[5th July 2010] Suppkment to fficial Gazette 69

INCOME AI{D NON.MONETARY BEI\IETTTS TAXACT,2010

(Act I0 of 2010)

ARRAITGEMENT OF SECTIONS

PART I. PRELIMINARY PROVISIONS

Sections

l. Short title and commencemeirt2. Interpretation3. Sourceofemolumentsandnon-monetar5rbenefits

PART II: TAX ON INCOMEAI\TD NON.MOhTEIARYBEI\ETTTS

4. Imposition of tax on income and on non-monetary benefits

PART Itr - COLLECTION OF TAX

5- Withholding of tax from payment of emolument6. Pa5rment of tax withheld7. Failuretopaytaxwithheld8. Employet's limit€dright to recover9. Recovery of tax ftom e,mployedpersonlO. Tax withholding stateme,nt11. Priority of withheld tax12. Indernnity13. Withheld tax a final tax14- Computation of tax and liability to pay tax on non-monetary benefits

PART TV- GENERAL PROVISIONS

15. Power to prevent tax debtors from leaving Seychelles16- Objections and appeals17 - Ministerial discretion18. Records19. Regulations

[5th July 2010] Supplement to fficial Gazette 7 l

INCOME AITD NON.MOI\ETARY BEI\EFITSTAXACT,2O1O

(Act I0 of 2010)

I assent

(t'rtJ. A. Michel

President

2ndJuly,2010

AI\ ACT to provide for taxation of income and non-monetary benefits end for connected metters.

ENACTED by the Preside,nt and the NationalAssembly.

PART I . PRELIMINARY PROVISIONS

1.(l) This Act may be cited as the Income and Non-Monetary Benefi ts Tax Act, ?0 I 0.

Short title axdcolnfi{,lrcement

72 Supplement to Official Gazette [5th July 2010]

Interpretation

Act 28 of2009

(2) ThisAct shall come into operation on lst July2010andapplyto-

(a) emolumentspaidonorafterthatdate; arid

(b) non-monetary benefits provided on or afterthatdate.

2. InthisAct,unlessthecontextrequiresotherwise-

"associate" has the same meaning as in the BusinessTaxAct,2009;

"Business Tax Act" means the,Business Tax Act.2009;

"commencement date" means 1 st July, 2010;

"day care worker" means an employed personwhose duties primarily involve supervision of pre-school children attending a registered day carecentre;

"domestic worker" means an employedperson whois solely engaged in the performance of domesticwork at a person's residence, including cooking,security, gardening, laundering, child minding,caring for an elderly or invalid person, or cleaning oftheresidence;

"emoluments" means any cash remunerationreceived by an employed person and includes -

(a) any salary wage, allowance, gratuity, bonus,commission, leave pay, payment in lieu ofleave, overtime pay, fee, pension, director'sfee, management fee and work conditionsupplement;

(b) any amount as consideration forthe agreementby an employed personto-- -

[slhhlyzt]lol Wlsnatn fficial Gazfie v3

ft) mimerylo5rms4

ffi) @mymditiuls of eqilo5rmsrt cmy chmges t0 lhe qloyed persm'somditimsofmfloymenf,m

(iii) z restrictive mvcnd in rcrycd of anypaS, 1rcsctr upnoryodive eryloym@

(c) an amount rreceived on termination oferyloymetr, whder paid vohmhily orunder an agreemento including anycorycnsdim fm refondmcy u loss oferyiloymenq

*eqiloyed persm- nrems a pcrs(n gainftlyeryloyed in Seychelles ffier -'rder a66pasgt efsffrioe, aq a direm m a member of fte boud of atoCy corpaate, or as fte holdcr of m office mdinchd€s-

(a) a pensm" ftough not bormd by a fomaloontract of servie, do is subject to ftecmtrol ofaotrer person as to fte menner andffi in dich fu first mmtioned personcmies outftatp€rsmb frtiesn or

(b) apusmworkingman4lryrovedGovsrnm€nterylo5rmd 1noject or schme rmder tre c+D4AUnqloymd Rslief, Scheme Acs" 199 5 ;

*e,qiloyef nrcans q p€rson ufro engages orrcmrmqates m ryloyedperson and, in the absenceof ofts eyid€nce of eqilo5men( fte person bywhom or on whoso behalfthe paSment for servicesrderedismade;

