Revenue Services Administration Act 2002
No. 28 of 2002
C
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REVENUE SERVICES
ADMINISTRATION ACT 2002
Revenue Services Administration Act 2002 Arrangement of Sections
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C
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REVENUE SERVICES ADMINISTRATION
ACT 2002
Arrangement of Sections
Section
PART I - PRELIMINARY 7
1 Short title and commencement.........................................................................7
2 Interpretation....................................................................................................8
PART II - TAX RETURNS 11
3 Delivery of tax returns ...................................................................................11
4 Extension of time to deliver tax return ..........................................................11
5 Tax return duly made .....................................................................................12
PART III - TAXATION DECISIONS 12
6 Taxation decisions .........................................................................................12
7 Defect does not affect validity .......................................................................12
PART IV - TAXATION OBJECTIONS AND APPEALS 13
8 Objection........................................................................................................13
9 Review of objection decision.........................................................................13
10 Appeal to Supreme Court...............................................................................14
11 Implementation of decision............................................................................14
12 General provisions .........................................................................................14
PART V - RECOVERY OF TAX 15
13 Payment of tax ...............................................................................................15
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14 Tax debt to Crown..........................................................................................15
15 Recovery of tax ..............................................................................................16
16 Variation of recovery notice...........................................................................16
17 Compliance with notice..................................................................................17
18 Liquidators .....................................................................................................17
19 Temporary closure of business.......................................................................18
PART VI - RECORD-KEEPING AND INFORMATION
COLLECTION 19
20 Maintenance of accounts and records ............................................................19
21 Power to enter and search...............................................................................19
22 Information required ......................................................................................20
23 Translation of records.....................................................................................21
PART VII - TAXPAYER IDENTIFICATION NUMBER 21
24 Taxpayer Identification number .....................................................................21
25 Cancellation of identification number............................................................22
26 Quotation of taxpayer identification number .................................................22
PART VIII - REPRESENTATIVES 22
27 Representatives...............................................................................................22
28 Liabilities and obligations of representatives .................................................22
29 Liability for tax payable by a company left with insufficient assets ..............23
PART IX - INTEREST, PENALTIES, AND OFFENCES 24
DIVISION I - INTEREST ON LATE PAYMENT................................................24
30 Interest on late payment .................................................................................24
DIVISION II ADMINISTRATIVE PENALTIES...................................................25
31 Failure to submit a tax document ...................................................................25
32 Non-payment of tax........................................................................................25
33 Failure to maintain records.............................................................................26
34 False or misleading statements.......................................................................26
35 Miscellaneous.................................................................................................26
DIVISION III - OFFENCES AND PENALTIES..................................................27
36 Failure to deliver tax return............................................................................27
37 Failure to comply with notice.........................................................................27
38 Failure to comply with section 18 ..................................................................27
39 Failure to comply with section 19 ..................................................................27
40 Failure to maintain proper records .................................................................28
41 Failure to provide assistance ..........................................................................28
42 Failure to comply with a section 22 notice.....................................................28
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43 False identification number............................................................................28
44 False statements .............................................................................................28
45 Obstruction.....................................................................................................29
46 Abetting .........................................................................................................29
47 Offences by companies ..................................................................................29
48 Compound offences .......................................................................................29
49 Limitation of action .......................................................................................30
PART X - RULINGS 30
50 Orders and rulings..........................................................................................30
51 Written Rulings..............................................................................................30
PART XI - FORMS AND NOTICES 31
52 Forms and notices, authentication of documents ...........................................31
53 Service of notices...........................................................................................31
PART XII - ADMINISTRATION 32
DIVISION I - REVENUE SERVICES DEPARTMENT ......................................32
54 Revenue Services Department .......................................................................32
55 Taxation Officers ...........................................................................................32
56 Delegation......................................................................................................32
57 Confidentiality ...............................................................................................32
DIVISION II - TAX TRIBUNAL..........................................................................33
58 Tax Tribunal ..................................................................................................33
59 Appointment of members ..............................................................................33
60 Review of Reviewable decision.....................................................................34
61 Decision of Tax Tribunal ...............................................................................34
PART XIII - MISCELLANEOUS 35
62 Regulations ....................................................................................................35
63 Transition .......................................................................................................35
Revenue Services Administration Act 2002 Section 1
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C
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REVENUE SERVICES ADMINISTRATION
ACT 2002
No. 28 of 2002
AN ACT TO MAKE PROVISION FOR THE ADMINISTRATION OF
REVENUE SERVICES
I assent,
TAUFA'AHAU TUPOU IV,
23rd December, 2002
[12th November, 2002]
BE IT ENACTED by the King and Legislative Assembly of Tonga in the Legislature
of the Kingdom as follows:
PART I - PRELIMINARY
1 Short title and commencement
(1) This Act may be cited as the Revenue Services Administration Act, 2002.
(2) This Act shall come into force on a day to be proclaimed by His Majesty
in Council.
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2 Interpretation
(1) In this Act, unless the context otherwise requires:
“Chief Commissioner of Revenue” means the Minister of Finance;
“Commissioner” means the Commissioner of the Revenue Services
appointed according to law;
“financial year” means the period of 12 months ending with the 30th day
of June in any year;
“income tax” means income tax imposed by the Income Tax Act (Cap.
68);
“liquidator” means a person appointed or assuming the position of
liquidator, receiver, trustee in bankruptcy or mortgagee in possession, or
in the case of a deceased's estate the executor or administrator;
“representative” means in the case of –
(a) an individual under a legal disability, the guardian or
manager who receives or is entitled to receive income on
behalf, or for the benefit of the individual;
(b) a company, the chief executive officer;
(c) a partnership, any partner in the partnership;
(d) a trust including an estate of a deceased person, any trustee of
the trust and any executor or administrator of that estate;
(e) a body of persons other than a partnership or company, any
individual responsible for accounting for the receipt or
payment of moneys or funds on behalf of the body;
(f) the Government, any individual responsible for accounting
for the receipt or payment of moneys or funds on behalf of
the Government;
(g) a local authority in Tonga, any individual responsible for
accounting for the receipt or payment of moneys or funds on
behalf of the local authority;
(h) a foreign government or political subdivision of a foreign
government, any individual responsible for accounting for
the receipt or payment of moneys or funds in Tonga on
behalf of the government or political subdivision of the
government;
(i) a non-resident person, any person controlling the person's
affairs in Tonga, including any manager of any business of
such person in Tonga;
(j) a liquidator in respect of that person, the liquidator; or
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(k) an agent of a taxpayer for the purposes of the Income Tax
Act (Cap. 68);
“revenue law” means:
(a) the Income Tax Act (Cap. 68), the Sales Tax Act (Cap. 69),
and this Act; and
(b) Part XII, Division I, “revenue law” shall also mean the
Customs and Excise Act (Cap. 67), Stamp Duties Act (Cap.
