 23 has understated the amount of chargeable
income required to be shown on that tax return, that individual
Failure to remit
tax.
Understatement
of tax on
withholding tax
return.
Understatement
of tax on
personal income
tax return.
Failure of
employer to
withhold or to
remit tax
withhed.
Failure to deliver
tax form.
Interpretation
and
construction.
Cap. 212.
S.L.
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shall be liable to a tax penalty of ten percent of the amount by
which the tax is understated and interest at two percent per
month or part thereof on the amount of tax from the date the tax
should have been paid.
43. A person who fails to create, maintain or retain records as
required by this Act shall be liable to a tax penalty of $1000.
44. A person who wilfully, in any manner, evades or defeats,
or attempts to evade or defeat, tax, or the payment or collection
of the tax, shall be liable to a tax penalty of two hundred percent
of the tax evaded.
PART IX
RECOVERY AND ENFORCEMENT OF TAX
45. The Commissioner may, in his official capacity, sue for
and recover tax as a civil debt due to the Government in a court
of competent jurisdiction.
46. Section 74 of the Income Tax Act shall apply to —
(a) an individual who is liable to tax, whether or not
there is an assessment by the Commissioner in
respect of the individual’s income; and
(b) a person who is required by or under this Act to
withold tax or to remit any amount of tax.
47. Without prejudice to the liability under this Act of an
individual to tax, a person who fails to withhold and remit tax as
required is liable to pay the whole amount of the tax that should
have been withheld and remitted, including any tax penalty and
interest.
PART X
OFFENCES
48. (1) A person who —
(a) fails to withhold or pay an amount within the time
prescribed;
Recovery of tax
and assessment
of persons
leaving Antigua
and Barbuda.
Liability of
person required
to withhold and
remit tax.
Failure to
create, maintain
or retain
records.
Evasion of tax.
C o m m i s s i o n e r
may sue for and
recover tax.
Offences and
Penalties.
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(b) fails to pay any amount of tax due by him when it is
due and payable;
(c) fails to submit a return of income as and when
required;
(d) fails to keep, create, maintain or retain records;
(e) fails, without proper justification, to do anything
that he is required to do under the Act;
(f) hinders, molests, obstructs, impedes or interferes,
with any person doing anything that he is lawfully
authorised to do in connection with the
administration of this Act;
(g) negligently, in relation to this Act or any possible
liability —
(i) makes any false or deceptive return,
(ii) gives any false or deceptive information,
(iii) destroys, alters, mutilates, conceals or
otherwise disposes of the records of himself
or of any other person; or
(iv) makes or assents to, or acquiesces in the
making of false or deceptive entries, or omits,
or assents to or acquiesces in the omission
of, a material particular in the records of himself
or any other person;
commits an offence and, in addition to any tax penalty, is liable—
(a) on summary conviction to a fine not exceeding $20,000
or to imprisonment for term not exceeding 3 months; or
(b) on conviction on indictment to a fine not exceeding
$100,000 or to imprisonment for a term not exceeding
12 months.
(2) A person who —
(a) wilfully, knowingly, or without reasonable excuse —
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(i) fails to apply for registration as required by
section 6;
(ii) makes any false or deceptive return;
(iii) gives any false or deceptive information;
(iv) destroys, alters, mutilates, conceals or
otherwise disposes of the records of himself
or of any other person in order to facilitate an
evasion of tax;
(v) makes or assents to, or acquiesces in the
making of false or deceptive entries, or
omits, or assents to or acquiesces in the
omission of, a material particular in the
records of account of himself or any other
person; or
(vi) in any manner evades or defeats or attempts
to evade or defeat, tax or the payment or
collection of tax; or
(b) aids, abets, incites or conspires with any other person
to commit an offence described in paragraph (a),
commits an offence, and in addition to any tax penalty is
liable —
(a) on summary conviction to fine not exceeding $50,000
or imprisonment for a term not exceeding 6 months;
or
(b) on conviction on indictment to a fine not exceeding
$100,000 or imprisonment for a term not exceeding
12 months.
(3) Every person who communicates or allows to be
communicated to a person not legally entitled thereto any
information obtained under this Act or who allows any person
not legally entitled to do so to inspect or have access to any
written statement furnished under this Act commits an offence
and is liable on summary conviction to a fine not exceeding
$1,000.
