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Value Added Goods and Services Tax Act 1992/1993

CONSOLIDATED ACTS OF SAMOA 2008

VALUE ADDED GOODS AND SERVICES TAX ACT 1992/1993

Arrangement of Provisions

TITLE

PART I
INTRODUCTORY

1. Short Title
1A Commencement
2. Interpretation
3. Meaning of term "financial services"
4. Meaning of term "open market value"
5. Meaning of term "supply"
6. Meaning of term "taxable activity"
7. Administration
8. Act to bind the Government

PART II
IMPOSITION OF TAX

9. Imposition of value added goods and services tax on supply
10. Time of supply
11. Value of supply of goods and services
12. Zero-rating
13. Imposition of value added goods and services tax on imports
14. Imposition of value added goods and services tax on goods liable to excise duty and supplied at "in bond" prices
15. Exempt supplies

PART III
RETURNS AND PAYMENT
OF TAX

16. Taxable periods
17. Taxable period returns
18. Special returns
19. Other returns
20. Accounting basis
21. Calculation of tax payable
22. Allocation of taxable supplies following investigation by Commissioner
23. Goods and services acquired before incorporation
24. Payment of tax
25. Tax invoices
26. Credit and debit notes

PART IV
ASSESSMENT OF TAX

27. Assessment of tax
28. Validity of assessments not affected by failure to comply with Act
29. Assessments deemed correct except in proceedings on objection
30. Evidence of returns and assessments
31. Limitation of time for assessment or amendment of assessment

PART V
OBJECTIONS

32. Objections to certain decisions
33. Objections to assessments
34. Commissioner to consider objections
35. Objection may be submitted to Supreme Court
36. Obligation to remit tax not suspended by objection
37. Determination of objection not to affect other assessments or decisions
38. Objections to which this Part does not apply

PART VI
RECOVERY OF TAX

39. Additional tax to be payable if default made in payment of tax
40. Recovery of tax
41. Application of certain provisions of Income Tax Act 1974 relating to recovery procedures

PART VII
TAX CREDITS, REFUNDS
AND RELIEF FROM TAX

42. Credit for excess tax
43. Tax paid in excess may be set off against tax payable when assessment reopened
44. Power of Commissioner in respect of small amounts
45. Relief from additional tax
46. Appropriation of refunds

PART VIII
REGISTRATION

47. Persons making supplies in course of taxable activity to be registered
48. Cancellation of registration
49. Registered person to notify change of status
50. Liabilities not affected by ceasing to be registered person

PART IX
SPECIAL CASES

51. Branches and divisions
52. Unincorporated bodies
53. Personal Representative, liquidator, receiver, etc.
54. Liability of agent of absentee principal for returns and tax
55. Agents and auctioneers
56. Directors liable when company in default

PART X
PENALTIES

57. Offences
58. Officers and employees of corporate bodies
59. Proceedings to be taken in the District Court
60. Information may charge several offences
61. Information may be laid within 10 years
62. Penal tax in case of evasion
63. Nature of penal tax
64. Assessment of penal tax
65. Objections to penal tax
66. Recovery of penal tax
67. Recovery of penal tax from executors and administrators
68. Recovery of penal tax not affected by conviction of registered person
69. Publication of names of tax evaders

PART XI
GENERAL PROVISIONS

70. Keeping of records
71. Agreement to defeat the intention and application of Act to be void
72. Samoa currency
73. Effect of imposition or alteration of tax
74. Returns to be furnished in 2 parts for taxable period in which change in rate of tax occurs
75. Adjustments to tax payable following change in rate of tax
76. Liability to pay past tax, etc., not affected by alteration in the law
77. Disclosure of information
78. Power to extend time for doing anything under Act
79. Regulations

PART XII
TRANSITIONAL PROVISIONS

80. Registration of persons liable to be registered on 01 January 1994
81. Supplies prior to 1 January 1994
82. Certain contracts entered into on or before the date upon which this Act was first introduced into the Legislative Assembly

PART XIII
CONSEQUENTIAL REPEALS

83. Repeal of existing legislation

THE VALUE ADDED GOODS
AND SERVICES TAX ACT 1992/1993

1992/1993 No. 42

AN ACT to make provision for the imposition and collection of a value added tax on goods and services.

(23 December 1993)
(Commencement date for section 83: 1 January 1994)

PART I
INTRODUCTORY

1. Short Title - This Act may be cited as the Value Added Goods and Services Tax Act 1992/1993.

1A. Commencement - (1) The Principal Act and the Value Added Goods and Services Tax Amendment Act 1993 shall (except for section 83) come into force on the day upon which the Value Added Goods and Services Tax Amendment Act is assented to by the Head of State.

(2) Section 83 shall come into force on the 1st day of January 1994.

2. Interpretation - (1) In this Act, other than in sections 13 and 14, unless the context otherwise requires.

"Additional tax" means additional tax payable under section 39;

"Associated persons" include:

(a) Any two companies which consist substantially of the same shareholders or are under the control of substantially the same persons;

(b) Any company and any person (other than a company) where that person or the spouse or infant child of that person or any trustee for that person or for that spouse or for that infant child hold separately or any two or more of them hold, in the aggregate, 10% or more of the paid up capital or 10% or more in nominal value of the allotted shares of that company;

(c) Any two persons one of whom is the spouse or infant child of the other person, or is a trustee for that spouse or that infant child;

(d) Any two persons, one of whom is a trustee for the other;

(e) Any two persons who are relatives;

(f) Any company and any person where the person is associated with another person who is associated with the company;

(g) Any two or more persons who are partners within the meaning of the Partnership Act 1975 or persons associated with a partnership, -

and "person associated with another person" has a corresponding meaning.

"Commissioner" means the Commissioner of Inland Revenue as defined in the Income Tax Administration Act 1974; and includes a Deputy Commissioner of Inland Revenue as defined in that Act.

"Company" means any body corporate, whether incorporated in Samoa or elsewhere; but does not include a public authority.

"Consideration", in relation to the supply of goods and services to any person, includes any payment made or any act or forbearance, whether or not voluntary, in respect of, in response to, or for the inducement of, the supply of any goods and services, whether by that person or by any other person; but does not include an unconditional gift to any non-profit body.

"Consideration in money" includes consideration expressed as an amount of money.

"Document" includes any electronic data, computer programmes, computer tapes, and computer discs.

"Donated goods and services" means goods and services which are gifted to a non-profit body and are intended for use in the carrying on or carrying out of the purposes of that non-profit body.

"Due date", in relation to the payment of tax by any registered person, means the last day for payment determined in section 24(1) or section 24(2) or section 27(6), as the case may be, in respect of that registered person.

"Exempt supply" means a supply that is exempt from tax pursuant to section 15.

"Food" means food of a type suitable for human consumption.

"Goods" means all kinds of personal or real property; but does not include chooses in action or money.

"Hire," in relation to goods, includes a letting on any terms, including a lease.

"Hire purchase agreement" means an agreement whereby goods are let or hired with an option to purchase, and includes an agreement for the purchase of goods by installments (whether the agreement describes the installments as rent or hire or otherwise); but does not include any agreement under which the property passes absolutely at the time of the agreement to the person who agrees to purchase them.

"Hospital" means any hospital or institution administered by the Ministry of Health pursuant to the Ministry of Health Act 2007 in which any medical, dental, pharmaceutical or nursing services is provided and includes all clinics, dispensaries, outpatient departments, services, offices and undertakings maintained in connection with or incidental to that hospital or institution.

"Input tax", in relation to a registered person, means:

(a) Tax charged and paid under section 9(1) on the supply of goods and services made to that person;

(b) Tax levied and paid under section 13(1) or section 14(1) on goods entered for home consumption under the Customs Act 1977 by that person,-

being in any case goods and services acquired for the principal purpose of making taxable supplies.

"Insurance" means insurance or guarantee against loss, damage, injury, or risk of any kind whatever, whether pursuant to any contract or any enactment; and includes reinsurance; and "contract of insurance" includes a policy of insurance, an insurance cover, and a renewal of a contract of insurance:

PROVIDED THAT nothing in this definition shall apply to any insurance specified in section 3.

International Aid" means any assistance in the form of goods or services provided to the Government of Samoa by any foreign state, organisation or person and includes any assistance for any government project, or any other project or purpose approved by the Minister.

"Invoice" means a document notifying an obligation to make payment; and also includes a receipt or acknowledgement of payment.

"Money" includes:

(a) Bank notes and other currency, being any negotiable instruments used or circulated, or intended for use or circulation, as currency; and

(b) Postal notes and money orders; and

whether of Samoa or any other country, but does not include a collector's piece, investment article, or item of numismatic interest.

"National Revenue Board" means the National Revenue Board established pursuant to the Public Finance Management Act 2001.

"Non-profit body" means any society, association, or organisation, whether incorporated or not:

(a) Which is carried on other than for the purposes of profit or gain to any proprietor, member, or shareholder; and

(b) Which is, by the terms of its memorandum, articles of association, rules, or other document constituting or governing the activities of that society, association, or organisation, prohibited from making any distribution whether by way of money, property, or otherwise howsoever, to any such proprietor, member, or shareholder.

"Office of Parliament" means the administrative and support services and staff of:

(a) The Ombudsman;

(b) The Controller and Chief Auditor.

"Output tax", in relation to any registered person, means the tax charged pursuant to section 9(1) in respect of the supply of goods and services made by that person.

"Penal tax" means penal tax charged under section 62.

"Person" includes a body corporate, a public authority, and an unincorporated body of persons.

"Prescribed form" means a form prescribed by regulations made under this Act; or in any case where no form is prescribed by regulations means a form approved by he Commissioner or by the Comptroller of Customs as the case may be.

"Produce" means produce from the activity of agriculture or aqua culture and includes any fruits, vegetables, root crops, fish or other aquatic produce.

"Public authority" means all instruments of the Government of Samoa, whether departments, corporations, agencies, or other instruments; and includes offices of Parliament; but does not include the Head of State, members of the Council of Deputies, members of the Executive Council, Cabinet Ministers, or members of Parliament.

"Raw and unprocessed state" means not yet cooked, smoked or baked; not yet processed by any mechanical or chemical means, or otherwise other than through basic separation, cutting of parts, packing or freezing (not being the process of freezing through blast or snap freezing), unmanufactured; undiluted, unpounded.

"Recipient", in relation to any supply of goods and services, means the person receiving the supply.

"Registered person" means a person who is registered or is liable to be registered under this Act.

"Registration number", in relation to any registered person, means the number allocated to that registered person for the purposes of this Act.

"Relative" has the meaning defined in section 2 of the Income Tax Act 1974.

"Resident" means resident as determined in accordance with the Income Tax Act 1974:

PROVIDED THAT, notwithstanding anything in that Act:

(a) A person shall be deemed to be resident in Samoa to the extent that such person carries on, in Samoa, any taxable activity or any other activity, while having any fixed or permanent place in Samoa relating to that taxable activity or other activity;

(b) A person who is an unincorporated body of persons, or is otherwise a body (as defined in section 52), shall be deemed to be resident in Samoa if that body has its centre of administrative management in Samoa.

"Return" means any return required to be furnished under Part III.

"Revenue from the Government" means revenue received from the Government (not being revenue received from any other public authority) by any public authority for the supply of outputs by that public authority; but does not include:

(a) Any value added goods and services tax, chargeable in accordance with the provisions of this Act, on the supply of outputs by that public authority;

(b) Any revenue collected by that public authority as agent on behalf of the Government;

"Services" means anything which is not goods or money.

"Supplier", in relation to any supply of goods and services, means the person making the supply.

"Tax" means value added goods and services tax.

"Tax fraction" means the fraction calculated in accordance with the following formula:

100 + a

where a

is the rate of tax specified in section 9 (1) of this Act:

"Tax invoice" means a document provided pursuant to section 25.

"Tax payable" means an amount of tax calculated in accordance with section 21 of this Act; and include:

(a) Any amount referred to in section 18 (2) or section 27 (9);

(b) Any amount of additional tax.

"Taxable period", in relation to a registered person, means a taxable period determined under section 16.

"Taxable supply" means any supply of goods and services in Samoa which is charged with tax pursuant to section 9, including tax charged at the rate of zero percent pursuant to section 12.

"Trustee" includes an executor and administrator; and also includes the Public Trustee.

"Unconditional gift" means a payment other than a government grant or subsidy voluntarily made to any non-profit body for the carrying on or carrying out of the purposes of that non-profit body and in respect of which no identifiable direct valuable benefit arises or may arise in the form of a supply of goods and services to the person making that payment, or any other person where that person and that other person are associated persons.

(2) For the purposes of this Act, a reference to goods and services includes a reference to goods or services.

3. Meaning of term "financial services" - (1) For the purposes of this Act, the term "financial services" means any one or more of the following activities:

(a) The exchange of currency (whether effected by the exchange of bank notes or coin, by crediting or debiting accounts, or otherwise);

(b) The issue, payment, collection, or transfer of ownership of a cheque or letter of credit;

(d) The issue, allotment, or transfer of ownership of an equity security or a participatory security;

(e) Underwriting or sub-underwriting the issue of an equity security, debt security, or participatory security;

(f) The provision of credit under a credit contract;

(g) The renewal or variation of a debt security, equity security, participatory security, or credit contract;

(h) The provision, taking, variation, or release of a guarantee, indemnity, security, or bond in respect of the performance of obligations under a cheque, credit contract, equity security, debt security, or participatory security, or in respect of the activities specified in paragraphs (b) to (g);

(i) The provision, or transfer of ownership, of a life insurance contract or the provision of re-insurance in respect of any such contract;

(j) The provision, or transfer of ownership, of an interest in a superannuation scheme, or the management of a superannuation scheme;

(k) The provision or assignment of a futures contract through a futures exchange;

(l) The payment or collection of any amount of interest, principal dividend, or other amount whatever in respect of any debt security, equity security, participatory security, credit contract, contract of life insurance, superannuation scheme, or futures contract;

(m) Agreeing to do, or arranging, any of the activities specified in paragraphs (a) to (l), other than advising thereon.

(2) For the purposes of this section, "Credit contract" means:

(a) A contract under which a person provides or agrees to provide money or money's worth in consideration of a promise by another person to pay, or to procure the payment of, in the future and in respect of the provision, a sum or sums of money exceeding in aggregate the amount of the first mentioned money or money's worth; or

(b) A contract under which a person forbears or agrees to forbear from requiring payment of money owing to him in consideration of a promise by another person to pay, or to procure the payment of, in the future and in respect of the forbearance, a sum or sums of money exceeding in aggregate the amount of the first mentioned money.

(3) For the purposes of this section:

"Cheque" means a cheque as defined in the Bills of Exchange Act 1976.

"Currency" means any banknote or other currency of any country, other than when used as a collector's piece, investment article, item of numismatic interest, or otherwise than as a medium of exchange.

"Debt security" means any interest in or right to be paid money that is, or is to be, owing by any person; but does not include a cheque.

"Equity security" means any interest in or right to a share in the capital of a body corporate.

"General accounting and record package services", in relation to financial services, includes:

(a) The provision of any financial clearing system which may form part of a settlement process; and

(b) The posting of transactions to customers' accounts; and

(d) The provision of any ancillary services (such as network management, software support and development) supplied in relation to the services referred to in any of paragraphs (a), (b), and (c) of this definition,-

but does not include the services referred to in paragraphs (a) to (d) of this definition where those services are supplied by a supplier of a financial service and are reasonably incidental and necessary to the supply of that financial service by that supplier of the financial service.

"Life insurance contract" means a contract lawfully entered into to the extent that it places a sum or sums at risk upon the contingency of the termination or continuance of human life, or marriage, or the birth of a child.

"Participatory security" means any interest or right to participate in any capital, assets, earnings, or other property of any person where that interest or right forms part of a contributory scheme; and includes an interest in a unit trust; but does not include an equity security, a debt security, money, or a cheque.

"Superannuation scheme" means any scheme or fund which the Commissioner is satisfied would meet all the conditions required for an employer to be allowed a deduction from the residual assessable income of that employer, under the provisions of section 26 of the Income Tax Act 1974, notwithstanding the fact that the employer may not otherwise be subjected to any liability under the Income Tax Act 1974 or be required to obtain a decision under the said section 26 of that Act.

(4) Notwithstanding subsection (3), the terms "debt security", "equity security", and "participatory security" do not include any of the following:

(a) A life insurance contract or any other contract of insurance;

(b) An estate or interest in land, other than an estate or interest as mortgagee or chargeholder;

(5) Notwithstanding anything in this section, the term "financial services" does not include the assignment or other transfer of any right to receive payment in relation to any taxable supply where, as a result of any such assignment or transfer, output tax in relation to that taxable supply would not be or become attributable to any taxable period for the purposes of section 21(6).

(6) Notwithstanding anything in this section, where any person supplies goods and services (being the supply of general accounting and record package services) to any person who is a supplier of financial services, or to a customer of the person who is a supplier of financial services, that supply shall, for the purposes of this Act, be deemed not to be a supply of financial services.

4. Meaning of term "open market value" - (1) For the purposes of this section:

(a) The term "similar supply", in relation to a supply of goods and services, means any other supply of goods and services that, in respect of the characteristics, quality, quantity, functional components, materials, and reputation of the goods and services first mentioned, is the same as, or closely or substantially resembles, that supply of goods and services;

(b) The open market value of a supply shall include any goods and services tax charged pursuant to section 9(1) on that supply.

(2) For the purposes of this Act, the open market value of any supply of goods and services at any date shall be the consideration in money which the supply of those goods and services would generally fetch if supplied in similar circumstances at that date in Samoa, being a supply freely offered and made between persons who are not associated persons.

(3) Where the open market value of any supply of goods and services cannot be determined under subsection (2), the open market value shall be the consideration in money which a similar supply would generally fetch if supplied in similar circumstances at that date in Samoa, being a supply freely offered and made between persons who are not associated persons.

