Published: 2001-07-01
Key Benefits:
95. When tax is payable
(1) Subject to this Part, any tax charged shall be due and payable by the person chargeable within 30 days of the date of service on him or her of the notice of assessment.
(2) Every person to whom section 65(2) applies shall pay the tax as estimated under section 78(2) in any tax year, in four equal instalments, the first of which shall commence on or before the end of the three month period as from the commencement of that tax year or where the commencement of the accounting year in respect of that tax year is earlier than the commencement of that tax year, three months from the commencement of that accounting year,and thereafter on or before the end of three months from the end of the period of the first quarterly payment in either case until the fourth quarterly payment:
Provided that during a transition period of two years as from 1st July, 2001, the Commissioner General may vary the dates for payment of the quarterly instalments.
(2A) Persons to whom section 65(2) applies shall also have an option to pay the tax in monthly instalments on condition that the proportion of the tax paid would not be less than one third of the tax payable in the case of payment by quarterly instalments.
(3) The balance of the tax payable for any tax year in accordance with the return furnished under section 65(2), including the interest payable under section 97(3), shall be paid on or before the due date for furnishing of a tax return under section 65(2) of that tax year or such extended period as allowed by the Commissioner General in terms of section 77.
(4) Notwithstanding subsection (3), where a person, other than a company designated under section 113, has tax payable as estimated under section 78(2) in any tax year, that is less than P50,000, the person may either pay such tax in quarterly instalments or pay the lump sum in one instalment the due date for furnishing of a tax return under section 65(2) for that tax year.
(5) Notwithstanding subsections (2), (3) and (4), where a person, not being a company, has tax payable as estimated under section 78 (2A) in any tax year, that person may pay such tax in one lump sum by the due date of the furnishing of a tax return under section 65 (2) for that tax year.
96. Extensions of time or payment by instalments
(1) On application by the person chargeable, the Commissioner General may in any case grant such extension of time for payment, or permit payment to be made by such instalments and within such time as he or she considers the circumstances warrant.
(2) Where, under subsection (1), the tax is permitted to be paid by instalments and there is default in payment of any instalment, the whole of the balance of tax outstanding shall become payable forthwith.
(1) Any tax not paid within the time specified in section 95 shall bear interest at the rate of one and a half per cent for each month or part of a month during which it remains unpaid, compounded monthly.
(2) The Commissioner General may remit the interest charged, if the interest so charged is due to a mistake committed by the Department of Taxes.
(3) Where for any tax year-
(a) the amount of each quarterly payment made by any person in accordance with section 95(2) is less than one-fifth of the tax due on the return for that tax year, or where a tax return has not been furnished for the year, less than one fifth of the tax due under an assessment made under section 78(6); or
(b) the final payment made by any person is less than the balance of tax due in accordance with section 95(3),
that person shall be liable to bear interest calculated at the rate of one and a half per cent for each month or part of the month during which the tax payable remains unpaid.
98. When tax deducted by employer is payable
(1) Any tax deducted or deductible by an employer under section 56 from the remuneration paid to an employee shall be due and payable by the employer-
(a) within 15 days after the end of the month during which that tax was deducted or deductible; or
(b) in the case of a person who ceases to be an employer, within 15 days after the date on which he or she so ceases.
(2) On application by an employer, the Commissioner General may grant such extension of time for payment as he or she considers the circumstances warrant, and in such case the tax deducted or deductible shall be payable accordingly.
(3) In this section the words "employer", "remuneration" and "employee" have the meaning assigned to them in the Fifth Schedule.
99. When tax deducted under section 57 is payable
Any tax deducted or deductible by any person under section 57 in respect of a contract relating to construction operations, shall be due and payable by that person within 15 days after the end of the month during which that tax was deducted or deductible.
100. When tax deducted under section 58 is payable
Any tax deducted or deductible by any person under section 58 shall be due and payable by that person within 15 days after the end of the month during which such tax was deducted or deductible.
101. Interest on unpaid tax deductions
(1) Any tax deducted or deductible by any person and not paid within the time specified in section 98, 99 or 100 shall bear interest at the rate of one and a half per cent for each month or part of a month during which it remains unpaid, compounded monthly.
