CHAPTER 50:03
VALUE ADDED TAX

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

 

 

PART I
Preliminary

 

   1.   Short title

 

   2.   Interpretation

 

   3.   Fair market value

 

   4.   Supply

 

   5.   Taxable activity

 

   6.   Act binding on State

 

 

 

PART II
Imposition of Tax

 

   7.   Imposition of tax

 

 

 

PART III
Rules relating to Supplies

 

   8.   Time of supply

 

   9.   Value of supply

 

   10.   Zero rating

 

   11.   Exempt supply

 

 

 

PART IV
Imports

 

   12.   Time of import

 

   13.   Value of import

 

   14.   Exempt import

 

   15.   Import declaration and payment of tax

 

 

 

PART V
Registration

 

   16.   Registration

 

   17.   Application for registration

 

   18.   Cancellation of registration

 

 

 

PART VI
Calculation of Tax Payable

 

   19.   Tax payable for tax period

 

   20.   Input tax

 

   21.   Post-sale adjustments

 

   22.   Interest on unpaid tax

 

   23.   Tax invoices

 

   24.   Tax credit and debit notes

 

 

 

PART VII
Tax Period Returns and Assessments

 

   25.   Tax Period

 

   26.   Returns

 

   27.   Extension of time

 

   28.   Assessments

 

   29.   General provisions relating to assessments

 

 

 

PART VIII
Objections and Appeals

 

   30.   Objections

 

   31.   Appeals

 

   32.   Burden of proof

 

 

 

PART IX
Collection and Recovery

 

   33.   Due date for payment

 

   34.   Recovery of tax chargeable

 

   35.   Security

 

   36.   Preferential claim to assets

 

   37.   Seizure of goods

 

   38.   Distress proceedings

 

   39.   Recovery of tax from recipient of supply

 

   40.   Recovery of tax from third parties

 

   41.   Duties of receivers

 

 

 

PART X
Refund of Tax and Tax Relief

 

   42.   Refund of tax

 

   43.   Others eligible for tax refund

 

 

 

PART XI
Representatives

 

   44.   Persons acting in a representative capacity

 

   45.   Power to appoint agent

 

 

 

PART XII
Special Cases

 

   46.   Branches

 

   47.   Bodies of persons (other than incorporated companies)

 

   48.   Death or insolvency; mortgagee in possession

 

   49.   Trustee

 

 

 

PART XIII
Records and Investigation Powers

 

   50.   Interpretation

 

   51.   Record keeping

 

   52.   Examination of premises and records

 

   53.   Records not in English or Setswana

 

   54.   Notice to obtain information or evidence

 

 

 

PART XIV
VAT Registration Number

 

   55.   VAT registration number

 

 

 

PART XV
Offences and Penalties

 

Division I
Offences

 

   56.   False or misleading statements

 

   57.   Obstructing taxation officers

 

   58.   Offences by taxation officers

 

   59.   Offences by companies, aiders and abetters

 

   60.   Compounding of offences

 

 

 

Division II
Penalties

 

   61.   Penalty for false or misleading statements

 

   62.   Recovery of penalties

 

   63.   Closure of business premises

 

 

 

Part XVI
Administration

 

   64.   Administration of Act

 

   65.   Confidentiality

 

 

 

Part XVII
Notices

 

   66.   Authentication of documents

 

   67.   Service of notices and other documents

 

 

 

Part XVIII
General Provisions

 

   68.   Tax-inclusive pricing

 

   69.   Variation of consideration

 

   70.   Application of increased or reduced rate

 

   71.   Schemes for obtaining tax benefits

 

   72.   Currency conversion

 

   73.   International agreements

 

   74.   Registration of certain goods prohibited in certain circumstances

 

   75.   VAT manufacturing warehouse certificate

 

   76.   Auctioneer and agent

 

   77.   Regulations

 

   77A.   Agreement varying application of Act

 

   78.   Variation in rate of tax

 

   79.   Repeal

 

   80.   Transitional

 

 

 

      Schedules

 

      Schedule I - Zero-Rated Supplies (section 10)

 

      Schedule II - Exempt Supplies (section 11)

 

      Schedule III - Exempt Imports (section 14)

 

      Schedule IV - Tax Invoices, Tax Credit Notes, and Tax Debit Notes (sections 23 and 24)

 

      Schedule V - Registration Threshold, Interest Rates, and Other Amounts

 

 

Act 1, 2001,
S.I. 21, 2001,
S.I. 41, 2002,
Act 10, 2002,
Act 15, 2006,
S.I. 16, 2010,
S.I. 17, 2010,
Act 5, 2011,
Act 12, 2013,
Act 1, 2015.

An Act to provide for the imposition of a value added tax, its administration and matters incidental thereto.

[Date of Commencement: 1st July, 2002]

PART I
Preliminary (ss 1-6)

 

1.   Short title

    This Act may be cited as the Value Added Tax Act.