(4) Where the open market value of any supply of goods and services cannot be determined pursuant to subsection (2) or subsection (3), the open market value shall be determined in accordance with a method approved by the Commissioner which provides a sufficiently objective approximation of the consideration in money which could be obtained for that supply of those goods and services.

(5) For the purposes of this Act the open market value of any consideration, not being consideration in money, for a supply of goods and services shall be ascertained in the same manner, with any necessary modifications, as the open market value of any supply of goods and services is ascertained pursuant to the foregoing provisions of this section.

5. Meaning of term "supply" - (1) For the purposes of this Act, the term "supply" means all forms of supply, including the provision of rental premises.

(2) For the purposes of this Act, where any goods acquired (whether in terms of a hire purchase agreement or otherwise) or produced by a person (that person being referred to hereafter in this subsection as the first person) are sold, under a power exercisable by another person (that person being referred to hereafter in this subsection as the second person), in or towards the satisfaction of a debt owed by the first person, those goods shall be deemed to be supplied in the course or furtherance of a taxable activity carried on by the first person (being deemed a registered person), unless:

(a) The first person has furnished to the second person statement in writing that the supply of those goods would not be a taxable supply if those goods were sold by the first person (notwithstanding that the first person may not be the owner of those goods), and stating fully the reasons why that supply would not be a taxable supply; or

(b) Where the second person has been unable to obtain the written statement referred to in paragraph (a), that person may determine, in relation to any reasonable information held, that the supply of those goods would not have been a taxable supply if those goods had been sold by the first person (notwithstanding that the first person may not be the owner of those goods).

(3) For the purposes of this Act, where a person ceases to be a registered person, any goods and services then forming part of the assets of a taxable activity carried on by that person shall be deemed to be supplied by that person in the course of that taxable activity at a time immediately before that person ceases to be a registered person, unless the taxable activity is carried on by another person who, pursuant to section 53, is deemed to be a registered person.

(4) For the purposes of this Act, every public authority shall be deemed to supply goods and services, where:

(a) Any payment is made by the Government to or on behalf of the public authority in relation to any payment for the supply of goods and services other than for goods and services which do not constitute a taxable activity in the terms of section 6(3) (d) or section 6(3) (e);

(b) Any amount is brought to account as a revenue of the Government or a public authority, from any person, including the Government, by way of any charge, fee, impost, levy, payment or rate, imposed under any statute, regulation rule, or written authority, whether in the case of a public authority it is retained by that public authority for its own use or transferred to the Government:

PROVIDED THAT this paragraph shall not apply to any income tax due to the Inland Revenue Department under the Inland Revenue Acts, or to any customs tariff or excise tax due to the Customs Department under the Customs Acts:

- or any stamp duty under the Stamp Duty Act, or any petroleum levy under the Petroleum Act, or any foreign exchange levy under the Foreign Exchange levy Act.

(5) For the purposes of this Act, where any payment in the nature of a grant or subsidy is made on behalf of the Government or by any public authority to:

(a) Any person (not being a public authority) in relation to or in respect of that person's taxable activity; or

(b) Any person for the benefit and on behalf of another in relation to or in respect of that other person's taxable activity,-

that payment shall be deemed to be consideration for a supply of goods and services by the person to whom or for whose benefit the payment is made in the course or furtherance of that person's taxable activity.

(6) For the purposes of subsection (5), the term "payment in the nature of a grant or subsidy":

(a) Includes:

(i) Any suspensory loan or advance, when that loan or advance becomes non-repayable by reason of its conditions for non-repayment being satisfied; and

(ii) Any payment in the nature of a grant or subsidy of a kind that is declared by the Head of State by Order to be a taxable grant or subsidy for the purposes of subsection (5), being a payment that, but for such declaration, would be excluded from this definition by virtue of paragraph (b)(ii) of this subsection.

(b) Does not include:

(i) Any payment of a benefit paid under Part XII of the National Provident Fund Act 1972; or

(ii) Subject to paragraph (a)(ii), any other payment made to a person where the payment is for the personal use and benefit of the person or, as the case may be, a relative of the person; or

(iii) Any payment of a kind that is declared by the Head of State by Order not to be a taxable grant or subsidy for the purposes of subsection (5).

(7) Notwithstanding anything in this Act, for the purposes of this Act where any person bets any money on any horse race, the amount of money so bet shall be deemed to be for a supply of services:

(a) By the holder of a totalisator licence under section 11 of the Gaming Act 1978, in the case of money placed as a bet with that licence holder;

(b) By the Totalisator Agency Board in the case of money placed as a bet with the Board at an office or agency of the Board, where that amount of money is dealt with in terms of sections 35 and 36 of the Betting (Totalisator Agency) Act 1990;

(c) By the holder of a licence under section 16A of the Betting (Totalisator Agency) Act 1990 in the case of money placed as a bet with that licence holder.

(8) Notwithstanding anything in this Act, for the purposes of this Act where any person pays an amount in money to participate in a game of chance, or lottery, the amount of money so paid to participate shall be deemed to be for a supply of services by the person, society, promoter, or organiser who conducts the game of chance or lottery.

(9) For the purposes of subsection (8):

"Game of chance" includes bingo, as that term is defined in section 2 of the Gaming Act 1978.

"Lottery" includes a lottery as defined by section 2 of the Gaming Act 1978 and includes also a lottery as defined by section 2 of the National Lotteries Act 1978.

"Promoter" includes the National Lotteries Board established pursuant to the National Lotteries Act 1978.

(10) The disposition of a taxable activity as a going concern shall be deemed to be a supply of goods made in the course or furtherance of the taxable activity.

(11) For the purposes of this Act, except for section 21 (3), where a registered person receives any indemnity payment pursuant to a contract of insurance, that payment shall, to the extent that it relates to a loss incurred in the course of making a taxable supply, be deemed to be consideration received for a supply of services performed on the day of receipt of that indemnity payment by that registered person in the course or furtherance of that person's taxable activity:

PROVIDED THAT this subsection shall not apply in respect of any indemnity payment received pursuant to a contract of insurance where:

(a) The supply of that contract of insurance is not a supply charged with tax pursuant to section 9 (1); or

(b) That payment is to indemnify for any loss of earnings (being earnings within the meaning of the Accident Compensation Act 1989).

(12) For the purposes of this Act, where a supply is charged with tax in part under section 9 and in part under section 12, each such part shall be deemed to be a separate supply.

6. Meaning of term "taxable activity" - (1) For the purposes of this Act, the term "taxable activity" means:

(a) Any activity which is carried on continuously or regularly by any person, whether or not for a pecuniary profit, and involves or is intended to involve, in whole or in part, the supply of goods and services to any other person for a consideration; and includes any such activity carried on in the form of a business, trade, manufacture, profession, vocation, association, or club;

(b) Without limiting the generality of paragraph (a), the activities of any public authority.

(2) Anything done in connection with the commencement or termination of a taxable activity shall be deemed to be carried out in the course or furtherance of that taxable activity.

(3) Notwithstanding anything in subsections (1) and (2), for the purposes of this Act the term "taxable activity" shall not include, in relation to any person:

(a) Being a natural person, any activity carried on entirely as a private recreational pursuit or hobby; or

(b) Not being a natural person, any activity which, if it were carried on by a natural person, would be carried on entirely as a private recreational pursuit or hobby; or

PROVIDED THAT where any person, in carrying on any taxable activity, accepts any office, any services supplied by that person as the holder of that office shall be deemed to be supplied in the course or furtherance of that taxable activity; or

(d) Any engagement, occupation, or employment:

(i) Pursuant to the Civil List Act 1964;

(ii) As a Judge, Attorney-General, Controller and Chief Auditor or Ombudsman;

iii) Pursuant to an appointment made by the Head of State and evidenced by a warrant or by an Order;

(iv) As a Chairperson or member of any statutory board, council, committee, or other body; or

(e) That part of an activity to the extent to which the activity involves the making of exempt supplies.

7. Administration - (1) This Act, other than sections 13 and 14, is hereby declared to be one of the Inland Revenue Acts within the meaning of the Income Tax Administration Act 1974, and the First Schedule to that Act is hereby accordingly amended by adding a reference to this Act.

(2) The provisions of the Income Tax Administration Act 1974 relating to the functions responsibilities and powers of the Commissioner, the Deputy Commissioner, officers, members and employees of the Inland Revenue Department for the purpose of carrying out the administration of the Inland Revenue Acts shall with the necessary modifications apply to this Act.

(3) Sections 13 and 14 are for the purposes of section 3(1)(f) of the Customs Act 1977 declared to be a Customs Act.

(4) The provisions of the Customs Act 1977 relating to the functions responsibilities and powers of the Minister, the Comptroller, the Collector, officers, members and employees of the Customs Department for the purpose of carrying out the administration of the Customs Acts shall with the necessary modifications apply to sections 13 and 14.

8. Act to bind the Government - This Act shall bind the Government.

PART II
IMPOSITION OF TAX

9. Imposition of value added goods and services tax on supply - (1) Notwithstanding the provision of any other Act and, subject to this Act, a tax, to be known as value added goods and services tax, shall be charged in accordance with the provisions of this Act at the rate of 15 percent on the supply (but not including an exempt supply) in Samoa of goods and services, on or after the 1st day of January 1994, by a registered person in the course or furtherance of a taxable activity carried on by that person, by reference to the value of that supply.

(2) For the purposes of this Act, goods and services shall be deemed to be supplied in Samoa if the supplier is resident in Samoa, and shall be deemed to be supplied outside Samoa if the supplier is not resident in Samoa:

PROVIDED THAT:

(a) Goods and services shall be deemed to be supplied in Samoa if the supplier is not resident in Samoa and either:

(i) The goods are in Samoa at the time of supply; or

(ii) The services are physically performed in Samoa by any person who is in Samoa at the time the services are performed.

(b) Where goods and services that are deemed to be supplied in Samoa pursuant to paragraph (a) of this proviso are supplied to a registered person for the purposes of carrying on that person's taxable activity, those goods and services shall be deemed to be supplied outside Samoa unless the supplier and the recipient agree that this paragraph shall not apply to that supply.

10. Time of supply - (1) Subject to this Act, for the purposes of this Act a supply of goods and services shall be deemed to take place at the earlier of the time an invoice is issued by the supplier or the recipient or the time any payment is received by the supplier, in respect of that supply.

(2) Notwithstanding anything in subsection (1), a supply of goods and services shall be deemed to take place where the supplier and the recipient are associated persons:

(i) In the case of a supply of goods which are to be removed, at the time of the removal; and

(ii) In the case of a supply of goods which are not to be removed, at the time when they are made available to the recipient; and

(iii) In the case of a supply of services, at the time the services are performed:

PROVIDED THAT this paragraph shall not apply in any case where an invoice is issued, or any payment is made, in respect of that supply, on or before the last day for furnishing the return in relation to the taxable period during which, but for this proviso, that supply would have been made.

(3) Notwithstanding anything in subsection (1) or subsection (2):

(a) Where goods are supplied under an agreement to hire, or where services are supplied under any agreement or enactment which provides for periodic payments, they shall be deemed to be successively supplied for successive parts of the period of the agreement or the enactment, and each of the successive supplies shall be deemed to take place when a payment becomes due or is received, whichever is the earlier;

(b) Where and to the extent that.

(i) Goods are supplied progressively or periodically pursuant to any agreement or enactment which provides for the consideration for that supply to be paid in installments or periodically and in relation to the periodic or progressive supply of those goods; or

(ii) Goods and services supplied directly in the construction, major reconstruction, manufacture, or extension of a building or an engineering work are supplied pursuant to any agreement or enactment which provides for the consideration for that supply to become due and payable in installments or periodically in relation to the progressive nature of that construction, manufacture, or extension,-

those goods and services shall be deemed to be successively supplied, and each such successive supply shall be deemed to take place whenever any payment in respect of any supply becomes due, is received, or any invoice relating only to that payment is issued, whichever is the earlier.

(c) Where goods and services are supplied under a hire purchase agreement, that supply shall be deemed to take place at the time the agreement is entered into;

(d) For the purposes of this subsection, the term "agreement to hire" means an agreement for the bailment of goods for hire and includes a lease of goods and a rental agreement,-

but does not include:

(i) An agreement under which the property in the goods passes to the bailee or which expressly contemplates that the property in the goods will pass to the bailee; or

(ii) A hire purchase agreement.

(4) Subject to subsection (2), where goods are supplied under an agreement, other than an agreement to hire (as defined in subsection (3)(d)), and the goods or part of them are appropriated under that agreement by the recipient in circumstances where the whole of the consideration is not determined at the time they are appropriated, that supply shall be deemed to take place when and to the extent that any payment under the agreement is due or is received or an invoice relating to the supply is issued by the supplier or the recipient, whichever is the earlier.

(5) Notwithstanding anything in this section, where any public authority is deemed to have supplied goods and services pursuant to section 5(4), the supply shall, to the extent that the supply is brought to charge as revenue from the government, be deemed to take place in the taxable period in which the bringing to charge applies.

(6) Notwithstanding anything in subsection (1), where the supply is deemed to be made pursuant to section 5(8), the supply shall be deemed to take place on the date on which the first drawing or determination of a result of the game of chance or lottery commences.

(7) Where the supply is for a consideration in money received by the supplier by means of any machine, meter or other device operated by a coin or token, the supply shall be deemed to take place at the time any such coin or token is taken from that machine, meter or other device by or on behalf of the supplier.

11. Value of supply of goods and services - (1) For the purposes of this Act the following provisions of this section shall apply for determining the value of any supply of goods and services.

(2) Subject to this section, the value of a supply of goods and services shall be such amount as, with the addition of the tax charged, is equal to the aggregate of:

(a) To the extent that the consideration for the supply is consideration in money, the amount of the money;

(b) To the extent that the consideration for the supply is not consideration in money, the open market value of that consideration.

(3) Subject to subsections (4) and (6), where:

(a) A supply is made by a person for no consideration or for a consideration in money that is less than the open market value of that supply; and

(b) The supplier and the recipient are associated persons; and the consideration in money for the supply shall be deemed to be the open market value of that supply.

(4) Subsection (3) shall not apply to any supply made by a registered person where the recipient:

(a) Acquired that supply for the principal purpose of making taxable supplies; and

(b) Is entitled, under section 21(3), to make a deduction in respect of that supply.

(5) deleted by the Value Added and Services Goods Tax Amendment Act 1998

(6) Where goods and services are deemed to be supplied by a person under section 5(3), the consideration in money for that supply shall be deemed to be the lesser of:

(a) The cost of those goods and services to the supplier, including any tax charged in respect of the supply of those goods and services to that supplier;

(b) The open market value of that supply.

(7) Notwithstanding anything in this section, where goods and services are, or are deemed to be, supplied by any public authority:

(a) Pursuant to section 5(4)(a), the consideration in money for any such supply shall be an amount equal to any amount from time to time paid by the Government to or on behalf of that public authority for that supply; or

(b) Pursuant to section 5(4)(b), the value of any such supply shall be an amount equal to any amount that is from time to time brought to charge as revenue from the Government in respect of the supply of outputs by that public authority.

(8) Where a taxable supply is not the only matter to which a consideration relates, the taxable supply shall be deemed to be for such part of the consideration as is properly attributable to it.

(9) Where a supply of services is deemed to be made under section 5(8) of this Act, the consideration in money for the supply shall be deemed to be such portion of the amount in money a person pays to participate in a game of chance or lottery, as represents the total proceeds (after deducting the amount of all prizes paid and payable in money) in respect of that game of chance or lottery.

12. Zero-rating - (1) Where, but for this section, a supply of goods would be charged with tax under section 9, any such supply shall be charged at the rate of zero percent where:

(a) The supplier has entered the goods for export, pursuant to the Customs Act 1977, and those goods have been exported by the supplier; or

(b) The goods have been deemed to be entered for export, pursuant to the Customs Act 1977, and the goods have been exported by the supplier; or

(c) The supplier has satisfied the Commissioner that the goods have been exported by the supplier to a place outside Samoa; or

(d) Subject to subsection (3), the supplier will enter the goods for export, pursuant to the Customs Act 1977, in the course of, or as a condition of, making the supply and will export the goods; or

(e) Subject to subsection (3), the goods will be deemed to be entered for export, pursuant to the Customs Act 1977, and exported by the supplier in the course of, or as a condition of, making the supply; or

(f) Subject to subsection (5), the goods are supplied by a supplier licensed, pursuant to section 82 of the Customs Act 1977, as an export warehouse, and: (i) The supplier has been licensed by the Comptroller to operate a sealed bag system; and

(ii) The goods are supplied in accordance with the sealed bag system; and

(iii) The goods are entered, or are deemed to be entered, for export pursuant to the Customs Act 1977; or

(g) The goods are not situated in Samoa at the time of supply and are not to be entered into Samoa for home consumption pursuant to the Customs Act 1977; or

(h) The goods have been supplied in the course of repairing, renovating, modifying, or treating any goods to which subsection (6)(f)(ii) refers and the goods supplied:

(i) Are wrought into, affixed to, attached to, or otherwise form part of those other goods; or

(ii) Being consumable goods, become unusable or worthless as a direct result of being used in that repair, renovation, modification, or treatment process; or

(i) The goods have been supplied for use as stores for consumption outside Samoa on an aircraft or a ship going to a destination outside Samoa; or

(j) The supply is to a registered person of a taxable activity as a going concern or of a part of a taxable activity as a going concern where that part is capable of separate operation; or

(k) The goods are supplied for and to the Head of State:

PROVIDED THAT paragraphs (a), (g), (h) and (i) shall not apply in respect of any supply of goods by a registered person, being goods which have been or will be reimported to Samoa by the supplier.

(2) For the purposes of this section:

"Comptroller" means the Comptroller of Customs as defined in section 2 of the Customs Act 1977.

