Income Tax Management Act (Cap. 372), article 43

43. (1) Where any person makes a transfer of property referred to in article 5(1)( a) of the Income Tax Act , he shall - (a) where the transfer is a transfer to which article 5A of the Income Tax Act applies, remit to the Commissioner a payment of tax, if any, in such amount and in such manner as is prov ided for in that article; (b) in any other case, and irrespective of whether the gains or profits, if any, derived from such a transfer are chargeable under the provisi ons of that article or under any other provision of the Income Tax Acts, remit to the Commissioner within fifteen days of the relative transfer a provisional tax payment equivalent to 7% or, where applicable, at the r ate provided for in article 5(9A) or 27G of the Income Tax Act , of the consideration relating to the transfer of the property or of the value of the donation: Provided that in deeds of emphyteusis or sub- emphyteusis no account shall be taken of any yearly ground rent or sub-ground rent payable according to the deed: Cap. 123. Cap. 123. Cap. 123. Provided further that in the case of a transfer of securities, as defined in article 5 of the Income Tax Act, involving a transfer of a controlling interest in accordance with prescribed rules, or a transfer of an interest in a partnership, as defined in article 5(1)(a)(v)(a) of the I n c o m e T a x A c t, the provisional tax payment shall be equivalent to seven percent (7%) of the higher of the market value and the consideration, and in the ca se of a transfer to which article 5(9A) of the Income Tax Act applies, such payment shall be made within fifteen (15) days from the date the chargeable company ceases to be a member of the group: Cap. 123. Cap. 123. Provided further that in the case of a transfer of value in securities, as provided for in article 5(13)(b)(ii) of the Income Tax Act , or a deemed transfer of an interest in a partnership, as provided for in article 5(1)(a)(v) of the Income Tax Act , the provisional tax payment shall be equivalent to seven percent (7%) of the gains or profits referred to in the said sub-articles, as applicable: Cap. 123. Cap. 123. Provided, moreover, that notwithstanding the foregoing provisions of this paragraph, i n the case of a transfer of securities in a property comp any or of an interest in a property partnership, the pr ovisional tax payment shall be equivalent to such amount as may be prescribed under this Act or under the Income Tax Act but not exceeding thirty-five (35%) percent of the higher of the market value and the consideration for the transfer, and for the purpose of this proviso, the proviso to the definition "property company" and the proviso to the definition "property partnership" in article 2(1) of the Income Tax 46 CAP. 372.] INCOME TAX MANAGEMENT Act shall be disregarded. (2) Provisional tax under this article shall not be payable in respect of: Cap. 123. (a) any transfer of assets not subject to tax under the provisions of articles 5 and 12 of the Income Tax Act where the transferor submi ts to the Commissioner the prescribed form, stating which provision is applicable, and any other relevant documents which the Commissioner may deem necessary: Cap. 123. Provided that provisional tax shall in any case be paid if article 33 of the Income Tax Act is applicable as a result of claiming the exemption provided for under article 12(1)(u) of the said Act; (b) transfer of property on deeds of partition; (c) transfer of shares in public companies. Cap. 123. (3) Saving the transfer of prop erty referred to in sub-article (1)( a), the Commissioner may authorise any person chargeable under article 5(1)( a) of the Income Tax Act , to pay provisional tax under this article at a rate lowe r than that referred to in sub -article (1), if it can be proved that the gain is less than 20% of the consideration or of the value of the donation as the case may b e: Cap. 123. Cap. 123. Provided that in the case of a transfer of securities, as defin ed in article 5 of the Income Tax Act , involving a transfer of a controlling interest in accordance with prescribed rules, or of a transfer of an interest in a partnership, as defined in article 5(1)(a)( v)(a) of the Income Tax Act, the twenty percen t (20%) shall be calculated on the higher of the market valu e and the consideration. (4) ( a) The tax paid by a person in respect of transfers referred to in sub-article (1)( a), shall not be available as a credit against that person’s tax liability or for a refund, as the case may be, for the relevant year of assessment. Such tax shall be separate and distinct from that paid or a payable under the provisions of article 42 and he shall not be required to declare any such income, in any return made pursuant to the Income Tax Acts. Cap. 123. (b) Any provisional tax paid for the purposes of sub-article (1)( b), during or in respect of the year preceding any year of assessment, shall be set off for the purpose of collection against the tax charged in respect of the said year of assessment and if there is an excess after the aforesaid set-off has been made, such excess shall be refunded in accordance with the provisions of article