Section 89: Source of income.

(1) Income is from a source in Sierra Leone if it is— a) derived from an activity which occurs in Siena Leone; b) derived in respect of any employment exercised in Sierra Leone whether or not the gains or profits from such employment are received in Sierra Leone; c) derived from real property located in Sierra Leone, including gains from the disposal of interest in such real property and from the disposal of shares in a company the property of which consists directly or indirectly principally of interests in such real property; d) derived from the disposal of a shareholder interest in a company resident in Sierra Leone; e) derived from the rental of personal property used in Sierra Leone; f) derived from the sale or license of industrial or intellectual property used in Sierra Leone; g) interest where— i. the debt is secured by real or personal property located in Sierra Leone; ii. the borrower is resident in Sierra Leone (other than a temporarily resident individual); or iii. the borrowing relates to a business carried on in Sierra Leone; h) a dividend, management fee or director’s fee paid by a company resident in Sierra Leone; i) a pension or annuity where the pension or annuity is paid by the Sierra Leone Government or a resident of Sierra Leone; j) a natural resource payment for a natural resources taken from Sierra Leone. (2) Any income which is not from a source in Sierra Leone is foreign-source income. Allowable foreign tax credit 90. (1) A resident taxpayer is entitled to an allowable tax credit in respect of foreign income borne by the taxpayer on assessable income derived from a foreign source. (2) The allowable tax credit in respect of any foreign-source income may not exceed the Sierra Leone income tax on that foreign-source income, calculated by applying the average rate of Sierra Leone income tax to the foreign-source income reduced by any deduction properly allocated to that income. (3) For the purposes of subsection (2), the allowable tax credit in respect of foreign-source income and the Sierra Leone income tax imposed on that income are calculated separately for each amount of foreign-source income derived by a taxpayer. (4) For the purposes of subsection (2), foreign-source income derived by a foreign branch of a resident company is aggregated and considered a single receipt of income. (5) Foreign income tax borne by— a) a partnership shall be treated as borne by the partners; b) a trustee shall be treated as borne by the beneficiary where the income on which the trustee was assessed n the foreign country is included in the assessable income of a beneficiary under this Act; and c) a beneficiary shall be treated as borne by the trustee where the income on which the beneficiary was assessed in the foreign country is included in the income of a trustee under this Act. (6) For the purposes of this section— a) “average rate of Sierra Leone income tax” is the percentage that the taxpayer’s Sierra Leone income tax calculated without reference to this section bears to the taxpayer’s chargeable income for the year of b) “income” includes gains included in the chargeable income under this Act; and c) “income tax” includes tax on such gains Foreign employment income of residents. 91. Foreign-source employment income derived by a resident individual during a year of assessment from employment in a foreign country shall be exempt from income tax if the income is chargeable to tax in the foreign country. Agents for nonresidents. 92. (1) Where— a) a non-resident person has failed to pay to the Commissioner tax which has been assessed; or b) the Commissioner believes a non-resident person may not pay tax that is expected to be assessed on income to be paid to the non-resident, the Commissioner may require any person liable to make a payment to the non-resident to withhold an amount from the payment and remit the amount to the Commissioner. (2) A person who has withheld tax under subsection (1) and remitted the withheld amount to thee Commissioner shall be treated as having paid the withheld amount to the non-resident person for the purposes of any claim by that person for payment of the withheld amount. Taxation of branch profits. 93. (1) A branch in Sierra Leone of a non-resident company shall be subject to tax on repatriated income at the rate prescribed in Part II of the Second Schedule as though such income were a dividend taxable under section 118, this tax being in addition to income tax on he chargeable income of the branch. (2) Repatriated income is the higher of— a) funds repatriated in the year out of accumulated profits; and b) the chargeable income of the branch less— i. Sierra Leone income tax paid on that chargeable income; and ii. any profit reinvested or retained in the branch. International agreements. 94. (1) To the extent that the terms of an international agreement to which Sierra Leone is a party are inconsistent with the provisions of this Act other than sections 95 and 96, the terms of the international agreement prevail over the provisions of this Act. (2) In this section ''International agreement" an agreement between Sierra Leone and a foreign government. P ART XI - ANTI-AVOIDANCE 95. Transfer pricing. (1) In any transaction between taxpayers who are associates, the Commissioner may distribute, apportion or allocate assessable income, deductions or credits between the taxpayers as is necessary to reflect the chargeable income the taxpayers would have realised in an arm’s length transaction. (2) The Commissioner may adjust the income arising in respect of any transfer or licence of intangible property between associates so that it is commensurate with the income attributable to the intangible property. (3) In making any adjustment under subsections (1) and (2), the Commissioner may recharacterise the source of income and the nature of any payment or loss as revenue, capital or otherwise. Recharacterisation of income and deductions. 96. (1) For the purposes of determining liability to tax under this Act, the Commissioner may— a) recharacterise a transaction or an element of a transaction that was entered into as part of a tax avoidance scheme or which would result or has resulted in less income tax being paid; b) disregard a transaction that does not have substantial economic effect, or c) recharacterise a transaction the form of which does not reflect the substance. (2) A “tax avoidance scheme'' in subsection (1) includes any transaction one of the main purposes of which is the avoidance or reduction of liability to tax. P ART XII – RETURNS Filing of return of income. 97. (1) Subject to section 98, a taxpayer or nominated officer of a partnership or trust shall file a return of income for each year of assessment not later than ninety days after the end of that year. (2) The return of income shall state— a) the total amount of chargeable income for the year of assessment; and b) the amount of any tax paid or withheld in respect of that year. (3) The return of income shall— a) be in the form, b) state the information; and c) be filed, as prescribed by the Commissioner. (4) Where the taxpayer is about to cease activity in Sierra Leone or where the Commissioner otherwise considers it appropriate, the Commissioner may require a taxpayer to file a return of income covering a period of less than twelve months by service of a notice in writing which specifies the due date for the return of income. (5) A return of income shall be signed by the taxpayer or, if the taxpayer is legally incapacitated, by the taxpayer’s legal representative and shall contain a representation that the return is complete and accurate. (6) A person who completes or contributes to the completion of a return for compensation shall also sign the return unless the person is an employee of the taxpayer. Cases where return is not required. 98. Unless expressly requested in writing by the Commissioner, no return of income is required under this Act from a resident individual— a) whose chargeable income for the year of assessment is less than the amount specified to be taxed at nil percent in Part I of the First Schedule; or b) whose chargeable income for the year of assessment (other than income subject to final withholding tax under this Act) consists only of— i. employment income derived from a single employer upon which tax has been fully withheld; or ii. a pension from which tax has been fully withheld. 99. Information returns. (1) Every person who makes payments of Sierra Leone-source interest. dividends, royalties, management fees, rent or other income as specified by the Commissioner shall make a return of such payments to the Commissioner within twenty eight days of the end of the year of assessment in which the payments were made, setting out— a) the name, address and, where appropriate, the taxpayer file number of each person to whom such payments were made; b) the amount paid; and c) such additional information as the Commissioner may require. (2) Every employer shall make a return within twenty eight days of the end of the year of assessment setting out— a) the names and places of residence of all employees; b) the full mount of all employment income, in cash or otherwise, paid to such employees; and c) such additional information as the Commissioner may require. (3) A person or organisation having responsibility to register the disposal by a third party of a business or investment asset shall, within fifteen days of the registration and at the latest within twenty eight days of the end of the year of assessment in which the disposal occurred, make a return to the Commissioner specifying— a) the assets sold; b) the date of sale; c) the gross consideration for the sale; d) the costs of sale; e) details of any set-offs or part-exchange; and f) the name, address and taxpayer file number of both the vendor and purchaser. (4) A person or organisation referred to in subsection (3) includes a solicitor conveying land, the nominated officer of a company required to register changes in its membership and organisations exempt from income tax. (5) The Commissioner may require additional information as part of the returns required by this section. Extension of time to file returns. 