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Attorney General’s Chambers

4th June, 2014

PAYROLL TAX BILL 2014 ARRANGEMENT OF CLAUSES PART I PRELIMINARY CLAUSE

1. 2.

Short title and commencement Interpretation PART II PAYROLL TAX AND RATES

3. 4.

Payroll tax Rates of payroll tax PART III

EMPLOYEES AND EMPLOYERS: REMUNERATION AND EXEMPTIONS

5. 6. 7. 8. 9. 10. 11.

Meaning of employee Deemed employee Remuneration Remuneration of deemed employee Remuneration of self-employed person Nomination remuneration Exemptions PART IV

ADMINISTRATION: REGISTRATION, RETURNS, INFORMATION AND ACCOUNTS

12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Responsibility for administration Registration of employers and employees Notification of temporarily resident employed persons Registration of self-employed person Monthly returns Other returns Accounts and records Assessment of taxpayer Powers of Authority to obtain information Assessment of tax in cases of default

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PART V PAYMENT OF TAX, ENFORCEMENT AND CLAIMS

22. 23. 24. 25. 26. 27. 28.

Payment of tax Employer’s restrictions Refunds and remissions Penalty in cases of default Enforcement of payment of tax Determination of disputes as to tax Evidence PART VI MISCELLANEOUS PROVISIONS

29. 30. 31. 32. 33. 34. 35.

Restrictions on disclosure of information Services of notices Appeals and references Offences and penalties Regulations Amendment to schedules Laying of order before House of Assembly PART VII TRANSITIONAL PROVISIONS

36. 37. 38. 39.

Temporary designation of Authority Registration in transitional period Account for tax money and remittance Delegation by Permanent Secretary

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TURKS AND CAICOS ISLANDS A PROPOSAL FOR A

BILL FOR AN ORDINANCE TO PROVIDE FOR A PAYROLL TAX; AND FOR CONNECTED PURPOSES.

ENACTED by the Legislature of the Turks and Caicos Islands. PART I PRELIMINARY

Short title and commencement 1. This Ordinance may be cited as the Payroll Tax Ordinance 2014 and comes into operation on such day as the Governor may appoint, by Notice published in the Gazette.

Interpretation 2. (1) In this Ordinance— “actual remuneration” means remuneration of whatever kind which is paid to an individual for his employment; “Authority” means an Authority as may be designated by the Minister for purposes of this Ordinance, by order published in the Gazette; “business” means business carried on for gain in the Islands, or outside the Islands from a place in the Islands; “company” means a company which is resident in the Islands or its central management or control of its business is in the Islands; “deemed employee” has the meaning assigned under section 6; “deemed remuneration” has the meaning assigned under section 8; “employee” has the meaning assigned under section 5;

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“employer” includes— (a) in relation to the employment of public officers, the Government of the Islands; and (b) in relation to the employment of another office or employee, the person or body responsible for paying the remuneration of the holder of the office or employee; “employment in the Islands” means— (a) employment of which duties are wholly or mainly carried out in the Islands; or (b) employment of which duties are carried outside the Islands, for an employer in the Islands; and cognate forms of “employment in the Islands” have the corresponding meaning. “financial year” means the period commencing 1st April and ending on 31st March of every year; “member”, in relation to a governing body, means a person entitled to vote at a meeting of that body; “Minister” means the Minister responsible for finance; “payroll”— (a) in relation to an employer, means the sum of— (i) the remuneration employees; and

of

the

employer’s

(ii) the deemed remuneration of the employer’s deemed employees, if the employer has deemed employees; and (b) in relation to a self-employed person, means the sum of— (i) his own deemed remuneration; and (ii) the sum of the remuneration of his employees, if he has employees; “remuneration” has the meaning assigned under section 7; “reporting period” means any month within a financial year; “self-employed person” means an individual who is aged sixteen years or more, who carries on business otherwise than as an employee and benefits from the income or profits of that business otherwise than by way of, or in addition to, being paid actual remuneration; “tax” means the payroll tax; and

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“taxpayer” means an employer or self-employed person, being persons liable to pay tax to the Authority under section 22. (2) For purposes of this Ordinance, to pay remuneration to a person means to pay or give to that person, or to pay or give with respect to that person; and cognate forms of “pay” have the corresponding meaning. PART II PAYROLL TAX AND RATES

Payroll tax 3. A tax to be known as a payroll tax is payable by— (a) every employer in respect of— (i) remuneration paid to every employee; and (ii) deemed remuneration paid to every deemed employee, during any financial year, for services rendered by the employee or deemed employee during that financial year for employment in the Islands, whether or not the remuneration is paid in the Islands; (b) every self-employed person in respect of his deemed remuneration during any reporting period; and (c) every employee and deemed employee in respect of his remuneration or deemed remuneration during any reporting period.

Rates of payroll tax 4. A payroll tax is payable— (a) by an employer at the rate specified in the Schedule; (b) by a self-employed person at the rate specified in the Schedule; and (c) by an employee or deemed employee at the rate specified in the Schedule.