"Sealed bag" system means a system whereby a supplier:

(a) Is licensed to operate an export warehouse; and

(b) May, with the authorization of the Comptroller, and subject to any conditions the Comptroller may specify, supply goods in a sealed bag to individuals intending to travel overseas within 5 days of the time of supply; and

(c) In terms of the conditions specified by the Comptroller is required to provide evidence that the goods have been exported from Samoa within 28 days of the time of supply.

(3) In any case where paragraph (d) or paragraph (e) of subsection (1) applies, and the goods are not exported by the supplier within:

(a) Twenty eight days of the time of supply; or

(b) Such longer period, from the time of supply, as the Commissioner has determined pursuant to subsection (4),-

the goods shall, notwithstanding paragraphs (d) and (e) of subsection (1), but subject to paragraphs (a) and (b) of subsection (1) and to subsection (4), be charged with tax under section 9 of this Act.

(4) In any case where paragraph (d) or paragraph (e) of subsection (1) applies and the Commissioner has determined, upon application by the supplier in writing, that:

(a) Circumstances beyond the control of the supplier and recipient have prevented, or will prevent, the exportation of those goods within 28 days of the time of supply; or

(b) Due to the nature of the supply, it is not practicable for the supplier to export those goods, or a class of those goods, within 28 days of the time of supply,-

the Commissioner may extend the 28 day period before the supply of goods is charged with tax under section 9, as the Commissioner sees fit.

(5) In any case where subsection (1)(f) applies and the goods cannot be evidenced, as specified by the Comptroller in accordance with the sealed bag system, as being exported within 28 days of the time of supply, the supply shall be charged with tax under section 9.

(6) Where, but for this section, a supply of services would be charged with tax under section 9, any such supply shall be charged at the rate of zero percent where:

(a) The services (not being ancillary transport such as loading, unloading, and handling) comprise the transport of passengers or goods:

(i) From a place outside Samoa to another place outside Samoa; or

(ii) From a place in Samoa to a place outside Samoa; or

(iii) From a place outside Samoa to a place in Samoa; or

(b) The services comprise the transport of passengers from a place in Samoa to another place in Samoa where the transport is by aircraft and forms part of a carriage which originates outside Samoa;

(c) The services (including any ancillary transport activities such as loading, unloading, and handling) comprise the transport of goods from a place in Samoa to another place in Samoa to the extent that those services are supplied by the same supplier as part of the supply of services to which paragraph (a)(ii) or (a)(iii) applies; or

(d) The services comprise the insuring or the arranging of the insurance or the arranging of the transport of passengers or goods to which any provision of paragraphs (a) to (c) applies; or

(e) The services are supplied directly in connection with land, or any improvement thereto, situated outside Samoa; or

(f) The services are supplied directly in connection with:

(i) Movable personal property, other than choses in action, situated outside Samoa when the services are performed; or

(ii) Goods referred to in either section 48(2) or section 164 of the Customs Act 1977, notwithstanding that they are in Samoa; or

(g) The services are physically performed outside Samoa; or

(h) The services are supplied for and to a person who is not resident in Samoa and who is outside Samoa at the time the services are performed, not being services which are supplied directly in connection with:

(i) Land or any improvement thereto situated inside Samoa; or

(ii) Moveable personal property (other than choses in action, and other than goods referred to in paragraph (f)(ii)) situated inside Samoa at the time the services are performed,-

and not being services which are the acceptance of an obligation to refrain from carrying on any taxable activity, to the extent that the conduct of that activity would have occurred within Samoa; or

(i) The services are:

(i) The filing, prosecution, granting, maintenance, transfer, assignment, licensing, or enforcement of intellectual property rights, including patents, designs, trade marks, copyrights, plant variety rights, know-how, confidential information, trade secrets, or similar rights; or

(ii) Other services in respect of such rights, including services involved in the making of searches, the giving of advice, opposing the grant or seeking the revocation of such rights, or opposing steps taken to enforce such rights; or

(iii) The acceptance of an obligation to refrain from pursuing or exercising in whole or in part any such rights,-

where and to the extent that those rights are for use outside Samoa; or

(j) The services are:

where and to the extent that those services are supplied for and to a person who is not resident in Samoa and who is outside Samoa when the service is performed; or

(k) The services are the acceptance of an obligation to refrain from carrying on any taxable activity, where the conduct of the taxable activity would have occurred outside Samoa; or

(l) The services are supplied for and to the Head of State.

(m) The supply of educational services by primary schools, secondary schools or colleges and tertiary institutions approved by the Minister; or

(n) The supply of medical goods and services provided in hospitals.

(o) The supply of water by the Water Authority under the Samoa Water Authority Act 2003 but not including the provision of services by the Water Authority under private contract such as the drilling of bores or the installation of pipes.

13. Imposition of value added goods and services tax on imports - (1) Notwithstanding anything in this Act, a tax to be known as value added goods and services tax shall be levied, collected, and paid in accordance with the provisions of this section at the rate of 10 percent on the importation of goods into Samoa, being goods that are:

(a) Entered therein, or delivered, for home consumption on or after the 1st day of January 1994 under the Customs Act 1977; or

(b) Before their entry, or delivery, for home consumption or, dealt with on or after the 1st day of January 1994 in breach of any provision of any of the Customs Acts,-

by reference to the value of the goods as determined under subsection (2):

PROVIDED THAT the provisions of this subsection shall not apply:

(i) where goods or services are imported under an international aid project subject to a Memorandum of Understanding, where the terms of the Memorandum of Understanding are inconsistent with this subsection; and

(ii) where the Minister makes a determination to exempt from tax, goods and services imported under any other international aid project or which are donated from overseas for the purposes of aid:

AND PROVIDED FURTHER THAT nothing in subsection (1) shall apply to the importation of aircraft that exceed 15,000kg in weight and with fall under code items 8802.4010 and 8802.4090 of the First Schedule of the Customs Tariff Act 1975.

(2) For the purposes of subsection (1), the value of goods imported into Samoa shall be the sum of the following amounts (excluding any tax charged under this Act):

(a) The amount of the value of the goods determined in accordance with the Customs and Excise Acts (whether or not duty is payable under those Acts);

(b) The amounts of duty (if any) and tax (if any) payable on those goods under the Customs and Excise Acts, but not including any tax levied or charged under this Act; and

(c) The amount paid or payable to transport the goods to Samoa and to insure the goods for such transport, if not already included under paragraph (a) of this subsection; and

(3) Subject to this section, tax levied under subsection (1) shall be collected and paid as if it were Customs duty levied on the importation of goods pursuant to the Customs Act 1977, and as if all goods imported into Samoa were liable to Customs duty.

(4) The following provisions of the Customs Act 1977 shall apply to the collection, payment, and enforcement of value added goods and services tax levied under subsection (1):

(a) Sections 2 to 4, Part II, Part III, Part IV (except for sections 80 and 81), Part V, Part VI (only in respect to sections 138, 139, 140, 141, 142, 143, 144, 147, 149, 153, 155, and 164), Part VIII, Part IX, Part X, Part XI, Part XII, Part XIII, Part XIV, and Part XV of the Customs Act 1977:

PROVIDED THAT section 149 shall apply only in respect of goods that are imported by the same person as the person who exported them from Samoa if, at the time of their export from Samoa, those goods were not:

(i) A supply of goods charged with tax at the rate of zero percent pursuant to section 12; or

(ii) A supply of goods, made before the 1st day of January 1994, that would have been charged with tax at the rate of zero percent pursuant to section 12 of this Act if the supply of those goods had taken place on the 1st day of January 1994; and

(b) Sections 156 to 163 and section 165:

PROVIDED THAT this paragraph shall not apply to any registered

person in respect of goods imported for the purpose of carrying on that

person's taxable activity; and

(i) The specifications of the imported goods are not in accordance with the specifications of the goods ordered, or the imported goods are faulty; and

(ii) The recipient is either not a registered person, or is a registered person but does not qualify for an input tax credit in relation to the imported goods; and

(iii) The person who imported the goods exports the goods:

(A) In the case of goods with the wrong specifications, within 2 months after their importation, or such longer period not exceeding 12 months after their importation as may be approved by the Comptroller of Customs; or

(B) In the case of faulty goods, within 12 months after their importation.

(5) No liability to value added goods and services tax shall arise under any provision of the Customs Act 1977 by virtue of the operation of subsection (3) or subsection (4).

(6) For the purposes of this section:

(a) The term "Customs Acts" has the same meaning as defined in section 3 of the Customs Act 1977;

(b) The term "Customs and Excise Acts" means and includes:

(i) The Customs Act 1977;

(ii) The Customs Tariff Act 1975;

(iii) The Excise Tax (Import Administration Act) 1984;

(iv) The Excise Tax Rate 1984;

(v) Every Act amending or in substitution for any of the above-mentioned enactments;

(vi) All orders, regulations and rules made under any such enactment by any competent authority;

(d) The term "taxable activity" has the same meaning as defined in section 6.

14. Imposition of value added goods and services tax on goods liable to excise duty and supplied at "in bond" prices - (1) Notwithstanding anything in this Act, a tax to be known as value added goods and services tax shall be levied, collected, and paid in accordance with the provisions of this section at the rate of 15 percent on any goods manufactured in Samoa of a class or kind liable to excise duty pursuant to the Excise Tax (Domestic Administration) Act 1984, that supply being charged with tax under this Act, which are supplied at a price that does not include such excise duty, by reference to the value of the goods as determined under subsection (2).

(2) For the purposes of any tax levied under subsection (1), the value on which tax is levied shall be deemed to be the amount of the excise duty levied on the goods pursuant to the Excise Tax (Domestic Administration) Act 1984.

(3) Subject to this section, tax levied under subsection (1) shall be collected and paid as if it were excise duty levied on those goods pursuant to the Excise Tax (Domestic Administration) Act 1984.

15. Exempt supplies- The following supplies of goods and services shall be exempt from tax:

(a) The supply of any financial services (together with he supply of any other goods and services, supplied by the supplier of those financial services, which are reasonably incidental and necessary to that supply of financial services), not being:

(i) A supply of financial services which, but for this subparagraph, would be charged with tax at the rate of zero percent pursuant to section 12 (6); or

(ii) A supply of goods and services which (although being part of a supply of goods and services which, but for this subparagraph, would be an exempt supply under this paragraph) is not in itself, as between the supplier of that first-mentioned supply and the recipient, a supply of financial services in respect of which this paragraph applies:

(b) The supply by any non-profit body of any donated goods and services.

(c) The supply of any food or produce grown or produced in Samoa, where that food or produce is in a raw and unprocessed state and where that supply is not a zero-rated supply under section 12.

(d) The supply to passengers of transport services by buses and taxis, but excluding arrangements where buses or taxis are hired to the exclusive use of a customer or customers for a determined period of time or for an agreed journey.

(e) The supply of electricity under the Electric Power Corporation Act 1980.

(f) deleted by the Value Added Goods and Services Tax Amendment Act 1998.

(g) The charge imposed for departing from Samoa under the Civil Aviation Act 1998.

(h) The carriage of passengers by ships within Samoa.

(i) Where an agreement or memorandum of understand-ing relating to an overseas funded aid project for the benefit of the Government or a public authority expressly provides that goods and services used in relation to the project shall be exempt.

PROVIDED THAT no exemption shall be given in relation to goods and services supplied to or by subcontractors or other suppliers to the contractor engaged in relation to any such project.

PART III
RETURNS AND PAYMENT OF TAX

16. Taxable periods - (1) The Taxable period of each registered person shall be determined by their placement by the Commissioner in either category (A) or category (B) as specified below:

(A) Category A, with taxable periods of two months ending on the last day of January, March, May, July, September and November in any year.

(B) Category B, with taxable periods of two months ending on the last day of February, April, June, August, October and December in any year.

(2) Notwithstanding subsection 1 the Commissioner may in his or her absolute discretion transfer a person registered under category (A) or category (B) who fails to comply with any of the provisions of this Act in a special category specified as category (C). The taxable period for any person transferred by the Commissioner to category (C) shall be determined by the Commissioner who may impose a taxable period that is less in duration from those specified under category (A) and (B).

(3) Notwithstanding any other provision in this section, where any registered person dies, or goes into liquidation or receivership, or becomes bankrupt, the date of that person's death, liquidation, receivership or bankruptcy, as the case may be, shall be deemed to be the last day of that person's taxable period.

17. Taxable period returns - (1) Every registered person shall, on or before the 21st day of the month following the last day of every taxable period, furnish to the Commissioner a return, in the prescribed form, setting forth the amount of tax payable in respect of the taxable period by that person under section 21, together with such other particulars as may be prescribed:

PROVIDED THAT where the Commissioner is satisfied that in order to meet the circumstances of any non-profit body or any particular case it is necessary to vary the date on which any return shall be furnished, the Commissioner may require a registered person to furnish returns accordingly.

(2) Any registered person who ceases to be registered shall, not later than the 21st day of the month following the month in which the cessation of registration occurred, furnish to the Commissioner a final return in the prescribed form in respect of that part of the last taxable period during which that person was registered.

18. Special returns - (1) Where goods are deemed to be supplied by a person pursuant to section 5(2), the person selling the goods, whether or not that person is a registered person, shall, on or before the 21st day of the month following the month within which the sale was made:

(a) Furnish to the Commissioner in the prescribed form a return showing:

(i) That person's name and address and, if registered, registration number; and

(ii) The name, address, and if registered, registration number of the person whose goods were sold; and

(iii) The date of the sale; and

(iv) The description and quantity of the goods sold; and

(v) The amount for which they were sold and the amount of tax charged on that supply; and

(vi) Such other particulars as may be prescribed; and

(b) Pay to the Commissioner the amount of tax charged on that supply; and

(c) Furnish to the person whose goods were sold, details of the information shown on the return referred to in paragraph (a) and the person selling the goods and the person whose goods were sold shall exclude from any return, other than a return required pursuant to this subsection, which either or both may be required to furnish under this Act, the tax charged on that supply of goods.

(2) Any amount of tax charged on any supply of goods to which this section applies shall be deemed, for the purposes of this Act, to be tax payable and shall be recoverable as a debt due to the Government.

19. Other returns - In addition to the returns specified in sections 17 and 18, the Commissioner may require any person, whether a registered person or not, to furnish (whether on that person's own behalf or as an agent or trustee) to the Commissioner such further or other returns in the prescribed form as and when the Commissioner requires for the purposes of this Act.

20. Accounting basis - Registered persons shall account for tax due under this Act on a payments basis, but the Commissioner may, in his absolute discretion, approve the use of an accruals or invoice basis by any registered person .

21. Calculation of tax payable - (1) In respect of each taxable period every registered person shall calculate the amount of tax payable by that registered person in accordance with the provisions of this section.

(2) Notwithstanding any other provision in this Act, no deduction of input tax shall be made in respect of a supply, unless the tax has been paid and:

(a) A tax invoice or debit note or credit note, in relation to that supply, has been provided in accordance with sections 25 and 26 and is held by the registered person making that deduction at the time that any return in respect of that supply is furnished; or

(b) A tax invoice is not required to be issued pursuant to section 25(6), or a debit note or credit note is not required to be issued pursuant to section 26:

PROVIDED THAT where a tax invoice or debit note or credit note in relation to that supply has been provided in accordance with this Act, the Commissioner may determine that no deduction for input tax in relation to that supply shall be made unless that tax invoice or debit note or credit note is retained in accordance with the provisions of section 70.

(3):

(a) Subject to this section, in calculating the amount of tax payable in respect of each taxable period there shall be deducted from the amount of output tax of a registered person attributable to the taxable period the amount of input tax paid by that Registered Person in that same taxably period;

(b) Notwithstanding the provisions of paragraph (a), the Commissioner may approve of a registered person deducting any amount of input tax in respect of any taxable period from the amount of output tax attributable to that taxable period, the registered person may deduct that amount of input tax from the amount of output tax attributable to any later taxable period to the extent that it has not previously been deducted from the output tax of that registered person.

(4) Notwithstanding anything in subsection (3), in relation to any registered person who has subsequently applied those goods and services in any taxable activity within a period of 5 years immediately succeeding the expiry of the day on which the supply under section 5(3) was deemed to have occurred, in calculating the amount of tax payable, in respect of any taxable period in which those goods and services are so applied, no amount of input tax in respect of those goods and services shall be deducted from the amount of output tax attributable to that taxable period.

(5) For the purposes of subsections (3) and (4), output tax in relation to a supply made by a registered person shall be attributable to a taxable period:

(a) To the extent that payment has been received during the taxable period in respect of that supply, being a supply of goods and services which is deemed to take place pursuant to section 10(1) or section 10(3) (a) or section 10(3)(b) or section 10(4) or section 26(2)(a) or section 26(7); or

(b) Where the supply of goods and services is made or deemed to be made during that taxable period by that registered person, not being a supply of goods and services to which paragraph (a) applies.

(6) If, in relation to any taxable period and any registered person, the total amount that may be deducted under subsection (3) exceeds the aggregate amount of the output tax of that registered person attributable to that taxable period, the amount of the excess shall, subject to this Act, be credited to that registered person by the Commissioner.

(7) Where, in relation to any goods and services:

(a) The goods and services have been acquired or produced by any registered person for the principal purpose of making taxable supplies; and

(b) A deduction for input tax has been made pursuant to section 21(3) by that registered person in respect of those goods and services; and

(c) The goods and services are subsequently applied by that registered person to a purpose other than the making of taxable supplies, any such goods and services shall be deemed to be supplied by that registered person in the course of that person's taxable activity to the extent that they are so applied.

(8) Notwithstanding anything in section 10, where the supply is deemed to be made pursuant to subsection (7) the time of supply shall be deemed to be the time that the goods and services are first applied for a purpose other than in the course of making taxable supplies.

(9) Notwithstanding anything in section 11, where the supply is deemed to be made pursuant to subsection (7) the value of that supply shall be deemed to be the lesser of:

(a) The cost of those goods and services to the supplier, including any tax charged in respect of the supply of those goods and services to that supplier;

(b) The open market value of that supply.