100. (1) Upon application in writing by the taxpayer filed by the due date for a return, the Commissioner may extend the period in which a return of income required under section 97 or an information return required under section 99 is to be made. (2) The granting of an extension of time under subsection (1) does not affect the due date for payment of income tax under section 105. P ART XIII – ASSESSMENTS Ordinary, deemed and special assessments. 101. (1) Where a taxpayer has filed a return of income and the Commissioner has decided not to determine the amount of his income in accordance with section 70, the Commissioner shall make an ordinary assessment of the tax payable and notify the taxpayer of any amount owed or overpaid. (2) Where the Commissioner has determined the amount of a taxpayer’s chargeable income in accordance with section 70, he is deemed to have made an assessment of the tax payable as the amount of any tax that has been paid or withheld during the year of assessment and may make a special assessment based on the chargeable income determined. 102. Jeopardy assessments. Where the Commissioner finds that the assessment or collection of tax is in jeopardy because the taxpayer is about to depart from Sierra Leone, to cease business or to transfer property, or is in jeopardy for any other reason, the Commissioner may at any time issue a notice of assessment for the current year of assessment, for a portion of the current year or for the preceding year of assessment. 103. Amended assessments. (1) Subject to subsection (2), the Commissioner may within six years after the date described in subsection (1) Of subsection 97 (or if later, the date the return of income was filed) amend an assessment previously made or deemed to have been made. (2) Where— a) a taxpayer with the intent of evading tax has failed to file a return; or b) fraud has been or may have been committed by or on behalf of the taxpayer in relation to income tax for a year of assessment, the Commissioner may make or amend an assessment for that year at any time. Provisional assessments. 104. (1) Where he is dissatisfied with a taxpayer’s estimate of chargeable business income or the taxpayer fails to make an estimate under subsection (1) of section 113, the Commissioner may make a provisional assessment of the taxpayer’s chargeable business income, which will serve as such estimates under subsection (1) of section 113 as the Commissioner decides. (2) The taxpayer may appeal against a provisional assessment, where the Commissioner has disregarded an estimate made by him, and his appeal shall be treated as an appeal against an objection decision under section 137. P ART XIV - COLLECTION AND REFUND OF TAX D UE D ATE FOR P AYMENT Due date for payment of income tax. 105. (1) Subject to section 113 and subsections (2), (3) and (4), income tax assessed shall be due and payable twenty one days after service of the notice of assessment. (2) The Commissioner shall specify the time at which income tax assessed pursuant to section 102 shall be due and payable. 3) Where an objection to, notice of appeal against, or an application for amendment to, an assessment has been filed, and except as otherwise proved by an order of the Board or Court— a) the undisputed tax liability remains due and payable and may be recovered, notwithstanding the objection, appeal or application; and b) the due date for collection of any balance of tax assessed shall be deferred to the earlier of six months from the date of filing or the date the assessment became final. (4) Upon written application by the taxpayer, the Commissioner may, where good cause is shown, extend the time for payment of income tax beyond the date on which it is required to be paid under subsection (1), (2) or (3) or make appropriate arrangements to ensure the payment of the income tax liability. (5) If the Commissioner informs the Director of Immigration by letter that a person liable for assessed income tax has failed to pay the tax by the due date, and that he has reasonable grounds to believe that the person concerned is seeking to evade the payment of the assessed tax, the Director of Immigration shall prevent the person from leaving Sierra Leone for a period of seventy two hours from issuance of the letter, unless the person— a) makes payment in full; or b) makes an arrangement for the payment of the tax which is satisfactory to the Commissioner. (6) Upon application by the Commissioner, the High Court may extend the period of seventy two hours referred to in subsection (5). (7) For the purposes of section 147— a) where the period of time in which a return of income is required under section 97 has been extended under subsection (1) of section 100, the due date for the payment of tax referred to in subsection (1) is one hundred and forty days after the year of assessment; or b) where a taxpayer has failed to file a return, the due date for the payment of tax is one hundred and forty days after the year of assessment. RECOVERY OF TAX Income tax as a debt due to Sierra Leone. 106. (1) Income tax that is due and payable is a debt owed to Sierra Leone and is payable to the Commissioner. (2) For the purpose of enforcing payment of any liability under this Act, the Commissioner may publish in the Gazette or otherwise details of each defaulter and his debt. (3 ) Tax that has not been paid when it is due and payable may be sued for and recovered in a court of competent jurisdiction by the Commissioner. (4) In any suit under this section, production of a certificate signed by the Commissioner giving the name and address of the defendant and the amount of tax, interest and penalty due, shall be sufficient evidence of the amount of tax, interest and penalty owed by the defendant. 107. Tax lien. (1) If a taxpayer fails to pay tax by the due date, the amount owing and interest (together with any costs of collection that may accrue) creates a lien in favour of the Commissioner on all property belonging to the taxpayer, and has priority as against all other rights except as otherwise provided in this section. (2) The lien created by subsection (1), arises at 5 p.m. on the due date and continues until the liability is satisfied or becomes unenforceable by of lapse of time. (3) The lien created by subsection (1) is not valid against the interest of a person who is a purchaser from the taxpayer, the holder of a security interest granted by the taxpayer or other lien holder prescribed by the Commissioner where the interest— a) arose in a bona fide arm’s length transaction between the taxpayer and the other person referred to in this subsection; b) arose before such other person had actual knowledge of the lien; and c) arose before notice of the lien has been registered with the Registrar-General. (4) The Commissioner may prescribe circumstances in which the lien created by this section is not valid against certain persons even though notice of the lien has been filed. (5) The Commissioner may file a civil action in the High Court to enforce the lien created by this section. Recovery from agent of non-resident. 108. (1) The Commissioner may by notice in writing require any person who is in possession of assets belonging to a non-resident taxpayer to pay tax on behalf of the non-resident up to the amount of tax due. (2) The master of any ship or the captain of any aircraft owned or chartered by a non-resident person shall be deemed to be in possession of the ship or aircraft respectively for the purposes of this section. (3) The income from a partnership of any non-resident partner shall be assessable in the name of the partnership or of any partner resident in Sierra Leone and the tax may be recovered out of the assets of the partnership or from any such partner. (4) A person making a payment of tax under this section shall be deemed to have been acting with the authority of the taxpayer and is hereby indemnified in respect of the payment. 109. Distress Proceedings. (1) The Commissioner may recover unpaid income tax by distress proceedings against the property of the taxpayer by issuing to the Sheriff or Under-sheriff, Warrant in the form prescribed in the Tenth Schedule specifying the taxpayer against whose property the proceedings are authorised, the location of the property and the assessment to which the proceedings relate and may require a police officer to be present while the distress is being levied. (2) A warrant under subsection (1) may only be issued after thirty days from the date the Commissioner notifies the taxpayer in writing of the Commissioner’s intention to proceed with the distress. (3) Subsection (2) does not apply if the Commissioner has reasonable grounds to believe that the collection of tax is in jeopardy. (4) For the purpose of executing distress under subsection (1), the Commissioner or any public officer authorised by him may at any reasonable time enter any premises described in the warrant authorising the distress proceedings: Provided that the Commissioner or any person authorised by him shall not enter any dwelling house except with the consent of the owner or occupier or on the authority of an order of a court. (5) Property upon which a distress is levied under this section shall be kept for ten days either at the premises where the distress was levied or at such other place as the Commissioner may consider appropriate at the cost of the taxpayer whose tax liability is involved. (6) If the taxpayer does not pay the tax due together with the costs of the distress within ten days of the distress being levied, the property distrained upon may be sold by public auction or in such manner as the Commissioner may direct, the proceeds of sale being applied first towards the cost of taking, keeping and selling the property distrained upon and then towards the income tax due and payable, any remaining proceeds being restored to the owner of the property. (7) Nothing in this section precludes the Commissioner from proceeding under section 107 for any balance owed if the proceeds of the distress are not sufficient to meet the costs thereof and the income tax due, but at any time before execution of the warrant or judgement of the Court the Commissioner may stay or compound proceedings thereunder. (8) The period of ten days in subsections (5) and (6) does not apply to delay the sale of property which is subject to spoilage. (9) In addition to any other powers of collection and recovery, where tax charged on the proprietor or his agent of a business of ship or aircraft owner or charterer is in default for mare than three months, the Commissioner may, by notice in writing, require the Comptroller of Customs to refuse clearance from any port in Sierra Leone of any craft owned or chartered wholly or in part by the defaulter until the debt has been satisfied; and a) the Comptroller of Customs is hereby indemnified against any proceedings in respect of a refusal of clearance under this section; and b) the owner, charterer or agent of the craft detained under this section shall remain liable to all dues and charges imposed by the port authority during the period of detention. Recovery of tax from person owing money to the taxpayer. 