70), Ports and Services Tax Act (Cap. 72), and Post Office
Act (Cap. 95);
“reviewable decision” means:
(a) an objection decision as defined in section 8(6); or
(b) a declaration referred to in section 246 of the Customs and
Excise Act as to the amount of duty payable;
“sales tax” means sales tax imposed by the Sales Tax Act (Cap. 69);
“tax” means —
(a) income tax, including withholding tax imposed under section
70(2) of the Income Tax Act (Cap. 68);
(b) an amount of tax deducted from a payment of salary or
wages under section 50 of the Income Tax Act (Cap. 68);
(c) an amount of tax deducted from a payment of withholding
income under section 71 of the Income Tax Act (Cap. 68);
(d) sales tax; and
(e) includes any penalty imposed under this Act;
“taxation assessment” means –
(a) any assessment by the Chief Commissioner of Revenue of
income tax, sales tax, or penalty;
(b) a determination of the amount by the Chief Commissioner of
Revenue of a loss under section 41(2) of the Income Tax Act
(Cap. 68); or
(c) a determination by the Chief Commissioner of Revenue
under section 49(3) of the Income Tax Act (Cap. 68);
“taxation decision” means —
(a) a taxation assessment;
(b) a decision by the Chief Commissioner of Revenue under
section 4(2);
(c) a decision by the Chief Commissioner of Revenue under
section 8(4);
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(d) a decision by the Chief Commissioner of Revenue under
section 13(3) or 13(6);
(e) a decision by the Chief Commissioner of Revenue to issue a
notice under section 15(3) or 16(3);
(f) a determination by the Chief Commissioner of Revenue
under section 18(2) or 18(3);
(g) a decision by the Chief Commissioner of Revenue under
section 24(3) or section 25(1);
(h) a decision by the Chief Commissioner of Revenue under
section 27 to declare an individual to be a representative of
person; or
(i) a decision by the Chief Commissioner of Revenue under
section 35(5) on an application for remission, in whole or
part, any penalty payable by a person;
“taxation officer” means the Chief Commissioner of Revenue, the
Commissioner, and any officer of the Revenue Services appointed under
this Act;
“taxpayer” means a person or his representative who is —
(a) a taxpayer for the purposes tax from a payment of salary or
wages under section 50 of the Income Tax Act (Cap. 68);
(b) required to deduct tax from a payment of salary or wages
under section 50 of the Income Tax Act (Cap. 68);
(c) required to deduct tax from a payment of withholding income
under section 71 of the Income Tax Act (Cap. 68);
(d) a vendor for the purposes of the Sales Tax Act (Cap. 69); or
(e) a person liable for penalty under this Act;
“tax period”, in relation to a taxpayer means —
(a) in income tax, the financial year of the taxpayer for the
purposes of that tax;
(b) in tax deducted under section 50 or 71 of the Income Tax Act
(Cap. 68), the period to which the deduction relates; or
(c) in sales tax, the payment period of the taxpayer under section
5(1) of the Sales Tax Act (Cap. 69);
“tax return” means —
(a) an annual return of income under section 39 of the Income
Tax Act (Cap. 68);
(b) a return of income under section 40 of the Income Tax Act
(Cap. 68);
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(c) a reconciliation statement under section 59(1)(c) of the
Income Tax Act (Cap. 68);
(d) a statement under section 73(a) of the Income Tax Act (Cap.
68);
(e) a sales tax return under section 5(2) of the Sales Tax Act
(Cap. 69); or
(f) a sales tax return under section 6(1) of the Sales Tax Act
(Cap. 69);
“Tax Tribunal” means the Tax Tribunal established under section 58 of
this Act.
(2) Where this Act applies in any revenue law, any terms that are not defined
in this Act but defined in that law shall have the same meaning.
PART II - TAX RETURNS
3 Delivery of tax returns
(1) The Chief Commissioner of Revenue may, by notice in writing, where a
taxpayer has failed to deliver a tax return as required under a revenue law
require the taxpayer to deliver the return by the due date set out in the
notice.
(2) The Chief Commissioner of Revenue may, by notice in writing, where he
is not satisfied with a tax return delivered by a taxpayer, require the
taxpayer to deliver —
(a) a further or fuller return; or
(b) any further information as specified in the notice,
by the due date set out in the notice.
4 Extension of time to deliver tax return
(1) A taxpayer required to deliver a tax return may apply, in writing, to the
Chief Commissioner of Revenue for an extension of time and such an
application shall be made by the original due date for delivering the tax
return to which the application relates.
(2) The Chief Commissioner of Revenue may, upon satisfaction that there is
reasonable cause, grant an application under this section and shall serve
notice of the decision on the application.
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(3) An extension of time under this section shall not exceed 30 days provided
that the Chief Commissioner of Revenue may grant an extension beyond
30 days in exceptional circumstances.
(4) An extension of time granted under this section shall not change the date
for payment of any tax due in respect of the return.
5 Tax return duly made
A tax return purporting to be made by or on behalf of any taxpayer shall be
treated as having been made by that taxpayer or with the taxpayer's authority
unless the contrary is proved.
PART III - TAXATION DECISIONS
6 Taxation decisions
Except in proceedings under part IV of this Act —
(a) no taxation decision shall be disputed in the Tax Tribunal, in any
Court, or in any other proceedings on any ground whatsoever; and
(b) the amount and particulars of every taxation assessment shall be
treated as correct and the liability of the taxpayer shall be
determined accordingly.