(10) Where, no deduction has been made pursuant to subsection (3) in respect of or in relation to any goods and services acquired or produced after 1st January 1994 by a registered person for a purpose other than the making of taxable supplies and any such goods and services are subsequently applied for the purpose of making taxable supplies, the Commissioner shall, to the extent to which those goods and services are so applied, allow that registered person to make a deduction under subsection (3) of an amount equal to the tax fraction of that part of the lesser of:

(a) The cost of those goods and services, including the tax charged in respect of those goods and services;

(b) The open market value of the supply of those goods and services.

(11) Notwithstanding anything in section 10, where a deduction is permitted pursuant to subsection (9) such deduction shall be made in the taxable period that the goods and services are first applied for the purpose of making taxable supplies.

22. Allocation of taxable supplies following investigation by Commissioner - (1) For the purposes of this section:

"Discrepancy" means any understatement or overstatement of the taxable supplies made or received by a registered person calculated or otherwise ascertained in respect of any specified period.

"Specified period" means any period, being a period that extends over more than a single taxable period, to which a discrepancy relates.

"Tax discrepancy", in relation to a discrepancy, means an amount equal to the tax fraction (being the tax fraction applicable to the taxable period, or any part of a taxable period, in relation to which the discrepancy has been deemed to have occurred) of the amount of the taxable supplies made or received by a registered person that have been understated or overstated.

(2) For the purposes of this Act, in any case where, upon investigation by the Commissioner of the liability of a registered person for tax, the Commissioner has calculated or otherwise ascertained a discrepancy in relation to any specified period then:

(a) Subject to paragraphs (b) and (c), the amount of the discrepancy shall be deemed to be taxable supplies made or received (as the case may be) by the registered person at a uniform daily rate throughout that specified period, and those taxable supplies shall be deemed to have been so made or received by the registered person in the taxable periods, or parts thereof, included in the specified period;

(b) Subject to paragraph (c), where the Commissioner is satisfied that the registered person did not carry on the taxable activity for any part of any specified period, the amount of the discrepancy shall be deemed to be taxable supplies made or received (as the case may be) by the registered person at a uniform daily rate throughout the part of the specified period in which the taxable activity was carried on, and those taxable supplies shall be deemed to be so made or received by the registered person in the taxable periods, or parts thereof, in which the taxable activity was carried on during the specified period;

(c) Where the registered person satisfies the Commissioner that it would be appropriate for the amount of the discrepancy to be allocated on a basis otherwise than in accordance with paragraph (a) or paragraph (b), the amount of the discrepancy shall be allocated on that basis, and the amount so allocated shall be deemed to be taxable supplies made or received (as the case may be) by the registered person in the taxable periods, or parts thereof, to which the discrepancy has been so allocated.

(3) For the purposes of section 21, where a discrepancy has been deemed pursuant to this section to be taxable supplies made or received by a registered person in respect of any taxable period or any part of a taxable period, the tax discrepancy calculated in respect of the discrepancy shall be deemed to be output tax or, as the case may be, input tax in respect of that taxable period or part of a taxable period.

23. Goods and services acquired before incorporation - Any company, being a registered person, shall, where any amount of tax has been charged or levied pursuant to section 9 (1) or section 13(1) or section 14(1) in relation to the acquisition of goods and services for or on behalf of that company or in connection with the incorporation of that company, and where those goods and services were acquired prior to incorporation by a person who:

(a) Became a member, officer, or employee of the company and was reimbursed by the company for the whole amount of the consideration paid for the goods and services; and

(b) Acquired those goods and services for the purpose of a taxable activity to be carried on by the company and has not used those goods and services for any purpose other than such taxable activity,-

be deemed to be the recipient of the goods and services and to have paid any tax charged or levied pursuant to section 9(1) or section 13(1) or section 14(1) as if the supply or the payment of the tax had been made during the taxable period in which the reimbursement referred to in paragraph (a) is made:

PROVIDED THAT this section shall not apply in relation to any goods and services where:

(d) Those goods and services were so acquired more than 6 months prior to the date of incorporation of the company; or

(e) The company does not hold sufficient records to establish the particulars relating to the deduction to be made.

24. Payment of tax - (1) Every registered person, for each taxable period, shall, not later than the last day allowed under this Act for furnishing a return for that taxable period, pay to the Commissioner the tax payable for that period as calculated pursuant to section 21.

(2) Notwithstanding subsection (1), where a later due date has been fixed pursuant to section 27(6), the tax payable shall be paid to the Commissioner on or before that later due date.

(3) Subject to Part IV and Part V, the amount set forth as tax payable on any return furnished by a registered person shall be conclusively deemed and taken to be correct for the purposes of this Act.

(4) A return purporting to be made by or on behalf of any person shall for all purposes be deemed to have been made by that person or by that person's authority, as the case may be, unless the contrary is proved.

25. Tax invoices - (1) Except as otherwise provided in this section, a supplier, being a registered person, making a taxable supply to a recipient, being a registered person, shall provide that recipient, within 28 days of the making of that taxable supply, with a tax invoice containing such particulars as are specified in this section:

PROVIDED THAT:

(a) It shall not be lawful to issue more than one tax invoice for each taxable supply;

(b) If a registered person claims to have lost the original tax invoice, the supplier or the recipient, as the case may be, may provide a copy clearly marked "copy only".

(2) Where a recipient, being a registered person, creates a document containing the particulars specified in this section and purporting to be a tax invoice in respect of a taxable supply of goods and services made to the recipient by a supplier, being a registered person, that document shall be deemed to be a tax invoice provided by the supplier under subsection (1) where:

(a) The Commissioner has granted prior approval for the issue of such documents by a recipient or class or classes of recipients in relation to the taxable supplies or class or classes of taxable supplies to which the documents relate; and

(b) The supplier and the recipient agree that the supplier shall not issue a tax invoice in respect of any taxable supply to which this subsection applies; and

(d) The words "buyer created tax invoice - IRD approved" are contained in a prominent place on that document:

PROVIDED THAT where a tax invoice is issued pursuant to this subsection any tax invoice issued by the supplier in respect of that taxable supply shall be deemed not to be a tax invoice for the purposes of this Act.

(3) Subject to subsection (4), for the purposes of subsection (1), where goods are deemed to be supplied by a person pursuant to section 5(2), the person selling those goods, whether or not that person is a registered person, in making that taxable supply to a recipient, shall be deemed to be the supplier of those goods.

(4) In any case where subsection (3) applies and the person who is deemed to be the supplier is not a registered person, the reference to registration number of the supplier in subsection (5)(b) shall be read as if that reference were to the Inland Revenue Department's identification number of the supplier.

(5) Except as the Commissioner may otherwise allow, and subject to this section, a tax invoice shall contain the following particulars:

(a) The words "tax invoice" in a prominent place;

(b) The name and registration number of the supplier;

(d) The date upon which the tax invoice is issued;

(e) A description of the goods and services supplied;

(f) The quantity or volume of the goods and services supplied;

(g) Either:

(i) The total amount of the tax charged, the consideration, excluding tax, and the consideration, inclusive of tax for the supply; or

(ii) Where the amount of tax charged is the tax fraction of the consideration, the consideration for the supply and a statement that it includes a charge in respect of the tax.

(6) Where the Commissioner is satisfied that there are or will be sufficient records available to establish the particulars of any supply or class of supplies, and that it would be impractical to require that a tax invoice be issued pursuant to this section, the Commissioner may determine that, subject to any conditions that the Commissioner may consider necessary:

(a) Any one or more of the particulars specified in subsection (5) shall not be contained on a tax invoice; or

(b) A tax invoice is not required to be issued.

(7) Any tax invoice issued pursuant to subsection (6)(a) shall contain the words "modified tax invoice - IRD approved" in a prominent place.

(8) Where approval has been granted by the Commissioner to issue tax invoices pursuant to subsection (2), that approval may be withdrawn at any time where the Commissioner is satisfied that the conditions of that approval have not been complied with.

(9) Where the Commissioner has determined that a tax invoice may be issued pursuant to subsection (6)(a), or is not required to be issued pursuant to subsection (6)(b), that determination may be revoked where the Commissioner is satisfied that any conditions specified have not been complied with.

(10) Nothing in this section requires the provision of a tax invoice in respect of a transaction where the price is less than $20, or such other sum as may be later prescribed.

(11) Where any amount of tax charged is required to be shown on any tax invoice and that amount consists of any number of tala and sene together with any fraction or part of a sene, that fraction of that sene -

(a) If less than or equal to half that sene, may be disregarded for the purposes of this section; and

(b) If in excess of half of that sene, shall be deemed for the purposes of this section to be an amount equal to one sene.

26. Credit and debit notes - (1) This section shall apply where, in relation to the supply of goods and services by any registered person:

(a) That supply of goods and services has been cancelled; or

(b) The nature of that supply of goods and services has been fundamentally varied or altered; or

(c) The previously agreed consideration for that supply of goods and services has been altered, whether due to the offer of a discount or otherwise; or

(d) The goods and services or part of those goods and services supplied have been returned to the supplier, and the supplier has;

(e) Provided a tax invoice in relation to that supply and as a result of any one or more of the above events, the amount shown thereon as tax charged on that supply is incorrect; or

(f) Furnished a return in relation to the taxable period for which output tax on that supply is attributable and, as a result of any one or more of the above events, has accounted for an incorrect amount of output tax on that supply.

(2) Where a supplier has accounted for an incorrect amount of output tax as specified in subsection (1)(f), that supplier shall make an adjustment in calculating the tax payable by that supplier in the return for the taxable period during which it has become apparent that the output tax is incorrect, and is:

(a) The output tax properly charged in relation to that supply exceeds the output tax actually accounted for by the supplier, the amount of that excess shall be deemed to be tax charged by that supplier in relation to a taxable supply attributable to the taxable period in which the adjustment is to be made, and not attributable to any prior taxable period;

(b) The output tax actually accounted for exceeds the tax properly charged in relation to that supply, that supplier shall make a deduction of input tax under section 21 (3) of this Act of the amount of that excess.

(3) Subject to this section, where a tax invoice has been provided as specified in subsection (1) (e), and:

(a) The amount shown as tax charged on that tax invoice exceeds the actual tax charged in respect of that supply, the supplier shall provide the recipient with a credit note, containing the following particulars:

(i) The words "credit note" in a prominent place;

(ii) The name and registration number of the registered person;

(iii) The name and address of the recipient;

(iv) The date on which the credit note was issued;

(v) Either:

(A) The amount of consideration for that supply contained in the tax invoice referred to above, the correct amount of consideration for the supply, the difference between those 2 amounts, and the tax charged in respect of that supply to the extent that it relates to the amount of that difference; or

(B) Where the tax charged in respect of the supply is the tax fraction of the consideration, the difference referred to above in this subparagraph and a statement that that difference includes a charge in respect of the tax.

vi) A brief explanation of the circumstances giving rise to the issuing of the credit note.

(b) The actual tax charged in respect of that supply exceeds the tax charged shown on the tax invoice, the supplier shall provide the recipient with a debit note, containing the following particulars:

(i) The words "debit note" in a prominent place;

(ii) The name and registration number of the registered person;

(iii) The name and address of the recipient;

(iv) The date on which the debit note was issued;

(v) Either:

(vi) A brief explanation of the circumstances giving rise to the issuing of the debit note:

PROVIDED THAT:

(i) It shall not be lawful to issue more than one credit note or debit note for the amount of the excess;

(ii) If any registered person claims to have lost the original credit note or debit note, the supplier or recipient, as the case may be, may provide a copy clearly marked "copy only";

(iii) A supplier shall not be required to provide a recipient with a credit note pursuant to paragraph (a) in any case where and to the extent that the amount of the excess referred to in that paragraph arises as a result of the recipient taking up a prompt payment discount offered by the supplier and that the terms of the prompt payment discount offer are clearly stated on the face of the tax invoice.

(4) Where a recipient, being a registered person, creates a document containing the particulars specified in this section and purporting to be a credit note or a debit note in respect of a supply of goods and services made to the recipient by a supplier, being a registered person, that document shall be deemed to be a credit note or, as the case may be, a debit note provided by the supplier under subsection (3) where:

(a) The Commissioner has granted prior approval for the issue of such documents by a recipient or class or classes of recipients in relation to the supplies or class or classes of supplies to which the documents relate; and

(b) The supplier and the recipient agree that the supplier shall not issue a credit note or, as the case may be, a debit note in respect of any supply to which this subsection applies; and

PROVIDED THAT:

(d) Where a credit note is issued pursuant to this subsection, any credit note issued by the supplier in respect of that supply shall be deemed not to be a credit note for the purposes of this Act;

(e) Where a debit note is issued pursuant to this subsection, any debit note issued by the supplier in respect of that supply shall be deemed not to be a debit note for the purposes of this Act.

(5) Where the Commissioner is satisfied that there are or will be sufficient records available to establish the particulars of any supply or class of supplies, and that it would be impractical to require that a credit note or a debit note be issued pursuant to this section, the Commissioner may determine that, subject to any conditions that the Commissioner may consider necessary:

(a) Any one or more of the particulars specified in paragraph (a) or, as the case may be, paragraph (b) of subsection (3) shall not be contained in a credit note or, as the case may be, a debit note; or

(b) A credit note or, as the case may be, a debit note is not required to be issued.

(6) Notwithstanding anything in subsection (3) where, in relation to any taxable supplies, or a class or classes of taxable supplies, made by a supplier to a recipient, or a class or classes of recipients:

(a) The supplier has provided, in terms of section 25, one or more tax invoices to a recipient in respect of those taxable supplies; and

(b) The Commissioner is satisfied that there are or will be sufficient records available to establish the particulars of those taxable supplies to a recipient,-

the Commissioner may determine in respect of any recipient, or class or classes of recipients, that, subject to any conditions that the Commissioner may consider necessary, the supplier may issue one credit note or debit note to each recipient with respect to those tax invoices.

(7) Where any recipient, being a registered person, has been issued with a credit note pursuant to subsection (3)(a), or has written or other notice or otherwise knows that any tax invoice which that registered person holds is incorrect as a result of any one or more of the events specified in any of paragraphs (a), (b), (c), and (d) of subsection (1), and has made a deduction of any amount of input tax in any taxable period in respect of that supply of goods and services to which the credit note or that notice or other knowledge, as the case may be, relates, the amount of the excess referred to in subsection (3)(a) shall be deemed to be tax charged in relation to a taxable supply made by the recipient attributable to the taxable period in which the credit note was issued, or that notice or, as the case may be, other knowledge was received, to the extent that the input tax deducted exceeds the output tax properly charged.

(8) Where any recipient, being a registered person, has been issued with a debit note pursuant to subsection (3)(b), and has made a deduction of any amount of input tax in any taxable period in respect of that supply of goods and services to which that debit note relates, the recipient shall make a deduction of input tax pursuant to section 21(3) of this Act of the amount of the excess referred to in subsection (3)(b) in the taxable period in which the debit note is issued, to the extent that the output tax properly charged exceeds the input tax deducted.

(9) Where any amount of tax charged is required to be shown on any credit note or debit note, and that amount consists of any number of tala and sene together with any fraction or part of a sene, that fraction or part of that sene:

(a) If less than or equal to half of that sene, may be disregarded for the purposes of this section;

(b) If in excess of half of that sene, shall be deemed for the purposes of this section to be an amount equal to one sene.

PART IV
ASSESSMENT OF TAX

27. Assessment of tax - (1) Where:

(a) Any person makes default in furnishing any return required under this Act; or

(b) Any person is not satisfied with any return furnished by that person in respect of any taxable period and requests the Commissioner, in writing, to make any alteration or addition to that return; or

(d) The Commissioner has, pursuant to section 48(3), cancelled the registration of any person with effect from the date on which the person was registered under this Act; or

(e) Any person, not being a registered person, supplies goods and services and represents that tax is charged on that supply,-

the Commissioner shall make an assessment of the amount which, in the Commissioner's judgment, is the tax payable pursuant to this Act, and that person shall be liable to pay the tax so assessed, except in so far as that person establishes on objection that the assessment is excessive, or that tax is not payable.

(2) Notwithstanding anything in subsection (1), where:

(a) Any person makes default in furnishing any return pursuant to section 18; or

(b) Any person is not satisfied with any return furnished by that person pursuant to section 18 and requests the Commissioner, in writing, to make any alteration or addition to that return; or

(c) Any person, whose goods were sold pursuant to section 5(2), is not satisfied with any return furnished pursuant to section 18 and requests the Commissioner in writing, to make any alteration or addition to that return; or

(d) The Commissioner is not satisfied with the return made by any person pursuant to section 18,-

the Commissioner shall make an assessment of the amount which, in the Commissioner's judgment, is the tax payable pursuant to this Act, and the person who sold the goods pursuant to section 5(2) shall be liable to pay the tax so assessed, except in so far as that person, or the person whose goods were sold, establishes on objection that the assessment is excessive, or that tax is not payable.

(3) Notwithstanding anything in subsections (1) and (2), where a return is furnished or is required to be furnished by any person pursuant to section 18, and:

(a) Either:

(i) The person makes default in furnishing the return; or

(ii) The Commissioner is not satisfied with the return; and

(b) The person who furnished or was required to furnish the return holds a written statement pursuant to section 5(2) from the person whose goods were sold, and that written statement is incorrect,-

the Commissioner shall make an assessment which, in the Commissioner's judgment, is the tax payable pursuant to this Act, and the person whose goods were sold pursuant to section 5(2) shall be liable to pay the tax so assessed, except in so far as that person, or the person who sold the goods pursuant to section 5(2), establishes on objection that the assessment is excessive, or that tax is not payable.

(4) Subject to section 31, the Commissioner may from time to time and at any time make all such alterations in or additions to an assessment made under this section as the Commissioner thinks necessary to ensure the correctness thereof, notwithstanding that tax already assessed may have been paid.