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PART III EMPLOYEES AND EMPLOYERS: REMUNERATION AND EXEMPTIONS

Meaning of employee 5. (1) An employee of a person— (a) is an individual who offers his services under a contract of employment or is an apprentice to that person; (b) is an individual who solicits orders for, or renders services to, another person as an insurance or other salesman on behalf of that person; (c) is an entertainer, including a musician (whether or not, apart from this paragraph, he is the employee of any other person), who is engaged by that person in respect of any performance (regardless of the terms of the engagement); or (d) in relation to a body corporate, is a director, officer or member of the governing body of that body corporate; (2) An employee does not include an individual— (a) who is under the age of sixteen years; (b) employed for sixteen hours or less in any one calendar month; or (c) who is ordinarily employed outside the Islands, and his period of employment in the Islands, whether with one or more employers, does not exceed four consecutive weeks; but nothing in this subsection restricts or limits subsection (1) (c).

Deemed employee 6. For purposes of this Ordinance— (a) a partner in a partnership which is carrying on business, is a deemed employee of that partnership if he renders services to the partnership and, otherwise as an employee, participates directly or indirectly in income or profits of the partnership; and the partnership is the employer of that partner; (b) a shareholder of a company which is carrying on business, is a deemed employee of that company if

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he renders services to the company and, otherwise than as an employee, participates directly or indirectly in income or profits of the company; and the company is the employer of that shareholder; or (c) a member of the governing body of an association, whether incorporated or not, which is carrying on business, is the deemed employee of that association if he renders services to the association and, otherwise than as an employee, participates directly or indirectly in income or profits of the association; and the association is the employer of that member.

Remuneration 7. (1) The remuneration of a person is the person’s actual remuneration for work carried out under employment in the Islands, including— (a) any wages, salary, overtime payment, leave pay, commission, gratuity, fee, bonus, honoraria, perquisite or allowance; (b) amounts paid to directors or employees for their domestic private expenses, including school fees and groceries; (c) supplements or rewards for long service or efficiency; (d) commission on profits or sales; (e) any money paid under a profit-sharing scheme; (f) the value of any board, lodging or other benefit of any kind whatever, and whether provided in cash or otherwise than in cash; (g) the rental value of any place of residence provided rent free; (h) where a place of residence is provided at a rent less than the rental value, the excess of the rental value over that rent; and (i) any gain obtained by the exercise by him, or the assignment or release by him, of a right to acquire shares or stock in a body corporate, being a right arising out of services rendered by him (whether in the capacity of director or otherwise) to that body corporate.

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(2) Remuneration does not include— (a) any money paid to an employee on account of sickness or injury, or of medical or hospital expenses in connection with sickness or injury, but excluding leave pay for sick leave granted in accordance with the contract or terms of employment; (b) remuneration paid or given to an employee who is a full-time student at any school, training institution or similar body, who is employed on a Saturday or Sunday, or on a public holiday, or during a period of vacation including a half-term holiday; (c) remuneration paid or given as a lay-off to an employee whose employment is temporarily discontinued because of a seasonal or other short term reasons; (d) uniform or laundry allowance paid to employees; (e) money paid to pensioners, from a retirement or provident fund, or pension scheme; (f) the cost of passages provided at the commencement or termination of a contract for a person engaged outside the Islands for employment in the Islands under a contract for a fixed period, and the cost of such passages for his spouse and dependants; (g) the value of any right to airline concessionary travel, that is to say, any right to travel by air free of charge or at a reduced rate granted by an employee of an employer carrying on an air transport service, or to any relation of such an employee, as part of that employee’s contract of service or apprenticeship with that employer; (h) any payments made for the purposes of or in relation to travel by an employee within or outside the Islands, including airfare, meals, board, lodging and other expenses; and (i) dividends paid to shareholders, whether or not they are employees of the company in which they have invested. (3) For purposes of this section “value” means the fair market value.

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Remuneration of deemed employee 8. (1) A deemed employee is deemed to be employed and to be paid deemed remuneration. (2) A deemed employee’s deemed remuneration is— (a) his actual remuneration; or (b) his nominal remuneration, whichever is greater.

Remuneration of self-employed person 9. (1) A self-employed person is deemed to employ himself and to pay himself deemed remuneration. (2) A self-employed person’s deemed remuneration is— (a) his actual remuneration; or (b) his nominal remuneration, whichever is greater.

Nominal remuneration 10. (1) The nominal remuneration of a deemed employee in relation to his employer’s business, is that amount which represents a fair and equitable valuation of his services to the business. (2) The amount referred to in subsection (1) shall be assessed in respect of each reporting period in accordance with this section. (3) The assessment shall be made in the first instance by the employer (“taxpayer”) who shall have regard to the following factors— (a) the nature and services of the deemed employee to the business, including any such services which directly or indirectly affect or influence the financial viability of the business; (b) the deemed employee’s experience and any special skill; (c) the nature of the business; (d) the emoluments of— (i) persons engaged in other businesses who render business services which are similar to those rendered by the deemed employee to the employer’s business;