 

2.   Interpretation

   In this Act, unless the context otherwise requires–

   "appealable decision" means an assessment or a decision described in sections 13(6), 17(6), 18(10), 20(6), 26(8), 27(3), 30(7), 31(5), 33(4), 35(5), 40(6), 42(9), 45(2), 62(4) and 75(8);

   "association not for gain" means-

 

   (a)   an institution of religious worship registered under the Societies Act; or

 

   (b)   any other society, association, or organization, whether incorporated or not, which-

 

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

 

      (ii)   is, in terms of its memorandum, articles of association, written rules, or other document constituting or governing the activities of that society, association, or organization-

 

         (A)   required to utilise any asset or income solely in the furtherance of its aims and objects;

 

         (B)   prohibited from transferring a portion of its assets or income directly or indirectly in a manner so as to profit any person other than by way of the payment in good faith of reasonable remuneration to an officer or employee of the society, association, or organization for service actually rendered to such society, association, or organization; and

 

         (C)   upon the winding up or liquidation of such society, association, or organization, obliged to give or transfer its assets remaining after the satisfaction of its liabilities to another society, association or organization with objects similar to those of the first-mentioned society, association, or organization;

   "auctioneer" means a person engaged in a taxable activity that includes the supply of goods by auction as an auctioneer or agent for or on behalf of another person;

   "capital goods" goods'' means any asset, or component of an asset, which is of
a character-

 

   (a)   subject to a deduction of capital expenditures incurred as provided in section 41 of the Income Tax Act; and

 

   (b)   subject to a deduction of mining capital expenditures incurred in terms of section 43 of the Income Tax Act,

which is used in the course or furtherance of a taxable activity;

   "cash value", in relation to a supply of goods under a credit agreement, means-

 

   (a)   where the seller or lessor is a bank or other financial institution, an amount equal to the sum of-

 

      (i)   the consideration paid by the bank or other financial institution for the goods, or the fair market value of the supply of the goods to the bank or other financial institution, whichever is the greater; and

 

      (ii)   any consideration for erection, construction, assembly, or installation of the goods borne by the bank or other financial institution; or

 

   (b)   where the seller or lessor is a dealer, an amount equal to the sum of-

 

      (i)   the consideration at which the goods are normally sold by the dealer for cash; and

 

      (ii)   any consideration for erection, construction, assembly, or installation of the goods borne by the dealer;

   "casino" has the meaning assigned to it under the Casino Act;

   ''Commissioner General'' means the Commissioner of the Revenue Service appointed under section 22 (1) of the Botswana Unified Revenue Service Act;

   "company" means any association or body corporate or unincorporate, whether created or recognised under a law in force in Botswana or elsewhere, and whether created for profit or non-profit purposes, but not including a partnership or trust;

   "consideration", in relation to a supply or import of goods or services, means the total amount in money or kind, paid or payable (including any deposit on any returnable container) for the supply or import by any person, directly or indirectly, including any duty, levy, fee, and charge, other than tax, paid or payable on, or by reason of, the supply or import, reduced by any price discounts or rebates allowed and accounted for at the time of the supply or import, but does not include-

 

   (a)   any cash payment made by a person as an unconditional gift to an association not for gain; or

 

   (b)   a deposit, other than a deposit on a returnable container, whether refundable or not, given in connection with a supply of goods or services, unless and until the supplier applies the deposit as consideration for the supply or such deposit is forfeited;

   "credit agreement" means a hire-purchase agreement or a finance lease;

   "customs and excise warehouse" means a warehouse licensed by the Director of Customs and Excise as such under section 19 of the Customs and Excise Duty Act;

   "Commissioner General" means the Commissioner General of Value Added Tax;

   "exempt import" has the meaning assigned to it under section 14;

   "exempt supply" has the meaning assigned to it under section 11;

   "fair market value" has the meaning assigned to it under section 3;

   "finance lease", in relation to goods, means the lease of the goods where-

 

   (a)   the lease term exceeds 75 per cent of the effective life of the goods for income tax purposes;

 

   (b)   the lessee has an option to purchase the goods for a fixed or determinable price at the expiration of the lease; or

 

   (c)   the estimated residual value of the goods to the lessor at the expiration of the lease term, including the period of any option to renew, is less than 20 per cent of its fair market value at the commencement of the lease;

   "goods" means all kinds of corporeal movable or immovable property, thermal or electrical energy, heat, gas, refrigeration, air conditioning, and water, but does not include money;

   "hire-purchase agreement" has the meaning assigned to it under the Hire-Purchase Act;

   "immovable property" includes-

 

   (a)   any estate, right, interest, or servitude on or over any land, and things attached to land or permanently fastened to anything attached to land;

 

   (b)   any unit as defined in section 2(1) of the Sectional Titles Act; or

 

   (c)   any real right in any such property;

   "import" means-

 

   (a)   in the case of goods, to bring or cause to be brought into Botswana from a foreign country or place; or

 

   (b)   in the case of services, a supply of services to a resident person-

 

      (i)   by a non-resident person; or

 

      (ii)   by a resident person from a business carried on by the resident person outside Botswana,

 

   to the extent that such services are utilised or consumed in Botswana, other than to make taxable supplies;

   "importer" has the meaning assigned to it under the Customs and Excise Duty Act;

   "income tax" has the meaning assigned to it under the Income Tax Act;

   "input tax", in relation to a registered person means-

 

   (a)   any tax charged under section 7(1)(a) on a taxable supply to the registered person; and

 

   (b)   any tax charged under section 7(1)(b) on an import of goods by the registered person, but does not include penalties imposed under sections 15(10), 15(12), 16(9), 26(6), 33(5), 51(4) and Division II of Part XV;

 

   (c)   transfer duty required to be paid under the Transfer Duty Act; and

 

   (d)   any tax deemed to have been paid for purposes of section 19 (1), which shall be an amount equal to the tax fraction of the lesser of any consideration in money or the fair market value of the supply (not being a taxable supply) to the registered person by way of sale of any second hand goods situated in Botswana by a resident.