7 Defect does not affect validity
The validity of a taxation decision or a notice of a taxation decision or any other
document purporting to be made, or executed under any revenue law shall not
be —
(a) quashed or deemed to be void or voidable for want of form; or
(b) affected by reason of any mistake, defect, or omission therein,
if it is, in substance and effect, in conformity with the revenue law under which
it has been made, issued, or executed and the person assessed, or intended to be
assessed or affected by the decision or document, is designated in it according to
common understanding.
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PART IV - TAXATION OBJECTIONS AND APPEALS
8 Objection
(1) A taxpayer dissatisfied with a taxation decision may lodge an objection to
the decision with the Chief Commissioner of Revenue within thirty days
of service of the notice of the decision.
(2) An objection to a taxation decision shall be in the prescribed form.
(3) A taxpayer dissatisfied with a taxation decision may apply, in writing, to
the Chief Commissioner of Revenue for an extension of time and such an
application shall be made within thirty days of service of the notice of the
decision.
(4) The Chief Commissioner of Revenue may if satisfied there is reasonable
cause, grant an application under this section and shall serve notice of the
decision on the applicant.
(5) An extension of time under this section shall not exceed fifteen days
provided that the Chief Commissioner of Revenue may grant an extension
beyond fifteen days in exceptional circumstances.
(6) The Chief Commissioner of Revenue shall after consideration of the
objection, allow the objection in whole or in part or disallow the objection
and his decision shall be referred to as an “objection decision”.
(7) The Chief Commissioner of Revenue shall serve notice of the objection
decision on the taxpayer within thirty days.
(8) Where the Chief Commissioner of Revenue has not made an objection
decision within 60 days of the objection being lodged, the taxpayer may
elect, by notice in writing to the Chief Commissioner of Revenue, to treat
the Chief Commissioner of Revenue as having made a decision to allow
the objection.
(9) Where a taxpayer has made an election under subsection (8), the taxpayer
shall be treated as having been served with notice of the objection
decision on the day his notice was lodged.
9 Review of objection decision
(1) A taxpayer dissatisfied with an objection decision may apply to the Tax
Tribunal for review of the decision in accordance with section 60.
(2) The Tax Tribunal may in reviewing an objection decision exercise all the
powers of the Chief Commissioner of Revenue under the revenue law
relating to that objection.
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(3) Where an application for review relates to a taxation assessment, the Tax
Tribunal may make an order to —
(a) affirm, reduce or increase the taxation assessment to which the
objection decision relates; or
(b) remit the taxation assessment to the Chief Commissioner of
Revenue for reconsideration in accordance with the directions of
the Tribunal.
(4) Where an application for review relates to a taxation decision other than a
taxation assessment, the Tax Tribunal may make an order to affirm, vary,
or set aside the decision.
10 Appeal to Supreme Court
Any party to a proceeding before the Tax Tribunal has a right of appeal on a
question of law to the Supreme Court, within 30 days after being notified of the
decision.
11 Implementation of decision
(1) The Chief Commissioner of Revenue shall within 45 days after —
(a) a final decision of the Tax Tribunal; or
(b) being notified of a decision of the Supreme Court,
take such action, including amending any taxation assessment, as is
necessary to give effect to the decision.
(2) The decision of the Tax Tribunal shall become final if no notice of appeal
is lodged with the Registrar of the Supreme Court under this Act.
12 General provisions
(1) In any proceeding under this Part, the burden shall be on the taxpayer to
prove –
(a) in the case of taxation assessment, that the assessment is excessive;
or
(b) in the case of any other taxation decision, that the decision should
not have been made or should have been made differently.
(2) The tax due under a taxation assessment shall be payable notwithstanding
that an objection, application for review or notice of appeal has been
lodged in respect of the assessment.
(3) The taxpayer shall be limited in an application to the Tax Tribunal or
appeal to the Supreme Court, to the grounds stated in the objection to
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which the objection decision relates unless the Tribunal or Court grants
the taxpayer leave to add new grounds.
PART V - RECOVERY OF TAX
13 Payment of tax
(1) A taxpayer may apply, in writing, to the Chief Commissioner of Revenue
for an extension of time to pay any tax due and such application shall be
made by the original date on which it was due for payment.
(2) Where an application has been made under this section, the Chief
Commissioner of Revenue may, having regard to the circumstances of the
case —
(a) grant the taxpayer an extension of time for payment of tax due; or
(b) require the taxpayer to pay any tax due in instalments as he may
determine.
(3) The Chief Commissioner of Revenue shall serve the taxpayer with a
written notice of his decision.
(4) Where a taxpayer is permitted to pay tax by instalments and the taxpayer
defaults in payment of any instalment, the whole balance of the tax
outstanding, at the time of the default, shall become immediately payable.
(5) The grant of an extension of time or the grant of permission to pay tax due
by instalments shall not preclude any liability for interest arising under
section 30 from the original date the tax was due for payment.
(6) Where the Chief Commissioner of Revenue has reasonable grounds to
believe that a taxpayer may leave Tonga before the due date for payment
of tax, the tax shall be due on such date as specified by the Chief
Commissioner of Revenue by notice in writing to the taxpayer.
14 Tax debt to Crown
(1) Tax is a debt to the Crown and the Chief Commissioner of Revenue may
recover in court any tax due in the name of the Crown.
(2) Subject to Part IV of this Act, a statement certified from the Chief
Commissioner of Revenue specifying the amount of the tax owed shall be
treated in any court as sufficient proof of the tax owed.
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15 Recovery of tax
(1) For the purposes of sections 15, 16 and 17, “payer” means a person who
owes or may subsequently owe money to the taxpayer, or who holds or
may subsequently hold money for, or on account of, the taxpayer or who
holds money on account of some other person for payment to the
taxpayer, or who has authority from some other person to pay money to
the taxpayer and includes the Crown.
(2) This section shall apply where a taxpayer is liable to pay an amount of tax
and —
(a) the tax has not been paid by the taxpayer by the due date for
payment; or
(b) the Chief Commissioner of Revenue has reasonable grounds to
believe that the taxpayer will not pay the tax by the due date for
payment.
(3) Where this section applies, the Chief Commissioner of Revenue may, by
notice in writing, require any person who owes money to the taxpayer to
pay the amount specified in the notice to the Chief Commissioner of
Revenue. The amount to be specified in a notice under this subsection
shall not exceed the amount of tax that has not been paid or the amount
that the Chief Commissioner of Revenue believes will not be paid by the
due date.