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(ii) persons engaged in the business who render to the business, services similar to those rendered by the deemed employee; or (iii) persons engaged in the business other than those mentioned in subparagraph (ii); and (e) the financial records of the business which show— (i) the services of the deemed employee which generate revenue for the business; and (ii) the allocation to him of benefits from the business. (4) The taxpayer shall submit to the Authority, together with a return made under section 16, an assessment of the nominal remuneration of each deemed employee for the reporting period, which assessment shall be in such form as the Authority may determine. (5) The Authority shall make such enquiries as it thinks fit for the purpose of ascertaining whether an assessment made under subsection (3) is adequate. (6) If the Authority is not satisfied that the assessment made by the taxpayer is adequate, the Authority may make its own assessment and make such adjustments as are necessary to the taxpayer’s assessment. (7) An assessment made by a taxpayer or the Authority on the nominal remuneration of a person in relation to a business in respect of a reporting period shall have effect in respect of any later reporting period, until varied by a further assessment, except that— (a) a further assessment made by the taxpayer may not reduce an assessment made and in force which was made by the Authority; and (b) the taxpayer may, at any time within three months beginning on the last day of the reporting period to which the assessment made by the Authority affecting him is in force, in writing require the Authority to review the assessment. (8) The Authority shall, when requested to review its assessment under subsection (7)(b), confirm or vary the assessment. (9) An assessment made by the Authority under subsections (6) and (7) shall only have regard to the factors specified under subsection (3).

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(10) This section shall with the necessary modifications, apply to a self-employed person as if— (a) references to a “deemed employee” refer to a selfemployed person in his character as an employee; and (b) references to an “employer” or “taxpayer” refer to a self-employed person in his character as an employer or taxpayer.

Exemptions 11. Tax shall not be payable by— (a) an employer who is a foreign or Commonwealth government or an agency of such a government, or his employee; (b) an employer in respect of remuneration which the Minister is satisfied was paid to an employee for caring for, or helping to care for, a person (whether or not that person is the employer) at that person’s home in connection with a physical or mental illness or incapacity of that person, or that employee; and (c) an employer in respect of such remuneration as the Minister may, by order published in the Gazette exempt. PART IV ADMINISTRATION: REGISTRATION, RETURNS, INFORMATION AND ACCOUNTS

Responsibility for administration 12. The Authority is responsible for administering the payroll tax.

Registration of employers and employees 13. (1) Every person who is an employer shall— (a) within fourteen days after the day he becomes an employer, apply in writing to the Authority for registration as a taxpayer in such form as may be determined by the Authority, giving his name, address, place of business and such other information as the Authority may require; and

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(b) where he employs any person, within fourteen days of employing such person, present on behalf of that employee, an application in writing, for registration of that employee, in such form as may be determined by the Authority, giving the employee’s name, address, occupation and such other information as the Authority may require. (2) Upon receipt of an application made under subsection (1), the Authority shall register the employer or employee and allot to that employer or employee, whichever is the case, a tax identification number, if it is satisfied that the person applying or whose application is being presented on behalf, is an employer or employee for purposes of this Ordinance.

Notification of temporarily resident employed persons 14. Every employer of a temporarily resident employed person shall, within fourteen days after the day on which he employs such person, notify the Authority in writing in such form as may be determined by the Authority, giving such employee’s name, address within and outside the Islands, period of employment within the Islands, occupation and such other information as the Authority may require.

Registration of self- employed person 15. (1) Every person shall, within fourteen days after the day he becomes a self-employed person, apply in writing to the Authority for registration as a taxpayer in such form as may be determined by the Authority, giving his name, place of business, address and such other information as the Authority may require. (2) Upon receipt of an application made under subsection (1), the Authority shall register the self-employed person and allot to him a tax identification number, if it is satisfied that the person applying is liable to be taxed under the Ordinance.

Returns 16. (1) Subject to subsection (2), an employer shall, within fourteen days of the end of each reporting period, furnish the Authority with a return, in such form as the Authority shall determine, stating— (a) all payments made to employees during the reporting period; (b) all benefits provided to employees during the reporting period;

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(c) all payments on account of tax deducted from payments made to employees during the reporting period; and (d) all payments on account of tax made by the employer during the reporting period. (2) A self-employed person shall, within fourteen days from the end of each reporting period, furnish the Authority with a return in such form as the Authority may determine, together with an assessment made under section 10. (3) An employer or self-employed person who fails to comply with this section commits an offence.

Other returns 17. (1) The Authority may, by notice in writing, require any person to furnish to it within a reasonable time, being not less than fourteen days from the date of the notice, with a true and correct return of his payroll or remuneration for any reporting period, and if absent from the Islands, to give the name and address of an agent residing in the Islands. (2) A person who fails to comply with subsection (1) commits an offence.

Accounts and records 18. (1) Subject to subsection (2), a taxpayer shall keep in the Islands, for a period not less than five years, all original return forms and such documents of accounts, books and other records as may be prescribed, being documents, books and records necessary or expedient so that any requirement made under this Ordinance may be complied with or enforced. (2) The documents of accounts, books and other records shall be maintained in the currency of the Islands, and in the English language. (3) Except with the written permission of the Authority, it shall be unlawful for any person to destroy or otherwise make unavailable any such document or record as aforesaid during the period of five years commencing on the last day of the financial year in which any transaction took place to which the document or record relates. (4) If it appears to the Authority for the purposes of sections 16 and 17 that the accounts required by subsection (1) to be kept by a taxpayer are inaccurate or incomplete for the purpose of enabling the Authority to calculate the amount of tax payable, the taxpayer shall furnish the Authority with such information and evidence as the Authority may require, with a

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view to the correction of such inaccuracies and to those deficiencies being made good. (5) A person who contravenes this section commits an offence.