*exempt emolument" means an einolumentspecified in fte Second Schdrle;

74 Supplement to Official Gazette [5th July 2010]

"fair market value" has the same meaning as insection 4 ofthe Business Tax Act;

"income tax" means the tax imposed under section 4ofthisAct;

"individual" means a nafural person;

"non-monetary benefits" means any benefitprovided to an employed person in respect of thelrerson's employment or to an associate of theemployed person, including any right, privilege,seryice or facility and includes a-right, benefit,privilege, service or facility that is or is to beprovided under an affangement for or in relation tothe performance of work and benefits listed in theFourth Schedule to this Act:

"Person" includes-

(a) anindividual,partnership,entityortrust; or

(b) agovernmentbody;

'prescribed" means prescribed by regulations madeunder this Act or another revenue law;

"provides", in relation to a benefit, means theprovision of a benefit in respect of the employmentof an employed person whether or not -

(a) the benefit is plso provided by reabon of, or inrelation directly or indirectly to, any othermatterorthing;

(b) the employmentwill occur, is occurring, orhasoccurred;

(c) the benefit is surplus to the needs or wants of

[5th July 2010] Supplement to Oficial Gazette 75

the recipient (i.e., the employed person or an associate oftheemployedperson);

(d) the benefit is also provided to another person;

(e) the benefit is, or is reqirired to be, provided orused in connection with that employrrent; and

(D the benefit is provided as a reward for servicesrendered, or to be rendered, by the employedperson;

"reCeived"inClUdeS-

(a) applied or provided on behalf ofthe employedperson either at the instruction ofthe employedpersonorunderanylaw;

O) credited to an account for the benefit of theemployed person or an associate of theemployedperson;

(c) madeavailabletotheemployedperson;or

(d) an amount not actually received by or paidover, but is reinvested, accumulated, carried toorpaid into an insurance orpension fund or anyother fund however designated or otherwisedealtwith on behalf ofthe employed person oras the employedperson directs;

"records" means the records that must be kept by anemplbyerpursuant to the record keeping obligationsof revenue laws including thisAct;

"Revenue Adminishation Act" means the RevenueAdminisXzfionAct, 2009;

"Revenue Commissioner" means ,the RevenueCommissioner appointed under section 4 of theSeychelles Revenue Comrnission Act, 2009 ;

Act27 of2OO9

Act26of?W

76 Supplement to fficial Gazette [5th July 2010]

Source ofemolumentsand non-moneErybenefits

"tax on non-monetary benefits" means the taxpayable by an employer under this Act where theemployer provides whether directly or indirectly anon-monetary benefit to an employed person or to anassociate of an employed person;

"tax yeat'' means the period of twelve monthsbeginning on the l" January in any year and endingon 3 I " December in that year.

3.(1) For the purposes of this Ac! a person shall bedeemed to be employed in Seychelles where he or she is paidan emolument orprovided with a non-monetary benefit_

(a) by a person who is a resident br carrying onbusiness or has the place of effectivemanagement or control ofhis or her business inSeychelles;

(b) by anyperson on behalf of apersonreferred toinparagraph(a); or

(c) fromasourceinSeychelles,

and, the person who pgys the emolument or provides the non_monetarybenefit or onwhose behalfthe emolument ispaid ornon-monetary benefit is provided shall be deemed to be theemployer ofthe person receiving the emolument or the benefit.and the emolument or the non-monetary benefit shall be liabletotaxunderthisAct.

(2) An amorrnt is an emolument of an employed personnotwithstanding that it has been paid -

(a) to the employed person by an associate of theemployer or by a third party under anarrangement with the employer or an associateoftheemployer;

(b) to an associate ofthe employedperson; or

[5th July 2010] Supplement to Official Gazette 77

(c) by a past employer or a prospective employer' ofthe employedperson.

(3) For the purposes of subsection (l), a person whoperforms any service or carries out any functions in Seychelleson behalf of or at the request of another person not resident inSeychelles shall be deemed to be employed in Seychelles, theperson who benefits in Seychelles from those services orfunctions shall be deemed to be the employer of the firstmentioned. person and the emolument paid or received inrespect of those services or functions shall be deemed to havebeen paid by the person who benefits in Seychelles from theservices or functions and shall be liable to withhold and remittax at the r ate specifi ed in the First Schedule.