   "international financial services centre company" has the meaning assigned to it under section 75;

   "invoice" means a document notifying an obligation to make a payment;

   "life insurance contract" means an insurance contract or life insurance fund as defined under section 2 of the Insurance Industry Act;

   "local authority" means a district council, a city council, a town council, or a township authority;

   "money" means-

 

   (a)   a coin or note that is legal tender in Botswana under the Bank of Botswana Act;

 

   (b)   a bill of exchange, bank draft, promissory note, postal order, or money order; or

 

   (c)   a stamp, form, or card that has a monetary value and is sold or issued by the State for the payment of any fiscal charge levied under any law for the benefit of the Consolidated Fund, except where the coin, note, stamp, form, or card is disposed of as a collector's piece, an investment article, or an item of numismatic interest;

   "non-resident person" means any person who is not a resident person; and any person referred to in paragraph (d) of the definition of "resident person" to the extent that the person is not a resident person;

   "output tax", in relation to a registered person, means the tax charged under section 7 on a taxable supply made by the person;

   "person" includes the State, a local authority, board, natural person, trust, company, and partnership;

   "recipient", in relation to a supply or import, means the person to whom the supply or import is made;

   "registered person" means a person registered or treated as such under this Act;

   "registering authority" means a person appointed under any law to issue a licence, permit, certificate, concession, or other authorization;

   "related persons" means-

 

   (a)   an individual and-

 

      (i)   any relative of that individual; or

 

      (ii)   a trust in respect of which such relative is or may be a beneficiary; or

 

   (b)   a trust and a person who is or may be a beneficiary in respect of that trust; or

 

   (c)   a partnership, or unincorporated association or body or close corporation and-

 

      (i)   any member thereof; or

 

      (ii)   any other person where that person and a member of such partnership, or unincorporated association or body, or close corporation as the case may be, are related persons in terms of this definition; or

 

   (d)   an incorporated company, other than a close corporation and-

 

      (i)   a person, other than an incorporated company, where that person or that person and a person related to the first mentioned person in terms of this definition controls 10 percent or more of-

 

         (A)   the voting power in the company;

 

         (B)   the rights to distributions of capital or profits of the company, either directly or through one or more interposed companies, partnerships, or trusts; or

 

      (ii)   any other incorporated company in which the first mentioned person referred to in subparagraph (i) or that person and a person related to that first mentioned person in terms of this definition controls 10 percent or more of-

 

         (A)   the voting power in the first-mentioned company; or

 

         (B)   the rights to distributions of capital or profits of the first-mentioned company, either directly or through one or more interposed companies, partnerships, or trusts; or

 

      (iii)   any person where that person and the person referred to in subparagraph (i) or the other incorporated company referred to in subparagraph (ii) are related persons in terms of this definition; or

 

      (iv)   any person related to the person referred to in subparagraph (iii) in terms of this definition;

 

   (e)   a registered person and a branch or division of that registered person which is separately registered under section 46(3) as a registered person; or

 

   (f)   any branches or divisions of a registered person which are separately registered under section 46(3) as registered persons;

   "relative", in relation to an individual, means-

 

   (a)   the spouse of the individual;

 

   (b)   an ancestor, lineal descendant, brother, sister, uncle, aunt, nephew, niece, stepfather, stepmother, stepchild, or adopted child of that person or her spouse and in the case of an adopted child her adoptive parent; or

 

   (c)   the spouse of any person referred to in paragraph (b),

 

   and for the purposes of this definition, any adopted child is treated as related to her adoptive parent within the first degree of consanguinity;

   "rental agreement" means an agreement for the letting of goods other than a hire-purchase agreement or a finance lease;

   "resident person" means-

 

   (a)   the State or a local authority in Botswana; or

 

   (b)   a natural person resident in Botswana; or

 

   (c)   a company, partnership, or trust which is formed or created under the laws of Botswana or which is managed and controlled in Botswana; or

 

   (d)   any other person to the extent that such person carries on in Botswana, a taxable or other activity and has a fixed place in Botswana relating to such activity;

   "sale" means an agreement of purchase and sale, and any other transaction or act whereby or, in consequence of which, ownership of goods passes or is to pass from one person to another;

   "second-hand goods" means goods which were previously owned and used, including immovable property, but does not include livestock, domestic animals or wild animals;

   "services" means anything that is not goods or money;

   "short term insurance contract" means a contract of insurance, including reinsurance, or guarantee against loss, damage, injury, or risk of any kind, whether pursuant to any contract or law, and includes a renewal of such contract, but does not include a life insurance contract;

   "supplier", in relation to a supply, means the person making the supply;

   "supply" has the meaning assigned to it under section 4;

   "tax" or "VAT" means the tax imposed under this Act, and includes any amount to the extent that it is treated as tax for the purposes of this Act;

   "taxable activity" has the meaning assigned to it under section 5;

   "taxable supply" means a supply of goods or services in the course or furtherance of a taxable activity, other than an exempt supply;

   "taxation officer" means-

 

   (a)   the Commissioner General; or

 

   (b)   a person in the service of the directorates of-

 