(5) If an assessment or amended assessment is made under this section, the Commissioner shall cause notice of the assessment or amended assessment to be given to the person liable to pay the tax; and:

(a) Where subsection (2) applies, send a copy of that assessment or amended assessment to the person whose goods were sold; or

(b) Where subsection (3) applies, send a copy of that assessment or amended assessment to the person who sold the goods.

(6) In any case in which an assessment is not made until after the due date of the tax payable, or is increased after the due date, and the Commissioner is satisfied that the person has not been guilty of neglect or default in making due and complete returns for the purposes of that tax, the Commissioner shall fix a new due date, being one month after the date of the assessment, for the payment of the tax payable or, as the case may be, of the increase in the tax payable, and the date so fixed shall be deemed to be the due date of the tax or increase in tax for the purposes of this Act.

(7) The omission to give any notice under subsection (5) shall not invalidate the assessment or in any manner affect the operation thereof.

(8) For the purposes of this Part and Parts III, VI and X, in any case where subsection (1) (d) applies:

(a) The person shall, notwithstanding that the person's registration has been cancelled under section 48(3) with effect from the original date of registration, be deemed to have been a registered person during the period commencing with that original date of registration and ending with the day on which the Commissioner makes the cancellation; and

(b) Any tax represented to be charged on any supply made by the person during that period shall be tax payable by that person.

(9) For the purposes of this Part, Part III, Part VI and Part X, in any case where subsection (1)(e) or subsection (2) or subsection (3) applies:

(a) That person shall be deemed to be a registered person; and

(b) Any tax represented to be charged on that supply by that person shall be tax payable by that person.

28. Validity of assessments not affected by failure to comply with Act - The validity of an assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.

29. Assessments deemed correct except in proceedings on objection - Except in proceedings on objection to an assessment under section 33 of this Act, no assessment made by the Commissioner shall be disputed in any Court or in any proceedings either on the ground that the person so assessed is not a registered person or on any other grounds; and, except as aforesaid, every such assessment and all the particulars thereof shall be conclusively deemed and taken to be correct, and the liability of the person so assessed shall be determined accordingly.

30. Evidence of returns and assessments - The production of any document under the hand of the Commissioner purporting to be a copy of or extract from any return or assessment shall in all Courts and in all proceedings be sufficient evidence of the original, and the production of the original shall not be necessary, and all Courts shall in all proceedings take judicial notice of the signature of the Commissioner either to the original or to any such copy or extract.

31. Limitation of time for assessment or amendment of assessment - (1) Where any person has furnished a return in respect of any taxable period or has been assessed for tax in respect of that period, it shall not be lawful for the Commissioner:

(a) Where an assessment has not been made, to make an assessment; or

(b) Where an assessment has been made, to alter the assessment so as to increase the amount thereof,-

after the expiration of 4 years from the end of the taxable period in respect of which the return was furnished or, as the case may be, the assessment was made.

(2) Notwithstanding anything in subsection (1), where any person has furnished a return pursuant to section 18, or has been assessed for tax pursuant to section 27(2) or 27(3), it shall not be lawful for the Commissioner:

(a) Where an assessment has not been made, to make an assessment; or

(b) Where an assessment has been made, to alter the assessment so as to increase the amount thereof,-

after the expiration of 4 years from the end of the month in which the sale was made or, as the case may be, the assessment was made.

(3) Notwithstanding anything in subsection (1) or subsection (2), in any case where, in the opinion of the Commissioner, a person has knowingly or fraudulently failed to make a full and true disclosure to the Commissioner of all the material facts necessary to determine the amount of tax payable for any taxable period, or as the case may be, tax payable pursuant to any return furnished under section 18, it shall be lawful for the Commissioner:

(a) Where an assessment for that taxable period has not been made, or an assessment for a return pursuant to section 18 has not been made, to make an assessment at any time; or

(b) Where an assessment has been made pursuant to section 27 to alter the assessment at any time.

PART V
OBJECTIONS

32. Objections to certain decisions - (1) For the purposes of this section, the term "decision" means anything that is left to the discretion, judgment, direction, opinion, approval, consent, satisfaction, or determination of the Commissioner under any of the following sections:

(a) deleted by the Value Added Goods and Services Amendment Act 1998;

(b) Section 25;

(d) Section 47;

(e) Section 48;

(f) Section 51,-

but does not include any discretion, judgment, direction, opinion, approval, consent, satisfaction, or determination which, apart from this section, is subject to objection under section 33 of this Act.

(2) The Commissioner shall give notice in writing of any decision to the person affected thereby.

(3) Where, in respect of any person, the Commissioner has made a decision, and that person is dissatisfied with that decision, that person may object to that decision by delivering or posting to the Commissioner, within 28 days after the date on which the notice of that decision was given by or on behalf of the Commissioner, a written notice of objection stating shortly the grounds of objection.

(4) A notice of objection given after the time specified in subsection (3) shall not be of any force or effect unless the Commissioner, in the Commissioner's discretion, accepts the same and gives notice to the objector accordingly.

(5) The Commissioner shall consider every objection made under this section and may alter the decision pursuant thereto.

(6) If an objection is not wholly allowed by the Commissioner, the objector may, within 2 months after the date on which the notice of disallowance is given to the objector by or on behalf of the Commissioner, by notice in writing to the Commissioner, require that the objection be referred to the Supreme Court and the provisions of sections 34 and 35 of the Income Tax Administration Act 1974 shall apply in respect of the institution, hearing, and determination of the proceedings on the objection.

(7) For the purposes of this section, sections 35 and 37 shall, in relation to any objection under this section, apply with any necessary modifications in the same manner and to the same extent that they would apply if the said objection were an objection made under section 33 of this Act.

33. Objections to assessments - (1) Any person who has been assessed for tax payable may object to that assessment by delivering or posting to the Commissioner a written notice of objection stating shortly the grounds of that person's objection, within such time as may be specified in that behalf in the notice of assessment, not being less than 28 days after the date on which that notice of assessment is given:

PROVIDED THAT, where the assessment is an amended assessment, the person so assessed shall have no further right of objection than that person would have had if the amendment had not been made, except to the extent to which by reason of the amendment a fresh liability in respect of any particular is imposed on that person or an existing liability in respect of any particular is increased.

(2) No notice of objection given after the time specified in the notice of assessment shall be of any force or effect unless the Commissioner, in the Commissioner's discretion, accepts the same and gives notice to the objector accordingly.

34. Commissioner to consider objections - (1) The Commissioner shall consider the objection and either disallow or allow it wholly or in part and where appropriate amend the assessment to conform with his determination.

(2) Following determination of the objection, the Commissioner shall cause notice thereof to be given to the objector.

35. Objection may be submitted to Supreme Court - (1) If an objector is dissatisfied with the determination by the Commissioner under section 18 of any objection under section 17, he may within 1 month after the date on which notice of the determination is given to him, by notice in writing to the Commissioner require him to state a case for the opinion of the Supreme Court.

(2) The Commissioner shall thereupon state a case accordingly setting forth the facts as alleged by the Commissioner, the contentions of the parties and the question to be decided, and shall file the case in the Supreme Court and shall serve a copy of the case on the objector.

(3) At any time and from time to time the Commissioner may file an amended case and shall serve a copy of the amended case on the objector.

(4) Within 1 month after the copy of the case or the amended case is served on the objector, or within such further time as the Commissioner or the Supreme Court may allow, the objector may, if he thinks fit, file an answer to the case, setting forth the facts as alleged by the objector and shall serve a copy of his answer on the Commissioner.

(5) Neither the case nor amended case as stated and filed by the Commissioner nor any answer filed by objector shall be conclusive as to the matters set forth therein, either against the objector or the Commissioner, except so far as agreed to in writing by or on behalf of the Commissioner and the objector.

(6) On the hearing and determination of the objection, the objector shall be limited to the grounds stated in his objection, and the burden of proof shall be on the objector who shall be liable to remit the tax or penalty as assessed in so far as he establishes that the assessment is incorrect.

(7) The Court may receive such evidence as in its opinion may assist it to deal effectually with the proceedings before it, whether or not the same would be otherwise admissible in a Court of law.

(8) Subject to the provisions of subsections (6) and (7), the procedure at the hearing before the Supreme Court of any such case stated shall be the same, with the necessary modifications, as if the case were an action in which the objector is the plaintiff and the Commissioner is the defendant.

(9) On hearing any such case stated, the Court may:

(a) Confirm, cancel or vary the assessment, or reduce or increase the amount thereof, and the assessment shall be altered by the Commissioner accordingly;

(b) Make an assessment or direct the Commissioner to make an assessment, in which case an assessment shall be made by the Commissioner as so directed.

36. Obligation to remit tax not suspended by objection - The obligation to remit tax or penalty and the right to recover any tax or penalty shall not be suspended by an objection but if the objector succeeds in whole or in part any amount received by the Commissioner in excess of the amount determined to be properly payable shall forthwith be refunded to him by the Commissioner.

37. Determination of objection not to affect other assessments or decisions - The determination of an objection under this Part of this Act shall relate solely to the assessment or decision (as defined in section 32(1)) objected to, and shall not affect the right of the Commissioner to make any other assessment or such decision in respect of the objector, or to amend the assessment or such decision objected to in any manner rendered necessary by that other assessment or such decision.

38. Objections to which this Part does not apply - Except so far as may be expressly provided in this Act, this Part shall not confer any right of objection with respect to:

(a) Any decision or determination of the Commissioner made in exercise of any power or discretion conferred upon the Commissioner to enlarge or extend the time for giving any notice, making any application, furnishing any return, or doing any other act, matter, or thing;

(b) Any matter in respect of which provision is made by this Act or by any regulations made under this Act:

(i) For the matter to be inquired into, considered, reported upon, heard, decided, determined, or otherwise dealt with by; or

(ii) For the matter to be the subject of any recommendation of,-

any special committee, tribunal, or authority established in that behalf or any person or official (other than the Commissioner);

(c) Any matter which by any provision in Part IV (other than section 31) or Part VI or Part VII or Part X or Part XI (other than section 71) is left to the discretion, judgment, opinion, approval, consent, or determination of the Commissioner;

(d) Any matter in respect of which it is expressly provided in this Act, or in any provision of the Income Tax Act 1974 applied to value added goods and services tax by this Act, that there shall be no right of objection to the decision or determination of the Commissioner.

PART VI
RECOVERY OF TAX

39. Additional tax to be payable if default made in payment of tax - Subject to this section, additional tax shall be, and be deemed to be, added to any tax remaining unpaid, and shall be payable accordingly, as follows:

(a) On the amount of any tax remaining unpaid at the expiry of the due date, additional tax of 10 percent;

(b) On the amount of so much, if any, of the tax (being the tax referred to in paragraph (a) of this subsection and the additional tax added thereto in accordance with the provisions of paragraph (a) of this subsection) as remains unpaid at the expiry of the day on which there expires the period of one month immediately following the due date referred to in paragraph (a) of this subsection, additional tax of 2 percent;

(c) On the amount of so much, if any, of the tax (being the tax referred to in paragraph (a), the additional tax added thereto in accordance with the provisions of paragraphs (a) and (b), and the additional tax, if any, theretofore added thereto in accordance with the provisions of this paragraph) as remains unpaid at the expiry of any of the periods of one month that, consecutively, succeed the period of one month referred to in paragraph (b), additional tax of 2 percent.

40. Recovery of tax - (1) Tax payable by any person shall be recoverable as a debt due to the Government.

(2) Where a person has not paid the amount of the tax payable or any part thereof in the manner required by Part III, the amount of the tax for the time being unpaid to the Commissioner shall, in the application of the assets of the person, rank as follows:

(a) Where the person is an individual, upon that person's bankruptcy or upon that person making an assignment for the benefit of that person's creditors, the amount of the tax payable shall rank without limitation in amount, in order of priority immediately after preferential claims for wages or other sums payable to or on account of any servant or worker or apprentice or articled clerk, and in priority to all other claims;

(b) Where the person is a company, upon the liquidation of the company or upon the appointment of a receiver on behalf of the holder of any debenture given by the company secured by a charge over any property of the company or upon possession being taken on behalf of that debenture holder of that property, the amount of the tax payable shall rank immediately after the debts referred to in section 308(1) of the Companies Act 1955 (N.Z.), such debts being limited as provided in section 308(2) thereof, and so far as the assets of the company available for payment of general creditors are insufficient to meet the amount of that tax payable, it shall have priority over the claims of holders of debentures under any floating charge created by the company and be paid accordingly out of any property comprised in or subject to that charge;

(c) Where a person is a body (as defined in section 52(1) of this Act), upon the appointment of a receiver on behalf of any person pursuant to any order by the Court, the amount of any tax payable shall rank immediately after any preferential claims for any wages or other sums payable to or on account of any servant or worker or apprentice or articled clerk, and in priority over any claims of holders of debentures under any floating charge created by the person and be paid accordingly out of any property comprised in or subject to that charge.

(3) This section shall apply notwithstanding anything in any other Act.

(4) For the purposes of this section, a floating charge shall include a charge that conferred a floating security at the time of its creation but has since become a fixed or specific charge.

(5) If a registered person has made default in the remittance of any tax or payment of any penalty, the Commissioner may by notice in writing require any person (hereinafter in this section referred to as the debtor) to deduct from any amount payable or to become payable by the debtor to that registered person such sum as may be specified in the notice and to pay every sum so deducted to the Commissioner to the credit of the registered person within such time as may be specified in the notice.

(6) This section shall bind the Government.

(7) Any notice under this section may be at any time revoked by the Commissioner by a subsequent notice in writing to the debtor.

(8) A copy of every notice given under this section shall be given by the Commissioner to the registered person liable to remit tax or penalty.

(9) Whenever pursuant to a notice under this section any deduction is made from any amount payable to any registered person who is liable to remit tax or pay penalty that registered person shall be entitled to receive from the debtor a statement in writing as to the fact of the deduction and of the purpose for which it was made.

(10) Any sum required to be deducted from any amount owing to a registered person pursuant to a notice under this section shall be deemed to be held in trust for the Government and, without prejudice to any other remedies against the debtor or any other person, shall be recoverable in the same manner in all respects as if it were tax payable by the debtor.

41. Application of certain provisions of Income Tax Administration Act 1974 relating to recovery procedures - Part VII of the Income Tax Administration Act 1974, as far as it is applicable and with any necessary modifications, shall apply for the purposes of this Act, as if:

(a) Every reference in that part to tax were a reference to value added goods and services tax; and

(b) The reference to an assessment in the said Income Tax Administration Act 1974 were a reference to an assessment made under Part IV; and

PART VII
TAX CREDITS, REFUNDS AND RELIEF FROM TAX

42. Credit for excess tax - (1) Subject to this Part of this Act, where any registered person has paid to the Commissioner any amount in excess of the amount of tax payable properly calculated in accordance with this Act in respect of any taxable period, the Commissioner shall credit the amount paid in excess:

PROVIDED THAT, subject to subsection (2), no credit shall be made after the expiration of the period of 8 years immediately after the end of the taxable period, unless written application for the credit is made by or on behalf of the registered person before the expiration of that period.

(2) Notwithstanding anything in section 21(6), in any case where an assessment has been made pursuant to section 27 so as to change any amount of tax payable by any registered person or creditable by the Commissioner, and the Commissioner is satisfied that by reason of that assessment either:

(a) Tax has been paid by that person in excess of the amount properly payable; or

(b) An amount has been credited to that person by the Commissioner pursuant to section 21(6) and that amount is less than the amount properly creditable,-

the Commissioner shall, notwithstanding that the time limited in accordance with subsection (1) for the making of a credit may have expired, credit, pursuant to this section, the tax so paid in excess or, as the case may be, the amount properly creditable to the extent that such amount exceeds the amount that has been credited:

PROVIDED THAT, in any such case, no credit shall be made after the expiration of the period of 8 years immediately after the end of the year in which the assessment was made, unless written application for the credit is made by or on behalf of the registered person before the expiration of that period.

43. Tax paid in excess may be set off against tax payable when assessment re-opened - In any case where, upon the investigation by the Commissioner of the liability of a registered person for tax over a number of taxable periods:

(a) The Commissioner assesses the registered person with tax for any taxable period in respect of which no assessment has been made previously or alters an assessment for any taxable period so as to increase the amount thereof; and

(b) In respect of any taxable period or taxable periods within that group of taxable periods tax has been paid in excess of the amount properly payable,-

the Commissioner may, in the Commissioner's discretion and to the extent that in the opinion of the Commissioner is equitable, allow any amount so paid in excess to be deducted from or set off against any tax payable for any taxable period or taxable periods, notwithstanding that the time limited for the making of a refund or allowing of a credit of any tax so paid in excess may have expired.

44. Power of Commissioner in respect of small amounts - Notwithstanding anything in this Act, the Commissioner may refrain from collecting or refunding tax in any case where, as the case may be:

(a) The amount of any tax payable calculated in accordance with this Act, or the balance of any such tax payable remaining unpaid, does not exceed $5; or

(b) The amount to be credited or refunded in accordance with section 20 or section 21 or section 42 of this Act, or the balance of any such amount that remains to be credited or refunded, does not exceed $5:

PROVIDED THAT any such amount shall be credited or refunded to a registered person upon written request being provided to the Commissioner by that registered person within 6 months of the date on which the return in respect of which the credit or refund was due has been furnished.

45. Relief from additional tax - (1) For the purposes of this part of this Act the expression "incremental tax" means the additional tax which is, and is deemed to be, added to unpaid tax in accordance with the provisions of section 40(1)(b) or section 40(1)(c).

(2) Subject to this section, on application for relief made in writing by or on behalf of any registered person who has become liable for the payment of any additional tax under section 40(1)(a) or any incremental tax, the Commissioner, having regard to the circumstances of the case and if the Commissioner thinks it equitable to do so, may, subject to this section, grant relief to the registered person:

(a) By remission of the whole or part of the additional tax, or as the case may be, the incremental tax; or

(b) Where the additional tax, or, as the case may be, the incremental tax has been paid, in whole or in part, by the refund to the registered person of the whole or any part of that additional tax or that incremental tax that has been paid, with or without the remission of any part of that additional tax or that incremental tax that has not been paid.