(4) Subject to subsection (5), a payer shall pay the amount specified in a
notice under subsection (3) by the date specified in the notice. The date
for payment specified in the notice shall not be a date before the date that
the amount owed to the taxpayer becomes due to the taxpayer or held on
the taxpayer's behalf.
(5) A payer shall not pay an amount under this section in excess of the
amount owed to the taxpayer.
(6) A copy of the notice served on the payer shall be served on the taxpayer.
16 Variation of recovery notice
(1) The Chief Commissioner of Revenue shall, by notice in writing to the
payer, revoke or amend a notice served under section 15 where the
taxpayer has paid the whole or part of the tax due or has made an
arrangement satisfactory to the Chief Commissioner of Revenue for
payment of the tax.
(2) A payer served with a notice under this section or section 15 may apply,
in writing, to the Chief Commissioner of Revenue for —
(a) an amendment of the amount due under the notice; or
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(b) an extension of time for payment of the amount due under the
notice.
(3) The Chief Commissioner of Revenue shall serve a written notice of his
decision on the applicant and the taxpayer.
(4) Where a notice served under this section requires the deduction of
amounts from payments of salary or wages to a taxpayer, the amount
required to be deducted by the payer from each payment shall not exceed
the lesser of —
(a) an amount equal to one-twentieth of the amount of tax that has not
been paid or the Chief Commissioner of Revenue believes will not
be paid by the due date; or
(b) 20 per cent of the amount of each payment of salary or wages.
17 Compliance with notice
(1) A payer who has paid an amount in compliance with a notice served under
section 15 —
(a) shall give the taxpayer written notice of the payment that has been
made;
(b) shall be treated as having paid such amount under the authority of
the taxpayer; and
(c) the receipt of the Chief Commissioner of Revenue shall constitute a
good and sufficient discharge of the liability of the payer to the
taxpayer.
(2) The Chief Commissioner of Revenue shall apply any amount paid by a
payer under this section to the tax owing by the taxpayer.
(3) A payer who, without reasonable explanation, fails to comply with a
notice under this section shall be personally liable for the amount
specified in the notice, which may be recovered by the Chief
Commissioner of Revenue.
18 Liquidators
(1) A person shall give the Chief Commissioner of Revenue notice in writing
within 14 days of his appointment as liquidator.
(2) The Chief Commissioner of Revenue shall notify the liquidator, in
writing, of the amount of any tax that is or will become payable by the
taxpayer or deceased whose assets are in the possession or control of the
liquidator and such notice shall be served on the liquidator within 2
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months of the Chief Commissioner of Revenue being served with a notice
under subsection (1).
(3) A liquidator shall not, without leave of the Chief Commissioner of
Revenue, part with any asset held as liquidator until the liquidator has
been served with a notice under subsection (2).
(4) Subject to subsection (5), a liquidator shall set aside out of the proceeds of
sale of any asset of the taxpayer or deceased the amount notified by the
Chief Commissioner of Revenue under subsection (2) and shall be
personally liable to the extent of the amount set aside for the tax due by
the person who owned the asset.
(5) Nothing in subsection (4) shall prevent the liquidator from paying any
debt that has priority over the tax referred to in that subsection.
(6) Subject to subsection (5), where the proceeds of sale of any asset are less
than the amount notified by the Chief Commissioner of Revenue under
this section, the liquidator shall set aside the entire proceeds of sale to
meet the amount notified under this section.
(7) Where two or more persons are liquidators in respect of a taxpayer or
deceased, the obligations and liabilities under this section shall apply
jointly and severally to the liquidators but may be discharged by any of
them.
19 Temporary closure of business
(1) Where a taxpayer —
(a) fails to deliver a tax return referred to in section 2(1)(c), (e), or (f)
of the definition of “tax return”; or
(b) fails to pay sales tax or tax deducted from a payment of salary or
wages under section 50 of the Income Tax Act (Cap. 68),
on or before the due date, the Chief Commissioner of Revenue may notify
the taxpayer in writing of the intention to close down part or the whole of
the taxpayer's business for a temporary period not exceeding fourteen
days, unless the taxpayer delivers the return or pays the tax due, as the
case may be, within a period of 7 days of the date of the notice.
(2) Where a taxpayer fails to comply with a notice under subsection (1), the
Chief Commissioner of Revenue may issue an order to close down part or
the whole of the business of that person for a period not exceeding 14
days.
(3) The Chief Commissioner of Revenue may, at any time, enter any premises
described in an order issued under subsection (2) for the purposes of
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executing the order and may require a police officer to be present while
the order is being executed.
(4) The Chief Commissioner of Revenue shall affix in a conspicuous place on
the front of the premises of the business or part of the business which has
been closed under an order issued under subsection (2), a notice in the
following words “CLOSED TEMPORARILY FOR NOT COMPLYING
WITH TAX OBLIGATIONS”.
(5) Where the tax return is delivered or tax due is paid, as the case may be,
within the period of closure, the Chief Commissioner of Revenue shall
immediately arrange for removal of the notice referred to in subsection
(4).
PART VI - RECORD-KEEPING AND INFORMATION
COLLECTION
20 Maintenance of accounts and records
Every taxpayer shall maintain in Tonga such accounts, documents, and records
as may prescribed under any revenue law and such accounts, documents, and
records shall be maintained by the taxpayer for 5 years after the end of the tax
period to which they relate.
21 Power to enter and search
(1) When the Chief Commissioner of Revenue has reasonable grounds to
suspect a breach of any revenue law, he or any taxation officer authorised
in writing by him –
(a) shall have, at all times and without notice full and free access to any
premises, place, property, book, record or computer;
(b) may make an extract or copy of any book, record or computer-
stored information to which access is obtained under paragraph (a);
(c) may seize any book, record, or other document that, in the opinion
of the Chief Commissioner of Revenue or authorised taxation
officer, affords evidence that may be material in determining the tax
liability of any taxpayer;
(d) may retain any book, record, or document seized under paragraph
(c) for as long as it may be required for determining a taxpayer's tax
liability or for any proceeding under a revenue law; and
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(e) may, where a hard copy or computer disk of information stored on a
computer is not provided, seize and retain the computer for as long
as is necessary to copy the information required;
for the purposes of investigating a suspected breach.