      (i)   Income Tax;

 

      (ii)   Value Added Tax; or

 

      (iii)   Customs & Excise; or

 

   (c)   a police officer or official of the Botswana Police Force, acting on behalf of the directorate of Value Added Tax in terms of section 38(2)(b), 52(6), or 63(2) of this Act; or

 

   (d)   an employee or official of the Botswana Postal Services, acting on behalf of the directorate of Customs & Excise in terms of section 15(5)(b) of this Act,

who administers this Act;

   "tax fraction" means the fraction calculated in accordance with the formula-

 

r/(100 + r)

   where "r" is the rate of tax applicable under section 7(1);

   "tax invoice" means a document provided as required under section 23;

   "tax period" has the meaning assigned to it under section 25;

   "trust" means any relationship where property is under the control or management of a trustee; and

   "trustee" means a person appointed or constituted trustee by act of parties, by order or declaration of a court, or by operation of law and includes-

 

   (a)   an executor, administrator, tutor, or curator; or

 

   (b)   a receiver as defined in section 41(1);

 

   (c)   a person having or taking on the administration or control of property subject to another person having a beneficial interest in the property;

 

   (d)   a person acting in a fiduciary capacity;

 

   (e)   a person having possession, control, or management of the property of a person under a legal disability; or

 

   (f)   a person who manages assets under a private foundation or other similar arrangement;

   "value added tax (or VAT) manufacturing warehouse" has the meaning assigned to it under section 75.

 

3.   Fair market value

   (1) In this section-

   "similar import", in relation to an import of goods or services, means any other import of goods or services that, in respect of the characteristics, quality, quantity, functional components, materials, and reputation of the first-mentioned goods or services, is the same as, or closely or substantially resembles, that import of goods or services;

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

   (2) For the purposes of this Act, the fair market value of a supply or import of goods or services at any date shall be the consideration in money which the supply or import, as the case may be, would generally fetch if supplied or imported in similar circumstances at that date in Botswana, being a supply or import freely offered and made between persons who are not related persons.

   (3) Where the fair market value of a supply or import of goods or services at any date cannot be determined under subsection (2), the fair market value shall be the consideration in money which a similar supply or similar import, as the case may be, would generally fetch if supplied or imported in similar circumstances at that date in Botswana, being a supply or import freely offered and made between persons who are not related persons.

   (4) Where the fair market value of a supply or import of goods or services cannot be determined under subsection (2) or (3), the fair market value shall be determined in accordance with any method approved by the Commissioner General which provides a sufficiently objective approximation of the consideration in money which could be obtained for that supply or import had the supply or import been freely offered and made between persons who are not related persons.

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

   (6) The fair market value of a supply or import is determined at the time of the supply or import as determined under this Act.

 

4.   Supply

   (1) Subject to this Act-

 

   (a)   a supply of goods means-

 

      (i)   a sale of goods; or

 

      (ii)   a grant of the use or right to use goods, whether with or without a driver, pilot, crew, or operator, under a rental agreement, credit agreement, freight contract, agreement for charter, or any other agreement under which such use or right to use is granted; or

 

      (iii)   a transfer or provision of thermal or electrical energy, heat, gas, refrigeration, air conditioning, or water; and

 

   (b)   a supply of services means anything done which is not a supply of goods or money, including-

 

      (i)   the granting, assignment, cessation, or surrender of any right;

 

      (ii)   making available a facility or advantage; or

 

      (iii)   refraining from or tolerating any activity.

   (2) The disposition of a taxable activity as a going concern, or a part of a taxable activity that is capable of separate operation, is a supply of goods made in the course or furtherance of such taxable activity.

   (3) For the purposes of subsection (2), a taxable activity or a part of a taxable activity capable of separate operation is disposed of as a going concern where-

 

   (a)   all the goods and services necessary for the continued operation of that taxable activity or that part of the taxable activity are supplied to the transferee; and

 

   (b)   the transferor carries on, or is carrying on, that taxable activity or that part of the taxable activity up to the time of its transfer to the transferee.

   (4) A supply of goods for goods or services is a supply of goods.

   (5) A supply of services for goods or services is a supply of services.

   (6) Subject to section 18(11), the application by a registered person of goods or services acquired for use in a taxable activity to a different use, including the provision of goods or services to an employee for personal use, is a supply of those goods or services by the registered person in the course or furtherance of that taxable activity, but only if the registered person has been allowed a deduction for input tax in respect of those goods or services.

   (7) Where goods are repossessed under a credit agreement, the repossession is a supply of the goods by the debtor under the credit agreement to the person exercising the right of repossession, and where such debtor is a registered person, the supply is made in the course or furtherance of the debtor's taxable activity unless such goods did not form part of the assets held or used by the debtor in connection with that activity.

   (8) Where a lay-bye agreement is cancelled or terminates and the seller retains any amount paid by the purchaser or recovers any amount the purchaser owes under the agreement, the cancellation or termination is a supply of services by the seller in respect of the agreement.

   (9) Where a registered person receives a payment of a claim or is otherwise indemnified under a short term insurance contract for a loss incurred in connection with the conduct of a taxable activity, the receipt of such payment or indemnity is a supply of services by the registered person in the course or furtherance of a taxable activity, but only if the supply of that short term insurance contract was taxable under section 7(1), other than a supply charged to tax at a zero rate under section 10.