Assessment of taxpayer 19. (1) Where— (a) a taxpayer — (i) fails to furnish a return in accordance with section 16 or 17; or (ii) fails to keep any document, book or other record that he is required by section 18 to keep, or fails to make available, produce or furnish any document, book or other record that he is required under this Ordinance to make available, produce or furnish; or (b) it appears to the Authority that— (i) the return furnished by a taxpayer is materially incomplete or inaccurate; or (ii) any document, record, book or other record, produced or furnished by any taxpayer for any purpose of this Ordinance is materially incomplete or inaccurate; or (c) a taxpayer has not paid all the tax to which he is chargeable, the Authority may cause an assessment to be made of the amount of tax or further tax to which, in its opinion, such taxpayer is liable to pay. (2) Subject to this Ordinance such taxpayer shall also be liable to pay, by way of additional tax, an amount equivalent to the amount of the tax or further tax assessed under subsection (1), but the Authority may if it thinks fit in any particular case remit such additional tax or any part thereof. (3) The Authority shall cause notice in writing of an assessment under subsection (1) of the amount of tax, further tax or additional tax which is to be paid to be served on the taxpayer. (4) The amount of tax, further tax or additional tax specified in a notice under subsection (3), shall be paid within seven days of the date of service of the notice.

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(5) Where notice of any assessment has been served on a taxpayer under subsection (3), the Authority may, if it appears to it that–– (a) the assessment was made on the basis of inaccurate or incomplete information; or (b) there has been a variation in the amount of the tax payment assessed by virtue of that assessment, make a fresh assessment under subsection (1) so as to have effect for the purposes of this Ordinance instead of the original assessment, on and from the date specified in the notice, to be served on the taxpayer under subsection (3), as having effect by virtue of this subsection, as the date on and from which the new assessment shall have effect, without prejudice to the power of the Authority to make a further assessment by virtue of this subsection; and subsection (3) shall have effect in relation to an assessment by virtue of this subsection as it has effect in relation to an original assessment under subsection (1). (6) The Authority may, by notice served on a taxpayer, cancel an assessment under this section with effect on and after the date specified in the notice

Powers of Authority to obtain information 20. (1) The Authority may for the purpose of ascertaining whether or not any of the provisions of this Ordinance are being complied with and, in particular, for the purpose of ascertaining whether or not the proper amount of tax is being paid by a taxpayer, by notice in writing, require the taxpayer or any person (whether or not liable to pay tax under this Ordinance)–– (a) who carries on business in the Islands or who employs another person in the Islands, to furnish it with such information, and within such time, as may be specified in the notice, to assist it in the exercise of its powers of assessment under section 10 and 19; (b) to produce or furnish any documents of accounts, books, other records or computer in the control of such taxpayer or person, that the Authority may require him to produce; (c) on giving twenty-four hours notice of its intention to do so, authorise a member of its staff in writing to enter the place of business of a taxpayer or other person or where documents of accounts, books or records are kept, to inspect any documents of accounts, books or other records that

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are required under this Ordinance to be made available, produced or furnished; or (d) require a taxpayer or any person to permit the member of staff of the Authority to take extracts from, or make copies of, any documents of accounts, books or other records referred to in paragraph (c) and to furnish the member of staff with such extracts or copies. (2) A person who is not a taxpayer shall be liable to comply with a request made by the Authority under subsection (1), as if he is a taxpayer. (3) Any power conferred by subsection (1) to require the production of any documents of accounts, books, other records or computer shall, if they are not produced, include the power to require the person who is required to produce them to state, to the best of his knowledge and belief, where they are. (4) Where a notice requires the provision of access to a business in terms of subsection (1)(c), the member of staff of the Authority may request the taxpayer, person or any employee or agent, to give him such reasonable assistance in connection with the examination or inspection as may be necessary, and to answer orally or in writing any questions relating to the examination or inspection. (5) Where the notice requires the production of a record or computer, it is sufficient if such record or computer is described in the notice with reasonable certainty. (6) Where during the course of any examination or inspection it appears to the Authority that there may not have been a correct disclosure of liability to tax, the Authority may take possession of any documents of account, books, other records or computer records for further examination, and after examination may retain or make copies of or take extracts from the books, documents or computer records for any of the purposes of this Ordinance. (7) Without prejudice to the generality of subsection (1), the Authority may by a notice in writing— (a) require a bank or other financial institution to furnish the Authority with the details of any banking account or other assets that may be held on behalf of a person specified in the notice, or to furnish a copy of bank statements or statement of assets of any such banking account or other asset; (b) require a bank to permit the Authority to inspect the records of the bank or other financial

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institution with respect to the banking account of a person specified in the notice; and (c) require the attendance of an officer of a bank or other financial institution before the Authority, to give evidence in respect of bank accounts or other assets that may be held by the bank or other financial institution on behalf of a person specified in the notice. (8) This section shall have effect despite any rule of law relating to privilege or the public interest in respect of the furnishing of information or the production of records or documents. (9) The information furnished or the records or documents produced under this section shall be used only for the purposes for which they are furnished or produced. (10) Where the Authority requires a person to furnish it with information in accordance with subsection (1), the person shall furnish the Authority with the information not later than the time stated by the Authority in the notice, or such extended time as the Authority in its discretion may allow.

