44.     Persons acting in a representative capacity

            (1) In this section,

            "public officer", in relation to a company, means the person who is the public officer of the company in terms of section 135 of the Income Tax Act; and

            "representative", in relation to a registered person, means-

     (a)     in the case of a company, other than a company in liquidation-

           (i)       where the company is an incorporated company, any director or person that has authority over the disbursement of corporate funds or disposal of corporate assets,

          (ii)       where the company is an incorporated company that has a public officer in addition to the person under subparagraph (i), that public officer,

          (iii)       in the case of an unincorporated association or body, a member of the committee or management responsible for accounting for the receipt and payment of moneys of the association or body; or

         (iv)       in any other case, a person who is responsible for accounting for the receipt and payment of moneys or funds on behalf of the company;

     (b)     in the case of a company in liquidation, the liquidator of the company;

     (c)     in the case of the State, a person responsible for accounting for the receipt and payment of moneys under the provisions of any law or for the receipt and payment of public funds or of funds voted by Parliament;

     (d)     in the case of a local authority or board, a person who is responsible for accounting for the receipt and payment of moneys or funds on behalf of the local authority or board;

     (e)     in the case of a partnership, a partner in the partnership;

     (f)      in the case of a trust, a trustee of the trust; or

     (g)     in the case of a non-resident person or a person referred to in paragraph (d) of the definition of "resident person" in section 2, a person controlling the non-resident person's affairs in Botswana, including any manager of any taxable activity of the non-resident person in Botswana.

            (2) Every representative of a registered person is responsible for performing any duty, including the payment of tax, imposed by this Act on the registered person.

            (3) Subject to subsections (5) and (5A), any tax that by virtue of subsection (2) is payable by a representative, shall only be recoverable from the representative to the extent of any asset of the registered person that is in the possession or under the control of the representative.

            (4) Every representative who in that capacity pays any tax payable under this Act by a registered person, shall be entitled to recover the amount so paid, from the registered person or to retain the amount so paid, out of any moneys of the registered person that are in the representative's possession or under the representative's control.

            (5) Subject to subsection 5A every representative shall be personally liable for the payment of any tax payable by the representative in his representative capacity if, while the amount remains unpaid, the representative-

     (a)     alienates, charges, or disposes of money received or accrued in respect of which the tax is payable; or

     (b)     disposes of or parts with any fund or money belonging to the registered person which is in the possession of the representative or which comes to the representative after the tax is payable if such tax could legally have been paid from or out of such fund or money.

            (5A) Notwithstanding subsection (5), a personwhowas a director of the company at the time of the commission of any act referred to in subsection (5) shall be liable, jointly and severally, for any tax payable by the company unless that person proves, to the satisfaction of the Commissioner General, that the failure by the company to pay the tax was not due to any negligence on his or her part.

            (6) Nothing in this section shall be construed as relieving a registered person from performing any duty imposed by this Act, on the registered person, which the representative of the person has failed to perform.

45.     Power to appoint agent

            (1) The Commissioner General may, if the Commissioner General considers it necessary to do so, declare any person to be an agent of a registered person and the person declared to be agent shall be deemed to be a representative of the registered person for the purposes of section 44.

            (2) A person dissatisfied with a decision of the Commissioner General under subsection (1) may appeal against the decision only in accordance with the provisions of Part VIII.