   (10) A bet placed by a person with another person operating a casino is a supply of services by the person operating the casino to the first-mentioned person.

   (11) Where a registered person in carrying on a taxable activity in Botswana, transfers goods or provides services to, or for the purposes of, a branch or main business outside Botswana that falls within section 5(2)(c), the transfer or provision is a supply of goods or services, as the case may be, by the registered person in the course or furtherance of that taxable activity.

   (12) A supply of services incidental to a supply of goods is part of the supply of goods.

   (13) A supply of goods incidental to a supply of services is part of the supply of services.

   (14) A supply or import of services incidental to an import of goods is part of the import of goods.

   (15) Regulations made under section 77 may provide that a supply of goods and services is a supply of goods or a supply of services.

   (16) Where a supply consists both of a supply that is charged with tax at a positive rate and a supply that is charged with tax at a zero rate, each part of the supply is treated as a separate supply.

   (17) A supply of services by an employee to an employer by reason of employment is not a supply.

   (18) The provision of goods on consignment and the transfer of goods to a person in a representative capacity is not a supply.

   (19) Where a registered person supplies goods or services and a deduction for input tax paid on the acquisition of such goods or services was denied, the supply by the registered person is a supply of goods or services otherwise than in the course or furtherance of a taxable activity.

   (20) Subject to subsection (21), where-

 

   (a)   the disposition of a taxable activity, including a disposition of a part of a taxable activity capable of separate operation by a registered person is a supply of goods under subsection (2); and

 

   (b)   the supply was charged with tax at the rate of zero percent in terms of paragraph 2(p) of the First Schedule;

 

   (c)   the goods and services comprising the taxable activity were acquired by the recipient wholly or partly for a purpose other than for consumption, use, or supply in the course of making taxable supplies, the acquisition of the taxable activity is a supply by the recipient in the course or furtherance of a taxable activity carried on by the recipient to the extent that the goods and services comprising the taxable activity were acquired for a purpose other than consumption, use, or supply in the course of making taxable supplies.

   (21) Subsection (20) does not apply where that part of the taxable activity referred to in subsection (20)(c) is less than 10 percent of the total taxable activity.

   (22) Where a right to receive goods or services for a monetary value stated on any token, voucher, or stamp, other than a postage stamp as defined in section 2 of the Botswana Postal Services Act, is granted for a consideration in money, the issue of such token, voucher, or stamp is not a supply, except to the extent (if any) that such consideration exceeds that monetary value.

   (23) Subsection (22) does not apply to a phone card, prepayment on a cellular phone, or a similar scheme of advance payment for the rendering of services.

   (24) The removal of goods from a value added tax manufacturing warehouse by any person or the rendering of services by an international financial services centre company is treated as a supply of those goods or services by the person or company in the course or furtherance of a taxable activity carried on by the person in Botswana.

   (25) The payment by the State of a subsidy under a subsidy scheme to defray expenses, or the payment of a bursary is not a supply.

   (26) Subject to subsections (27) and (28), a supply of goods or services-

 

   (a)   made by a person as agent for another person ("the principal") is a supply by the principal; or

 

   (b)   made to a person as agent for a principal is a supply to the principal.

   (27) Subsection (26) does not apply to services supplied by an agent to the agent's principal.

   (28) A supply of goods by auction is treated as a supply of goods for consideration by the auctioneer as supplier made in the course or furtherance of a taxable activity carried on by the auctioneer.

 

5.   Taxable activity

   (1) For the purposes of this Act, "taxable activity" means-

 

   (a)   an activity which is carried on continuously or regularly by any person-

 

      (i)   in Botswana;

 

      (ii)   or partly in Botswana,

 

      whether or not for a pecuniary profit, that involves or is intended to involve, in whole or in part, the supply of goods or services to another person for consideration; or

 

   (b)   without limiting the generality of paragraph (a), an activity of a local authority or unincorporated association or body that involves, in whole or in part, the supply of goods or services for consideration.

   (2) Taxable activity does not include-

 

   (a)   an activity carried on by a natural person essentially as a private recreational pursuit or hobby or an activity carried on by a person other than a natural person which would, if carried on by a natural person, be carried on essentially as a private recreational pursuit or hobby; or

 

   (b)   an activity to the extent that the activity involves the making of exempt supplies; or

 

   (c)   an activity carried on from a branch or main business permanently located on premises outside Botswana where-

 

      (i)   the branch or main business can be separately identified; and

 

      (ii)   an independent system of accounting is maintained in respect of the branch or main business.

   (3) Anything done in connection with the commencement or termination of a taxable activity is treated as carried out in the course or furtherance of that taxable activity.

   (4) Subject to subsection (5), a supply is made for consideration if the supplier directly or indirectly receives any payment for the supply from the recipient or any other person, including any payment wholly or partly in money or kind.

   (5) A supply made for consideration includes-

 

   (a)   a supply made between related persons for no consideration; or

 

   (b)   a supply of goods for use only as trade samples; or

 

   (c)   a supply referred to in section 4(6), (11), (20), or (24).

 

6.   Act binding on State

   This Act binds the State.

PART II
Imposition of Tax (s 7)

 

7.   Imposition of tax

   (1) Subject to the provisions of this Act, there shall be levied and paid a tax, to be known as the value added tax, at the rate of 12 percent of the value of-

 

   (a)   every taxable supply by a registered person; and

 

   (b)   every import of goods or import of services, other than an exempt import.