Assessment of tax in cases of default 21. (1) Where an amount is due from a taxpayer on account of tax and the Authority is unable to ascertain the amount of tax properly due from the taxpayer by reason of— (a) a failure of the taxpayer to furnish the Authority with any return under section 16 or 17, or to furnish the Authority with a complete and correct return under that section; (b) a failure of the taxpayer to keep or produce to the Authority for the purpose of section 20, any documents of accounts, books or other records required to be kept or produced by the taxpayer by or under this Ordinance, or the loss or destruction of any such documents of accounts, books or other records; or (c) such documents of accounts, books or other records being materially incomplete or inaccurate, the Authority may, to the best of its judgment, make an assessment of the amount due on account of tax by the taxpayer and shall, on making such an assessment, serve on the taxpayer a notice specifying that amount and the reason for the making of the assessment.

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(2) Where an assessment of the amount of tax due from a taxpayer has been made under subsection (1), then, without prejudice to the recovery of the full amount due or to the making of a further assessment in that behalf, the amount assessed shall be recoverable, and payment of the same shall be enforceable, as tax properly due, unless the Magistrate has determined on a reference under section 27 that the amount of tax properly due is less than the amount assessed. (3) Without prejudice to the power of the Authority to make a further assessment under subsection (1), where notice of an assessment has been served on a taxpayer under that subsection, the Authority may, except pending the determination under section 27 of any question as to the tax assessed, withdraw that assessment. PART V

PAYMENT OF TAX, ENFORCEMENT AND CLAIMS

Payment of tax 22. (1) Payment of tax payable by an employee shall be— (a) deducted by his employer from his remuneration; and (b) collected from the employer. (2) Payment of tax payable by an employer and selfemployed person shall be collected from the employer and selfemployed person, respectively. (3) The tax payable by the employer and self-employed person, shall be paid by the employer or self-employed to the Authority within fourteen days from the reporting period for which the tax was payable. (4) The tax payable by the employee and deducted from his remuneration by the employer, shall be paid by the employer to the Authority within fourteen days from the reporting period for which the tax was payable. (5) The Authority may–– (a) extend the time for the payment of tax under subsection (4) for such period as it thinks fit; or (b) allow the payment of any tax due and payable under that subsection to be made by instalments of such amounts and payable at such intervals as it thinks fit.

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(6) Where the Authority has extended the time for the payment of tax for any period under subsection (5), the payment shall be made on or before the expiration of that period. (7) Where the Authority has allowed the payment of tax to be made by instalments under subsection (5)–– (a) subject to paragraph (b), each instalment shall be paid on or before the date fixed by the Authority for the payment of that instalment; or (b) in default of the payment of any instalment on or before that date, the whole of the amount of tax outstanding shall be payable on that date. (8) If an employer— (a) deducts an amount in accordance with subsection (1); and (b) does not within fourteen days from the reporting period for which the tax is payable, pay to the Authority in respect of the employer’s liability under this Ordinance, an amount equal to or exceeding that amount, he commits an offence and is liable on summary conviction to a fine of $10,000 and in default of payment of the fine to imprisonment for a term of twelve months; (9) Tax shall be recoverable by the Authority as a debt due to the Crown. (10) Where tax paid by a taxpayer was excessive by reason of some error or mistake in a return made by him, the taxpayer may by notice in writing served on the Authority, at any time within the twelve months next following the date on which the return was furnished to the Authority, make a claim for a refund of the amount claimed to be in excess of the amount of tax properly due and payable, and the Authority, if it appears to it that the claim is well founded, may–– (a) refund the excess amount to the taxpayer; or (b) appropriate that amount in payment of any debt due by the taxpayer to the Crown.

Employer’s restrictions 23. (1) An employer shall not deduct or recover any portion of the tax payable by him from the remuneration of the employee or deemed employee. (2) An employer who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine of

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$10,000 and in default of payment of the fine, to imprisonment for a term of twelve months; and where an employer is convicted of an offence under this section, the court by or before which he was convicted shall, in addition to any fine, order the employer to pay to that person such sum as has been proved to have been deducted or recovered from the wages or other remuneration of that person.

Refunds and remissions 24. Where the Authority is satisfied— (a) that a person has paid more tax than is required; or (b) that a person has paid less tax or not paid any tax as is required, the Authority shall refund to that person the amount of tax paid by him in excess, or the person shall remit any tax which has not been paid, whichever is applicable.