(4) An employed person shall be deemed to havereceived an emolument or anon-monetarybenefit although theemolument or.the non-monetary benefit or any part thereof isnot actually received by or paid over to that person but isreinvested, accumulated, carried to orpaid into an insurance orpension fund or any other fund, however designated orothenvise dealt with on behalf of the person or as the persondirects.

PART II .TAX ON INCOME AIID NON.MONETARYBENEFITS

4.(l) Subject to subsection (3), income tax at the ratespecified in the First Schedule is levied upon emolumentsreceivedby an employedperson in Seychelles andispayable tothe Revenue Commissioner in accordance with thisAct.

(2) Tax on non-monetary benefits at the rate specified inthe Third Schedule is levied upon non-monetary benefitsreceived by an employed person in Seychelles and is payableto the Revenue Commissioner in accordance with this Act.

(3) No tax is imposed under this Act on emoluments or at

Impositionoftax onincome andon non-monetarybenefits

78 Supplement to Official Gazette [5th July 2010]

Withholdingof tax frompayment ofemolument

non- monetary benefits that are exempt emolumentsspecified in the second Schedule or exempt non-monetarybenefits specified in the Fourth Schedule.

(4) The taximposedunder subsection (1) is imposed onthe gross amount of emoluments received and no deduction isallowed for any loss or outgoing incurred by the employedperson in deriving emoluments.

(5) The tax imposedunder subsection (2) is imposed onthe fair market value of the non-monetarv benefi ts.

PART III - COLLECTION OF TAX

5.(l) Subject to subsection (3), an employer shallwithhold tax at the rate specified in the First Schedule from thegross amount of emoluments as prescribed.

@ An employer required to withhold tax under thissection shall do so at-

, (a) the time the amount is paid to the employedperson; or

(b) the time the amount is credited to the accountofthe employed person; or

(c) the time the amount is dealt with on theemployed person's behalf or otherwise madeavailable to the employedperson.

(3) The obligation ofan employer to ryithhold tax undersubsection(l)-

(a) is not reduced or extinguished because theemployer has a right, or is otherwise obliged,to deduct any other amount from apayment ofemoluments; and

(b) applies notwithstanding any law that provides

[5th July 2010] Supplement to Official Gazette 79

that any amount of emoluments is not to be reduced orsubjectto attachment.

(4) In the event that an employer fails to satisff theprovisions of this section, the Revertue Commissioner mayinvoke the powers under Part V of the Revenue AdministrationAct,2009 to ensure compliance.

(5) This section does not apply to emoluments that areexemptedby Schedule 2 ofthisAct.

6.(1) Tax required to be withheld by an employer shall bepaid to the Revenue Commissioner within 21 days after the end,of the month in which the employer was required to withholdthetax.

(2) In the event that an employer fails to satisff theprovisions of this section, the Revenue Commissioner mayinvoke the powers under Part V of the Revenue AdministrationAct, 2009 to ensure compliance.

7.(l) Ifanemployer-

(a) fails towithholdtaxasrequiredby section 5; or

O) having withheld tax fails to pay the tax to theRevenue Commissioner as required by section 6,

the employer is personally liable to pay to the RevenueCommissioner the amount of tax and any penalty andadditional tax due in respect of the failure.

(2) The Revenue Commissioner may invoks the powersunder PartV ofthe RevenueAdministrationAct,200g ind anyother provision of that Act to ensure compliance with theobligations imposed by this section.

E. An employer liable for an amount of tax undersection 7 as a result of failing to withhold tax is entitled to d

Act27 of2009

Payment oftax withheld

Failure to paytax withheld

Employer'slimited rightto recover

80 Supplement to Official Gazette [5th July 2010]

Recovery oftax fromemployedperson

Taxwithholdingstatement

Priority ofwithheld tax

recover the tax (but not any penalty or additional tax due inrespect of the failure) fr om the employed person.

9.(l) If an employer fails to withhold tax as required bysection 5, the Revenue Commissioner may recover the taxfrom the employed person provided the total amountrecovered does not exceed the tax that should have beenwithheld.