(2) A taxation officer shall not be entitled to enter or remain on any premises
or place if, upon request by the owner or lawful occupier, the officer is
unable to produce the Chief Commissioner of Revenue's written
authorisation permitting the officer to exercise powers under subsection
(1).
(3) The Chief Commissioner of Revenue may require a police officer to be
present for the purposes of exercising powers under this section.
(4) The owner or lawful occupier of the premises or place to which an
exercise of power under subsection (1) relates shall provide all reasonable
facilities and assistance to the Chief Commissioner of Revenue or
authorised officer.
(5) A person whose books, records, or computer have been seized under
subsection (1) may examine them and make copies, at his expense, during
office hours.
(6) The Chief Commissioner of Revenue or authorised officer shall sign for
all records, books, or computers removed and retained under this section
and he shall return them to the owner within 14 days of the conclusion of
investigation and any related proceedings.
(7) This section has effect notwithstanding —
(a) any Act relating to privilege or the public interest with respect to
access to premises or places, or the production of any property,
book, record, or computer-stored information; or
(b) any contractual duty of confidentiality.
22 Information required
(1) The Chief Commissioner of Revenue may, for the purposes of
administering any revenue law, by notice in writing, require any person
to —
(a) furnish, within the time specified in the notice, any information that
may be required by the notice; or
(b) attend at the time and place designated in the notice to be examined
on oath by the Chief Commissioner of Revenue, concerning the tax
affairs of that person or any other person and, for that purpose, the
Chief Commissioner of Revenue may require the person examined
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to produce any book, record, or computer-stored information under
the control of the person.
(2) A notice issued under this section shall be personally served upon the
person to whom it is directed or left at his last known usual place of
business or abode and the certificate of service signed by the person
serving the notice shall be evidence of the facts stated therein.
(3) This section has effect notwithstanding —
(a) any Act relating to privilege or the public interest with respect to
the giving of information or the production of books, records, or
computer-stored information; or
(b) any contractual duty of confidentiality.
(4) This section does not limit the operation of section 89 of the Income Tax
Act (Cap. 68).
23 Translation of records
Where any book, record, or computer-stored information referred to in this Act
is not in English or Tongan, the Chief Commissioner of Revenue may, by notice
in writing, require the person keeping the book, record, or computer-stored
information to provide, at the person's expense, a translation into English or
Tongan by a translator approved by the Chief Commissioner of Revenue.
PART VII - TAXPAYER IDENTIFICATION NUMBER
24 Taxpayer Identification number
(1) The Chief Commissioner of Revenue may for the purposes of
identification and cross-checking, require every person liable for income
tax or sales tax to apply in the prescribed form for a Taxpayer
Identification Number.
(2) Where the Chief Commissioner of Revenue is satisfied that the applicant's
identity has been established, he shall issue a Taxpayer Identification
Number to the applicant by written notice.
(3) The Chief Commissioner of Revenue shall refuse an application under this
section if –
(a) he is not satisfied as to the applicant's true identity; or
(b) the applicant has already been issued with a Taxpayer Identification
Number that is still in force.
Section 25 Revenue Services Administration Act 2002
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(4) The Chief Commissioner of Revenue shall serve the applicant with
written notice of the decision refusing an application under this section
within 14 days.
25 Cancellation of identification number
(1) The Chief Commissioner of Revenue shall, by notice in writing, cancel
the Taxpayer Identification Number where he is satisfied that a Taxpayer
Identification Number has been issued to —
(a) a person under an identity that is not the person's true identity; or
(b) a person who has already been issued with a Taxpayer
identification Number that is still in force.
(2) The Chief Commissioner of Revenue may, at any time, by written notice
to a person who has been issued with a Taxpayer Identification Number
withdraw the number and issue the person with a new Taxpayer
Identification Number.
26 Quotation of taxpayer identification number
The Chief Commissioner of Revenue may require a taxpayer to state the
taxpayer's Taxpayer Identification Number in any tax return, notice, or other
document used for the purposes of any revenue law.
PART VIII - REPRESENTATIVES
27 Representatives
The Chief Commissioner of Revenue may, by notice in writing, declare an
individual to a representative of a person for the purposes of this Act.
28 Liabilities and obligations of representatives
(1) Every representative of a person is responsible for performing any duties
or obligations imposed by a revenue law on that person, including the
payment of tax.
(2) Subject to subsection (4), any tax that, by virtue of subsection (1), is
payable by a representative of a person is recoverable from the
representative only to the extent of any assets of the person that are in the
possession or under the control of the representative.
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(3) Every representative shall be personally liable for the payment of any tax
due by the representative in that capacity if, while the amount remains
unpaid, the representative —
(a) alienates, charges or disposes of any moneys received or accrued in
respect of which the tax is payable; or
(b) disposes of or parts with any moneys or funds belonging to the
person that are in the possession of the representative or which
come to the representative after the tax is payable, is such tax could
legally have been paid from or out of such moneys or funds.
(4) Nothing in this section relieves any person from performing any duties or
obligations imposed on the person by this Act that the representative of
the person has failed to perform.
(5) Where there are two or more representatives of a person, the duties or
obligations referred to in this section shall apply jointly and severally to
the representatives but may be discharged by any of them.
29 Liability for tax payable by a company left with insufficient assets
(1) This section shall apply where an arrangement has been entered into with
the intention or effect of rendering a company unable to satisfy a current
or future tax liability under any revenue law.
(2) In this section —
“arrangement” means any contract, agreement, plan, or understanding
whether express or implied and whether or not enforceable in legal
proceedings;
“associate”, in relation to a person, means any other person who acts or is
likely to act in accordance with the wishes of the person as a result of any
connection between the persons or common ownership or control;
“controlling shareholder”, in relation to a company, means any person
who beneficially holds, either alone or together with an associate or
associate —
(a) 51 per cent or more of the voting rights in the company;
(b) 51 per cent or more of the rights to dividends; or
(c) 51 per cent or more of the rights to capital; and
“director”, in relation to a company, means any person occupying the
position of director of the company.