Penalty in cases of default 25. (1)Where any tax due and payable by a taxpayer remains unpaid, the taxpayer shall be liable to pay by way of penalty, a sum equal to three per cent of the amount of tax due for each month or part thereof during which the tax remains unpaid. (2) Such penalty shall be recoverable, and the payment of the same enforceable as tax properly due and payable.

Enforcement of payment of tax 26. (1) Without prejudice to any other remedy, where any tax is due and payable by a taxpayer, the Authority may serve a notice on the taxpayer specifying the amount of tax due and payable by the taxpayer, and stating that if payment of that amount is not made to the Authority within seven days of the date of the service of the notice, the Authority may apply to the Magistrate under subsection (2) for the issue of a writ of execution against the taxpayer. (2) Subject to subsection (3), if payment of tax specified in a notice served under subsection (1) on a taxpayer is not paid within seven days of the date of the service of the notice, the Authority may apply to the Magistrate for the issue of a writ of execution against the taxpayer, and the Magistrate may issue the writ in all respects as if the tax in respect of which the application is made were a judgment debt; and sections 145 and 146 of the Magistrate’s Court Ordinance shall apply accordingly.

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(3) An application under subsection (2) shall not be made in respect of any tax pending the determination of any reference under section 27 of any question as to that tax.

Determination of disputes as to tax 27. (1) Subject to subsections (2) and (3), any question arising as to the liability of any person to pay tax may be referred by him to the Magistrate for determination. (2) The reference under subsection (1) of any question as to any tax shall not be made where an action for the recovery of that tax has been instituted. (3) Where a notice has been served on any person under section 26 (1) with respect to any tax, the reference under subsection (1) of any question as to that tax shall not be made later than the seven days next following the date of the service of the notice. (4) The Authority and the person by whom a question has been referred for determination by the Magistrate under subsection (1), or any other person representing the Authority or that person, shall be entitled— (a) to be present and to be heard at the hearing of the reference; and (b) to call witnesses and shall be given the opportunity of putting questions directly to any witnesses called at the hearing. (5) The Magistrate may summon any person to attend and give evidence or produce any documents at a hearing of a reference under subsection (1) and any witnesses called at the hearing may be examined on oath or affirmation. (6) Subject to section 31, the determination of the Magistrate on a reference made under subsection (1) shall be final. (7) Subject to this section, the procedure in respect of a reference made under subsection (1) shall be such as the Magistrate shall determine; and the Magistrate may, with the approval of the Minister, make rules prescribing the fees to be payable in respect of such a reference.

Evidence 28. (1) Where tax is in arrear, a certificate of the Authority that tax is due and that payment of the tax has not been made to him, or to any person acting on his behalf, shall be sufficient evidence in any proceedings that the sum mentioned in the

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certificate is unpaid and is due to the Crown; and a document purporting to be such a certificate shall be deemed to be such a certificate until the contrary is proved. (2) A copy of, or extract from— (a) any return furnished to the Authority under this Ordinance; (b) any notice of assessment served under section 19 (3) or section 21 (1); (c) any documents of accounts, books or other records, where that copy or extract was made or taken in the exercise of the powers conferred by section 20 on the Authority, shall, if that copy or extract bears the certificate of the Authority that it is such a copy or extract, be sufficient evidence in any proceedings of the contents of that copy or extract to the same extent as if this original return, notice of assessment, documents of accounts, books or other records would be if they were produced in those proceedings; and a document purporting to be such a certificate shall be deemed to be such a certificate until the contrary is proved. PART VI

MISCELLANEOUS PROVISIONS

Restrictions on disclosure of information 29. Information which is disclosed to the Authority or any other person in connection with the operation of this Ordinance shall not be further disclosed except where–– (a) the Authority has required or authorised the information to be disclosed; (b) the information is disclosed to any person authorised by the Authority to carry out any duties in connection with the operation of this Ordinance; or (c) the information is disclosed for the purpose of civil or criminal proceedings in connection with the operation of this Ordinance or for the purpose of any other criminal proceedings in the Islands.

Service of notices 30. (1) Any notice or other document to be served or given by or on behalf of the Authority under this Ordinance may be served or given—

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(a) on or to a body corporate or any other body by sending it by post addressed to that body at its last known place of business in the Islands; or (b) on or to any other person, by delivering it to that person, or by leaving it, or sending it by post addressed to that person, at his usual or last known place of residence, or last known place of business, in the Islands. (2) Notices or other documents to be furnished under this Ordinance to the Authority for the purposes of section 20, may be delivered to, or sent by post to the office of the Authority.

Appeals and references 31. (1) The Magistrate may refer to the Supreme Court for decision, any question of law arising on a reference made to the Magistrate under section 27. (2) An appeal on a question of law shall lie to the Supreme Court from a determination of the Magistrate on a reference made to the Magistrate under section 27, unless that question has been referred to the Supreme Court for decision under subsection (1). (3) On an appeal under subsection (2), the Supreme Court may quash or confirm the determination against which the appeal is brought, and may make such order as to costs as it thinks fit. (4) The decision of the Supreme Court on a reference or appeal under this section shall be final. (5) The jurisdiction conferred on the Supreme Court by this section shall be exercised in accordance with such directions as the Chief Justice may give in any particular case.