110. (1) The Commissioner may by notice in writing require any person— a) owing or who may owe money to the taxpayer; b) holding or who may subsequently hold money for or on account of the taxpayer; or c) having authority from some other person to pay money to the taxpayer; to pay the money to the Commissioner on the date set out in the notice, up to the amount of tax due. (2) The date specified in the notice under subsection (1) shall not be a date before the money becomes due to the taxpayer or is held on behalf of the taxpayer. (3) A copy of a notice issued under subsection (1) shall be forwarded to the taxpayer. (4) A person making a payment pursuant to a notice under subsection (1) is deemed to have been acting under the authority of the taxpayer and of all other persons concerned and is hereby indemnified in respect of the payment. (5) Where the Commissioner is satisfied that the beneficial owner of an account held by any bank or other financial intermediary has failed to pay tax without lawful reason, he may apply for an order from a court of competent jurisdiction to suspend the operation of the account until the tax is paid. 111. Duties of receivers. (1) A receiver shall notify the Commissioner within fourteen days of his appointment to the position or of taking possession of an asset in Sierra Leone, whichever first occurs. (2) The Commissioner may notify a receiver of the amount winch appears to the Commissioner to be sufficient to provide for any income tax including withholding tax which is or will become payable by the person whose assets are in the possession of the Commissioner. (3) A receiver shall not dispose of any asset in Sierra Leone held in that capacity without the prior written permission of the Commissioner. (4) A receiver— a) shall set aside out of the proceeds of sale of an asset the amount notified by the Commissioner under subsection (2) or such lesser amount as is agreed by the Commissioner; b) shall be liable to the extent of the amount set aside for the income tax of the person who owned the asset; and c) may pay any debt that has priority over the income tax referred to in this section notwithstanding any provision of this section. (5) A receiver shall be personally liable to the extent of any amount required to be set aside under subsection (4) for the income tax referred to in subsection (2), if and to the extent that the receiver fails to comply with the requirements of this section. (6) In this section, "receiver" means a person who with respect to an asset in Sierra Leone is— a) a liquidator of a company; b) a receiver appointed out of court or by a court; c) a trustee for a bankrupt; or d) a mortgagee in possession. Remission of irrecoverable tax. 112. (1) The Commissioner may by order in a statutory instrument, remit any liability under this Act up to the limit specified in paragraph 10 of the Ninth Schedule, on the ground of Poverty or other ground of inability to pay. (2) Upon the recommendation of the Commissioner, the President with the approval of Cabinet, may by order in a statutory instrument, remit wholly or in part any liability under this Act where— a) the amount to be remitted is greater than the amount specified in paragraph 10 of the Ninth Schedule; and b) the Commissioner certifies in writing to the Minister responsible for finance that he is satisfied that the tax cannot effectively be collected. I NSTALMENTS OF I NCOME TAX Instalments of income tax. 113. (1) A taxpayer who derives or expects to derive business income in a year of assessment shall make an estimate of chargeable business income and turnover— a) for the year of assessment on or before 30th April, of the Year of assessment or, for a taxpayer using a substituted year of assessment, on or before the end of the first month of the substituted year of assessment; b) for the year of assessment on or before 31st October or, for a taxpayer using a substituted year of assessment, on or before the end of the seventh month of the substituted year of assessment; and c) for the following year of assessment on or before 15th December of the year of assessment. (2) A taxpayer who derives business income in a year of assessment may review his estimates of chargeable business income and turnover for the year of assessment— a) on or before 31st July of the year of assessment or, for a taxpayer using a substituted year of assessment, on or before the end of the fourth month of the substituted year of assessment; and b) on or before 31st January of the year of assessment, or for a taxpayer using a substituted year of assessment, on or before the tenth month of the substituted year of assessment. (3) A taxpayer required to make an estimate of chargeable business income under subsection (1) is liable to pay instalments of tax on account— a) for a taxpayer not using a substituted year of assessment, on 15th June, 15th September, 15th December and 15th March, and b) for a taxpayer using a substituted year of assessment on the 15th day of the third, sixth, ninth and twelfth months of the substituted year of assessment. (4) A copy of the estimates of chargeable business income and turnover made under subsections (1) and (2) shall be included with each instalment of tax paid. (5) Subject to any provisional assessment under section 104— a) the amount of the first instalment due is twenty five percent of the tax payable on estimated chargeable business income; b) the amount of the second instalment due is fifty percent of the tax payable on estimated chargeable business income, less the amount of the first instalment due; c) the amount of the third instalment due is seventy five percent of the tax payable on estimated chargeable business income less the amount of the first and second instalments due; and d) the amount of the fourth instalment due is one hundred percent of the tax payable on estimated chargeable business income, less the amount of the first, second and third instalments due, where chargeable business income is estimated in accordance with subsection (1) or, where the Commissioner agrees, under subsection (2). (6) The amount of the final instalment due is the difference between the tax payable on the taxpayer's chargeable business for the year of assessment and the total tax due under subsection (5), and is payable on the day the taxpayer is required to file a return of income for the year of assessment. (7) A taxpayer may, with the approval of the Commissioner, reduce an instalment of tax due under this section by any tax withheld by a withholding agent from a payment made to the taxpayer during the year of assessment which is to be included in his business income. (8) No tax paid by instalment shall be repayable until the final liability of the year has been agreed. (9) For the purposes of subsection (5), the tax payable on estimated chargeable business income is the amount of tax payable if that income equals the taxpayer's chargeable income. (10) The provisions of this Act relating to the collection and recovery of income tax apply to the collection and recovery of any instalment of tax. P REPAYMENT OF I NCOME T AX BASED ON CIF P RICE OF I MPORTS Prepayment of income tax. 114. (1) Subject to subsection (2), every taxpayer who imports goods into Sierra Leone for resale shall pay to the Commissioner an amount equal to the higher of— a) three percent of the CIF value of the goods imported; or b) three percent of the value of the goods imported as assessed for the purpose of customs duty. (2) Subsection (1) does not apply to a company taxpayer where— a) the taxpayer maintains proper books of accounts of— i. all receipts obtained and expenses incurred by a business and the matters to which such receipts and expenditures relate; and ii. all sales and purchases of goods and services made by that business; b) the books of accounts of the taxpayer have been audited in each of the preceding three years by a recognised firm of accountants; and c) the taxpayer is not in arrears with respect to the payment of tax for a previous year of assessment. (3) Upon payment of the amount required under subsection (1) or satisfaction of the requirements of subsection (2), the Commissioner shall provide the taxpayer with a certificate to be called a customs income tax clearance certificate certifying that the tax has been paid. (4) The Comptroller of Customs shall not release any consignment of goods unless the consignee produces to the Comptroller a customs income tax clearance certificate. (5) Any amount paid under this section shall be regarded as a payment of income tax in respect of the taxpayer’s tax liability for the year of assessment in which the payment is made and any instalments of tax otherwise due for that year shall be reduced by the amount paid pursuant to this provision. REFUNDS OF T AX Repayment of overpaid tax.. 115. (1) Where a taxpayer has for any year of assessment paid income tax by withholding instalments or otherwise in excess of the income tax liability assessed to the taxpayer in respect of that year, the excess way be applied— a) to pay the taxpayer's liability for other taxes collected by the Income Tax Department, if any; and b) if the taxpayer agrees, to pay the taxpayer's liability to make instalment payments during the year of assessment in which the notice of assessment is issued. (2) Any excess tax not applied in the manner described in subsection (1) shall be refunded to the taxpayer. (3) A claim for credit or refund under this section shall be made within the later of three years after— a) the date an which the Commissioner has served notice of the assessment; or b) the date on which the tax was paid. P ART XV - WITHHOLDING OF TAX AT SOURCE W ITHHOLDING O BLIGATIONS Withholding of tax by employers. 