CHAPTER 53:01
TRANSFER DUTY

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

 

 

PART I
Payment of Transfer Duty

 

   1.   Short title

 

   2.   Imposition of transfer duty

 

   3.   Certain share dealings to constitute transactions involving agricultural land

 

   4.   Costs and charges excluded from being reckoned as part of purchase price

 

   5.   Other sums payable by purchaser in addition to purchase price to be added to amount of purchase money

 

   6.   When duty is payable

 

   7.   Date when duty payable in cases of deferred possession

 

   8.   When duty payable in cases of conditional sale

 

   9.   Liability to duty in cases of joint ownership

 

 

 

PART II
Receipts for Duty and Declarations

 

   10.   Payment of duty and effect of non-payment

 

   11.   Solemn declaration of sale

 

   12.   Solemn declaration of sale by agent

 

   13.   Solemn declaration in case of death or absence of seller or purchaser

 

 

 

PART III
Valuations for Payment of Transfer Duty

 

   14.   Valuation for purposes of computing duty

 

   15.   Valuation in case in which purchase price appears to be less than true value

 

   16.   Valuation of consideration other than money

 

   17.   Valuation not competent after duty paid

 

 

 

PART IV
Exemptions from, and Remission and Reduction of Transfer Duty

 

   18.   Remission of duty forbidden

 

   19.   Return of duty when sale declared void

 

   20.   Exemptions from obligation to pay duty

 

   21.   Remission of duty when sale rescinded

 

   22.   Partial remission when sale rescinded after part consideration has passed

 

   23.   Inquiry by Registrar of Deeds when exemption sought

 

   24.   Hearing by a judge of dispute between Registrar of Deeds and claimant for exemption

 

 

 

PART V
Sales to Agents for Alleged Principals

 

   25.   Person bidding as an agent to disclose name of principal

 

   26.   Proceeding where bidder refuses to disclose name of principal

 

   27.   Proceeding where principal repudiates purchase

 

   28.   Application of section 27

 

   29.   Auctioneer forbidden to sell to undisclosed principal

 

   30.   Calculation of duty when property is taken over by agent bidder

 

   31.   Private sales to undisclosed principals

 

 

 

PART VI
Miscellaneous

 

   32.   Proceeding when fact of sale disputed

 

   33.   Re-sale when vendor fails to enforce contract of purchase

 

   34.   Form of declaration on re-sale

 

   35.   Payment of first transfer duty on second sale

 

   36.   Before whom declarations are to be made

 

 

 

      Schedule - Forms

 

 

HCP of 10/6/1896,
Proc. 10, 1908,
Proc. 45, 1915,
Proc. 55, 1952,
Cap. 89, 1948,
Proc. 85, 1955,
Cap. 88, 1959,
Cap. 111, 1959,
HMC Order 1, 1963,
L.N. 55, 1965,
Law 20, 1966,
L.N. 84, 1966,
L.N. 94, 1966,
Act 10, 1976,
Act 32, 1978,
S.I. 49, 1999,
Act 6, 2003.

An Act to consolidate and amend the law relating to the payment of transfer duty.

[Date of Commencement: 10th July, 1891]

PART I
Payment of Transfer Duty
(ss 1-9)

 

1.   Short title

   This Act may be cited as the Transfer Duty Act.

 

2.   Imposition of transfer duty

   (1) Except as otherwise provided in this Act, a duty (hereinafter called "transfer duty") at the rate specified in subsection (4), shall be payable and paid upon the purchase price or value of any immovable property, whether freehold or held from Government upon quitrent or other leasehold tenure, sold or otherwise alienated or transferred.

   (2) Transfer duty shall be payable by-

 

   (a)   the purchaser of any such property;

 

   (b)   every person becoming entitled to any such property by way of exchange, donation, legacy, testamentary or other inheritance or in any manner otherwise than through the medium or by means of purchase and sale;

 

   (c)   every person into whose name any such property registered in the Deeds Registry in the name of any other person is to be registered or transferred.

   (3) The amount of transfer duty payable shall be calculated at the rates specified in subsection (4) on the purchase price paid for the property or on the value of the property sold, whichever is the greater, or on the value of the property alienated or otherwise transferred.

   (4) The rate of transfer duty referred to in subsection (3) shall be-

 

   (a)   in the case of a transaction involving agricultural land-

 

      (i)   where the person liable to pay duty is a citizen of Botswana, P5 per centum;

 

      (ii)   where the person liable to pay duty is not a citizen of Botswana, P30 per centum; and

 

   (b)   in the case of a transaction involving property other than agricultural land, P5 per centum.