Offences and penalties 32. (1) A person who–– (a) contravenes section 16, 17 and 18; (b) makes default in complying with a requirement imposed under section 20 (1), commits an offence and is liable on summary conviction to a fine of $5,000 or imprisonment for a term of six months, or to both. (2) A person who is knowingly concerned in, or in the taking of steps with a view to, the fraudulent evasion by him or any other person, of tax, commits an offence and is liable on summary conviction to a fine of $15,000 or imprisonment for a term of two years, or to both.

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(3) A person who–– (a) with intent to deceive, for the purposes of this Ordinance, produces, furnishes, sends or otherwise makes use of any documents of accounts, books and other records which is false in a material particular; or (b) in furnishing any information for those purposes, makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, commits an offence and is liable on summary conviction to a fine of $5,000 or imprisonment for a term of six months, or to both. (4) A person who continues to make default in complying with any requirement imposed by or under this Ordinance after being convicted of that default shall be guilty of a further offence and liable on summary conviction to a fine of $100 for each day on which the default continues.

Regulations 33. The Minister may make regulations prescribing anything under this Ordinance which is to be prescribed or which is necessary or convenient to be prescribed for the better carrying out of the objects and purposes of this Ordinance, or to give force and effect to its provisions.

Amendment of schedules 34. The Minister may by order published in the Gazette amend the Schedule.

Laying of order before the House of Assembly 35. (1) An order made under section 11 and section 34 shall be laid before the House of Assembly at its next meeting immediately following the date of publication of the order in the Gazette. (2) If, at the meeting of the House of Assembly referred to in subsection (1), the House of Assembly passes a resolution annulling an order which has been laid before it in accordance with that subsection or if an order made under this section is not laid before the House of Assembly in accordance with that subsection, that order shall cease to have effect on and after the day of the annulment or the day next following the day that the meeting is concluded, as the case may require, but without affecting the validity or curing the invalidity of anything done or

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omitted to be done thereunder before that day or the making of a new order. PART VII

TRANSITIONAL PROVISIONS

Temporary designation of Authority 36. (1) Notwithstanding the definition of “Authority” under section 2 (1), the National Health Insurance Board (hereinafter referred to as the “Board”) is designated as the Authority for a period of twelve months, from the commencement of this Ordinance; unless the Minister otherwise designates. (2) The Board shall exercise all the functions which are to be carried out by the Authority under this Ordinance for the period it is designated as the Authority. (3) Notwithstanding subsection (2), the Permanent Secretary, Finance shall upon request from the Board, assist in carrying out the functions in relation to returns, assessment and enforcement of this Ordinance.

Registration in transitional period 37. (1) On the day of commencement of this Ordinance, all employers, self-employed persons and employees registered with the Board shall be deemed to be registered for purposes of this Ordinance. (2) The Board shall use the national health insurance number for purposes of tax identification for employers, selfemployed persons and employees deemed to be registered under subsection (1). (3) Employers, self-employed persons and employees referred to under subsection (1) shall be issued with a tax identification number within twelve months of the commencement of this Ordinance. (4) Every person required to be registered under this Ordinance, who is not registered with the Board at the commencement of this Ordinance, shall register in terms of sections 13, 14 and 15.

Account for tax moneys and remittance 38. (1) The Board shall keep a separate account for collection of moneys under this Ordinance.

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(2) Moneys collected by the Board under this Ordinance shall be transmitted to the Permanent Secretary, Finance within two days of receipt of the returns. (3) The Minister, may where circumstances hinder the Board from transmitting the moneys in accordance with subsection (2), and he is satisfied that the circumstances are valid, extend the time for transmission of moneys to the Permanent Secretary, Finance. (4) The Board shall be liable to the Permanent Secretary, Finance for all moneys collected under this Ordinance. (5) Where the Board does not remit the moneys collected under this Ordinance to the Permanent Secretary, Finance, the Permanent, Secretary may seek recourse from the courts to recover such moneys.

Delegation by Permanent Secretary 39. The Permanent Secretary, Finance may delegate in writing to any person any powers conferred or imposed on the Permanent Secretary, Finance by this Part other than the power of delegation conferred by this subsection. (2) The Permanent Secretary, Finance may at any time revoke a delegation made under subsection (1). (3) A delegation under subsection (1) does not prevent the exercise by the Permanent Secretary, Finance himself of a power so delegated.

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SCHEDULE RATES (section 5) 1.

Tax shall be payable— (a) by an employer at the rate of 1.5 % per month; (b) by a self-employed person— (i)

with no employees, at the rate of 3 % per month; or

(ii) with employees, at the rate of 1.5 % per month; (c) by an employee or deemed employee at the rate of 1.5 % per month.

_______________________________

PASSED by the House of Assembly this

……………………………. Tracey Parker Clerk to House of Assembly

day of

2014.

……………… Robert Hall Speaker

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EXPLANATORY MEMORANDUM

The Bill seeks to provide for the imposition, collection and administration of a broad-based tax on remuneration for work carried out under employment in the Turks and Caicos Islands. The Payroll Tax has been introduced in some jurisdictions in the Caribbean, namely Bermuda and the British Virgin Islands.