   (2) Except as otherwise provided in this Act, the tax payable under subsection (1) shall-

 

   (a)   in the case of a supply to which subsection (1)(a) applies, be accounted for by the registered person making the supply; or

 

   (b)   in the case of an import of goods, be paid by the importer; or

 

   (c)   in the case of an import of services, be paid by the recipient of the services.

   (3) A supply chargeable with tax under both subsections (1)(a) and (b) shall be treated as a supply chargeable under subsection (1)(a).

PART III
Rules relating to Supplies (ss 8-11)

 

8.   Time of supply

   (1) Subject to this Act, a supply of goods or services occurs when-

 

   (a)   an invoice for the supply is issued by the supplier; or

 

   (b)   any payment for the supply is received,

 

   whichever is the earlier.

   (2) Subject to subsection (3), where the supplier and the recipient are related persons, the supply occurs-

 

   (a)   in the case of a supply of goods which are to be removed, when the goods are removed;

 

   (b)   in the case of a supply of goods which are not to be removed, when the goods are made available to the recipient; or

 

   (c)   in the case of a supply of services, when the services are performed.

   (3) Subsection (2) does not apply to a supply between related persons to the extent that an invoice is issued, or payment is received for the supply on or before the earlier of-

 

   (a)   the day on which the return is furnished for the tax period during which that supply would, but for subsection (2), have been made; or

 

   (b)   the last day prescribed by this Act for furnishing the return for the tax period during which that supply would, but for subsection (2), have been made.

   (4) Subject to subsection (18), a supply of goods under a credit agreement occurs when the goods are delivered or the time any payment for the supply is received, whichever is earlier.

   (5) A supply of goods pursuant to a lay-bye agreement occurs when the goods are delivered to the purchaser.

   (6) A supply of goods or services under section 4(6) occurs when the goods or services are applied to a different use.

   (7) A supply of goods under section 4(7) occurs when the goods are repossessed, or where the debtor may under any law be reinstated in his rights and obligations under the credit agreement, the day after the last day of any period during which the debtor may under such law be so reinstated.

   (8) A supply of services under section 4(8) occurs when the seller obtains the right to retain any amount paid by the purchaser or when the seller recovers any amount owing by the purchaser under the agreement.

   (9) A supply for a consideration in money received by the supplier by means of a machine, meter, or other device operated by coin, note, or token occurs when the coin, note, or token is taken from that machine, meter, or other device by or on behalf of the supplier.

   (10) A supply of goods or services referred to in section 4(11) by a registered person occurs when the goods are delivered to, or the services performed for, the branch or main business.

   (11) Goods supplied under a rental agreement or services supplied under an agreement which provides for periodic payments, are treated as successively supplied for successive parts of the period of the agreement, and each of the successive supplies occurs when a payment becomes due or is received, whichever is the earlier.

   (12) Where-

 

   (a)   goods described under section 4(1)(a)(iii) are supplied; or

 

   (b)   goods or services are supplied directly in the construction, major reconstruction, manufacture, or extension of a building or engineering work and the consideration becomes due in instalments or periodically, the goods or services are treated as successively supplied for each period to which a payment for the goods or services relates and each successive supply occurs when payment in respect of the supply becomes due, is received, or an invoice relating only to that payment is issued, whichever is the earlier.

   (13) A supply under section 4(20) occurs when the supply under section 4(2), to which it relates, occurs.

   (14) To the extent that the issuance of a token, voucher, or stamp is a supply under section 4(22), the supply occurs when the token, voucher, or stamp is issued.

   (15) A supply under section 4(24) of goods removed from a value added tax manufacturing warehouse or of services rendered by an international financial services centre company occurs when the goods are removed from the warehouse or when the services are rendered.

   (16) The forfeit of a deposit (other than a deposit on a returnable container) is a supply of services when the deposit is forfeited.

   (17) Notwithstanding the provisions of this section, a supply of immovable property occurs when the transfer deedis registered with the Registrar of Deeds or when any payment is received,whichever occurs earlier.

   (18) A supply of-

 

   (a)   an electrical connection under the Botswana Power Corporation's Rural Electrification Scheme; or

 

   (b)   housing by the Botswana Housing Corporation under the Tenant Purchase Scheme, pursuant to a hire-purchase agreement, occurs as each payment is due or is made under that agreement, whichever is earlier.

 

9.   Value of supply

   (1) Subject to this Act, the value of a supply of goods or services is the amount of the consideration for the supply.

   (2) Where a portion of the price of a supply represents tax imposed by this Act that is not accounted for separately, the value of the supply is the price reduced by an amount equal to the tax fraction multiplied by that price.

   (3) Where-

 

   (a)   a supply is made by a registered person for no consideration or for a consideration that is less than the fair market value of that supply; and

 

   (b)   (i)   the supplier and the recipient are related persons; or

 

      (ii)   the recipient is a charitable organization, institution of religious worship, educational institution, old-age home, orphanage, children's home, or institution of a similar nature,

the value of the supply is the fair market value of the supply.

   (4) Where a registered person makes a supply of goods or services referred to in section 4(6), the value of the supply is the lesser of-

 

   (a)   the consideration paid or payable by the registered person for those goods or services; or

 

   (b)   the fair market value of the supply.