116. (1) An employer shall withhold tax from employment income as instructed by the Commissioner— a) in the case of an employee who is resident or temporarily resident in Sierra Leone, at the rates prescribed in Part I of the First Schedule; or b) in the case of an employee who is not resident in Sierra Leone at the rate prescribed in Part II of the Second (2) The liability of an employer to withhold tax under subsection (1) is not abated or extinguished— a) because the employer has a right or is under an obligation to deduct and withhold any other amount from such payments; or b) because of any law providing that the amount of any such payment shall not be reduced or be subject to attachment. Payments to contractors. 117. (1) In this section, “contractor” means a person engaged— a) in the business of providing construction, transportation, management or any other service under a contract where the primary purpose of the contract is the performance of services whether or not goods are also provided under the contract; or b) in the business of providing goods under a contract. (2) For the purposes of this section, any commission paid to a person in respect of services performed by that person is deemed to be a payment to a contractor by a person who has contracted with the contractor. (3) For the purposes of this section, payment to a contractor includes any charge or fee paid for the provision of management services, other than under an employment contract, and any payment for goods. (4) Subject to subsection (5), a person who contracts with a contractor for the provision of services to a business shall withhold tax on the gross amount of any payment to the contractor— a) in the case of a payment made to a contractor resident in Sierra Leone, at the rate prescribed in Part IV of the First Schedule; and b) in the case of a payment made to a non-resident contractor, at the rate prescribed in Part II of the Second (5) Subsection (4) does not apply to payments made by a person to a contractor during a month in which the person pays a total of Le50,000 or less to the contractor. (6) The tax otherwise payable by a contractor on income from which tax has been withheld under this section shall be reduced by the tax withheld under this section. Payments of dividends. 118. (1) Subject to subsection (2) and the Sixth Schedule, a resident company that pays a dividend shall withhold tax on the gross amount of the payment— a) in the case of a payment made to a person resident in Sierra Leone, at the rate prescribed in part IV of the First Schedule, and b) in the case of a payment made to a non-resident person at the rate prescribed in Part II of the Second (2) Subsection (1) shall not apply to dividends paid— a) to a resident company; or b) to a complying retirement fund resident in Sierra Leone. 119. Payments of interest. (1) Subject to subsection (2) and the Sixth Schedule, a person resident in Sierra Leone who pays interest shall withhold tax on the gross amount of the payment— a) in the case of a payment made to a person resident in Sierra Leone, at the rate prescribed in Part IV of the First Schedule; b) in the case of a payment made to a non-resident person, at the raw prescribed in Part II of the Second Schedule; and c) in the case of a discount or premium referred to in section 55, at the time it is given or paid. (2) This section shall not apply to— a) interest under paragraph (e) of section 24 if paid to a bank resident in Sierra Leone; b) interest paid on Government Development Stocks; and c) interest the payment of which the Commissioner certifies to be exempt from the requirements of this section. Payments of rents and 120. (1) Subject to subsection (2) and the-Sixth Schedule, a person resident in Sierra Leone who pays rent or a royalties. royalty shall withhold tax on the gross amount of the payment— a) in the case of a payment made to a person resident in Sierra Leone, at the rate prescribed in Part IV of the First Schedule, and b) in the case of a payment made to a non-resident person, at the rate prescribed in Part II of the Second (2) Subsection (1) shall not apply to rents or royalties— a) in respect of property owned by a person or organisation referred to in section 8 or 9; b) where the monthly rental or its equivalent does not exceed Le 30,000; or c) the payment of which the Commissioner certifies to be exempt from the requirements of this section. Payments of pensions and annuities. 121. (1) Subject to Subsection (2), a person resident in Sierra Leone who makes any payment by way of a pension or annuity, whether in a lump sum or by periodical payment, shall withhold tax on the gross amount of the payment— a) in the case of a payment to a person resident in Sierra Leone, at the rate prescribed in Part I of the First Schedule; or b) in the case of a payment to a non-resident person at the rate prescribed in Part II of the Second Schedule. (2) Payments arising from contributions to which subsection (3) of section 38 applies shall be subject to withholding tax on the taxable element determined in accordance with paragraph 4 of the Ninth Schedule— a) in the case of a payment to a person resident in Sierra Leone at the rate prescribed in Part IV of the First Schedule; or b) in the case of a payment to a non-resident person at the rate prescribed in Part II of the Second Schedule for interest payments within section 119. Natural resource payments. 122. (1) Subject to the Sixth Schedule, a person who makes any Sierra Leone-source natural resource payment to a person not resident in Sierra Leone shall withhold tax at the rate specified in Part II of the Second Schedule. (2) Where the payment is made to a person resident in Sierra Leone, tax shall be withheld at the rate specified in Part IV of the First Schedule. Payments to nonresident beneficiaries of trusts. 123. A person resident in Sierra Leone who distributes income of a trust to a non-resident beneficiary or applies income of a trust for the benefit of a non-resident beneficiary shall withhold tax at the rate prescribed m Part II of the Second Schedule. Final withholding tax on dividend and interest payments to residents. 124. Where a resident taxpayer receives a dividend payment from which tax has been withheld under sections 118 and 119 the tax withheld is a final tax and— a) no further tax liability shall be imposed upon the taxpayer in respect of it; b) that income shall not be aggregated with other income of the taxpayer for the purpose of ascertaining chargeable income; and c) no refund of tax shall be made in respect of it. Final withholding tax on payments to nonresidents. 125. Where a payment is made to a non-resident taxpayer and tax is withheld under section 116, 118, 119. 120, 121, 122 or 123, that tax is a final tax and— a) no further tax liability shall be imposed upon the taxpayer, in respect of the income to which the tax relates; b) that income shall not be aggregated with other income of the taxpayer for the purpose of ascertaining chargeable income; and c) no refund of tax shall be made in respect of it. G ENERAL P ROVISIONS R ELATING TO W ITHHOLDING OF TAX AT S OURCE 126. Definition of terms. For the purposes of sections 127 to 132, ''payee” means a person receiving or entitled to payments from which tax is required to bee withheld by a withholding agent. Tax withholding certificates. 127. (1) A withholding agent shall deliver to the payee a tax withholding certificate setting out the amount of payments made, the address of the taxpayer and any tax withheld during the year of assessment. (2) A tax withholding certificate shall be delivered— a) in the case of an employee, within twenty eight days of the end of the year of assessment, or where an employee has ceased employment during the year of assessment, within seven days of the date on which employment ceased; b) in the case of rent or interest payments, within twenty eight days of— i. the end of the year of assessment; or ii. where a debt obligation has been redeemed or lease terminated, the date on which the obligation was redeemed or lease terminated. (3) A payee who is required to file a return of income shall attach to the return the tax withholding certificates which relate to the year of assessment for which the return is filed. Record of payments and tax withheld. 128. (1) A withholding agent shall maintain and keep available for inspection by the Commissioner records showing in relation to each year of assessment— a) payments made to each payee; and b) tax withheld from those payments. (2) A withholding agent shall, within twenty eight days after the end of the year of assessment or such further time as the Commissioner may allow, file with the Commissioner a statement in the prescribed form specifying— a) the name and address of each payee; b) the amounts paid or payable to each payee; c) the amounts of any tax withheld; and d) any other information that the Commissioner may require. (3) The statement shall be signed by the withholding agent or, if he is legally incapacitated, by his legal representative and shall contain a representation that the statement is true and correct. Failure to withhold tax. 129. Subject to subsection (2), a withholding agent who fails to withhold tax as required by this Act shall be personally liable to pay to the Commissioner the amount of tax which has not been so withheld, but the withholding agent shall be entitled to recover that amount from the payee. (2) The provisions of this Act relating to the collection and recovery of tax apply to the liability imposed by subsection (1). (3) An employer shall not be entitled to recover from the employee tax which he should have withheld, but the Commissioner may proceed against the employee for the amount of the tax and any penalty which remain due from the employer by virtue of the liability imposed by subsection (1). Payment of tax withheld. 