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49. (1) Where an offence under this Act is committed by a
body of persons —
(a) in the cases of a body corporate, every director or
other officer of that body shall be deemed to have
committed the offence;
(b) in the case of a partnership, every partner or officer
of the partnership shall be deemed to have committed
the offence.
(2) A person referred to in subsection (1) shall not be
convicted of an offence where that person establishes before
the court that the offence was committed without the consent or
connivance of that person or that reasonable steps had been
taken before the occurrence of the offence to prevent the
commission of the offence.
50. Section 79 of the Income Tax Act shall apply to the
prosecution of offences under this Act.
PART XI
MISCELLANEOUS
51. The Commissioner, an officer of the Inland Revenue
Department or any other person authorised by the Commissioner
to perform any functions under this Act shall not be personally
liable in civil proceedings in connection with any act done by
him in good faith in the discharge of those functions.
52. (1) The Cabinet may, if it is satisfied that it is just and
equitable to do so, by Order remit —
(a) the whole or any or all of the tax payable by any
person;
(b) any tax penalty, interest, fee or charge imposed for
or as the result of non-payment of the tax, including
any expenses of levy and sale.
(2) An Order made under this section shall be subject to
affirmative resolution of the House of Representatives.
Limitation of
time for prosecu-
tions Cap. 212.
Cabinet may re-
mit tax.
Protection of of-
ficers and other
persons from per-
sonal liability.
Offences by
bodies corporate
or partnerships.
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53. Notwithstanding section 52, the Commissioner may, on
reasonable grounds, and on applicaiton by a person liable to
pay or remit tax, after consultation with the Financial Secretary
and Accountant General:
(a) remit the principal amount of tax not exceeding
$5,000;
(b) remit the amount of penalty or interest, in either case
not exceeding $5,000.
54. The Minister may make regulations for carrying out or
giving effect to this Act.
55. (1) Without prejudice to section 54, the Commissioner
may, by Order published in the Gazette, prescribe such forms,
as he considers appropriate for the purposes of this Act.
(2) The forms prescribed under this Act shall apply to the
matters specified therein.
PART XII
CONSEQUENTIAL AMENDMENTS
56. The Inland Revenue Administration Act is amended —
(a) by the repeal of section 16; and
(b) in the First Schedule, by the addition of the following
item:
“The Personal Income Tax Act, 2005.”
Amendments to
Inland Revenue
AdministrationAct
Cap. 217.
Commiss io ine r
may remit tax, or
waive penalties or
interest.
Regulations.
Forms.
SCHEDULE
Section 10
Rates of Tax
The tax payable by an individual on chargeable income shall be charged at the
following rates:
(1) In respect of the income year 2005:
(a) 0% of chargeable income of $27,000 or less, being the personal
allowance;
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(b) 10% of the first $9,000 of chargeable income, that is, from $1 — $9,000;
(c) 15% of the next $54,000 of chargeable income, that is, from $9,001 —
$63,000;
(d) 20% of the next $45,000 of chargeable income, that is, from $63,001 —
$108,000;
(e) 25% of the remainder of chargeable income, that is, any amount greater
than $108,000.
(2) In respect of the income year 2006 and subsequent years:
(a) 0% of chargeable income of $36,000 or less, being the personal
allowance.
(b) 10% of the first $12,000 of chargeable income, that is, from $1— $12,000.
(c) 15% of the next $72,000 of chargeable income, that is, from $12,001 —
$84,000.
(d) 20% of the next $60,000 of chargeable income, that is, from $84,001 —
$144,000.
(e) 25% of the remainder of chargeable income, that is, any amount greater
than $144,000.
(3) Personal Allowance
The personal allowance referred to in this Act shall be —
(a) in the case of tax paid on a monthly instalment basis — $3,000 for a
month; or
(b) where the tax liability is computed on the basis of an income year —
(i) in respect of the income year 2005 — $27,000;
(ii) in respect of the income year 2006 and subsequent years —
$36,000.
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____________
Printed at the Government Printing Office, Antigua and Barbuda,
by Walter A. Massiah, Government Printer
—By Authority, 2005.
1000–3.05 [ Price $11.00 ]
Passed the House of Representatives this
24th day of March, 2005.