(3) Where any registered person becomes liable for the payment of any incremental tax, and at the time at which that liability arises, the tax or the additional tax or the incremental tax in relation to which the registered person becomes so liable for the payment of the said incremental tax is:

(a) Tax that is payable in 2 or more installments pursuant to an arrangement entered into between the registered person and the Commissioner; or

(b) Tax in respect of which deductions or extractions are required to be made, and paid to the Commissioner, pursuant to a notice issued under section 40(5)-

and every one of those installments is paid in full pursuant to the terms of that arrangement, or, as the case may be, every one of those deductions or extractions and payments is made pursuant to that notice, the Commissioner shall grant relief to that registered person.

(d) Where the incremental tax so first mentioned has been paid, in whole or in part, by the refund to the registered person of the whole or the part of that incremental tax that has been paid, with or without the remission of any part of that incremental tax that has not been paid.

(4) In any case where subsection (2) applies, no amount of tax in excess of $1,000 shall be remitted or refunded under this section except with the approval of the Minister of Finance given either specifically with respect to any case or generally with respect to any class or classes of cases.

46. Appropriation of refunds - Notwithstanding anything in this Act, the Commissioner may refund credit for excess tax and any refund of tax under this Act may be made without further appropriation than this section.

PART VIII
REGISTRATION

47. Liability to register - (1) Subject to this Act, every person who, on or after the 1st day of January 1994 carries on any taxable activity, becomes liable to be registered:

PROVIDED THAT no person shall be liable to be registered where at the end of any month the total value of their supplies made in Samoa for that month and the 11 months either preceding or succeeding that month do not exceed the amount the Head of State may, from time to time, declare by Order.

(2) Every person who is liable to be registered, pursuant to subsection (1), shall apply to the Commissioner in the prescribed form for registration under this Act, within 21 days of becoming so liable, and provide the Commissioner with such further particulars as the Commissioner may require for the purpose of registering that person.

(2A) Notwithstanding subsections (1) and (2), every person who satisfies the Commissioner that, on or after the 1st day of January 1994 –

(i) that person is carrying on any taxable activity; or

(ii) that person intends to carry on any taxable activity from a specified date;

(iii) that the goods and services made or provided, or to be made or provided, shall be more than 50 percent zero-rated under this Act,

may apply to the Commissioner in a form approved by him for registration under this Act, and provide the Commissioner with such further particulars as the Commissioner may require for the purpose of registering that person.

(2AB) Where any person has made application for registration under subsections (2) or (2A) and the Commissioner is satisfied that that person should in the Commissioner’s discretion to be registered under this Act, that person shall be a registered person for the purposes of this Act with effect from such date as the Commissioner may determine.

(3) An application for registration under this Act purporting to be made by or on behalf shall for all purposes be deemed to be made by that person or by that person's authority, as the case may be, unless the contrary is proved.

(4) Where any person has not made application pursuant to subsection (2), and the Commissioner is satisfied that person is liable to be registered under this Act, that person shall be deemed to be a registered person for the purposes of this Act with effect from the date on which that person first became liable to become registered under this Act:

PROVIDED THAT the Commissioner may, having regard to the circumstances of the case, determine that such person deemed to be a registered person shall be registered from such later date as the Commissioner considers equitable.

(5) The provisions of this Act relating to the determination of the value of any supply of goods and services shall apply for the purposes of this section, with the modification that no regard shall be had to any tax charged in respect of any such supply.

48. Cancellation of registration - (1) Every registered person who ceases to carry on all taxable activities shall notify the Commissioner of that fact within 21 days of the date of cessation and the Commissioner shall cancel the registration of any such person with effect from the last day of the taxable period during which all such taxable activities ceased, or from such other date as may be determined by the Commissioner:

PROVIDED THAT the Commissioner shall not at any time cancel the registration of any such registered person if there are reasonable grounds for believing that the registered person will carry on any taxable activity at any time within 12 months from that date of cessation.

(2) Any notification by a registered person pursuant to subsection (3) shall be made in writing to the Commissioner and shall state the date upon which that person ceased to carry on all taxable activities and whether or not that person intends to carry on any taxable activity within 12 months from that date.

(3) Where the Commissioner is satisfied that a registered person is not carrying on a taxable activity the Commissioner may cancel that person's registration with effect from the last day of the taxable period during which the Commissioner was so satisfied, or from such other date as may be determined by the Commissioner, and shall notify that person of the date on which the cancellation of the registration takes effect.

(4) Any date determined by the Commissioner for the cancellation of registration under subsection (3) may be retrospective to a date not earlier than:

(a) The last day of the taxable period during which taxable activity by the person ceased; or

(b) The date on which the person was registered under this Act, if the Commissioner is satisfied that the person did not, from that date, carry on any taxable activity.

(5) Subject to this Act, every registered person who carries on any taxable activity shall cease to be liable to be registered where at any time the Commissioner is satisfied that the value of that person’s taxable supplies in the period of 12 months then beginning will be not more than the amount specified by Order declared under section 47(1).

(6) Every person who, by virtue of subsection (5), ceases to be liable to be registered may request the Commissioner in writing to cancel that person’s registration, and if the Commissioner is at any time satisfied, as mentioned in subsection (5), the Commissioner shall cancel that person’s registration with effect from the last day of the taxable period during which the Commissioner was so satisfied, or from such other date as may be determined by the Commissioner, and shall notify that person of the date on which the cancellation of the registration takes effect.

(7) Notwithstanding any other provision of this section, where the Commissioner is satisfied as mentioned in subsection (5), he or she may cancel the person’s registration, such cancellation to be effective from a date as determined by the Commissioner.

49. Registered person to notify change of status - Subject to this Act, every registered person shall within 21 days notify the Commissioner in writing of:

(a) Any change in the name, address, constitution, or nature of the principal taxable activity or activities of that registered person;

(b) Any change of address from which, or the name in which, any taxable activity is carried on by that registered person:

PROVIDED THAT this section shall not apply to the notification of any changes in the ownership of any company.

50. Liabilities not affected by ceasing to be a registered person - The obligations and liabilities under this Act of any person in respect of anything done, or omitted to be done, by that person while that person is a registered person shall not be affected by the fact that that person ceases to be a registered person, or by the fact that, being a registered person, the Commissioner cancels that person's registration.

PART IX
SPECIAL CASES

51. Branches and divisions - (1) Where a taxable activity is carried on by any registered person in branches or divisions, that registered person may apply in writing to the Commissioner for any such branch or division to be registered as a separate registered person for the purposes of this Act.

(2) The Commissioner shall, upon application made pursuant to subsection (1), register any branch or division as a separate registered person if each such branch or division maintains an independent system of accounting and can be separately identified by reference to the nature of the activities carried on or the location of the branch or division, and where any such branch or division is so separately registered, any taxable activity carried on by that branch or division shall, to that extent, be deemed not to be carried on by the registered person first mentioned in subsection (1).

(3) The registered person first mentioned in subsection (1) may, at any time, apply in writing to the Commissioner for any branch or division separately registered under subsection (2) to cease to be so registered, and the Commissioner shall cancel that separate registration with effect from the last day of the taxable period of the branch or division during which that application was made, and any taxable activity carried on by that branch or division shall thereafter, to that extent, be deemed to be carried on by the registered person first mentioned in subsection (1).

(4) The Commissioner shall cancel the separate registration of any branch or division on the cancellation of the registration of the registered person first mentioned in subsection (1).

(5) Where any branch or division separately registered pursuant to this section makes default in doing anything required to be done under this Act, the liability for the doing of that thing shall revert to the registered person first mentioned in subsection (1).

(6) Notwithstanding the forgoing provisions of this section, for the purposes of sections 16 and 20 this section shall be deemed not to have applied, and any placement or direction made pursuant to the said sections 16 and 20 in respect of the registered person first mentioned in subsection (1) shall, for the purposes of this Act, apply equally to each branch or division separately registered pursuant to this section.

52. Unincorporated bodies - (1) For the purposes of this section:

"Body" means an unincorporated body of persons; and includes:

(a) A partnership;

(b) A joint venture;

"Member" means a partner, a joint venturer, a trustee, or a member of any body.

"Partnership" and "partner" have the same meanings as in the Partnership Act 1975.

(2) Where a body that carries on any taxable activity is registered pursuant to this Act.

(a) The members of that body shall not themselves be or liable to be registered under this Act in relation to the carrying on of that taxable activity; and

(b) Any supply of goods and services made in the course of carrying on that taxable activity shall be deemed for the purposes of this Act to be supplied by that body, and shall be deemed not to be made by any member of that body; and

(c) Any supply of goods and services to, or acquisition of goods by, any member of that body acting in the capacity as a member of that body and in the course of carrying on that taxable activity, not being a supply to which paragraph (b) applies, shall be deemed for the purposes of this Act to be supplied to or acquired by that body, and shall be deemed not to be supplied to or acquired by that member; and

(d) That registration shall be in the name of the body, or where that body is the trustees of a trust, in the name of the trust; and

(e) Subject to subsection (3), any change of members of that body shall have no effect for the purposes of this Act.

(3) Notwithstanding anything in this section, every member is liable jointly and severally with any other members for all tax payable by the body while that member remains a member of that body, and, where that member is an individual, after that member's death, that member's estate shall be severally liable in due course of administration for such tax payable as far as it remains unpaid:

PROVIDED THAT where any such body is a partnership, joint venture, or the trustees of a trust, a member shall not cease to be a member for the purposes of this section until the date on which any change of membership of that body is notified in writing to the Commissioner.

(4) For the purposes of this Act, any notice served in accordance with this Act which is addressed to a body by the name in which it is registered pursuant to this Act, shall be deemed to be served on that body and on all members of that body.

(5) Subject to subsection (6), where anything is required to be done pursuant to this Act by or on behalf of any body, it shall be the joint and several liability of all the members to do any such thing:

PROVIDED THAT any such thing done by one member shall be sufficient compliance with any such requirement.

(6) Notwithstanding anything in this section, but subject to subsection (3), where anything is required to be done pursuant to this Act by or on behalf of any body, not being a partnership, joint venture, or trustees of a trust, the affairs of which are managed by its members or a committee or committees of its members, it shall be the joint and several responsibility of:

(a) Every member holding office as president, chairperson, treasurer, secretary, or any similar office; or

(b) In default of any such member, every member holding office as a member of a committee:

PROVIDED THAT if it is done by any official or committee member, referred to in paragraph (a) or paragraph (b), that shall be sufficient compliance with any such requirement.

53. Personal representative, liquidator, receiver, etc. - (1) Where a registered person dies, or goes into liquidation or receivership, or becomes bankrupt or incapacitated, the Commissioner may, from the date on which that person died, or went into liquidation or receivership or became bankrupt or incapacitated, until such time as some other person is registered in respect of the taxable supplies made or intended to be made by that registered person in the course or furtherance of that person's taxable activity or until such time as the incapacity ceases, as the case may be, deem any person carrying on that taxable activity to be a registered person.

(2) Where a mortgagee is in possession of any land or other property previously mortgaged by the mortgagor, being a registered person, the Commissioner may, from the date on which the mortgagee took possession of that land or other property, until such time as the mortgagee ceases to be in possession of that land or other property, deem the mortgagee, in any case where and to the extent that the mortgagee carries on any taxable activity of the mortgagor, to be a registered person.

(3) Any person carrying on such taxable activity as aforesaid shall, within 21 days of commencing to do so, inform the Commissioner in writing of that fact and of the date of the death or of the liquidation or receivership or bankruptcy or mortgagee taking possession of any land or other property previously mortgaged by the mortgagor, or of the nature of the incapacity and the date on which it began.

54. Liability of agent of absentee principal for returns and tax - (1) For the purposes of this section, the term "absentee" means:

(a) Any person, not being a company, who is for the time being out of Samoa;

(b) Any company, not being a company incorporated in Samoa, unless it has a fixed or permanent place in Samoa relating to the carrying on of any taxable activity in Samoa in its own name;

(c) Any company, not being a company incorporated in Samoa, which is declared by the Commissioner to be an absentee for the purposes of this Act by notice given to that company or to its agent or attorney in Samoa, so long as that declaration remains unrevoked.

(2) Every person who in Samoa carries on any taxable activity for and on behalf of a principal who is an absentee shall, for the purposes of this Act, be the agent of that principal in respect of that taxable activity so carried on in Samoa by means of that agent, and the agent shall make returns and be liable for any tax charged or levied under this Act.

55. Agents and auctioneers - (1) Subject to this section, for the purposes of this Act, where an agent makes a supply of goods and services for and on behalf of any other person who is the principal of that agent, that supply shall be deemed to be made by that principal and not by that agent:

PROVIDED THAT, where that supply is a taxable supply, that agent, being a registered person, may, notwithstanding anything in this Act, issue a tax invoice or a credit note or a debit note in relation to that supply as if that agent had made a taxable supply, and to the extent that that tax invoice or credit note or debit note relates to that supply, that principal shall not also issue, as the case may be, a tax invoice or a credit note or a debit note.

(2) Subject to this section, for the purposes of this Act, where any registered person makes a taxable supply of goods and services to an agent who is acting on behalf of another person who is the principal for the purposes of that supply, that supply shall be deemed to be made to that principal and not to that agent:

PROVIDED THAT that agent may nevertheless request that that agent be issued with a tax invoice and that registered person may issue a tax invoice or a credit note or debit note as if the supply were made to that agent.

(3) Where a tax invoice or a credit note or debit note in relation to a supply has been issued:

(a) By an agent pursuant to subsection (1); or

(b) To an agent pursuant to subsection (2),-

the agent shall maintain sufficient records to enable the name and address and registration number (if any) of the principal to be ascertained.

(4) For the purposes of subsection (5), the expression "auctioneer" means a registered person carrying on a taxable activity which comprises or includes the supply by auction of goods as an auctioneer or agent for or on behalf of another person (hereafter in this section referred to as a principal).

(5) Notwithstanding anything in the foregoing provisions of this section, where the principal and the auctioneer agree to have a supply by auction of any goods, not being a taxable supply, treated as if that supply had been made by that auctioneer and not by that principal, that supply shall be charged with tax as if it were made by that auctioneer in the course or furtherance of that auctioneer's taxable activity and that auctioneer may:

(a) Recover the amount of tax charged on that supply from that principal as a debt together with the costs of recovery in any Court of competent jurisdiction; or

(b) Retain or deduct the same out of any money in that auctioneer's hands belonging or payable to that principal.

(6) Notwithstanding anything in subsection (2), where any registered person makes a taxable supply (not being a supply that is charged with tax at the rate of zero percent pursuant to section 12) of goods and services to an agent, being a registered person, who is acting for or on behalf of another person who is the principal for the purposes of that supply, and:

(a) That principal is not resident in Samoa and is not a registered person; and

(b) That supply is directly in connection with either the exportation, or the arranging thereof, of goods from Samoa to any country or place outside Samoa, or the importation, or the arranging thereof, of goods to Samoa from any country or place outside Samoa, including, in either case, the transportation of those goods within Samoa as part of that exportation or, as the case may be, importation,-

this Act shall, where that agent and that principal agree, have effect as if that supply were made to that agent and not to that principal.

56. Directors liable when company in default - (1) Where any company makes default in the payment of any tax due and payable by it, all of the persons who were directors of that company when the default first occurred shall be jointly and severally liable for the payment of that tax as if they had been personally assessed in respect of the same.

(2) Nothing in this section shall in any way affect the liability of the defaulting company for payment of the tax and any penalty in respect thereof or the rights of such directors to recover from the defaulting company any tax paid by them in meeting any obligation imposed by this section.

PART X
PENALTIES

57. Offences - (1) Every person commits an offence against this Act who:

(a) Fails to apply for registration as required pursuant to section 47; or

(b) Fails to notify the Commissioner of any of the matters required pursuant to section 49; or

(c) Refuses or fails to furnish any return or information as and when required by this Act, or any regulations made under this Act, or by the Commissioner; or

(d) Makes any false return, or any false statement, or any false declaration, or gives any false information, knowing it to be false, or being reckless as to whether it was false, or intentionally misleads or attempts to mislead the Commissioner or any other officer of the Inland Revenue Department in relation to any matter under this Act; or

(e) Knowingly falsifies any records required to be kept under this Act; or

(f) Knowingly issues any tax invoices showing any amount charged as tax where:

(i) No amount of tax is charged in respect of any supply to which such tax invoice applies; or

(ii) The amount shown as being charged as tax is in excess of the amount properly so charged under this Act; or

(iii) The supply in respect of the tax charged will not take place; or

(g) Knowingly represents to any person, in writing or otherwise howsoever, that any amount is charged as tax where either:

(i) No amount of tax is charged in respect of any supply to which any such representation refers; or

(ii) The amount represented as being charged as tax is not the amount properly so charged under this Act; or

(h) Receives, acquires possession of, or deals with any goods, or accepts the supply of any services, where that person knows or has reason to believe that the tax on the supply of the goods or the services has been or will be evaded; or

(i) Obstructs any officer of the Inland Revenue Department acting in the discharge of that officer's duties or the exercise of that officer's powers under this Act; or

(j) Fails to keep or to properly maintain records of any taxable activity carried on by that person sufficient to satisfy the requirements of section 70; or

(k) Knowingly issues any tax invoice required under this Act which is in any material aspect erroneous or incomplete, or knowingly makes any statement or declaration in relation to any matter under this Act which is erroneous or incomplete in any material aspect; or

(l) Knowingly contravenes the provisions of section 25(1)(a) or section 26(3)(c); or

(m) Being a registered person, fails to provide another registered person with a tax invoice as required under this Act; or

(n) Knowingly fails to make any deduction or extraction required by a notice under section 40; or

(o) Fails, after making any deduction or extraction required by a notice under section 40, to pay the sum deducted or extracted to the Commissioner within the time specified in the notice; or

(p) Permits the payment to or on behalf of any person, other than the Commissioner, of any amount that, under section 40(10), is deemed to be held in trust for the Government; or

(q) Aids, abets, incites, or conspires with any other person to commit any offence against this Act or against any regulations made under this Act.