130. (1) Any tax that has been withheld or should have been withheld by a withholding agent shall be paid by such agent to the Commissioner within fifteen days of the end of the month in which it was or should have been withheld. (2) The provisions of this Act relating to the collection and recovery of tax apply to any amount required to be paid under subsection (1). Priority of tax withheld. 131. (1) Tax withheld by a withholding agent— a) is held in trust for the Republic Of Sierra Leone; and b) is not subject to attachment in respect of a debt or liability of the withholding agent, and in the event of any liquidation, assignment or bankruptcy of the withholding agent, any amount withheld under this Act does not form part of the estate in liquidation, assignment or bankruptcy and shall be paid in full to the Commissioner before any distribution of property is made. (2) Every sum which a withholding agent is required under this Part to withhold from a payment is— a) a first charge on that payment; and b) withheld prior to any other deduction which the withholding agent may be required to make by virtue of any other law or of an order of a court. Adjustment on assessment and withholder's indemnity. 132. (1) Tax withheld under this Act shall be treated as received by the payee at the time it was withheld and the income and liability of the payee shall be calculated accordingly. (2) A person who has withheld tax under this Act and remitted the withheld amount to the Commissioner shall be treated as having paid the withheld amount to the person deriving income from which tax has been withheld, for the purposes of any claim by that person for payment of the withheld amount. (3) Tax withheld from a payment as required by this Act shall be deemed to have been paid by the person to whom the payment is due. (4) Except in the case of a tax that is a final tax by virtue of section 124 or section 125, where tax withheld under this Act exceeds the income tax liability assessed on the taxpayer to whom the payment is due, the excess may be applied in reduction of any other tax due from the taxpayer and any further excess shall be refunded to the taxpayer. P ART XIV - RECORDS AND INVESTIGATION POWERS 133. Accounts and records. (1) Unless otherwise authorised by the Commissioner, a taxpayer shall maintain in the English language and in Sierra Leone such records as may be necessary for the accurate determination of the tax payable by the taxpayer. (2) The Commissioner may disallow a claim for a deduction if the taxpayer is unable, without reasonable excuse, to produce a receipt or other record of the transaction or to produce evidence relating to the circumstances giving rise to the claim. (3) The record or evidence referred to in subsection (1) or (2) shall be retained by the taxpayer for the greater of six years or as long as it remains material to an audit commenced within that period. Access to books, records and computers. 134. (1) Subject to subsection (2), the Commissioner or any officer authorised by the Commissioner in writing for that purpose— a) shall have at all times and without any prior notice full and free access to any premises, other than a dwelling house, place, book, record or computer; b) may make an extract or copy from any book, record or computer-stored information to which access is obtained under paragraph (a); c) may seize any book or record that, in the opinion of the Commissioner or an officer authorised by him, affords evidence which may be material in determining the liability of any person to tax or a penalty under this Act; d) may retain any book or record seized under paragraph (c) for as long as it may be required for determining a person's liability or for any proceeding under this Act; and e) may, where a hard copy or computer disk of information stored on a computer is not provided, seize and retain the computer for as long as is necessary to copy the information required. (2) The powers authorised by subsection (1) may be exercised only during ordinary business hours unless the Commissioner determines that the collection of tax is in jeopardy and that their exercise outside ordinary business hours is necessary to protect the collection of the tax. (3) An officer who attempts to exercise a power under subsection (1) on behalf of the Commissioner shall not be entitled to enter or remain on any premises or place if, upon being requested by the occupier of the premises or place, he does not produce an authorisation in writing from the Commissioner to the effect that he is authorised to exercise that power under this section (4) The owner, manager or any other person on the premises or place entered or proposed to be- entered under this section shall provide all reasonable facilities and assistance for the effective exercise of power under this section. (5) A person whose books, records or computer have been removed and retained under subsection (1) may examine them and make copies or extracts from them during regular office hours under such supervision as the Commissioner may determine. Notice to obtain information or evidence. 135. (1) In this section, "authorised purpose" means— a) the collection of information for the purpose of determining the liability of any specific person for a tax; or b) the collection of information required for the collection of tax from a specific person. Provided that this section shall not apply to any person unless the Commissioner has reasonable grounds to believe that that person possesses the information required. (2) In respect of an authorised purpose, the Commissioner may, by notice in writing, require a person, whether a taxpayer or not, to furnish such information as may be required by the notice. (3) In respect of an authorised purpose, the Commissioner may, by notice in writing, require a person, whether a taxpayer or not, to attend at the time and place designated in the notice for the purpose of being examined on oath before the Commissioner or any officer authorised by the Commissioner for that purpose concerning the income tax liability of that person or any other person, and for that purpose require such person to produce any book, record or computer-stored information in the control of that person. (4) Where the notice requires the production of documents or other records, it is sufficient if such documents or other records are described with reasonable certainty. Books and records not in the English language. 136. Where any book or record referred to in section 133., 134 or 135 is not in the English language, the Commissioner may by notice in writing require the person keeping the book or record to provide, at the taxpayer's expense, a translation into the English language by a translator approved by the Commissioner for that purpose. P ART XVII - OBJECTIONS AND APPEALS O BJECTIONS Objection to assessment. 137. (1) A taxpayer who is dissatisfied with an assessment may file an objection to the assessment with the Commissioner within thirty days of service of the notice of assessment. (2) The objection shall be in writing and shall specify the grounds upon which it is made, the facts, any point of law at issue and the amount which the taxpayer believes should be assessed on him. (3) In considering the objection, the Commissioner may require to be produced any books and records and examine any person in accordance with sections 134 and 135. (4) The Commissioner may allow the objection in whole or in part and amend the assessment accordingly or disallow the objection, and the Commissioner’s decision shall hereinafter be referred to as an “objection decision”. (5) The Commissioner shall serve the taxpayer with a copy of the objection decision. (6) If the Commissioner has not made an objection decision within ninety days of the objection being filed, the taxpayer may give notice in writing to the Commissioner that from the date of the notice he will proceed under subsection (9) as if the Commissioner had disallowed the objection. (7) A taxpayer who fails to file an objection within the period specified in subsection (1) may— a) on payment of the fee specified in paragraph 11 of the Ninth Schedule; and b) on production of an affidavit specifying the reasons for the delay, file with the Commissioner a late objection to an assessment not later than one year after the end of end of the year of assessment or three months after the notice of assessment, if later. (8) The Commissioner shall either treat a late objection for all purposes of this Act as if it were made within subsection (1) or issue to the taxpayer his refusal of the late objection. (9) A taxpayer may, within thirty days of being served with a notice of refusal, file with the Board established under subsection (1) of section 138, a notice of appeal against the refusal and shall serve a copy of such notice on the I NCOME TAX BOARD OF A PPELLATE COMMISSIONERS Board of Appellate 138. Commissioners. (1) There is hereby established a body to be known as the Income Tax Board of Appellate Commissioners (hereinafter referred to as "the Board”). (2) The Board shall consist of not more than ten persons none of whom is a public officer, but at least one of whom shall be a legal practitioner. (3) Members of the Board shall be appointed by the President and shall hold office for a term of three years and shall be eligible for re-appointment. (4) Any appointment under subsection (3) shall be published by Government Notice. (5) Members of the Board shall receive such remuneration as Parliament may determine. (6) The Board shall appoint one of its members who is a legal practitioner to be its chairman. (7) No action, suit, prosecution or any other proceeding may be brought or instituted personally against a person who is or was a member of the Board in respect of any act done or omitted to be done in good faith in the discharge of any function under this Act. (8) A member of the Board who has a material, pecuniary or other interest which may be in conflict with the proper performance of the member’s functions shall disclose that interest and shall not take part in any hearing of the Board which may be in conflict with such interest unless both parties to the proceeding agree on the member taking part in the hearing. 