   (5) The Minister may prescribe rules to determine the value of a supply governed by subsection (4) where the registered person applies less than the entire goods or services to a different use.

   (6) The value of a supply of goods under a credit agreement is the cash value of the supply.

   (7) Where a debtor makes a supply of goods as a result of the repossession of those goods from the debtor under a credit agreement, the value of the supply is an amount equal to the balance of the cash value of the supply of those goods to the debtor that has not been recovered at the time of the supply.

   (8) For purposes of subsection (7), the balance of the cash value of the supply is the amount remaining after deducting from the cash value so much of the sum of the payments made by the debtor under the credit agreement as, on the basis of an apportionment in accordance with the rights and obligations of the parties to such agreement, may properly be regarded as having been made in respect of the cash value of the supply.

   (9) The value of a supply of services under section 4(8) is an amount equal to the amount referred to in that section that is retained or recoverable.

   (10) Where the grant of a right to receive goods or services for a monetary value stated on a token, voucher, or stamp is a supply under section 4(22), the value of the supply is an amount equal to the amount by which the consideration exceeds the monetary value of the token, voucher, or stamp.

   (11) Where a token, voucher, or stamp is issued by a registered person for no consideration and the holder thereof is entitled on surrender thereof to another person, being a supplier of goods or services, to a discount on the price of goods or services supplied to the holder, the value of the supply of such goods or services by the supplier includes the monetary value stated on the token, voucher, or stamp, less the tax fraction of the monetary value if the token, voucher, or stamp is surrendered for a taxable supply.

   (12) For purposes of subsection (11), the monetary value is inclusive of tax.

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

   (14) The value of a supply of goods or services referred to in section 4(11) by a registered person is the lesser of-

 

   (a)   the cost, excluding tax, to the registered person of the acquisition, manufacture, assembly, construction, or production of such goods or services, including the costs of transportation or delivery of the goods or services to the branch or main business; or

 

   (b)   the fair market value of the supply.

   (15) Except as otherwise provided in this section, if a supply is made for no consideration the value of the supply is nil.

   (16) The value of a supply of services under section 4(10) is the amount received in respect of the bet, reduced by an amount equal to the tax fraction multiplied by the amount received in respect of the bet.

   (17) The value of a supply referred to in section 4(20) shall be the consideration for the acquisition of the taxable activity reduced by an amount which bears to the amount of such consideration the same ratio as the intended use or application of the taxable activity for making taxable supplies bears to the total intended use or application of the taxable activity.

   (18) The value of goods removed from a value added tax manufacturing warehouse referred to in section 4(24) is the fair market value of the supply.

   (19) For the purposes of this Act, consideration paid or payable in kind is the fair market value of the consideration as determined under section 3(5).

   (20) The value of a supply of an electrical connection or a supply of housing referred to under section 8 (18) is an amount equal to the instalment due or paid under the scheme.

 

10.   Zero rating

   (1) Where, but for this section, a supply of goods or services would be charged with tax under section 7(1)(a), the supply shall be charged with tax at the rate of zero percent if it is specified in paragraph 2 of the First Schedule.

   (2) Where a registered person has applied the rate of zero percent to a supply under this section, the registered person shall obtain and retain such documentary proof acceptable to the Commissioner General substantiating the person's entitlement to apply the zero rate to the supply.

   (3) Notwithstanding any provision of this Act, the Minister may by Order deny zero rating of supplies exported from Botswana as specified in the First Schedule if such action is necessary to protect the revenue or to offset restrictions placed on zero rating of comparable supplies by the export country as defined in the First Schedule.

 

11.   Exempt supply

   (1) Subject to subsection (2), a supply of goods or services is an exempt supply if it is specified in paragraph 2 of the Second Schedule.

   (2) A supply of goods or services is not an exempt supply if, in the absence of subsection (1), the supply would be charged with tax at the rate of zero percent under section 10.

PART IV
Imports (ss 12-15)

 

12.   Time of import

   (1) An import of goods occurs-

 

   (a)   in the case of goods required to be entered for home consumption under the Customs and Excise Duty Act, when the goods are so entered; or

 

   (b)   in any other case, when the goods are brought into Botswana.

   (2) Where goods are imported and entered in a customs and excise warehouse but are not entered for home consumption, a supply of such goods before they are entered for home consumption shall be disregarded for the purposes of this Act.

   (3) An import of services occurs at the time determined by applying section 8 to the import on the basis that the import is a supply of services.

 

13.   Value of import

   (1) The value of an import of goods is-

 

   (a)   in the case of goods required to be cleared under the Customs and Excise Duty Act, an amount equal to the sum of-

 

      (i)   the transaction value of the goods for customs duty purposes in terms of section 75 of the Customs and Excise Duty Act;

 

      (ii)   the cost of insurance and freight; and

 

      (iii)   the amount of any duty levied under the said Act in respect of the importation of such goods; and

 

   (b)   in the case of goods not required to be cleared, the greater of-

 

      (i)   an amount equal to the sum of-

 

         (A)   the free-on-board value of the goods; and

 

         (B)   an amount equal to the cost of insurance and freight; or

 

      (ii)   the fair market value of the import.

   (2) Notwithstanding the provisions of subsection (1), if a motor vehicle is imported by an individual for the individual's own use and not for sale, the Commissioner General may determine the value of the import of such vehicle.