(2) Any interest imposed on any person by subsection (1) shall be a debt due by that person and shall not be recoverable by him or her from the person in respect of whom the tax was deducted or should have been deducted.
(1) Tax shall, when it becomes due and payable, be a debt due to the Government and payable to the Commissioner General in the manner and at the place prescribed.
(2) Proceedings in any court for the recovery of tax shall be deemed to be proceedings for the recovery of a liquid debt.
(3) In any proceedings for the recovery of tax it shall not be competent for the defendant to enter a defence that-
(a) the taxable income is incorrect;
(b) the tax charged is excessive; or
(c) the assessment is the subject of objection or appeal.
103. Procedure for recovery of tax by court action
(1) If any person fails to pay any tax when it becomes due and payable, the Commissioner General may file with the clerk or registrar of any court of competent jurisdiction a statement, certified by him or her as correct, of the amount of tax due and payable and unpaid.
(2) A statement filed under subsection (1) shall have the effect of a civil judgment given in that court in favour of the Commissioner General for a liquid debt of the amount specified in the statement, and the court shall, subject to subsection (3), issue a writ of execution in respect thereof against the person who has so failed to pay.
(3) No writ of execution shall be issued against any person pursuant to subsection (2) until 14 days after service on him or her by the court of a notice informing him or her that a writ of execution will be issued by the court in respect of tax due by him or her and unpaid, unless before the expiration of that period of 14 days he or she produces proof of payment thereof satisfactory to the court.
(4) After giving the Commissioner General the opportunity of being heard, in the event of-
(a) proof of payment being produced with which the court is satisfied, the writ of execution shall not be issued;
(b) no proof of payment being produced with which the court is satisfied, the writ of execution shall be issued and execution thereon shall proceed forthwith; or
(c) proof of payment being produced which appears to the court to be inconclusive, the court shall proceed to set down a case for hearing and both parties shall be entitled to be heard personally or by representation; and upon completion of the hearing the court shall direct whether or not the writ of execution shall be issued.
(5) Notwithstanding the provision of any other law, the Registrar of the High Court may, in order to facilitate the operation of the procedure prescribed by the preceding subsections, appoint the Commissioner General, or any other officer appointed in terms of section 3(1), to be a Deputy Sheriff in terms of section 18(2) of the High Court Act and a court bailiff in terms of the Magistrates' Courts Act.
(6) The issue of a writ of execution under subsection (2) shall be without prejudice to the right of the Commissioner General to apply for any other form of execution of the judgment debt.
104. Recovery of moneys from person leaving Botswana
(1) Where the Commissioner General has reason to believe that any person may leave Botswana owing moneys or might, upon assessment, owe moneys to the Commissioner General under this Act, the Commissioner General may, by notice in writing served on that person, require that he or she pay the amount owing or give security to the satisfaction of the Commissioner General for the payment thereof, or to cover the amount which might be owing, within the time specified in the notice.
(2) The Commissioner General may issue to the Chief Immigration Officer-
(a) a copy of the notice served under subsection (l); and
(b) a request for the person charged to be prevented from leaving Botswana until he or she pays the amount owing or gives security as provided in subsection (1).
(3) Where a notice has been served under subsection (1) and a request has been made under subsection (2), upon payment of the amount owing or the giving of satisfactory security as required under subsection (1), the Commissioner General shall, as soon as possible, issue to the Chief Immigration Officer a withdrawal of his or her request made under subsection (2), and shall furnish the person charged with a copy thereof, which shall be sufficient evidence for any immigration officer to permit the departure of that person.
(4) If any person fails to pay any moneys owing or to give satisfactory security as required under subsection (1), the Chief Immigration Officer shall take such steps as may be necessary to prevent such person from leaving Botswana pending compliance with the notice served on him or her.
(5) Where the Commissioner General has reason to believe that any person owing money or who, upon assessment, might owe monies to the Commissioner General, or might transfer assets to avoid payment of such monies to the Commissioner General, the Commissioner General may, by notice in writing served on the person, require that person to pay the amounts owing or furnish security for the amount that might be owed within the time specified in the notice, failing which the Commissioner General may provisionally attach the assets of the person.
(6) Any transfer of assets made after a notice served on the person concerned in terms of subsection (5) shall be void.