(2) Notwithstanding the recovery of any tax undersubsection (1), the employercontinues to be liable for-

(a) any other legal action in relation to the failure;' and

O) the imposition of any penalty or additional taxinrespectof the failure.

(3) In the event that subsection (2) applies to anemployer, the Revenue Commissioner may invoke the powersunder Part V of the RevenueAdministrationAct ,2009 and anyother applicable provision ofthatAct to ensure compliance.

10. An employer withholding tax under section 5 shallfurnish the employed person and the Revenue Commissionerwith a withholding tax statement in accordance with theRegulations.

11.(1) The tax withheld by an employer under section 5from a payment of emoluments -

(a) is held by the employer on behalf of theGovernment; and

(b) is not subject to attachment in respeit of anydebt or liability ofthe employer.

(2) In the event of the death, liquidation or bankruptcyof an employer who has withheld tax from the payment of

[5th July 2010]

emoluments, the withheld tax does not form part of theemployer's estate and the Revenue Commissioner has firstclaim for that amount before any distribution of property ismade with the exception of any money claimed by theSeychelles Pension Fund.

(3) An amount of tax that an employer is required towithhold under section 5 is -

(a) a first charge on the emoluments to which thewithholding relates ; and

(b) deducted prior to any other amount that theemployer may be required to deduct from thepayment by virtue of an order of any Court orunderanyotherlaw.

12. An employer who has withheld tax under section 5 rndemnitvand remitted the tax to the Revenue Commissioner incompliance. with section 6 of this Act is indemnified againstany claim by the employed person for payment of the deductedamount.

13. The tax withheld under section 5 is a final tax on theemoluments of the employed person.

14.(l) Tax shall be computed on the total non-monetarybenefits received in respect of a month or where thlemployment is for aperiod less than a month on the total non-monetary benefits provided in respect ofthat period.

(2) An employerthatprovides non-monetary benefits toan employed person is liable to pay tax in respect of that non-monetary benefit at the time of the provision of the non-monetary benefit and the tax shall be paid to the RevenueCommissioner by the 21" day of the month following themonth in which the liability arose.

(3) Tax payable by an employer in respect of non-

Withheld taxa final tax

Computation oftax and liabilityto pay tax onnon-monetarybenefits

82 Supplement to Olficial Gazette [5th July 2010]

Power toprevent taxdebtorsfromleavingSeychelles

Objectionsand appeals

Ministerialdiscretion

monetary benefits shall be calculated in accordance with therates set out in the Third Schedule to the neaf,est SeychellesRupee and any amount of cents shall be disregarded.

PART IV. GENERAL PROVISIONS

15.(1) Where the Revenue Commissioner has reason tobelieve that a person liable to remit income tax withheld froman employed person or to remit tax or pay a penalty in respectof providing non-monetary benefits may leave Seychellesbefore the date on which the tax or penalty is due and payable,the tax orpenalty shall be due andpayable on such date as theRevenue Commissioner notifies to that person.

(2) Where the Revenue Commissioner is of the opinionthat any person is about to or likely to leave Seychelles withoutpaying income tax due or tax on non-monetary benefits orpenalty, the Revenue Commissioner may invoke theprovisions ofthe RevenueAdministrationdct, 2009 to preventthat person from leaving Seychelles until the person has paidthe tax due or penalty or has made alternative arrangementsacceptable to the Revenue Commissioner.

16.(1) An employer or an employed person dissatisfiedwith a revenue decision concerning the application of this Actto that person may object to that decision in accordance withPart IV ofthe RevenueAdminishationAct, 2009.

(2) An employer or an employed person dissatisfiedwith an objection decision concerning the application of thisAct to that person may appeal from that decision in accordancewith Part IV ofthe Revenue AdministrationAct, 2009.

17. The Minister may, for socio-economic benefit ofSeychelles, by Order published in the Gazette, heat theemoluments and non-monetary benefits defved by any classor category of employed persons -

[5th July 2010] Supplement to Official Gazette 83

(a) as exempt emoluments and non-monetarybenefits; or

O) as subject to a reduced rate oftax,

if the Minister is ofthe opinion that the employment carried onby the class or category ofpersons has assisted orwill assist inthe socio-economic development of Seychelles.