   (5) All persons acquiring the right to the limited enjoyment of property burdened with the entail of fidei-commissum, and all persons acquiring a life usufruct only in any property, shall (except as is otherwise provided in this Act) be chargeable with and liable to pay the duty applicable to the species of property in question, upon the value of their estates or interest in such property, to be calculated with reference to the value of the property and the duration or extent of their interest therein, and such duty shall be recoverable whether such persons do or do not seek to have their said estates or interest registered in their names in the Deeds Registry.

   (6) For the purposes of this section-

   "agricultural land" means any land, other than land in a township, used or capable of being used for the purposes of agriculture or horticulture or for breeding or keeping domestic animals, poultry or bees;

   "citizen of Botswana" includes a company incorporated in Botswana and of which a majority of every class of equity shares is held by citizens of Botswana.

 

3.   Certain share dealings to constitute transactions involving agricultural land

   Where the effect of the issue of any shares in any company or a change in the beneficial ownership of any of the issued shares in any company is to pass the control of or entitlement to benefit from any agricultural land from one person to another, such issue of shares or change in beneficial ownership shall constitute a transaction involving agricultural land for the purposes of section 2.

 

4.   Costs and charges excluded from being reckoned as part of purchase price

   Whenever any contract of sale of any immovable property liable to the payment of transfer duty is entered into, the purchaser of such property shall become liable to pay, over and above the sum payable to the seller, all or any of the following charges or expenses arising out of or connected with the said sale, that is to say-

 

   (a)   the cost of any survey of the said property made prior to, and for the purposes of, the said sale, and of any survey of such property which may be made after the sale, and the cost of all diagrams and subdivisions, and of the plan of the property exhibited at the time of the sale;

 

   (b)   the charge made by the auctioneer for the conditions of the said sale;

 

   (c)   the commission, if any, paid by the purchaser to any auctioneer, broker or agent, by or through whom the sale of the property may have been effected, not exceeding P2,5 per centum upon the amount of the purchase money;

 

   (d)   the auction duty payable upon the said sale;

 

   (e)   the transfer duty payable thereon;

 

   (f)   the cost of all deeds necessary for effecting transfer of such property, and of the mortgage deed, if any, and of all necessary stamps;

 

   (g)   the charges of conveyancers, and agents, incurred in effecting the transfer of the said property;

 

   (h)   the quitrent, if any, payable to Government upon the property sold;

 

   (i)   the quitrent, if any, which is payable upon the property being sold to any committee, consistory or any other body for religious, educational or charitable purposes, not being rent already due and in arrear at the time of the sale,

then such charges or expenses shall not be deemed or taken to form part of the purchase money of such property, so as to be liable to the payment of transfer duty:

   Provided that whenever the purchaser agrees or undertakes to pay any such quitrent as is mentioned in paragraph (i), which is, at the time of the sale to such purchaser, already due and in arrear, the amount of such arrear rent shall in the solemn declarations to be made by the seller and the purchaser, respectively, be added to the sum paid or to be paid to the seller in stating the amount of purchase money upon which the transfer duty is to be paid.

 

5.   Other sums payable by purchaser in addition to purchase price to be added to amount of purchase money

   In case the purchaser of any such property undertakes, agrees or in any manner becomes liable for, or in respect of, or in connection with the purchase by him of the said property, to pay to any person whomsoever any sum of money over and above the sum paid or to be paid to the seller, such sum not being one or more of the items of charges or expenses mentioned in section 4, then such sum must be added to the sum paid or to be paid to the seller in stating, in the solemn declaration to be made by the seller and purchaser respectively, the amount of purchase money upon which transfer duty is to be paid.

 

6.   When duty is payable

   The transfer duty upon or in respect of every sale, exchange or donation of any such property, shall be payable within six months from the day of the date of the sale, exchange or donation, as the case may be, and after the expiration of such six months, and until payment or deposit of the amount of such duty, interest thereupon at the rate of P12 per centum per annum shall be payable and paid.

 

7.   Date when duty payable in cases of deferred possession

   Whenever any contract of sale of any immovable property is entered into, by which it is stipulated that possession of such property shall not be given or that the said sale shall not take effect until some further date, the date on which such contract was entered into, and not such future date, shall be the date from which the period or term of six months mentioned in section 6 shall be reckoned.

 

8.   When duty payable in cases of conditional sale

   Whenever any sale of immovable property is a conditional sale, then the said period or term of six months shall begin to be reckoned from the day on which such contract of sale was first entered into:

   Provided that in case any such contract of sale is dissolved by reason of the happening of any dissolving condition after the payment of transfer duty, then upon proof given of such dissolution such duty shall be returned.

 

9.   Liability to duty in cases of joint ownership

   Whenever any such property as aforesaid is registered in the name of more than one person, as joint owners, all the said persons shall be deemed and taken, for the purpose of payment of duty upon or in respect of any sale or alienation by any of them to any other or others of them, to have equal shares and interest in the said property, unless the particular share or interest of each person is declared and set forth in the title deed or other instrument recorded in the Deeds Registry Office.

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