(7) A copy of the notice of provisional attachment served on any person in terms of subsection (5) shall be given to the authorities responsible for effecting the transfer or release of the assets in question.
(8) A notice served in terms of subsection(5) shall be valid for a period of six months from the date of issue and shall be renewable every six months for a period not exceeding two years.
(9) If a person against whom a notice is issued in terms of this section furnishes adequate security to the satisfaction of the Commissioner General, the Commissioner General shall withdraw the notice of provisional attachment.
105. When tax recoverable from assets of other spouse
(1) No tax due and payable by a married person may be recovered from the assets of the other spouse unless the Commissioner General is satisfied that there has been a transfer of assets from the spouse liable to tax to the other and that such transfer was intended to avoid the recovery of the tax due.
(2) So much of any tax due and payable by a settlor as is attributable to amounts accrued in a settlement but charged to tax in the name of the settlor under section 13, 14(1) or 15 may be recovered from assets of the settlement.
(3) For the purposes of this section, tax attributable to amounts deemed to have accrued to any person under section 13, 14(1) or 15 means the amount by which the tax charged under section 59 has been increased by the inclusion of such amounts in the gross income of the person charged to tax.
(4) In subsection (2) the words "settlor" and "settlement" shall have the meaning assigned to them respectively in sections 13, 14(1) and 15.
106. Recovery of tax from representative taxpayers
(1) Where any person dies, then in respect of any tax payable under an assessment-
(a) made upon him or her prior to and remaining unpaid at his or her death;
(b) made upon his or her executor under section 16 in respect of amounts accrued prior to his or her death; or
(c) made upon his or her executor under section 17 in respect of amounts accrued after death to the estate of the deceased person,
the amount of tax unpaid by that person in his or her lifetime or payable under an assessment made on his or her executor shall be a debt due and payable out of the estate of the deceased person.
(2) Where a company is being wound up or has been placed under judicial management, then in respect of any tax payable under an assessment-
(a) made upon the company, prior to and remaining unpaid at the commencement of the liquidation or judicial management;
(b) made upon the liquidator or judicial manager in respect of amounts accrued prior to commencement of the liquidation or judicial management; or
(c) made upon the liquidator or judicial manager in respect of amounts accrued during the winding-up or judicial management of the company,
the amount of tax unpaid by the company or payable by the liquidator or judicial manager shall be a debt due and payable out of the assets of the company.
(3) Where any person is chargeable to tax under section 14(2) as trustee of a trust the income of which is accumulated, then any tax payable by the trustee shall be due and payable out of the assets of the trust.
(4) Where any person is chargeable to tax under section 18 as trustee for a legally disabled person, any tax payable by the trustee shall be due and payable out of the assets of the legally disabled person.
(5) Where any person is chargeable to tax under section 19 as trustee for the beneficiaries of a trust, any tax payable by the trustee shall be due and payable out of the assets of the trust.
(6) Where any person is chargeable to tax under section 23 as agent for a non-resident, any tax payable shall be due and payable out of the assets in Botswana of the non-resident.
(7) Where any person is chargeable to tax as public officer of a company, any tax payable shall be due and payable by the company.
107. Right of representative taxpayer to indemnity
Every person who as a representative taxpayer pays any tax shall be entitled to recover the amount paid from the person on whose behalf it was paid, or to retain out of any moneys which may be in his or her possession, or may come to him or her, in his or her representative capacity, an amount equal to the amount paid.
108. Personal liability of representative taxpayer
(1) Every representative taxpayer shall be personally liable for any tax payable by him or her in his or her representative capacity if, while it remains unpaid-
(a) he or she alienates, charges or disposes of any amounts in respect of which the tax is charged; or
(b) he or she disposes of or parts with any assets or money which is in his or her possession or comes to him or her after the date on which the tax is payable,
if the tax could legally have been paid out of such amounts, assets or money.
(2) If the representative taxpayer referred to in subsection (1) was representing a company, every person who was a director of the company at the time of the commission of the acts referred to in that subsection or thereafter shall also be liable, jointly and severally, for any tax payable by the company unless he or she proves, to the satisfaction of the Commissioner General, that the failure of the representative to pay the tax was not due to any negligence on his or her part.