(3) Subject to subsection (4), where this section applies, every person who
was a director or controlling shareholder of the company at the time the
Section 30 Revenue Services Administration Act 2002
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arrangement was entered into shall be jointly and severally liable for the
tax liability of the company.
(4) A director of a company shall not be liable under this section for the tax
liability of the company where the Chief Commissioner of Revenue is
satisfied that the director derived no financial or other benefit from the
arrangement and —
(a) the director has on becoming aware of the arrangement, formally
recorded with the company his dissent and notified the Chief
Commissioner of Revenue in writing; or
(b) the director satisfies the Chief Commissioner of Revenue that, at
the time the arrangement was entered into —
(i) the director was not involved in the executive management of
the company; and
(ii) the director had no knowledge of, and could not reasonably
have been expected to know of the arrangement.
PART IX - INTEREST, PENALTIES, AND OFFENCES
DIVISION I - INTEREST ON LATE PAYMENT
30 Interest on late payment
(1) Any person who fails to pay —
(a) any tax; or
(b) any amount specified in a notice served on the person under section
15,
on or before the due date for payment shall be liable for interest at the
prescribed rate on the amount unpaid calculated from the date the
payment was due to the date the payment is made.
(2) Any interest paid by a person under subsection (1) shall be refunded to the
person to the extent that the amount to which the interest relates is found
not to have been payable.
Interest payable by a person —
(a) in respect of tax deducted from a payment of salary or wages under
section 50 of the Income Tax Act (Cap. 68) or tax deducted from a
payment of withholding income under section 71 of the Income Tax
Act (Cap. 68); or
(b) in respect of any amount referred to in paragraph (b) of
subsection (1),
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shall be borne personally by the person and shall not be recoverable
from any other person.
(4) Interest payable under this section shall be simple interest.
(5) The Chief Commissioner of Revenue may recover interest on tax due
from a person under Part V as if it were tax payable by the person.
(6) Interest payable under this section shall be in addition to any penalty
imposed under Division II or any fine imposed under Division III in
respect of the same act or omission.
DIVISION II ADMINISTRATIVE PENALTIES
31 Failure to submit a tax document
(1) Any person who fails to submit a tax return or other document as required
under any revenue law shall be liable to a penalty of $100 and an
additional $10 for each day of default.
(2) For the purposes of subsection (1), a person ceases to be in default —
(a) in the case of a failure to submit a tax return, at the time the Chief
Commissioner of Revenue receives the return or raises a default
assessment for the period covered by the return; or
(b) in any other case, at the time the document is received by the Chief
Commissioner of Revenue.
32 Non-payment of tax
(1) Any taxpayer who fails to pay any tax by the due date shall be liable to a
penalty of 3 per cent of the amount of unpaid tax, plus an additional
amount of 5 per cent of the tax that remains unpaid on the fifteenth day of
each month following the due date.
(2) Any penalty paid by a taxpayer under this section shall be refunded to the
taxpayer to the extent that the tax to which the penalty relates is found not
to have been payable.
(3) Any penalty imposed under this section is in addition to interest payable
under section 30.
(4) Any penalty payable by a person in respect of tax deducted from a
payment of salary or wages under section 50 of the Income Tax Act (Cap.
68) or tax deducted from a payment of withholding income under section
71 of the Income Tax Act (Cap. 68) shall be borne personally by that
person and shall not be recoverable from any other person.
Section 33 Revenue Services Administration Act 2002
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33 Failure to maintain records
Any taxpayer who fails to maintain proper accounts, documents, or records in
accordance with the requirements of any revenue law shall be liable to a penalty
equal to 25 per cent of the amount of tax payable by the taxpayer for the tax
period to which the failure relates.
34 False or misleading statements
(1) Any person who makes a false or misleading statement or omits from such
statement any material particular which lessens his tax liability shall be
liable to a penalty of 25 per cent of the tax shortfall.
(2) No penalty shall be imposed under this section where —
(a) the tax shortfall arose as a result of a taxpayer taking an objection
on the application of the relevant revenue law to the taxpayer's
position; or
(b) the person who made the statement did not know and could not
reasonably be expected to know that the statement was false or
misleading in a material particular.
(3) Nothing in this section, prevents the imposition of interest under section
30 in respect of a tax shortfall if the tax is not paid by the due date.
(4) In this section a statement may be made in writing or orally to a taxation
officer under any revenue law, and shall include a statement made –
(a) in any application, certificate, declaration, notification, tax return,
objection, or other document made, prepared, given, submitted, or
lodged under any revenue law;
(b) in any information furnished under any revenue law;
(c) in any document furnished otherwise than pursuant to any revenue
law;
(d) in answer to a question asked; or
(e) to another person with the knowledge or reasonable expectation that
the statement would be conveyed to a taxation officer.
35 Miscellaneous
(1) Liability to a penalty shall be calculated separately with respect to each
section in this Division.
(2) Where a penalty has been paid under this Division and the Chief
Commissioner of Revenue institutes a prosecution under Division III of
this Part in respect of the same act or omission, the Chief Commissioner
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of Revenue shall refund the amount of penalty paid, and the penalty shall
not be payable unless the prosecution is withdrawn.
(3) The Chief Commissioner of Revenue shall —
(a) make an assessment of any penalty imposed under this Division;
and
(b) serve a notice of the assessment on the person subject to the
penalty, which notice shall state the amount of penalty payable and
the due date for payment.
(4) A person liable to pay penalty may apply, in writing, to the Chief
Commissioner of Revenue for remission of the penalty payable.
(5) The Chief Commissioner of Revenue may, upon application under
subsection (4) or of his own motion, remit, in whole or in part, any
penalty payable by a person.
DIVISION III - OFFENCES AND PENALTIES
36 Failure to deliver tax return
Any taxpayer who without reasonable cause fails to deliver a tax return by the
due date, or within such further time as the Chief Commissioner of Revenue
may allow under section 4, commits an offence and shall be liable upon
conviction to a fine not exceeding $10,000.
37 Failure to comply with notice
Any person who, without reasonable excuse, fails to comply with a notice served
on the person under section 15 commits an offence and shall be liable upon
conviction to a fine not exceeding $10,000.
38 Failure to comply with section 18
Any liquidator who fails to comply with section 18 commits an offence and shall
be liable upon conviction to a fine not exceeding $10,000.