   (3) Subject to subsection (4), the value of an import of services is the amount of the consideration for the import.

   (4) Where-

 

   (a)   an import of services is made for no consideration or for a consideration that is less than the fair market value of that import; and

 

   (b)   the supplier and the recipient are related persons, the value of the import is the fair market value of the import.

   (5) Where a portion of the price of an import of services represents tax imposed by this Act that is not accounted for separately, the value of the import is the price reduced by an amount equal to the tax fraction multiplied by that price.

   (6) An individual dissatisfied with a decision under subsection (2) may appeal against the decision only in accordance with the provisions of Part VIII.

 

14.   Exempt import

   An import of goods or services is an exempt import where-

 

   (a)   the import is specified in the Third Schedule; or

 

   (b)   the import would be a zero rated supply under section 10 or an exempt supply under section 11 if it were a supply of goods or services in Botswana.

 

15.   Import declaration and payment of tax

   (1) Where tax is payable on an import of goods-

 

   (a)   in the case of goods required to be entered for home consumption under the Customs and Excise Duty Act, the importer shall, upon such entry, furnish the Commissioner General with an import declaration and pay the tax due on the import in accordance with the arrangements referred to in subsection (5);

 

   (b)   in the case of goods imported from Lesotho, Namibia, Republic of South Africa, or Swaziland, the importer shall, upon import, furnish the Commissioner General with an import declaration and pay the tax due in respect of the import in accordance with the arrangements referred to in subsection (5); or

 

   (c)   in any other case, the importer shall, at the time of the import, furnish the Commissioner General with an import declaration and pay the tax due in respect of the import.

   (2) Where tax is payable on an import of services, other than where section 4(14) applies, the recipient of the services under section 7(2)(c) shall, within 30 days after the time of the import, furnish the Commissioner General with an import declaration and pay the tax due in respect of the import.

   (3) An import declaration under subsection (1) or (2) shall-

 

   (a)   be in the form prescribed by the Minister;

 

   (b)   state the information necessary to calculate the tax payable in respect of the import; and

 

   (c)   be furnished in the manner specified by the Director.

   (4) Where-

 

   (a)   a person carries on activities outside Botswana which do not form part of any taxable activity of the person; and

 

   (b)   in the course of carrying on those activities outside Botswana, services are rendered for the purposes of any taxable activity of the person; and

 

   (c)   if those services were rendered by any other person, the rendering of the services would be an import of services for the purposes of this Act, the services shall be treated as an import of services received by the person referred to under paragraph (a) when the services are rendered in respect of a taxable activity carried on by the person for an amount equal to the fair market value of the import.

   (5) The Director of Customs and Excise-

 

   (a)   shall collect, at the time of import and on behalf of the Commissioner General, any tax due under this Act on an import of goods and, at that time, obtain the name and the VAT registration number, if any, of the importer, the import declaration, and the invoice values in respect of the import; and

 

   (b)   may make arrangements with Botswana Postal Services to perform such functions on his behalf in respect of imports through the postal services.

   (6) Notwithstanding subsection (5), the Commissioner General may authorize an importer who is a registered person to pay tax within 25 days after the end of the month in which the goods are imported, where the importer posts security deemed adequate by the Commissioner General, or the Commissioner General is satisfied that the importer has regularly paid all tax due on imports within the prescribed period; and the Commissioner General shall notify the Director of Customs and Excise of the name and VAT registration number of the person entitled to deferral under this subsection.

   (7) Except where the contrary intention appears, the provisions of the Customs and Excise Duty Act, relating to the import, transit, coastwise carriage, clearance of goods, and payment and recovery of duty shall, with such exceptions, modifications, and adaptations as the Minister may by regulation prescribe, apply, so far as relevant, to the tax charged under this Act on the import of goods.

   (8) A person who fails to furnish an import declaration as required by this Act commits an offence and is liable on conviction to a fine not exceeding P5,000 or to imprisonment for a term not exceeding 1 year, or to both.

   (9) Where a person convicted of an offence under subsection (8) fails to furnish the import declaration within a further period specified by the Commissioner General by notice in writing, that person commits an offence and is liable on conviction to a fine of P50 for each day during which the failure continues and to imprisonment for three months without the option of a fine in lieu of imprisonment.

   (10) A person who fails to furnish an import declaration within the time required under this Act is liable for a penalty which is the greater of-

 

   (a)   P50 per day for each day or part thereof that the return or import declaration remains outstanding; or

 

   (b)   an amount equal to 10 per cent of the tax payable for the period of such import declaration, for each month or part thereof that the return or import declaration remains outstanding.

   (11) The penalty imposed under subsection (10) shall not exceed the amount of tax payable in respect of the return or import declaration.

   (12) A person who fails to pay tax payable on import in accordance with this section on or before the due date, is liable for a penalty which is the greater of-

 

   (a)   P50 per day for each day or part thereof that the tax remains outstanding; or

 

   (b)   an amount equal to 10 percent of the tax outstanding, for each month or part thereof that the tax remains outstanding.

   (13) The penalty imposed under subsection (12) shall not exceed the amount of unpaid tax.

   (14) A penalty paid by a person under subsection (12) shall be refunded to the person to the extent that the tax to which it relates is subsequently determined not to have been due and payable.

   (15) A penalty imposed under subsection (12) is in addition to any interest payable under section 22.

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