D. Giselle Isaac-Arindell,
Speaker.
Yvonne Henry,
Acting Clerk to the House of Representatives.
Passed the Senate this 29th
day of March, 2005.
Hazlyn M. Francis,
President.
Yvonne Henry,
Acting Clerk to the Senate.
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EXPLANATORY MEMORANDUM
The purpose of this Bill is to make provisions for imposing personal income tax
on the income of individuals, with effect from the 15th April, 2005 and, for this
purpose, to prescribe the rates of tax, relating to employment income, income
derived from self-employment and income from other sources.
The Bill also seeks to provide for the method of determining ultimate tax liability,
the administration, collection and enforcement of the tax and to create offences
and penalties for the contravention of the provisions of the proposed Act as well
as to make minor consequential amendments to the Inland Revenue Administration
Act.
Part I of the Bill sets out the preliminary provisions of the Bill, including the
definitions of various terms and expressions used in the Bill.
Clause 3 of the Bill seeks to disapply the Income Tax Act (which currently contains
provisions relating to tax on individuals’ incomes in addition to tax on corporate
entities) to the extent to which the provisions of this Bill, if enacted, would apply
to the same matter under that Act.
Part II of the Bill provides for the basic administration of the personal income
tax system which the Bill seeks to establish.
Under Clause 4 of the Bill, the Commissioner of Inland Revenue would be
entrusted with responsibility for the administration, collection and enforcement of
the tax in accordance with the Inland Revenue Administration Act except to the
extent provided in the Bill.
Clause 6 of the seeks to require every individual who, on or after the
commencement of the Act proposed in this Bill, would be liable to tax to register
himself with the Commissioner.
A similar obligation applies to a person who is or becomes an employer on or
after the commencement of the proposed Act.
Every person registered would be assigned a tax identification number. However,
as a transitional measure, an individual or an employer who, on the 1st April is
already registered under section 75A of the Income Tax Act or a person who
registers himself under that section prior to his becoming an employee or an
employer need not register himself as envisaged under this Clause, but his tax
identification number under the Income Tax Act would be treated as his tax
identification number under the proposed Act.
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Clause 7 of the Bill is intended to establish a Stabilisation Fund into which all
moneys collected as personal income tax would be paid. The Fund would have the
same status as a special fund established under the Finance and Audit Act and
would be managed in accordance with that Act.
The money collected under this Act is to be used by the Goovernment for the
following purposes:
(a) The development and maintenance of physical infrastructure:
(b) The development and maintenance of economic and social
infrastructure, systems and programs;
(c) The procurement of goods and services for the operation of government
and public administration;
(d) The maintencance of law and order;
(e) Such other purpose as may be determined by the Minister.
Part III of the Bill contains provisions for the imposition of personal income tax
on the chargeable income of individuals which, under Clause 8, accrues in or is
derived from Antigua and Barbuda or elsewhere in respect of the following:
(a) employment income
(b) self-employment and other income, including partnership income.
The tax is to be computed on an annual basis but, in most cases, is to be
remitted to the Commissioner on a monthly basis in order to maintain a regular
cash flow of revenue.
Clause 9 of the Bill lays down a general principle whereby every individual
who has assessable income would be liable to tax and also sets out the types of
income that would be exempt from tax, including income which is exempt from tax
under the Income Tax Act or under any agreement to which the Government is a
pary and income which is not liable to tax, such as exempt income or that portion of
income which may be deducted from assessable income for the purposes of
determining the ultimate tax liability of an individual.
Clause 10 of the Bill would provide for the rates at which tax is to be paid, as
detailed in the First Schedule to the Bill, and also empowers the Commissioner to
prepare and publish in the Gazette the tax tables indicating the amounts of tax to
be remitted periodically. Tax withheld would be treated as a credit against the
individual’s ultimate tax liability.
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Clause 11 of the Bill is intended to set out the types of employment income that
would be subject to tax. These include salary, wages, allowances and other benefits
arising from employment.
Clause 12 of the Bill sets out the types of self-employment or other income that
would be subject to tax. These include gains or profits from any trade, business,
profession or vocation, dividends, interest, rents, royalties and so much of the
gains or profits of an individual not ordinarily resident and accruing outside Antigua
and Barbuda but paid in Antigua and Barbuda.