(2) Every person who commits an offence against subsection (1)(b), (1)(j) or (1)(l) or section 58 shall:

(a) On the first occasion on which the person is convicted of any such offence or more than one such offence, be liable, in respect of that offence or, as the case may be, each of those offences, to a fine not exceeding 10 penalty units;

(b) On the second occasion on which the person is convicted of any such offence or more than one such offence, be liable, in respect of that offence or, as the case may be, each of those offences, to a fine not exceeding 10 penalty units;

(c) On every occasion, other than the occasions referred to in paragraphs (a) and (b) of this subsection, on which the person is convicted of any such offence or more than one such offence, be liable, in respect of that offence or, as the case may be, each of those offences, to a fine not exceeding 30 penalty units.

(3) Every person who commits an offence against subsection (1)(c) or (1)(m) shall:

(c) On every occasion, other than the occasions referred to in paragraphs (a) and (b), on which the person is convicted of any such offence or more than one such offence, be liable, in respect of that offence or, as the case may be, each of those offences, to a fine not exceeding 10 penalty units for each month of default.

(4) Every person who commits an offence against this Act for which no other penalty is prescribed shall:

(b) On every occasion, other than the occasion referred to in paragraph (a) of this subsection, on which the person is convicted of any such offence or more than one such offence, be liable, in respect of that offence or, as the case may be, each of those offences, to a fine not exceeding 100 penalty units.

(5) Every person who commits an offence against subsection (1) (q) shall be liable to a fine not exceeding the maximum fine applicable to the offence committed by the person aided, abetted, incited, or conspired with.

(6) Every registered person who fails to comply with section 70A commits an offence and shall be liable upon conviction to a fine not exceeding 5 penalty units. Any registered person who has been convicted under this subsection shall in a subsequent conviction be liable to a fine not exceeding 10 penalty units.

58. Officers and employees of corporate bodies - (1) For the purposes of this section, unless the context otherwise requires, "officer", in relation to a corporate body, includes:

(a) A director or secretary or other statutory officer of the corporate body;

(b) A receiver or a manager of any property of the corporate body, or a person having powers or responsibilities, similar to those of such a receiver or manager, in relation to the corporate body;

c) A liquidator of the corporate body.

(2) Every person commits an offence against this Act who, being an officer or an employee of a corporate body, is, by reason of that office or, as the case may be, that employment, responsible (whether pursuant to any statute or rule of law, or any instructions of the corporate body or for any other reason) for furnishing to the Commissioner any information or any statement or any return pursuant to this Act or pursuant to any notice, order, or requirement issued, made, or notified pursuant to this Act, and who fails to furnish that information or that statement or that return, as the case may be, to the Commissioner within the time specified for the furnishing thereof.

59. Proceedings to be taken in the District Court - All proceedings for offences against this Act shall be taken by way of prosecution before a District Court Judge upon the information of the Commissioner.

60. Information may charge several offences - (1) Any information may charge the defendant with any number of offences against this Act if those offences are founded on the same set of facts, or form or are part of a series of offences of the same or similar character.

(2) Where any information charges more than one such offence, particulars of each offence charged shall be set out separately in the information.

(3) All such charges shall be heard together, unless the Court, either before or at any time during the hearing, considers it just that any charge should be heard separately and makes an order to that effect.

61. Information may be laid within 10 years - Notwithstanding anything in any other Act, any information in respect of any offence against this Act or against any regulations made thereunder may be laid at any time within 10 years after the end of the taxable period in which the offence was committed.

62. Penal tax in case of evasion - Where:

(a) Any registered person:

(i) Evades; or

(ii) Attempts to evade; or

(iii) Does any act with intent to evade; or

(iv) Makes default in the performance of any duty imposed upon that person by this Act or regulations made under this Act with intent to evade,-

the payment of any amount of tax payable (which amount is hereafter referred to as the deficient tax).

(b) Any registered person:

(i) Causes; or

(ii) Attempts to cause; or

(iii) Does any act with intent to cause; or

(iv) Makes default in the performance of any duty imposed upon that person by this Act or regulations made under this Act with intent to cause,-

the credit to that person by the Commissioner of any amount (which amount is hereafter also referred to as the deficient tax), pursuant to section 21(6), in excess of the amount properly so to be credited to that person,-

that person shall be chargeable, by way of penalty for that offence, with additional tax (hereafter called penal tax) not exceeding an amount equal to treble the amount of the deficient tax.

63. Nature of penal tax - Subject to this Part, penal tax shall for all purposes be deemed to be tax of the same nature as the deficient tax to which it relates, and shall be deemed to be payable in and for the same taxable period as that deficient tax.

64. Assessment of penal tax - (1) Penal tax shall be assessed by the Commissioner in the same manner, so far as may be, as the deficient tax to which it relates, but separately therefrom.

(2) An assessment of penal tax may be amended from time to time in the same manner as any other assessment.

(3) It shall be lawful for the Commissioner to make or amend an assessment of penal tax at any time.

65. Objections to penal tax - (1) Any assessment of penal tax shall be subject, in the same manner as any other assessment of tax, to objection on the ground that the person so assessed is not chargeable with penal tax, or on the ground that the amount so assessed is excessive having regard to the nature and degree of the offence or to the reason for the imposition of the penal tax, and notwithstanding that the amount so assessed is not in excess of treble the amount of the deficient tax,-

PROVIDED THAT, where the person so assessed is chargeable with penal tax, the amount of penal tax assessed by the Commissioner shall not be reduced below the smaller of the following amounts:

(a) The amount of penal tax so assessed;

(b) An amount calculated, in respect of the period commencing with the last day of the taxable period for which the deficient tax is payable and ending with the day on which the assessment of the penal tax is made by the Commissioner, at the rate of 10 percent per annum of the amount of the deficient tax.

(2) Subject to subsection (1), the provisions of this Act as to objections shall apply to an objection to an assessment of penal tax, save that the burden of proving the offence in respect of which penal tax is chargeable shall lie upon the Commissioner.

66. Recovery of penal tax - An assessment of penal tax may be made and the tax so assessed shall be recoverable at any time, whether before or after the deficient tax to which it relates has been assessed or paid, or has become assessable or payable.

67. Recovery of penal tax from executors or administrators - (1) Penal tax shall be assessable against and recoverable from the executors or administrators of a deceased registered person, but, if so assessed, the amount thereof shall be recoverable only as a debt incurred by the deceased in that person's lifetime.

(2) No penal tax shall be recoverable from any person other than the registered person or that person's executors or administrators.

68. Recovery of penal tax not affected by conviction of registered person - The assessment or recovery of penal tax in respect of any offence shall not be in any manner barred or affected by the fact that the registered person has been convicted under this Act of the same or any other offence, but no person who has paid the penal tax assessed against that person for any offence shall be thereafter convicted of the same offence.

69. Publication of names of tax evaders - (1) The Commissioner may from time to time publish in the Savali a list of persons who:

(a) Have been convicted under section 57(1)(d); or

(b) Have been convicted under 57(1)(q) of aiding, abetting, inciting, or conspiring with any other person to commit any offence under section 57(1)(d); or

(2) The Commissioner may omit from any list published under this section any reference to any registered person to whom subsection (1) applies if the Commissioner is satisfied that, before any investigation or inquiry has been commenced in respect of the offence or evasion of which the registered person is guilty, the registered person has voluntarily disclosed to the Commissioner or to any officer authorised by the Commissioner in that behalf complete information and full particulars as to the offence or evasion.

(3) Every list published under this section may specify all or any of the following:

(a) The name, address, and principal taxable activity of the registered person;

(b) Such particulars of the offence or evasion as the Commissioner thinks fit;

(d) The amount or estimated amount of the tax evaded;

(e) The amount (if any) of the penal tax imposed.

PART XI
GENERAL PROVISIONS

70. Keeping of records - (1) For the purposes of this section, the term "records" includes books of account (whether contained in a manual, mechanical, or electronic format) recording receipts or payments or income or expenditure, and also includes vouchers, bank statements, invoices, tax invoices, credit notes, debit notes, receipts, and such other documents as are necessary to verify the entries in any such books of account.

(2) Without limiting the generality of subsection (1), the records required to be kept and retained, pursuant to subsection (3), shall contain:

(a) A record of all goods and services supplied by or to that registered person showing the goods and services, and the suppliers or their agents, in sufficient detail to enable the goods and services, the suppliers, or the agents to be readily identified by the Commissioner, and all invoices, tax invoices, credit notes, and debit notes relating thereto; and

(b) The charts and codes of account, the accounting instruction manuals, and the system and programme documentation which describes the accounting system used in each taxable period in the supply of goods and services; and

(3) Subject to subsection (4), every registered person who supplies in Samoa goods and services shall keep in Samoa copies of records issued by that registered person, and sufficient records in the English language or the Samoan language to enable ready ascertainment by the Commissioner or any officer authorised by the Commissioner in that behalf, of that person's liability to tax and shall retain in Samoa all such records for a period of at least 10 years after the end of the taxable period to which they relate.

(4) This section shall not require the retention of any records:

(a) In respect of which the Commissioner has given notice in writing that retention is not required;

(b) Of a company which has been wound-up and finally dissolved.

70A. Prices to be displayed - (1) The price of all goods and services to which this Act applies and supplied at the retail level in Samoa shall be displayed as inclusive of the tax chargeable on that supply.

(2) Notwithstanding anything in subsection (1), where any tourism publicity material is or will be utilised outside of Samoa to advertise the supply of any goods and services by any registered person, the price of those goods and services may be displayed as exclusive of tax chargeable on that supply:

PROVIDED THAT any publicity material that displays a tax exclusive price must clearly state that the price displayed is subject to tax.

71. Agreement to defeat the intention and application of Act to be void - (1) Notwithstanding anything in this Act, where the Commissioner is satisfied that an arrangement has been entered into between persons to defeat the intent and application of this Act, or of any provision of this Act, the Commissioner shall treat the arrangement as void for the purposes of this Act and shall adjust the amount of tax payable by any registered person (or refundable or to be credited to that person by the Commissioner) who is affected by the arrangement, whether or not that registered person is a party to it, in such manner as the Commissioner considers appropriate so as to counteract any tax advantage obtained by that registered person from or under that arrangement.

(2) The Commissioner may, for the purposes of this section, deem:

(a) Any person (not being, apart from this subsection, a registered person) who is a party to or has participated in any way in any arrangement, to be a registered person;

(b) Any supply of goods and services, whether or not a taxable supply, that is affected by or is part of any arrangement, to be both made to and made by any registered person;

(c) Any supply of goods and services to occur in any taxable period that, but for any arrangement affected by this section, would have been the taxable period in which the supply was made;

(d) Any supply of goods and services to have been made, or consideration for such supply to be given, at open market value.

(3) Where:

(a) Any person (in this subsection hereafter referred to as the original person) enters into any arrangement on or after the date upon which this Act was first introduced into the Legislative Assembly whereby any taxable activity formerly carried on by the original person is carried on, in whole or in part, by any other person or other persons; and

(b) The original person and the other person or other persons are associated persons,-

for the purposes of section 47(1), the value of the supplies made in the course of carrying on all taxable activities in any period of 12 months commencing on the first day of any month by the original person and by the other person or, as the case may be, by the other persons shall, so far as the value relates to those supplies arising from the taxable activity formerly carried on by the original person, each be deemed to be equal to the aggregate of the value of the taxable supplies made by all of them for that period:

PROVIDED THAT the Commissioner may, having regard to the circumstances of the case and if the Commissioner thinks it equitable to do so, determine in any particular case that this subsection shall not apply to all or any of the original person and that other person or, as the case may be, those other persons.

(4) For the purposes of this section:

"Arrangement" means any contract, agreement, plan, or understanding (whether enforceable or unenforceable) including all steps and transactions by which it is carried into effect.

"Tax advantage" includes:

(a) Any reduction in the liability of any registered person to pay tax;

(b) Any increase in the entitlement of any registered person to a refund or credit of tax;

72. Samoa currency - For the purposes of this Act, all amounts of money shall be expressed in terms of Samoa currency, and in any case where and to the extent that such amount is consideration in money for a supply, that amount shall be expressed in terms of Samoa currency as at the time of that supply.

73. Effect of imposition or alteration of tax - (1) For the purposes of this section the expression "alteration in the law" means the coming into force of the provisions of this Act or any amendment to this Act by which:

(a) A supply of goods and services is charged with, or exempted from, tax; or

(b) The rate of tax in relation to a supply of goods and services is increased or reduced.

(2) Where an alteration in the law is made and a supplier has, at any time entered into any agreement or contract in respect of the supply of goods and services with a recipient, unless express provision for the exclusion of any such alteration in the law is contained in the agreement or contract, or where the alteration in the law has been taken into account, every such agreement or contract shall be deemed to be modified as follows:

(a) Where the alteration in the law renders that supply liable to be charged with tax or increases the amount of any tax charged or chargeable in relation to that supply, the supplier may add to the agreed price in the said agreement or contract the amount of that tax or the increase of that tax; or

(b) Where the alteration in the law renders that supply exempt from tax or reduces the amount of tax charged or chargeable in relation to that supply, the supplier or the recipient may deduct from the agreed price in the said agreement or contract the amount of that tax or the reduction of that tax,-

PROVIDED THAT this subsection shall not apply where that contract or agreement is entered into after the expiry of the period of 3 months that commences with the coming into force of the alteration in the law:

PROVIDED FURTHER THAT this subsection shall not apply to require a public authority to alter any amount agreed to be paid by the authority in respect of any supply of goods and services where the consideration for that supply is in the nature of a grant or subsidy.

(3) Where an alteration in the law is made, any fee, charge, or other amount, prescribed by, or determined pursuant to, any Act or by any regulation, in respect of any supply of goods and services shall, unless provision to the contrary is contained in that Act or regulation, be deemed to be modified as follows:

(a) Where the alteration in the law renders the fee, charge, or other amount prescribed by, or determined pursuant to, that Act or regulation liable to be charged with tax or increases the amount of tax charged or chargeable, the said fee, charge, or other amount so prescribed or determined shall be increased by that amount of tax charged or chargeable; or

(b) Where the alteration in the law renders the fee, charge, or other amount prescribed, or determined pursuant to, that Act or regulation exempt from tax or reduces the amount of tax charged or chargeable, the said fee, charge, or other amount so prescribed or determined shall be exempted from tax or reduced by the amount of tax no longer charged or chargeable:

PROVIDED THAT where any such Act or regulation prescribes or determines either a maximum or a minimum amount in respect of any supply of goods and services, that maximum or, as the case may be, minimum amount shall, for the purposes of any such Act or regulation, be deemed to be increased or, as the case may be, decreased, by the amount of tax charged or, as the case may be, tax no longer charged by virtue of this subsection:

PROVIDED FURTHER THAT this subsection shall not apply to any fee, charge, or other amount prescribed or determined which is required to be paid by any public authority to any other person by virtue of that Act or regulation.

(4) Where any supply is or becomes charged with tax pursuant to this Act, the amount of any increase in consideration in respect of that supply attributable to the tax charged on that supply shall be recoverable by the supplier from the recipient of the taxable supply.

(5) Where any alteration in the law takes place so as to operate retrospectively from any date, this section shall also apply retrospectively in the date, and any money paid by a date, and any money paid by a recipient of the taxable supply to the supplier in excess of the amount which by virtue of the application of this section is properly payable, shall be recover-able by the recipient, notwithstanding that the over payment may have arisen due to a mistake of law.

(6) Until June 30th 2003 and despite the provisions of the Act, the Commissioner may exercise his or her discretion to allow value added goods and services tax imposed under section 9 to be calculated at the rate of 10 percent where:

(a) The change of the rate of such tax effected by the Value Added Goods and Services Tax Amendment Act 2002 entails serious hardship for a supplier concerning any agreement or contract the supplier has entered into in respect of the supply of goods and services with a recipient; and

(b) The other provisions of this section do not provide relief from such hardship for the supplier; and

(c) The amount of any taxation revenue foregone in respect of any supplier as a result of the Commissioner exercising his or her discretion under this subsection is no greater than $1000.

74. Returns to be furnished in 2 parts for taxable period in which change in rate of tax occurs - (1) Where there is a change in the rate of tax imposed by section 9, every registered person who does not have a taxable period beginning on the same day as the date on which the new rate comes into force shall furnish to the Commissioner a return in 2 parts for the taxable period in which the new rate comes into force, comprising:

(a) A Part I return, covering the period beginning on the first day of the person's taxable period and ending with the day immediately preceding the date on which the new rate comes into force; and

(b) A Part II return, covering the period beginning on the date on which the new rate comes into force and ending with the last day of the person's taxable period.

(2) Each such part shall be furnished in a form or forms prescribed by the Commissioner, and the 2 parts shall together be deemed to form a single return.

(3) Every person, whether registered or not, who is required to make a return pursuant to section 17(2) of this Act in respect of any period in which a new rate of tax comes into force shall (except where the new rate comes into force on the first day of that period) furnish a return in 2 parts in accordance with this section, as if the period for which the return is required to be made were a taxable period.

75. Adjustments to tax payable following change in rate of tax - (1) The adjustment required by this section shall be calculated as follows:

(a) First determine the amount of consideration payable by the registered person on qualifying supplies made to the registered person;

(b) Subtract the amount of the consideration payable to the registered person on qualifying supplies made by the registered person;

(c) Multiply the resulting total by an amount equal to the old tax fraction subtracted from the new tax fraction (as respectively calculated in accordance with section 2 immediately before and immediately after the new rate of tax comes into force).