139. Secretary to Board. (1) The Board shall have a secretary Appointed by the chairman from among the members of the Board. (2) The secretary shall perform such functions as are provided in this Act or as the chairman of the Board way direct. 140. Board to hear appeals. (1) The Board shall hear and determine appeals from taxpayers with respect to objection decisions. (2) An appeal shall be heard by not less than three members of the Board, who shall be nominated by the chairman. (3) The chairman of the Board shall preside or shall nominate a member of the Board to preside over any hearing. (4) Subject to sections 141 and 142, the Minister responsible for finance may, by statutory instrument, make rules prescribing the procedure to be followed in an appeal to the Board. 141. Procedure of Board. (1) The times and places of the hearings of the Board shall be specified by the chairman so as to secure a reasonable opportunity for taxpayers to appear before the Board with as little inconvenience and expense as is practicable. (2) The proceedings of the Board shall be conducted in accordance with the Eighth Schedule and such further rules of practice and procedure as the chairman may specify. (3) The Board in carrying out its functions under this Act, shall have the powers of the High Court in respect off summoning witnesses, compelling the production of documents, the examination of witnesses abroad and for contempt. Hearings and decisions. 142. Proceedings of the Board shall be in public unless the chairman directs otherwise. (2) In all proceedings before the Board, the taxpayer and the Commissioner may be represented by a solicitor or an accountant. (3) A decision on an appeal shall be made as quickly as practicable and notified to the parties in writing. (4) A decision of the Board shall be by simple majority and in the event of equality of votes the chairman or other person presiding shall have a casting vote. (5) The written decision of the Board, including its findings of fact, shall be signed by the chairman or other member of the Board who presided over the hearing. (6) Subject to subsection (8), the decision of the Board and evidence received by it, including a transcript of the report of the hearings, shall be open to the inspection of the public. (7) The Board shall provide for the publication of its decisions in such form and manner as may be adapted for public information and use and such authorised publication shall be evidence of the decisions of the Board in all courts of Sierra Leone without any further proof or authentication. (8) A person who has appealed to the Board may request that documents released under subsection (6) be amended to conceal— a) the person's name; or b) aspects of the person's business or affairs that might reveal the person's identity. A PPEALS 143. Appeal to Board. (1) A taxpayer dissatisfied with an objection decision may within thirty days of being served with notice of the objection decision file a notice of appeal with the Board and shall serve a copy of the notice of appeal on the (2) The secretary shall give not less than fifteen days notice to the parties of the date fixed for hearing of the appeal. (3) In an appeal to the Board against an objection decision, the taxpayer shall be limited to the grounds of objection set out in his notice of objection, unless the Board grants the taxpayer leave to add new grounds, in which case the Commissioner shall, if he so requests, be granted an adjournment of not less than fifteen days. (4) In deciding an appeal, the Board may make an order— a) affirming, reducing, increasing or varying the assessment under appeal; or b) remitting the assessment for reconsideration by the Commissioner in accordance with the directions or recommendations of the Board. (5) An order made under subsection (4) may be based on the Board’s conclusions regarding a question of fact or a question of law relevant to the assessment and shall state what those conclusions are. (6) Subject to the right of the Commissioner to issue an amended assessment under section 103, where no notice of appeal is served within the time permitted by subsection (1), the assessment shall be deemed to be final. 144. Appeal to High Court. A party to a proceeding before the Board who is dissatisfied with decision of the Board may, within sixty days of the decision, appeal to the High Court. 145. Onus on taxpayer. In any objection to an assessment or appeal from an objection decision, the onus shall be on the taxpayer to prove on the balance of probabilities the extent to which the assessment made by the Commissioner does not correctly reflect the taxpayer’s chargeable income for the year of assessment. P ART XVIII - INTEREST AND PENALTIES I NTEREST Specified rate of interest. 146. For the purposes of sections 147 and 148, “specified rate" means the rate of interest as published from time to time by the Commissioner based on the rate of interest paid on Treasury Bills. Interest on tax not paid when due. 147. (1) Subject to subsection (5), a person who fails to pay tax or a penalty as required by this Act on or before the date on which such payment is due, shall be liable to pay interest at a rate equal to three percent higher than the specified rate on the deficiency calculated from the date on which the payment is made. (2) Where the Commissioner has extended the time for payment of income tax under subsection (4) of section 105, interest shall be calculated upon the unpaid tax from the date payment should have been made had the extension not been granted. (3) If interest is paid under subsection (1), to the extent that the tax to which it relates is found not to have been due and payable, it shall be refunded. (4) Where tax that has not been paid as a result of an extension granted under subsection (4) of section 105 subsequently becomes due and payable, interest at a rate equal to three percent higher than the specified rate, shall be levied on that tax calculated from the date on which the payment would have been due but for subsection (4) of section 105 until the date on which payment is made. (5) The Commissioner may waive a taxpayer's liability to pay interest under this section— a) where the tax was not paid on the due date pursuant to subsection (4) of section 105, if the taxpayer's objection or appeal is withdrawn or settled prior to the making of an objection decision or an appeal on such decision, as the case my be; and b) in any other case, if the tax is paid within sixty days of the due date. (6) Interest charged in respect of failure to comply with subsection (1) of section 130 shall be borne personally by the withholding agent and no part thereof shall be recoverable from the person who received the payment from which tax was or should have been withheld. (7) Interest charged under this section shall be compounded on a six-monthly basis. Interest on overpayment of tax. 148. (1) Where in consequence of an objection, appeal or application a taxpayer is entitled to a refund of tax or a refund of a penalty, the taxpayer shall be entitled to interest at the specified rate on the amount of the refund. (2) Subject to subsection (3), interest payable under subsection (1) shall be calculated from the date the refunded amount was originally paid to the Commissioner until the date it was refunded. (3) Where a refund to which a taxpayer is entitled under subsection (2) of section 115 is not refunded at the time the notice of assessment is issued, the taxpayer shall be entitled to interest on the refunded amount calculated from— a) the later of – i. the date on which the taxpayer's return of income was filed with the Commissioner; and ii. the date of service of the notice of assessment, until b) the date the excess tax in refunded. (4) Where a taxpayer has been assessed on alternative minimum chargeable business income under subsection (1) or (2) of section 69 and is subsequently entitled to a refund of tax paid as a result of the application of subsection (3) of section 69, the taxpayer shall be entitled to interest at the specified rate on the amount of the refund from the date on which tax was paid until the date on which a refund was made. P ENALTIES 149. Recovery of penalty. (1) The provisions of this Act relating to the collection and recovery of income tax shall apply to any penalty imposed. (2) The imposition of a penalty shall be in addition to any interest charged under section 147 and any penalty imposed as a result of a conviction for any offence under this Act. (3) A penalty imposed under sections 150, 151 or 152 shall be calculated separately and compounded on a sixmonthly basis. Penalty for failure to file correct return. 150. (1) A taxpayer who, without reasonable excuse, fails to file a return of income within the time required, shall be liable to a penalty of— a) the amount specified in paragraph 12 of the Ninth Schedule, plus b) ten percent of the tax payable. (2) A taxpayer who, without reasonable excuse files a return, of income incorrectly stating his chargeable income, shall be liable to a penalty of twenty five percent of the difference between the amount of tax payable for the year of assessment and the amount that would have been payable if the tax payable had been calculated by reference to the incorrect return. Penalty for underestimation of tax payable. 