Clause 13 of the Bill seeks to impose tax on the employment income derived by
a partner in a partnership who is employed by the partnership and also on the
gains or profits of a partnership as such.
Clause 14 of the Bill would provide for the aggregation if income from the
various categories of income, upon which the ultimate tax liability of an individual
would be computed.
Part IV of the Bill deals with the manner in which employment income is to be
withheld by the employer and paid to the Commissioner on behalf of the employee.
Under Clause 17 of the Bill, an employer who withholds tax must remit the tax
deducted to the Commissioner within fifteen days after the last day of each month
following the month in respect of which the tax was deducted from the employee’s
emoluments.
Furthermore, each employer would be required to submit monthly and annual
returns in respect of his employees. An employer is also required to provide each
of his employees, whether or not tax has been withheld from the employers income,
a record showing the amount of employment income, the amount of tax, if any,
withheld from the employee’s income in respect of the previous month.
Part V of the Bill seeks to provide for the manner in which self-employment and
other income would be dealt with, initially based on a self-assessment by the
individual, as provided for in Clause 21 of this Bill.
As in the case of employment income, Clause 22 of the Bill would require the
individual to make a monthly remittance of tax to the Commissioner on the basis of
the self-assessment but the individual’s ultimate tax liability is to be determined by
the Commissioner, as provided in Clause 23, on the basis of the individual’s
annual return and a final assessment by the Commissioner.
Clause 25 of the Bill describes the type of business arrangement that would
constitute partnership arrangement for the purposes of the Act. For the purpose
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of this Act, an arrangement where a trade, business, profession or vocation is
carried on jointly by two or more individuals, the law would recognize the individuals
as partners. The income of a partner employed by the partnership would be dealt
with as employment income and subject to the provisions of the Act relating to the
calculation and collection of the tax.
Payments to a non-resident of mortgages or debenture interest or rent or annuity
or other payments, such as employment income, partnership income or self-
employment income, which the payer is entitled to deduct shall be remitted to the
Commissioner at the rate of 25% of the income.
Part VI of the Bill would provide for the determination and computation, by the
Commissioner, of the ultimate tax liability of an individual or the amount of tax to be
remitted.
Under this Part, the Commissioner would be enabled to do any of the following:
(a) at any time, to require an individual liable to tax or an individual who
had an obligation to withhold and remit tax to furnish a return or to
provide information, as provided in Clause 27 of the Bill;
(b) to determine, in any particular case, whether the amount of tax remitted
has been underpaid or overpaid and to order the payment of the amount
falling short of the correct amount or, respectively, to make a refund of
the amount overpaid, as provided in Clauses 28 and 29 of the Bill;
(c) to carry out investigations and, for that purpose, to order any person
(whether or not that person has a direct tax obligation) to attend before
him and give evidence or produce books of account or other documents
and records, as provided in Clause 31 of the Bill;
(d) to carry out an audit or examination of the books, records and any
other documents and to inspect any property or matter relevant to the
investigation;
(e) to enter into and inspect buildings and premises, as provided in Clause
32 of the Bill.
Under Clause 33 of the Bill, the Commissioner would be empowered to allow
outstanding amounts of tax to be paid by instalments.
Clause 34 of the Bill enables the Commissioner, for the purposes of ascertaining
ultimate tax liability, to ignore tax avoidance transactions or arrangements the main
object or effect of which is to evade tax or to reduce liability to tax.
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Clauses 35 and 36 would allow objections to be submitted to the Commissioner
and, thereafter, appeals to the Appeal Board established under the Income Tax Act
and to a Judge of the Supreme Court. In both cases, the law and procedure
applicable to these matters under the Income Tax Act would apply in the same
manner to the objections and appeals made under the proposed Act.
Part XI of the Bill would provide for miscellaneous matters in the following
respects:
(a) Clause 51, of the Bill would protect the Commissioner, officers of the
Department of Inland Revenue and any other persons duly authorised
to perform functions under the proposed Act from personal liability;
(b) Clause 52, would authorise the cabinet to remit personal income tax
as, in the case of income tax provided under the income tax Act inrespect
of coporates entities;
(c) Clause 53, of the Bill would authorise the Commissioner, on reseasable
grounds, to remit taxes up to any amount not exceeding $5000
(d) Clause 55, would authorise the Commissioner to prescribe appropriate
forms for the purpose of the Act. Such forms would be required to be
published in the Gazette.