(2) Where the amount so calculated is a negative amount, that amount shall be a credit to the registered person, and:

(a) Shall be set off against any amount of tax payable by the registered person in respect of any taxable period ending before the day on which the new rate of tax comes into force; and

(b) To the extent that it cannot be so set off, shall be set off against any amount of tax payable by the registered person in respect of the taxable period in which the new rate comes into force; and

(c) To the extent that it cannot be so set off, shall be carried forward to the next taxable period and set off against any amount of tax payable by the registered person in respect of that next taxable period, and so on,-

but no such credit shall be refunded by the Commissioner.

(3) For the purposes of this section, a registered person shall, in respect of all qualifying supplies made by or to that person, prepare:

(a) A list of debtors of the registered person showing the amounts due to that person as at the commencement of the day on which the new rate of tax comes into force; and

(b) A list of creditors of the registered person showing the amounts due by that person as at the commencement of that day.

(4) For the purposes of this section, the Commissioner may issue guidelines either to apply generally or in relation to a specific registered person, for the purpose of assisting to determine whether a supply is a "qualifying supply" and any registered person who complies with the guide-lines issued shall not contravene this Act in that regard.

75A. Adjustments to tax payable in relation to credit and debit notes following change in rate of tax - (1) Where –

(a) There is a change in the rate of tax imposed by section 9; and

(b) Any registered person (being a supplier) has made an adjustment pursuant to section 75 in respect of any qualifying supply made by that person; and

(c) That registered person subsequently issues a debit note or credit note (in accordance with section 26) in respect of a qualifying supply made for which payment has not been received as at the time of the issue of that debit note or credit note, that registered person shall, in the taxable period in which the debit note or credit note is issued, adjust the amount of the tax payable under section 21 by an amount calculated in accordance with this section.

(2) Where –

(a) There is a change in the rate of tax imposed by section 9; and

(b) Any registered person (being a recipient) has made an adjustment pursuant to section 75 in respect of any qualifying supply received by that person; and

(i) been issued with a debit note or credit note; or

(ii) received written or other notice, or other-wise knows that any tax invoice held in incorrect, for which payment has not been made as at the time of the receipt of that debit note or credit note, or other notice, or knowledge, that registered person shall, in the taxable period in which the debit note or credit note or other notice or knowledge was received, adjust the amount of tax payable under section 21 by an amount calculated in accordance with this section.

(3) The adjustment required by this section shall be calculated as follows –

(a) Subtract from the amount of consideration originally payable to, or, as the case may be, by that registered person the amount of consideration that is now payable to, or, as the case may be, by that registered person;

(b) Multiply the resulting total by an amount equal to the old tax fraction subtracted from the new tax fraction (as respectively calculated in accordance with section 2 immediately before and immediately after the new rate of tax comes into force).

(4) For the purposes of subsection (1), the amount of the adjustment pursuant to this section shall be deemed to be -

(a) Output tax where the amount of the adjustment is a positive amount; and

(b) Input tax where the amount of the adjustment is a negative amount.

(5) For the purposes of subsection (2), the amount of the adjustment pursuant to this section shall be deemed to be –

(a) Output tax where the amount of the adjustment is a negative amount; and

(b) Input tax where the amount of the adjustment is a positive amount.

76. Liability to pay past tax, etc., not affected by alteration in the law - Except as otherwise expressly provided in any enactment, the repeal or amendment of any provision of this Act shall not affect any liability or right of any person or of the Government that existed under that provision immediately before its repeal or amendment, and in particular:

(a) Any liability to tax, or to any fine or penalty, of any person pursuant to the repealed or amended provision, and the right of the Government to any revenue, tax, fee, fine, or penalty pursuant to the repealed or amended provision, shall not be affected by the repeal or amendment; and

(b) All acts and proceedings for the assessment or recovery of any revenue, tax, fine, or penalty assessed or assessable or paid or payable pursuant to the repealed or amended provision, and all proceedings in respect of offences committed or alleged to be committed in respect of the repealed or amended provision, may be instituted or continued as if the provision had not been repealed or amended.

77. Disclosure of information - (1) No obligation as to secrecy or other restriction upon the disclosure of information imposed by any enactment or otherwise shall prevent any of them:

(a) The Commissioner of Inland Revenue or any officer authorised in that behalf; and

(b) The Comptroller of Customs or any officer of Customs authorised in that behalf; and

(d) The National Revenue Board or any member or officer thereof authorised in that behalf,-

from disclosing to each other information obtained for revenue-gathering purposes and which is required to be disclosed by the persons authorised by this subsection for the same purpose to give effect to the provisions of this Act.

(2) Information obtained pursuant to subsection (1) shall not be disclosed except:

(a) To the persons authorised under that subsection; or

(b) For the purpose of any proceedings connected with a matter in relation to which those persons so authorised perform their duties.

78. Power to extend time for doing anything under Act - (1) Where anything required by or under this Act to be done at or within a fixed time cannot be or is not so done, the Head of State may, by Order, from time to time appoint a further or other time for doing the same, whether the time at or within which the same ought to have been done has or has not expired.

(2) Anything done at, or, as the case may be, within the time prescribed by any such Order in Council shall be as valid as if it had been done at, or, as the case may be, within the time fixed by or under this Act.

79. Regulations - The Head of State may from time to time, acting on the advice of Cabinet, make regulations, not inconsistent with this Act, for all or any of the following purposes:

(a) Prescribing the duties and functions of officers and other persons appointed or employed under this Act;

(b) Prescribing the form of returns to be made, the particulars to be set forth therein, the persons by whom and the time when or within which such returns are to be made, and the forms of the assessments, notices, and other documents referred to in this Act or necessary in order to give effect thereto;

(c) Providing, where there is no provision in this Act or no sufficient provision in respect of any matter or thing necessary to give effect to this Act, in what manner and form the deficiency shall be supplied;

(d) Prescribing offences against any such regulations and prescribing fines not exceeding 5 penalty units in respect of any such offence;

(e) Providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for the due administration thereof.

PART XII
TRANSITIONAL PROVISIONS

80. Registration of persons liable to be registered on 1 January 1994 - (1) Notwithstanding anything in section 47, every person who, on or after the commencement of this Act and on or before the 31st day of October 1993, knows, or could with reasonable diligence have known, that that person will be liable to be registered with effect on and from the 1st day of January 1994 pursuant to section 47 shall, to enable the Commissioner to effect registration of any such person with effect on and from the 1st day of January 1994, apply in the prescribed form, before the 30th day of November 1993, to the Commissioner to be registered, and the Commissioner shall register that person in the manner prescribed by section 47.

(2) Every other person who is liable to be registered under this Act on or after the 1st day of January 1994, shall apply for registration pursuant to section 47.

(3) Every person to whom subsection (1) applies who fails to comply with that subsection commits an offence and shall be liable to a fine not exceeding 5 penalty units, or, if that person is a company, to a fine not exceeding 20 penalty units.

81. Supplies prior to 1 January 1994 - (1) For the purposes of this Part of this Act, the expression "time of performance" means:

(a) In relation to a supply of goods:

(i) Where the goods are to be removed, the time of the removal;

(ii) Where the goods are to be removed and where the property in those goods will pass from the supplier to the recipient, the earlier of the time of the removal and the time that that property passes;

(iii) Where the goods are not to be removed, the time when they are made available to the recipient;

(iv) Where the goods (being sent or taken on approval, sale or return, or similar terms) are removed before it is known whether a supply will take place, the time when it becomes certain that the supply has taken place; or

(b) In relation to a supply of services, the time when the services are performed.

(2) Where any registered person supplies or agrees to supply services by virtue of or pursuant to any contract, agreement, or enactment, (whether conditionally or unconditionally, on the happening of any event or any contingency, or otherwise), and that contract, agreement, or enactment expressly or impliedly provides that for, or in respect of, any period or periods, that:

(a) Any right is to be granted or exercisable, or any thing is to be done, or omitted to be done; or

(b) Any payment is due, or may be made; or

those services shall for the purposes of subsection (1)(b) be deemed to be performed by that registered person continuously and uniformly during the whole of that period or those periods.

(3) Where any services are supplied pursuant to any contract, agreement, or enactment which provides that any right is to be granted or exercisable by an individual for a period which will end with the termination of the life of that individual, and where that contract, agreement, or enactment provides for a single non-refundable payment as consideration for the granting or exercising of that right, those services shall, for the purposes of subsection (1)(b), be deemed to have been performed at the earlier of the time that that right is granted by the supplier or first becomes exercisable.

(4) Notwithstanding anything in this Act, for the purposes of subsection (1), goods supplied under an agreement to hire as defined in section 10(3)(d) of this Act shall be deemed to be a supply of services.

(5) Subject to subsection (6) and notwithstanding anything in section 10 where, and to the extent that, the time of performance of any supply of goods and services:

(a) Is before the 1st day of January 1994, and that supply would, but for this section, be deemed by section 10 to take place on or after the 1st day of January 1994, and the value of that supply is ascertainable, that time of performance shall, for the purposes of this Act, be the time when the supply of those goods and services is deemed to take place;

(b) Is on or after the 1st day of January 1994, and that supply would, but for this section, be deemed by section 10 or section 21 to take place before the 1st day of January 1994:

(i) That time of performance shall, for the purposes of section 9, be the time when the supply of those goods and services is deemed to take place; and

(ii) The time when the supply of those goods and services is made shall, for the purposes of section 21, be deemed to be the 1st day of January 1994; and

(6) Notwithstanding anything in subsection (5), where and to the extent that any supply of goods is the construction, major reconstruction, manufacture, or extension of a building or a civil engineering work by the supplier, and the goods are:

(a) sold pursuant to any written contract entered into before the 1st day of January 1994; and

(b) made available to the recipient on or after the 1st day of January 1994,-

the value of all work and materials permanently incorporated in or affixed on the site of the building or civil engineering work pursuant to that contract shall be determined as at the close of the 31st day of December 1993, and:

(c) To the extent that the aggregate of the consideration in money for all supplies in respect of the sale of those goods which, pursuant to section 10(1) or section 10(3)(b)(ii), took place before the 1st day of January 1994, exceeds that value, the amount of that excess shall be deemed to be consideration in money for a taxable supply made by that supplier on the 1st day of January 1994 and charged with tax pursuant to section 9(1);

(d) To the extent that that value exceeds the aggregate of the consideration in money for all supplies in respect of the sale of those goods which, pursuant to section 10(1) or section 10(3)(b)(ii), took place before the 1st day of January 1994, the consideration in money for the first supply in respect of the sale of those goods which, pursuant to section 10(1) or section 10(3)(b)(ii), takes place on or after the 1st day of January 1994 shall be deemed to be reduced by the amount of that excess:

PROVIDED THAT any part of the amount of that excess remaining, in any case where that consideration is reduced to nil as a result of the application of this paragraph, shall be carried forward and the consideration for any subsequent such supply shall be deemed to be reduced to that extent, and so on:

PROVIDED THAT this subsection shall only apply to the extent that that value has been determined on or before the 1st day of February 1994 in a manner acceptable to the Commissioner by a competent independent valuer, or by any other competent valuer that the Commissioner may, in the Commissioner's discretion approve:

PROVIDED FURTHER THAT where any such supply is made to a registered person, exclusively for the purposes of making taxable supplies, the first proviso to this subsection shall not apply.

82. Certain contracts entered into on or before the date upon which this Act was first introduced into the Legislative Assembly - (1) For the purposes of this section:

"Non-reviewable contract" in relation to any supply, means any written contract, or any agreement entered into pursuant to an enactment, for the supply of goods and services where:

(a) Those goods and services are specifically identified in the contract or, as the case may be, agreement; and

(b) The consideration in money for that supply is specified in the contract or, as the case may be, agreement either by reference to an amount of money or by way of a formula; and

(c) The contract or, as the case may be, agreement contains no provision for, and does not otherwise contemplate, any change to that consideration arising either directly or indirectly from the imposition of the value added goods and services tax; but does not include any contract that provides for or otherwise contemplates a general review of the consideration in money for that supply;

"Review" includes renegotiation, adjustment, or alteration;

"Reviewable contract", in relation to any supply, means any written contract, not being a non-reviewable contract, for the supply of goods and services where the consideration in money for that supply is specified in the contract either by reference to an amount of money or by way of a formula.

(2) For the purposes of this Act, where any supply is made pursuant to any non-reviewable contract entered into on or before the date upon which this Act was first introduced into the Legislative Assembly, and that supply would, but for this section, be charged with tax under section 9, that supply shall be charged with tax at the rate of zero percent.

(3) For the purposes of this Act, where any supply is made pursuant to any reviewable contract entered into on or before the date upon which this Act was first introduced into the Legislative Assembly, and that supply would, but for this section, be charged with tax under section 9, that supply shall, to the extent that such supply is made prior to the first opportunity after the date upon which this Act was first introduced into the Legislative Assembly for the review of the consideration in money for that supply, be charged with tax at the rate of zero percent:

PROVIDED THAT the time when that supply is made shall be determined solely by reference to the time of performance of that supply.

PART XIII
CONSEQUENTIAL REPEALS

83. Repeal of existing legislation - The following legislations are hereby repealed:

(a) Goods and Services Tax Act 1986 No. 17;

(b) Goods and Services Amendment Act 1991 No. 9;

(d) Section 18 subsection (3) and section 18A of the Income Tax Act 1974.

REVISION NOTES 1997

The Value Added Goods and Services Tax Act 1992/1993 as appears in this reprint comprised that Act together with the amendments referred to below:

Section 1A: A new section added by section 2 of the Value Added Goods and Services Tax Amendment Act 1992/1993.

Note! This amendment Act of 1992/1993 was assented to by the Head of State on 23 December 1993.

Section 2 (1): Definitions of "food", "produce" and "raw and unprocessed state" and an amended definition of "hospital" were added by section 2 of the amendment Act of 1992/1993.

Section 15: Two exemptions (c) and (d) were added by the amendment Act of 1992/1993; and four further exemptions (e), (f), (g), and (h) were added by section 2 of the Value Added Goods and Services Amendment Act 1994.

Section 16: This section was repealed and replaced by a new section, by section 4 of the 1992/1993 Amendment Act.

Section 21: New subsections (7) to (11) inclusive were added by section 5 of the 1992/1993 Amendment Act.

Section 47: This section, was repealed and replaced by a new section, by section 6 of the 1992/1993 Amendment Act.

Section 57(6): A new subsection added by section 7 of the 1992/1993 Amendment Act.

Section 70A: A new section added by section 8 of the 1992/1993 Amendment Act.

Section 83(d): A new subsection added by section 9 of the 1992/1993 Amendment Act, which amends the Income Tax Act 1974.

The Value Added Goods and Services Tax Act 1992/1993, with the exception of sections 13 and 14, is, by virtue of section 7 one of the Inland Revenue Acts and the Schedule to the Income Tax Administration Act 1974 has accordingly been amended.

REVISION NOTES 2008

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –

(a) References to Western Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.

(b) The fines have been amended and are stated as penalty units as provided for by the Fines (Review and Amendment) Act 1998.

(d) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.

(e) Amendments have been made to up-date references to offices, officers and statutes.

(f) Other minor editing has been done in accordance with the lawful powers of the Attorney-General.

The following amendments have been made to specific sections of the Act to incorporate amendments made by Act of Parliament passed since the publication of the Western Samoa Statutes Reprint 1978-1996 –

Section 2 was amended by deleting the definitions "Domestic goods and services", "Licence to occupy" and "Service occupancy agreement" and inserting into the definition of "unconditional gift" after the words "means of payment", the words "other than a government grant or subsidy"; and by adding the definition of "Associated person" subparagraph (g). This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 5 (4) was amended by deleting from paragraph (a) of section 5(4) the words "section 6(3)(c) and section 6(3)(d)" and replacing them with "section 6(3)(d) and section (6)(3)(e)" and adding to the proviso. This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 9 (1) was amended by the Value Added Goods and Services Tax Amendment Act 2002 and later amended by the Value Added Goods and Services Tax Amendment Act 2006.

Section 10 was amended by adding subsections (6) and (7). This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 11 was amended by deleting subsection (5) and adding subsection (9). This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 12 was amended by adding to subsection (6)(o). This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 13 was amended by deleting from subsection (1) the words "Provided that nothing in subsection (1) of this section shall apply to goods or services imported under international aid" and replaced. This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 13 - The reference to the First Schedule of the Customs Tariff Acts 1975 is retained but it needs to be confirmed by the Ministry for Revenue for an amendment.

Section 13 (1) was amended by adding a further proviso. This was amended by the Value Added Goods and Services Tax Amendment Act 1999.

Section 15 was amended by deleting paragraph (f) and deleting the words of paragraph (d) and replaced it with its current form. This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 20 was amended by deleting the words "therefrom" and replaced. This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 21 was amended by adding to subsection (3)(a) after the words "amount of input" the word "tax" and by deleting the word "taxably" and replacing it with the word "taxable". This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 25 was amended by adding subsections (10) and (11). This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 32 was amended by deleting paragraph (a) from subsection (1) and by deleting from paragraph (c) of subsection (1) the figures "25" and replacing them with the figures "26". This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 40 (5) is amended by adding words. This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 47 was amended by inserting subsections (2A), (2AB) and (5). This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 48 was amended by adding subsections (5) (6) and (7). This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 73 was amended by adding subsection (4). This was amended by the Value Added Goods and Services Tax Amendment Act 1998. This subsection has been incorporated into this Act as subsection (5) as the current subsection (4) remains.

Section 75 is amended by inserting subsection (4). This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Section 75A was inserted. This was amended by the Value Added Goods and Services Tax Amendment Act 1998.

Revised and consolidated by Noumea Loretta Afamasaga.
Under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)

REVISION NOTES 2008 No. 2

The (known) commencement date for section 83 is inserted after the date of assent. No documentation was obtained on the commencement dates for the rest of the Act.

Revised and consolidated under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)

The Value Added Goods and Services Tax Act 1992/1993
is administered in the Ministry for Revenue.

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