39 Failure to comply with section 19
Any person who fails to comply with an order under section 19 (2) or a notice
under section 19 (4) commits an offence and shall be liable upon conviction to a
fine not exceeding $10,000.
Section 40 Revenue Services Administration Act 2002
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40 Failure to maintain proper records
Any taxpayer who fails to maintain proper accounts, documents, or records in
accordance with the requirements of any revenue law commits an offence and
shall be liable upon conviction —
(a) where the taxpayer knowingly failed to maintain proper accounts,
documents, or records, to a fine not exceeding $10,000 or to
imprisonment for a term not exceeding 3 years, or both; or
(b) in any other case, to a fine not exceeding $5,000.
41 Failure to provide assistance
Any person who fails to provide facilities and assistance as required by section
21(4) commits an offence and shall be liable upon conviction to a fine not
exceeding $10,000.
42 Failure to comply with a section 22 notice
Any person who, without reasonable explanation, fails to comply with a notice
under section 22 commits an offence and shall be liable upon conviction to a
fine under section 22 and shall be liable upon conviction to a fine not exceeding
$10,000.
43 False identification number
(1) Any person who knowingly and fraudulently uses a false Taxpayer
Identification Number on any return or document prescribed or used for
the purposes of any revenue law commits an offence and shall be liable
upon conviction to a fine not exceeding $10,000 or to imprisonment for a
term not exceeding 3 years, or both.
(2) A person who uses the Taxpayer Identification Number of another person
shall be treated as having used a false Taxpayer Identification Number,
except where the person has used the Taxpayer Identification Number of
another person with permission of that other person on a document
relating to the tax affairs of that other person.
44 False statements
(1) Any person who knowingly makes a false or misleading statement or
omits from such statement any material particular commits an offence and
shall be liable upon conviction to a fine not exceeding $10,000 or
imprisonment for a term not exceeding 3 years, or both; or
Revenue Services Administration Act 2002 Section 45
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(2) Under this section it is a defence to a prosecution if the person who made
the statement did not know and could not reasonably be expected to know
that the statement was false or misleading.
(3) Section 34(4) shall apply in determining whether a person has made a
statement to a taxation officer.
45 Obstruction
Any person who wilfully obstructs a taxation officer in the performance of
duties under any revenue law commits an offence and shall be liable upon
conviction to a fine not exceeding $3,000 or to imprisonment for a term not
exceeding one year, or both.
46 Abetting
Any person who aids, abets, assists, incites, or induces another person to commit
an offence under any revenue law commits an offence and shall be liable upon
conviction to the same penalty as the principal offender.
47 Offences by companies
(1) Where an offence under any revenue law is committed by a company,
every person who, at the time the offence was committed was —
(a) a director, principal officer, general manager, secretary, or other
similar officer of the company; or
(b) acting or purporting to act in that capacity, shall be treated as
having committed the offence.
(2) Subsection (1) shall not apply to a person where —
(a) the offence was committed without that person's consent or
knowledge; and
(b) the person having regard to the nature of the person's functions and
all the circumstances has exercised reasonable diligence to prevent
the commission of the offence.
48 Compound offences
(1) The Chief Commissioner of Revenue may, where any person has
committed an offence under this Division except under sections 36, 40 or
44, before or after the institution of proceedings, compound such offence
and order the person, by notice in writing, to pay the amount specified in
Section 49 Revenue Services Administration Act 2002
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the notice and such amount shall not exceed the amount of the maximum
fine prescribed for the offence.
(2) The Chief Commissioner of Revenue shall compound an offence under
this section only if the offender admits in writing that he committed the
offence.
(3) Where the Chief Commissioner of Revenue compounds an offence under
this section, the notice shall —
(a) specify the offence committed, the sum of money to be paid, and
the due date for payment;
(b) have a copy of the written admission attached;
(c) be served on the offender;
(d) be final and not subject to any appeal.
(4) Where the Chief Commissioner of Revenue compounds an offence under
this section, the offender shall not be liable for prosecution or penalty in
respect of that offence.
49 Limitation of action
The prosecution of an offence under this Division may be instituted at any time
within 5 years after the commission of the offence.
PART X - RULINGS
50 Orders and rulings
(1) The Chief Commissioner of Revenue may publish orders and rulings of
his application of the revenue law.
(2) An order or ruling published under this section is binding on the Chief
Commissioner of Revenue until revoked.
51 Written Rulings
(1) The Chief Commissioner of Revenue may, upon application in writing by
a taxpayer, issue to the taxpayer a written ruling setting out the Chief
Commissioner of Revenue's position regarding the application of a
revenue law to a transaction entered into, or proposed to be entered into,
by the taxpayer.
(2) Where —
Revenue Services Administration Act 2002 Section 52
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(a) the taxpayer has made a full and true disclosure of all aspects of the
transaction relevant to the ruling; and
(b) the transaction has proceeded in all material respects as described in
the taxpayer's application for the ruling,
the ruling shall be binding on the Chief Commissioner of Revenue.
PART XI - FORMS AND NOTICES
52 Forms and notices, authentication of documents
(1) The Chief Commissioner of Revenue shall make documents prescribed by
Regulations available.
(2) A notice or other document issued or served by the Chief Commissioner
of Revenue under any revenue law shall be authenticated by bearing the
official stamp of the Revenue Services.
53 Service of notices
(1) Subject to this Act, any notice or other document required to be served on
a person for the purposes of any revenue law shall be treated as properly
served on the person if —
(a) personally served on the individual or his representative;
(b) left at the person's usual or last known place of abode or business in
Tonga; or
(c) sent by registered post to his last known address.
(2) Service of any notice or document on the town officer for that area in
accordance with this section shall be treated as properly served on the
person on receipt of written confirmation of such officer within 30 days
that he has served it on the person.
(3) The validity of service of any notice under a revenue law shall not be
challenged after the notice has been wholly or partly complied with.
Section 54 Revenue Services Administration Act 2002
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PART XII - ADMINISTRATION
DIVISION I - REVENUE SERVICES DEPARTMENT
54 Revenue Services Department
(1) The Revenue Services Department shall be established within the
Ministry of Finance.
(2) The Revenue Services Department shall be headed by a Commissioner
and assisted by Deputy Commissioners who shall be appointed according
to law.