18. ltn employer shall maintain such records as are Recordsprescribed under the Revenue Administration Act, 2009 or anyother revenue law including thisAct.

19.(l) The Minister may make regulations for the proper Regulationsand efficient administration ofthisAct including

(a) matters required to be prescribed'under thisAct;

(b) amendingtheSchedules;

(c) making saving or transitional provisionsconsequent onthe enactment ofthisAct, and

(d) prescribing penalties for the contravention ofregulations.

(2) If regulations made under this section are of atransitional nature and are made within six months after thecornmencement of this Act, the regulations may provide thatthey take effect from the commencement date.

FIRST SCIIEDT]LESection 4(I)

RATE OF INCOME TAX

1. The rate of income tax payable by an employedperson in respect. of emoluments (other than an employedperson who is not d citizen of Seychelles) shall be as followj-_

84 Supplement to Official Gazette [5th July 2010]

(a) for emoluments paid in the period lst July,2010 - 3lst December 2010, 18.75% of grossamount of emoluments paid; and

(b) for emoluments paid on or after lst January20II,lsyo of the gross amount of emolumentspaid.

2. No'twithstanding paragraph I above, the rate ofincome tax payable by an employed person in respect ofemoluments (other than an employed person who is not acitizen of Seychelles) shall be as follows:

(a) in the case of a domestic worker employed byan individual, R50 per month in respect of thetotal emoluments received by the workerduringthemonth;

(b) in the case of a day care worker employed byan individual, the lowerof

(, R100 per month in respect of the totalemoluments received by the worker'duringthemonth;

or

(ii) 10% of the total emoluments received bvthe worker per month or part of month;and

(c) in the case of employed persons of anAgricultural Processor in possession of aCertificate granted under the Agriculture andFisheries (Incentives) Act, 2005 R100 permonth in respect of the total emolumentsreceived by the person during the month;

(d) in the case of employed persons of a BoatOwner in possession of a Certificate grantedunder the Agriculture and Fisheries(Incentives) Act, 2005 R100 per month inAct 3 of2005

[SthJuly 2OlO] Supptement to fficial Gazette g5

respect of the total emoluments received by the personduringthemonth.

3. The rate of income tax payable by an employedperson who is not a citizen of Seychelles-in respeci ofemoluments shall be as follows-

SECOND SCHEDT]LESection 4(3)

E)GMPT EMOLTJMENTS

l. The following are exempt emoluments -

(a) an emolument derived by an employed personworking on an approved governmentemployment proj ect or scheme;

(b) an emolument derived by a person entitled toprivilegesunder the privileges and Immunifisg(Diplomatic, Consrilar and InternationalOrganisations)Act;

(c) an emolument derived by a priest or other cap l8l

similar representative of a recognised religiousorganisation;

(d) an emolument derived by a person registeredwith the NationalArts Council as entertainers;

(e) an emolument being a reimbursement for theuse of a motor vehicle provided to theemployed person by the employer providedthat a logbook is maintained by the employedperson;

86 Supplenent to Ofrfrcial Gazette [5th July 2010]

(D an emolument being a reimbursement by anemployer ofan employed person forthe cost ofusing employ@'s ovrn motor vehicle for thebenefit of the employer where thereimburse,mbnt does not exceed the followingamgtmt-

0-100h@SR4perhl0lkm md above @ SR3 perkm

(a logbook is required to be kept);

an e,molument being a per diem paid at the rate, not exceeding that specifiedbyregulationS;

an emolumentbeing a shoe allon'ance zubjectto the shoe being accepted as identifiable aspart ofa rmiform or a safet5r shoe;

a bonus paid provided that the bonus is paid no661s than onoe a year under the scheme anddoes not exceed the lower of-

(n Ul2 of the ryloyed person's mnualbasesalary;or

(i, sR 10,0fi);

a compensation paliment to fte exteirt that-

O the cnryensation is paid prrsuant tosection 62A of the Employment Act1995;and

(ii) he concessiona5r fieament of suchcompensation pa5rment is cappedpursumt to sftpmagrAh4(2[b[i) oftheEryloymentAcr"19951'

a service charge dishibrnion pa5ment madermdsr mqnoved service chruge disributionscheme provided that the payment is

(g)

(r)

0)

(k)

(l)

[5th July 2010] Supplement to Official Gazette 87

distinguishable from any other emolument on the employedperson's payment advice and the employer'spayrollsystem;

(m) retirement pension provided under the SocialSecurity Fund and the Seychelles pensionFund or any other pension provided under anyother legislation;

,(n) private pension funds established by anemployer where contributicins are made by theemployer on behalfofthe employed person.