Part XII, in Clause 56 of the Bill, seeks to make minor amendments to the
Inland Revenue Administration Act by repealing section 16 of that Act. The effect
of section 16 of that Act, which requires any inconsistency between the Act and
any other law to be resolved inexorably in favour of the Act, not only violates a
fundamental principle of statutory interpretation that a later statute in pari materia
prevails over an earlier statute, but is also repugnant to the well-established principle
that the power of the legislature should not be unreasonably curtailed.
Furthermore, this Clause seeks to add the proposed Act to the Schedule to the
Inland Revenue Administration Act as one of the laws to be administered under
that Act.
Finally, the Schedule to the Bill contains the prop0osed rates of tax referred to in
Clause 10 of the Bill and therefore to prescribe the rates of tax for the income year 2005
(consisting of nine months from 1st April, 2005) and for subsequent years
Justin L. Simon, Q.C.
Attorney-General and
Minister of Legal Affairs.
March, 2005
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ANTIGUA AND BARBUDA
THE PERSONAL INCOME TAX ACT, 2005
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1. Short title.
2. Interpretation.
3. Restrictions on application of Income Tax Act.
PART II
ADMINISTRATION
4. Administration, collection and enforcement of tax by Commissioner.
5. Official secrecy.
6. Registration of persons liable to tax or required to deduct tax.
7. Establishment of Stabilisation Fund.
PART III
IMPOSITION AND RATES OF TAX
8. Imposition of personal income tax.
9. Liability to tax, exemptions etc.
10. Rates of tax and tax tables.
11. Tax on employment income.
12. Tax on self-employment and other income.
13. Tax on to partnership income.
14. Tax on income from more than one employer or from self-employment and
other income.
PART IV
WITHHOLDING TAX ON ASSESSABLE EMPLOYMENT INCOME
15. Employer to withhold tax
16. Employer to maintain records.
17. Employer to remit tax and submit monthly and annual returns to Commissioner.
18. Withheld tax to be satisfaction of individual’s tax liability.
19. Attribution of income in respect of prepayment or post-payment.
PART V
PERSONAL INCOME TAX ON ASSESSABLE
SELF-EMPLOYMENT OR OTHER INCOME
20. Assessable self-employment or other income.
21. Estimated tax on self-employment or other income.
22. Monthly remittance of tax on self-employment or other income.
23. Annual returns and assessment.
24. Individual to maintain records.
25. Income arising from partnerships.
26. Other income of non-residents.
PART VI
DETERMINATION OF ULTIMATE TAX LIABILITY
27. Commissioner may require returns or information to be furnished.
28. Determination of ultimate tax liability.
29. Calculation of ultimate tax liability.
30. Payment of tax after assessment.
31. Commissioner may carry out inquiry or audit.
32. Powers of entry.
33. Payment by instalments.
34. Tax avoidance transactions or arrangements.
PART VII
OBJECTIONS AND APPEALS
35. Objections.
36. Appeals to Appeal Board and to a Judge.
PART VIII
TAX PENALTIES AND INTEREST
37. Interpretation and construction.
38. Failure to deliver tax form.
39. Failure of employer to withhold or to remit tax withheld.
40. Failure to remit tax.
41. Understatement of tax on withholding tax return.
42. Understatement of tax on personal income tax return.
43. Failure to create, maintain or retain records.
44. Evasion of tax.
PART IX
RECOVERY AND ENFORCEMENT OF TAX
45. Commissioner may sue for and recover tax.
46. Recovery of tax and asessment of persons leaving Antigua and Barbuda.
47. Liability of person required to withhold and remit tax.
PART X
OFFENCES
48. Offences and penalties.
49. Offences by bodies corporate or partnerships.
50. Limitation of time for prosecutions.
PART XI
MISCELLANEOUS
51. Protection of officers and other persons from personal liability.
52. Cabinet may remit tax.
53. Commissioner may remit tax not exceeding $5,000
54. Regulations.
55. Forms.
PART XII
CONSEQUENTIAL AMENDMENTS
56. Amendment of Inland Revenue Administrtion Act.
SCHEDULE
Rates of Tax