151. (1) Where the amount of any instalment payment under section 113 is— a) for the first and second instalments less than sixty percent; or b) for the third and fourth instalments, less than ninety percent, of the tax which would have been payable if the estimated chargeable business income had been equal to the actual chargeable business income, the taxpayer shall be liable to a penalty calculated at the rate of three percent above the specified rate of interest on the difference between the instalment payment and that tax. (2) The penalty shall be calculated from the date the instalment should have been paid to the earlier of— a) the due date of the next instalment payable for the year of assessment, or b) the date on which the final instalment is due. (3 ) The penalty imposed under this section shall be due on the day an which a taxpayer is required to file a return of income under section 97. (4) For the purpose of calculating a taxpayer's liability to a penalty under this section, amounts of tax withheld taken into account for purposes of reducing an instalment under subsection (7) of section 113 are treated as having been paid by the taxpayer as part of such instalments. Penalty in relation to tax withheld under Part XV. 152. (1) A withholding agent liable under section 129 for failing to withhold tax shall be liable to a penalty of ten percent of the amount of tax not withheld. (2) A withholding agent who fails to comply with section 130 shall be liable to a penalty of— a) ten percent of the tax, if the tax which that person has failed to pay to the Commissioner is paid within less than thirty days from the date on which the tax should have been paid; b) fifteen percent of the tax, if the tax which that person has failed to pay to the Commissioner is paid thirty or more days after the due date on which the tax should have been paid but less than ninety days after the due date; c) twenty percent of the tax, if the tax which that person has failed to pay to the Commissioner is paid ninety or more days after the due date on which the tax should have been paid, but less than one hundred and eighty days after the due date; and d) twenty five percent of the tax, if the tax which that person has failed to pay to the Commissioner is paid one hundred and eighty or more days after the date on which the tax should have been paid. (3) A penalty recoverable under subsection (1) or (2) shall be borne personally by the withholding agent, and no part thereof shall be recoverable from the person who received the payment from which tax should have been withheld. O FFENCES Transfer to Director of 153. Public Prosecution. The Commissioner may transfer information on a person to the Director of Public Prosecutions to enable the Director to bring charges against the person in respect of an offence provided for in this Act. 154. Tax evasion. A person who wilfully evades or defeats or attempts to evade or defeat tax imposed by this Act or the payment or collection of such tax commits an offence and, in addition to any penalty otherwise provided, shall be liable, on conviction, to a fine not exceeding the amount specified in paragraph 12 of the Ninth Schedule or to a term of imprisonment not exceeding five years, or both. Impeding tax administration. 155. A person who in any manner impedes or attempts to impede the administration of this Act commits an offence and, in addition to any penalty otherwise provided, shall be liable on conviction to a fine not exceeding the amount specified in paragraph 12 of the Ninth Schedule or to a term of imprisonment not exceeding one year, or both. Failure to preserve secrecy. 156. A person who contravenes subsection (1) of section 165 commits an offence and shall be liable on conviction to a fine not exceeding the amount specified in paragraph 12 of the Ninth Schedule or to a term of imprisonment not exceeding six months, or both. 157. Contempt of Board. A person who contravenes subsection (3) of section 141 commits an offence and shall be liable on conviction to a fine not exceeding the amount specified in paragraph 12 of the Ninth Schedule or to a term of imprisonment not exceeding six months, or both. Making false or misleading statements. 158. A person who knowingly or recklessly— a) makes a statement in a tax return or to a tax official that is false or misleading in a material particular; or b) omits from a statement in a tax return or made to a tax official any matter or thing without which the statement is misleading in a material particular, commits an offence and, in addition to any penalty otherwise provided, shall be liable on conviction to a fine not exceeding the amount specified in paragraph 12 of the Ninth Schedule or to a term of imprisonment not exceeding six months, or both. Failure to maintain proper records. 159. (1) A taxpayer which is— a) a company; b) a member of a partnership; c) an importer; d) an exporter; or e) an individual or trustee required under subsection (3) of section 48 to account for business income on an accrual basis, and who fails to maintain proper records of income from any source in accordance with the requirements of this Act commits an offence and shall be liable, on conviction, to a fine not exceeding ten percent of the taxpayer's chargeable income from that source. (2) Where the taxpayer is a company, every director or officer of the company who fails to ensure that proper records are kept shall be deemed to have committed the offence. (3) Where the taxpayer is a partnership, every partner shall be deemed to have committed the offence. . Failure to comply with notice. 160. Any person who, without reasonable excuse, fails to produce books or records or furnish information requested by the Commissioner under section 134 or 135, commits an offence and shall be liable, on conviction, to a fine not exceeding the amount specified in paragraph 12 of the Ninth Schedule. 161. Aiding or abetting. Any person who aids or abets a person to commit an offence under this sub-part or counsels or induces another person to commit such an offence shall be liable on conviction to the same penalty as if he had committed the offence. Offences by tax officials. 162. Any person who, being a person appointed for the due administration of this Act or any assistant employed in connection with the assessment and collection of income tax levied under this Act— a) demands from any person an amount in excess of the authorised assessment of the tax; b) withholds for his own use or otherwise any portion of the amount of tax collected, c) renders a false return whether verbal or in writing of the amounts of tax collected or received by him; d) defrauds any person, embezzles any money or otherwise uses his position so as to deal wrongfully either with the Commissioner or any other individual; or e) not being authorised under this Act to do so, collects or attempts to collect tax under this Act, commits an offence and shall be liable on conviction to a fine not exceeding the amount specified in paragraph 12 of the Ninth Schedule or to a term of imprisonment exceeding three years, or both. P ART XIX - ADMINISTRATION O FFICE OF THE COMMISSIONER OF I NCOME T AX Appointment of Commissioner of Income Tax, Deputy Commissioners and other officers. 163. (1) For the administration of this Act, there shall be appointed,, subject to section 152 of the Constitution, a Commissioner of Income Tax and Deputy Commissioners of Income Tax. ('2) Any appointment made under subsection (1), shall be published by Government Notice. (3) The Commissioner has the general administration of this Act. (4) Deputy Commissioners shall, under the direction of the Commissioner, perform such general official duties as are required by this Act, and in the case of the illness, absence or temporary incapacity of the Commissioner, one of them shall be appointed by the Public Service Commission to act as Commissioner, 164. Delegation. (1) The Commissioner may delegate to any officer of the Department of Income Tax or any person authorised in writing any power or duty conferred or imposed on the Commissioner by this Act, other than— a) this power of delegation; or b) the power authorised by section 153. (2) Subject to such conditions as the Commissioner may specify, the Commissioner may direct that any information, return or document required to be supplied, forwarded or given to the Commissioner shall be supplied to such other person as the Commissioner may nominate. S ECRECY 165. Secrecy. (1) Subject to subsections (3), (4) and (5), a person appointed under this Act shall preserve secrecy with regard to all information or documents which may come to the person's knowledge in an official capacity and shall not communicate such information or the contents of such documents to any other person except in the performance of his duties under this Act or by order of a competent court for the purpose of carrying into effect the provisions of this Act, or in order to institute a prosecution or in the course of a prosecution for any offence committed in relation to income tax. (2) A person appointed to audit the assessment and accounts of the Commissioner shall be deemed for the purposes of this section to be a person appointed under this Act (3) Subsection (1) does not prohibit the disclosure of information or documents to— a) the Minister responsible for finance or any other person where such disclosure is necessary for the purposes of this Act; b) the Auditor-General or the Director of the Central Statistics Office or any officer duly authorised by either of them to have such access to any records or documents as may be necessary for the performance of their official duties; c) the competent authority of the government of a country with which an agreement for the avoidance of double taxation exists, to the extent permitted under that agreement; or d) the Comptroller of Customs. (4) Information obtained by the Commissioner in the performance of his duties under this Act may be used by the Commissioner or by the Comptroller of Customs for purposes of any other legislation administered by the Commissioner or by the Comptroller of Customs. (5) Information concerning a taxpayer may be disclosed to another person with the taxpayer's written consent. (6) Persons receiving information under this section are deemed, for the purposes of this section, to be persons appointed under this Act. (7) No officer or employee of the Department of Income Tax shall enter upon his or her duties unless he has first taken before the Commissioner and subscribed to the prescribed oath of secrecy. (8) Proceedings for an offence against this section may only be taken with the consent of the Attorney-General and Minister of Justice. REGULATIONS , P UBLIC G UIDELINES AND R ULINGS 166. Regulations. The Minister responsible for finance may, by statutory instrument, make— a) an order to amend, repeal or replace any provision of the First and Second Schedules; and b) such rules or regulations as may be necessary or expedient for carrying into effect the purposes of this Act. Commissioner to issue public guidelines. 