@ In this Schedule, "approved service chargedistribution scheme" means a scheme for the distribution oftf,eservice charges collected by operators from clients anddistributed to all eligible employed persons provided that -

(a) the scheme is well documented, hasunambiguous criteria for qualiffing forbenefits under the scheme, and benefits underthe scheme are freely available to all eligibleemployedpersons; and

O) payments under the scheme are distributedwidely, broadly and proportionately to alleligible employed persons.

THrRD scnn''P118 section 4(2)

Rate of tax payable by employers in respect ofnon-monetary benefits ;

88 WMnAffiemnlGwae f5frftlyz]l0X

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(a) mirc 3&0ffer

(h) dormilhry. 6lnamodditn

(o) wbedroom ?ffiMiry

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(1)

(2)

2- FuloctincmedbyftccryloJg

IltihticsbenffiFovftlod bmerybyTedpensmoflhsffiismsccb

[5th July 2010] Supptement to Official Gazette g9

J . Provision ofclothing

Full cost incurred by theemployer

Identifiable uniformsor safety clothing orprotective clothing

4. ln-house benefit(perquisites)

Full cost incurred by theemployer

hovided the totalbenefit in any onemonth does not exceed20% of basic salary.

5. Meals SR l0 per meal per day or SR300 per month whichever islower

The provision of mealsto an employed personin the construction and,tourism sector.

6. Motor vehicle SR 70 per:day or SR 2,000 permonth whichever is the lower

Not an employedperson's benefit to theextent that:

A vehicle logbook ismaintained and thelogbook substantiatesthat the employedperson is in fact calledout for after hours dutieson a regular basisPrivate motor vehicleprovided to an employedperson in the tourismsector for the purpose ofhome to work travel.

7. Medical expenses Full cost incurred by employer Medical expensesincurred in respect ofinjuries/illness of anemployed penionarising during theperformance of his/herwork or at hiVher placeof employnent

90 Supplement to fficial Gazette [5th July 2010]

8. Life insurance Full cost incurred by employer

9. Heallh insurance Nil Applidtoallemployed persons.

l0 Full cost incurredby employer

l l Transport to/fromwort (excludingmotorvehicle)

Full co$t incuned by e,mployer Transportation costprovidedto employedpersons forftepurposeof home to work travel.

12 Airline and ferrybansport

Full cost incurredby employer Airline/ferry transportbothdomestic andintemational providedto eryloyedp€rsoL

Criteria

The higher of- Theactualexpense

incurredor thelowest economyairfare published-

- Anyhsinessryt'airfuescmbe de&rctedfimlbetotalairfueb€n€fit

- Provisimofairfuedlheff idconchsimoferyloynentc{!ffict

[5th July 2010]

Entertainmentallowance/reimbursement

SR 500 per monthwhere it is accepted bySRC that t he employedperson will bereasonably expected toundertake entertainmenlon behalfofhis/heremployer. \4/here theallowance exceeds SR500, an employedperson shall beexempted subject tomaintaining documentsto support such largesum.

l 3 Tuifion fees andfraining cost

Full cost incuned by employer Subject to criteriaapproved by theMinister

t4 Other Fair market value of the benefitprovided.

l 5 Training Cost Nil The employed personshould have been inemployment one yearor more and training islimited to trainingprovided byregisteredtertiary institutions inSeychelles.

2. The taxable value ofa non-monetary benefit is reduced-

(a) to the extent that the benefit is used by the employed person inthe performance of the employed personb duties ofemployment; or

(b) by any payment nnade by the employed person for the benefit.

9 2 'fu4futw'$retu1,@e [sth July 20101

I w.ffiV fu lhis'is a cud ory of fu BiE uftirfi wnspffi Ed bytu ttl*iud A*c@ly m ??nd-tuq S lD.

rcmmlpBrem(5ffiketuf**ftmtAMly