109. Recovery of tax from person holding money for another person
(1) For the purpose of recovery of any tax due from any person the Commissioner General may, by notice in writing, declare any other person-
(a) from whom any money is due or may become due to the first-mentioned person;
(b) who holds or may subsequently hold money for or on account of the first-mentioned person;
(c) who holds money on account of some other person for payment to the first-mentioned person; or
(d) who has authority from some other person to pay money to the first-mentioned person,
to be the agent of that person and to pay to the Commissioner General within 15 days of the date of service of that notice, or if on such date no money is due from him or her to that person, within 15 days of the date on which money becomes due to that person, the amount specified in the notice, or if the money due is less than the amount specified, the whole amount of the money due.
(2) Where any person declared to be an agent under subsection (1) fails to make any payment within the time specified in a notice under that subsection, the provisions of this Act shall apply as if such amount were tax due and payable by that person on the date by which he or she was required to make such payment to the Commissioner General.
110. Priority of tax debt upon insolvency or liquidation
From the date on which any tax becomes due and payable the Commissioner General shall have such preferential claim for such debt upon the assets of-
(a) an insolvent person as is specified in section 86 of the Insolvency Act; or
(b) a company in liquidation or under judicial management as is specified in section 261 or 275(4) of the Companies Act.
(1) Where the Commissioner General is satisfied that any person has paid tax for any tax year, by deduction or otherwise, in excess of the amount finally determined to be payable under this Act for such tax year, that person shall, subject to section 80, be entitled to have the amount of the excess refunded, and such refunds shall be charged on and paid out of the Consolidated Fund, and the amount of the excess will also include any amount of interest paid in excess.
(2) The burden of proof that any amount of tax has been paid, by deduction or otherwise, shall rest with the person referred to in subsection (1), but any tax certificate issued to such person under the Fifth, Sixth or Seventh Schedule shall be prima facie evidence that the amount of tax shown therein has been paid by such person.
(3) Subject to the provisions of subsection (4), where, for any tax year commencing on or after 1st July 2001, any person is entitled to a refund of excess tax in terms of subsection (1) of this section, and where the amount has not already been refunded by the Commissioner General-
(a) if such refund arises in consequence of the reduction of the amount of an assessment on a determination given on an objection filed under section 88 or an appeal lodged under section 91, and where such amount has not been refunded by the Commissioner General to that person before the end of six months from the date of such determination; or
(b) in any other case, within a period of six months from the date on which an application in writing was received by the Commissioner General for such refund, or from the date on which the tax return, with full details as required under this Act, was filed with the Commissioner General in relation to such refund,
that person shall be entitled to receive interest on the amount of the refund due, calculated at the rate of one per cent for each month or part thereof, for which such amount remains unpaid after the period of six months referred to in paragraphs (a) and (b).
(4) Subsection (3) shall not apply to any amount of tax paid in excess as a result of deduction of assessed loss under sections 47 and 48 in respect of farming.
(1) The Minister may remit wholly or in part any tax payable by any person where he or she is satisfied that it is just and equitable to do so, or where he or she is satisfied that such tax is irrecoverable.
(2) Any decision made by the Minister under this section shall be final and not subject to appeal.
(3) After first consulting the accounting officer for the purposes of the Finance and Audit Act the Commissioner General may, if he or she is satisfied that the same is irrecoverable, remit any amount of tax, not exceeding P25 000, unpaid by any person in respect of any tax year.
112A. Tax Clearance Certificates
(1) The Minister shall have the powers to make it compulsory, by order, for any person or category of persons to produce a Tax Clearance Certificate for a tender to be awarded in accordance with the Public Procurement and Asset Disposal Act.
(2) It shall be the duty of any person, institution or authority entrusted with the responsibility of authorising the transactions referred to in subsection (1) to authorise such transactions only after a Tax Clearance Certificate is produced by the parties to the transaction.
(3) The Commissioner General shall, within two weeks of receipt of an application for a Tax Clearance Certificate-
(a) issue the Tax Clearance Certificate if-
(i) there is no tax liability against the taxpayer,or
(ii) in the view of the Commissioner General, the taxpayer has made satisfactory arrangements for the payment of
his or her tax liability; or
(b) deny the issue of the Tax Clearance Certificate and give reasons for such denial.