167. (1) The Commissioner may issue opinions to be known as Public Guidelines, setting out the Commissioner's interpretation of this Act for the purpose of achieving consistency in the administration of this Act and to provide guidance to taxpayers and officers of the Income Tax Department. (2) A public guideline is binding on the Commissioner until revoked. (3) A public guideline is not binding on a taxpayer. 168. Private rulings. (1) The Commissioner may, under procedures prescribed in paragraph 13 of the Ninth Schedule, issue to a taxpayer a private ruling setting out the Commissioner’s position regarding the application of this Act to a transaction proposed by the taxpayer. (2) Where the taxpayer has made a full and true disclosure of the nature of all aspects of the transaction relevant to the ruling and the transaction proceeds in all material respects as described in the taxpayer’s application for the ruling, the ruling shall be binding on the Commissioner and the taxpayer with respect to the law as it stood at the time of the ruling. Non-binding statements. 169. With the exception of a notice of assessment issued under section 101, 102, 103 or 104 and a private ruling issued under section 168, no statement or agreement concerning a taxpayer's tax liability made or purported to be made by an officer of the Income Tax Department is binding on the Commissioner unless it is a written statement personally signed by the Commissioner or by a delegate of the Commissioner authorised to do so by a delegation order. F ORMS AND N OTICES 170. Forms and notices. (1) Forms, notices, returns, statements, tables and other documents prescribed or published by the Commissioner shall be in such form as the Commissioner may determine. (2) The Commissioner shall make such documents available to the public at the office of the Income Tax Department and at such other locations, or by mail, as the Commissioner may determine. Service and sufficiency of notices and other documents. 171. (1) A notice or other document required or authorised by this Act to be served upon a person other than a company is considered sufficiently served if it is— a) personally served upon that person; b) delivered to the person's usual or last known place of abode, office or place of business; or c) sent by registered post to such place of abode, office or place of business or to the person's usual or last known address. (2) A notice or other document to be served upon a company pursuant to this Act is considered sufficiently served if it is— a) personally served on the nominated officer of the company; b) delivered to the registered office of the company or the company's address for service of notices under this Act; or c) where there is no such office or address, delivered to or sent by registered post to any office or place of business of the company in Sierra Leone. (3) A notice or other document issued, served or given by the Commissioner under this Act is sufficiently authenticated if the name or title of the Commissioner, or authorised officer, is printed, stamped or written on the document. (4) No notice of assessment or other document issued under this Act shall be considered invalid or affected by reason of defects if— a) it is, in substance and effect, in conformity with this Act; and b) the person assessed or intended to be assessed or affected by the document is designated in it according to common understanding or accepts it. N OMINATED O FFICERS Notification of nominated officers. 172. (1) Every partnership, trust or company which carries on business in Sierra Leone or derives income from a source in Sierra Leone (other than income subject to a final tax under section 125) shall have a nominated officer for tax purposes. (2) In the case of— a) a partnership with a resident partner, the nominated officer shall be a resident partner; b) a trust (other than a provident fund or superannuation fund) with a resident trustee, the nominated officer shall be a resident trustee; c) a provident fund or superannuation fund with a resident trustee or fund manager, the nominated officer shall be a resident trustee or, if there is no trustee, a resident person who manages the fund; or d) a company with a resident officer, the nominated officer shall be a company officer resident in Sierra Leone. (3) The name of the nominated officer shall be notified to the Commissioner in the first year of assessment in which the partnership, trust, provident fund, superannuation fund or company satisfies subsection (1). (4) Where a partnership, trust, superannuation fund or company fails to comply with subsection (3), the nominated officer shall be the person specified by the Commissioner. (5) Subject to subsection (2), partnership, trust, provident fund, superannuation fund or company may, by notice in writing, change the nominated officer. (6) The nominated officer shall be responsible for any obligation imposed on the partnership, trust, provident fund, superannuation fund or company under this Act and shall notify the Commissioner of the identity of any non-resident partners, beneficiaries or shareholders, as the may be. TAXPAYER F ILE N UMBER AND TAX CLEARANCE CERTIFICATE 173. Taxpayer file number. (1) The Commissioner shall prepare or cause to be prepared a register (hereinafter referred to as the "taxpayerfile number register") of all persons assessable or liable to be assessed to tax and such register shall contain such particulars and information as the Commissioner may deem necessary. (2) The Commissioner shall notify every person so registered in writing of the taxpayer-file number assigned to him. (3) Every registered person shall give his taxpayer-file number to any person who requests it for the purpose of complying with this Act. (4) The Commissioner may require a taxpayer to include the taxpayer-file number issued by the Commissioner to that taxpayer in any return, notice or other document used for the purposes of this Act. (5) The Commissioner may release any taxpayer-file number to any person or organisation for official purposes. Tax clearance certificate. 174. Where under any enactment a person or authority is empowered to issue a licence, permit, registration certificate or other similar document, the document shall not be issued unless the person applying for the document produces a valid certificate of tax clearance issued by the Commissioner or by some other person authorised by the Commissioner on payment of the fee prescribed in paragraph 14 of the Ninth Schedule. P ART XX - REPEALS AND TRANSITIONAL PROVISIONS 175. Repeal. (1) The following enactments (hereinafter referred to as the “repealed legislation") are hereby repealed— a) The Income Tax Act; b) The Surtax (Temporary imposition) Act; c) The income Tax (Clearance) Act. (2) Notwithstanding the repeal effected by subsection (1), any order, Rules, Notice or Regulations made under the repealed legislation and in force immediately before the commencement of this Act shall, unless revoked, continue in force. Transitional provisions. 176. (1) All appointments made under the repealed legislation and subsisting at the date of commencement of this Act shall be deemed to be appointments made under this Act and an oath of secrecy taken under the repealed legislation shall be deemed to have been taken under this Act. Cap. 273 (2) A double taxation agreement made under the repealed legislation and in force at the commencement of this Act, shall continue to have effect under this Act. (3) All forms and documents used in relation to the repealed legislation may be used under this Act and all references in those forms and documents to provisions of and expressions appropriate to the repealed legislation shall be deemed to refer to the corresponding provisions of and expressions used in this Act. (4) A reference in this Act to a previous year of assessment includes, unless the context otherwise requires, a reference to a year of assessment under the repealed legislation and a reference in this Act to this Act or to a provision of this Act includes a reference to the repealed legislation or corresponding provision of the repealed legislation respectively. (5) The book value for income tax purposes of all depreciable assets held by the taxpayer at the time this Act comes into operation shall be added to the appropriate pool and no further capital allowance shall be allowed in respect of those assets except as provided for under section 39. (6) Subject to section 46, where a taxpayer has used an accounting period as a basis period for a year of assessment under the repealed Income Tax Act he may continue to use that period under this Act. (7) For the purposes of section (4) of section 20 of the repealed Income Tax Act, unincorporated businesses continuing beyond 31st March, 1999 shall be deemed to have ceased trading on that date and to have immediately recommenced on the 1st April, 1999; and profits to the 31st March shall be apportioned from accounts straddling that date as determined in accordance with this Act, but all other provisions of the repealed Income Tax Act shall apply as though accounts are drawn to 31st March, 1999. (8) Businesses having an accounting date other than March under the repealed Income Tax Act shall have both a transitional and a substituted year of assessment for 1999/2000; and— a) in the case of unincorporated businesses, the rate of tax for the transitional year of assessment shall be the rate in force in 1999/2000; and b) in the case of incorporated businesses, the rate of tax for the transitional year of assessment shall be forty five percent and for the substituted year of assessment shall be forty percent. (9) The taxable value of certain benefits in section 23 shall, for the year of assessment indicated, be the lower of the values described in paragraphs (a), (b), (c) and (d) of subsection (2) of section 23 and the values in the following Table— Year Housing benefit Vehicle benefit Utilities benefit Benefit per servant 2000/2001 2001/2002 2002/2003 2003/2004 2,000,000 4,000,000 6,000,000 8,000,000 1,000,000 2,000,000 3,000,000 4,000,000 500,000 1,000,000 1,500,000 2,000,000 250,000 350,000 450,000 600,000