55 Taxation Officers
(1) The Chief Commissioner of Revenue shall be responsible for the
administration of revenue law.
(2) The Commissioner shall act in accordance with any directions given by
the Chief Commissioner of Revenue.
(3) All taxation officers shall be appointed according to law and shall wear an
official Revenue Services identification card while conducting official
business.
56 Delegation
(1) The Chief Commissioner of Revenue may delegate in writing any duty,
power, or function conferred under this Act.
(2) The Chief Commissioner of Revenue may, at any time, revoke in writing
any delegation under this section.
57 Confidentiality
(1) All documents and information coming into a taxation officer's possession
or knowledge in connection with the performance of duties under any
revenue law shall be confidential.
(2) Nothing in subsection (1) shall prevent the disclosure of any document or
information to —
(a) the Tax Tribunal or Supreme Court in relation to proceedings under
this Act;
Revenue Services Administration Act 2002 Section 58
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(b) any person in the service of Government in a revenue or statistical
department where such disclosure is necessary for the performance
of the person's official duties;
(c) the Auditor-General or any person authorised by the Auditor-
General where such disclosure is necessary for the performance of
official duties; or
(d) to the government of another country with which Tonga has an
agreement, to the extent permitted under that agreement.
(3) All documents or information received by a person under subsection (2)
shall be confidential.
(4) Any person who contravenes this section commits an offence and shall be
liable upon conviction to a fine not exceeding $10,0000 or to
imprisonment for a term not exceeding 3 years, or both.
(5) In this section, “taxation officer” means any person employed by the
Revenue Services Department in any capacity.
DIVISION II - TAX TRIBUNAL
58 Tax Tribunal
There shall be a Tax Tribunal, to hear applications for review of reviewable
decisions.
59 Appointment of members
(1) The Tax Tribunal shall consist of a President and 5 other members of
whom 3 shall constitute a quorum.
(2)
(a) The Chief Justice shall appoint a Judge of the Supreme Court as
President of the Tax Tribunal.
(b) The President shall hold that office as long as he remains a Judge of
the Supreme Court, or until he resigns as President by notice in
writing to the Chief Justice.
(3) The Chief Commissioner of Revenue shall, with the consent of Cabinet,
appoint the members of the Tax Tribunal.
(4) Subject to subsection (5), a person may be appointed as a member if he —
(a) is enrolled as a law practitioner of the Supreme Court;
(b) is a member of the Institute of Chartered Accountants of Tonga;
(c) was previously engaged as a taxation officer; or
Section 60 Revenue Services Administration Act 2002
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(d) has special knowledge, experience, or skills relevant to the
functions of the Tax Tribunal.
(5) The following persons shall not be appointed as a member —
(a) a person who has under any revenue law, been convicted of an
offence, or has been liable to a penalty; or
(b) an undischarged bankrupt.
(6) A member shall be appointed for a term of five years and shall be eligible
for re-appointment.
(7) The Chief Commissioner of Revenue shall remove, with the consent of
Cabinet, by notice in writing any member who —
(a) is an undischarged bankrupt;
(b) is unable to perform the duties of office or for misconduct; or
(c) gives written notice of his resignation.
60 Review of Reviewable decision
(1) Any person who is dissatisfied with a reviewable decision may apply to
the Tax Tribunal for review of the decision.
(2) An application under subsection (1) —
(a) shall be in writing in the prescribed form;
(b) shall be lodged with the Tribunal within 30 days after the person
making the application has been served with notice of the
reviewable decision; and
(c) shall be accompanied by the prescribed fee.
(3) The Tax Tribunal may, upon application in writing, extend the time for
the making an application to the Tribunal for a review of a reviewable
decision.
(4) An application to the Tax Tribunal shall serve a copy of the application on
the Chief Commissioner of Revenue within 5 days of lodging the
application with the Tribunal.
(5) The President may make rules for the conduct of hearings before the Tax
Tribunal.
61 Decision of Tax Tribunal
(1) Where —
(a) the application relates to an objection decision, the Tax Tribunal
shall make an order as set out in section 9; or
Revenue Services Administration Act 2002 Section 62
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(b) the application relates to any other reviewable decision, the
Tribunal may make an order to affirm, vary, or set aside the
decision.
(2) The Tax Tribunal shall —
(a) make a written decision on an application for review as soon as
practicable after the hearing has been completed; and
(b) cause a copy of its decision to be served on each party to the
proceeding within 7 days of the decision.
(3) A decision referred to in subsection (2) shall include the Tax Tribunal's
reasons for the decision and its findings on material questions of fact and
reference to the evidence or other material on which those findings were
based.
(4) Subject to subsection (6), all decisions of the Tax Tribunal shall be public
records.
(5) An authenticated copy of the decision shall be received in court
proceedings in accordance with section 49 of the Evidence Act (Cap. 15).
(6) In releasing information or allowing access to information under
subsection (4), the Tax Tribunal shall ensure that —
(a) the identity and affairs of the applicant and any other person
concerned shall be concealed; and
(b) trade secrets or other confidential information are not disclosed.
PART XIII - MISCELLANEOUS
62 Regulations
The Chief Commissioner of Revenue may, with the consent of Cabinet, make
regulations —
(a) prescribing forms and fees required under this Act;
(b) for the administration of the Tax Tribunal; and
(c) for the proper and efficient administration of this Act.
63 Transition
(1) All appointments made under the Revenue Administration Act 2000 and
subsisting on the date this Act comes into force shall be treated as
appointments made under this Act.
Section 63 Revenue Services Administration Act 2002
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(2) Subject to subsections (3), (4), and (5), this Act shall apply to any act or
omission occurring, or any taxation assessment made, before this Act
came into force.
(3) Any appeal or prosecution commenced before this Act came into force
shall be continued and disposed of as if this Act had not come into force.
(4) Where the period for any application, appeal, or prosecution had expired
before this Act came into force, nothing in this Act shall be construed as
enabling the application, appeal, or prosecution to be made under this Act
by reason only of the fact that a longer period is specified in this Act.
(5) Any tax liability that arose before this Act came into force may be
recovered under this Act, but without prejudice to any action already
taken for the recovery of the tax.
Passed in the Legislative Assembly this 12th day of November, 2002.