THE BILL PART I – PRELIMINARY Part I provides for the preliminary provisions, where clause 1 provides the short title and commencement; and clause 2 provides for the interpretation of terms. In this clause “payroll” has been defined as— ““payroll”— (a) in relation to an employer, means the sum of— (i) the remuneration employees; and

of

the

employer’s

(ii) the deemed remuneration of the employer’s deemed employees, if the employer has deemed employees; and (b) in relation to a self-employed person, means the sum of— (i) his own deemed remuneration; and (ii) the sum of the remuneration of his employees, if he has employees;” and “tax” has been defined as the payroll tax. PART II – PAYROLL TAX AND RATES Clause 3 provides that tax is payable by an employer, selfemployed person and employee on the remuneration or deemed remuneration (for the self employed person) paid by employer, or paid to the employee, whichever is applicable. Clause 4 provides for the rate of tax payable which is set out in the Schedule, which sets out 1.5 per cent to be paid by an employer, 1.5 per cent by the employee; and 3 per cent by a self-

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employed person who has no employees and 1.5 per cent for the self-employed person with employees. PART III – EMPLOYEES AND EMPLOYERS: REMUNERATION AND EXEMPTIONS Clause 5 defines who is an “employee” for purposes of this Ordinance, and at subclause (2) excludes amongst others, persons under the age of 16 years, and persons employed for 16 hours or less under any one calendar month. These excluded persons will not be subject to tax under the Ordinance. Clause 6 recognises that there are persons who may not ordinarily fall directly under the definition of “employee” but nonetheless receive some form of remuneration. For this purpose, this clause defines a “deemed employee” and spells out who the employer of the deemed person is. Clause 7 defines “remuneration” which is the basis of what is subject to tax, and includes amongst others— (a) wages, salary, overtime payment, leave pay, commission, gratuity, fee, bonus, honoraria, perquisite and allowances; (b) commission on profits of sales; and (c) any amount paid with respect to a retirement or provident fund, scheme or society, or under a national insurance scheme. Subclause (2) spells out what will not be counted as remuneration, which includes moneys paid to an employee on account of sickness or injury or of medical or hospital expenses in connection with sickness or injury; and moneys paid to pensioners from a pension scheme. Clauses 8 and 9 provide what remuneration of deemed employee and self-employed person is, which is defined as actual remuneration or nominal remuneration. Clause 10 provides for the “nominal remuneration” and states that it is the amount which represents a fair and equitable valuation of the deemed employee’s or self-employed person’s services to the business. This clause also guides the employer on the factors to consider in assessing what amounts to nominal remuneration, and for this assessment to be submitted to the Authority.

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Clause 11 states the persons exempted from taxation under this Ordinance, such as persons in the Islands who are under employ of a foreign or Commonwealth government or an agency of such a government; and persons employing or employed for caring for, or helping to care for a person at an employer’s home in connection with a physical or mental illness or incapacity of that person. PART IV – ADMINISTRATION: REGISTRATION, RETURNS, INFORMATION AND ACCOUNTS This Part deals with the administration for purposes of tax collection and provides for registration, returns, assessments and the requirement for keeping of accounts and records required for purposes of assessments. Clause 16 provides that returns are to be made by the employer to the Authority with 14 days of the end of each month; whilst clause 17 authorises the Authority, by notice in writing to require a person to furnish it with a true and correct return. Clause 19 provides for the assessment of taxpayer; whilst clause 21 provides for the assessment in cases of default. PART V- PAYMENT OF TAX, ENFORCEMENT AND CLAIMS This Part provides how taxes are to be collected and paid to the Authority and enforcement for this process. Clause 22 provides taxes are to be deducted by employee from the employees remuneration and are to be collected from the employers. Taxes collected include taxes payable by the employer, employee and self-employed person. Penalties are provides for instances where tax is not remitted to the Authority. Clause 23 seeks to protect the employer and prohibits employers from deducting or recovering a portion of the tax payable by them from the employee’s remuneration . A penalty is imposed for contravention of this provision. Clause 24 provides for the refunds and remissions in cases of excessive tax payment or less or lack of payment, by both the taxpayer and the Authority. Clause 25 provides for penalties to be imposed in cases of default in tax payment.

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Clauses 26 to 28 provide the enforcement provisions and recourse to the Courts for enforcement purposes. PART VI- MISCELLANEOUS PROVISIONS This Part provides for the miscellaneous provisions, where clause 29 provides for the restrictions of disclosure of information collected from persons under this Ordinance; and clause 34 provides powers by the Minister to amend the Schedule by Order; and clause 35 provides that an order made by the Minister under section 11 and 34 is to be laid before the House of Assembly and subject to a resolution. PART VII-TRANSITIONAL PROVISIONS This Part provides a transitional period for implementation of this Ordinance. Clause 36 designates the National Insurance Health Board (NHIB) as the Authority for purposes of the transitional period. Clause 37 provides for registration and deems the employers, self- employed persons and employees registered with the NHIB as registered for purposes of this Ordinance. Clause 38 provides that the NHIB shall keep separate account for moneys collected under this Ordinance and remit it to the Permanent Secretary, Finance.

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