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Claim Vat on second-hand goods

JONATHAN HORE

All accountants and tax practitioners will most likely tell you that you can’t claim VAT that you incur on your business purchases without a valid tax invoice.

They will also emphasise on the particulars that a valid tax invoice should contain and eventually, you end up believing the concept that no business can claim VAT if it does not have tax invoices. I am fully aware that the section in the VAT Act (Act) allowing VAT claims emphasises the need for the business to have a valid tax invoice but I want to share some insights into instances where a VAT-registered business may still claim VAT without tax invoices. I wouldn’t blame you if this surprises you; I was also groomed to believe that VAT cannot be claimed without a tax invoice. Throughout this article, words importing the masculine shall be deemed to include the feminine.

WHAT ARE SECOND-HAND GOODS?

The Act allows VAT-registered persons to claim VAT that they incur on purchases of second-hand goods from non-VAT registrants. Such VAT is alternatively called notional VAT, i.e. no VAT is charged but the VAT-registrant is deemed to have incurred it. The Act defines second-hand goods as tangible items which were previously owned and used by another person but excluding animals. Further, the term second-hand goods includes movables such as cars as well as immovable property such as land and buildings. Therefore, the two conditions of previous ownership and usage must be fulfilled.

The following issues need to be considered when claiming VAT on second-hand goods:

Supplier should be non-VAT registrant: In almost all the cases where VAT on second-hand goods is claimed, the supplier would not be a VAT-registrant. This is so as the Act requires that such VAT be claimed in cases where VAT was not charged by the seller. The seller can be an individual or a company but the critical thing is that he shouldn’t be registered for VAT. However, the Act also acknowledges that if a VAT-registrant is denied input tax on acquisition of something, they should not charge VAT on disposal.

Therefore, it can happen that the supplier of the second-hand goods will be registered for VAT but they may not charge the tax as they wouldn’t have claimed VAT on acquisition. This usually applies to the acquisition and subsequent sale of passenger vehicles. Payment should be made: This VAT is claimable to the extent that payment would have been made to the supplier. In other words, if no payment is made, then there cannot be any notional VAT claim.

No need for tax invoice: Under ordinary circumstances, a purchase on which VAT is claimable should have been from a VAT-registered person, who would usually issue a tax invoice. A VAT-registrant who acquires second-hand goods only needs to keep the following details: name, address and ID of supplier, description of goods and the price charged. This could be in any form, e.g. an email print-out or a contract, invoice, receipt or just a scribbled piece of paper.

Use tax fraction: The VAT on second-hand goods is claimed by applying the tax fraction to the price of the second-hand goods. For example, VAT on a lorry which cost P 224 000 would be P 24 000, being 12%/112% x P 224 000. Transfer duty limit: For immovable property, the VAT on second-hand goods can be claimed only up to a maximum of the transfer duty paid to the Registrar of Deeds. In other words, the VAT-registrant applies the tax fraction to the price of the immovable property but limits the VAT claim to the transfer duty actually paid. 

Don’t export: If the second-hand goods on which notional VAT claim is made are later exported, then the VAT initially claimed must be paid to BURS. Further, if such second-hand vehicle is later sold at a loss within 12months, BURS requires that any tax differential be paid to it. For example, if the lorry stated above (notional VAT claim of P 24 000) is later sold within say 8 months from date of purchase and VAT of P 20 000 is charged, BURS requires that the VAT-registrant pays it P 4 000, which represents the VAT on the loss made (P 24 000 less P 20 000).

WHO CAN CLAIM THIS VAT?

This VAT can be claimed by any VAT-registrant, depending on their business. For example, any other VAT registrant who doesn’t deal in vehicles can only claim VAT on commercial vehicles as VAT on passenger vehicles is prohibited. On the other hand, dealers in vehicles can claim notional VAT incurred on the purchase of both passenger and commercial vehicles. Lastly, VAT on immovables can be claimed by any VAT-registrant provided that such person will use the property in the advancement of a business on which they charge VAT.

Well folks, I hope that was insightful. As Yours Truly says goodbye, remember to pay to Caesar what belongs to him. If you want to join our Tax Whatsapp group, send me a text on the cell number below. Jonathan Hore writes on behalf of Aupracon Tax Specialists and feedback can be relayed to jhore@aupracontax.co.bw or 7181 5836. This article is of a general nature and is not meant to address particular matters of any person.

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The past week or two has been a mixed grill of briefs in so far as the national employment picture is concerned. BDC just injected a further P64 million in Kromberg & Schubert, the automotive cable manufacturer and exporter, to help keep it afloat in the face of the COVID-19-engendered global economic apocalypse. The financial lifeline, which follows an earlier P36 million way back in 2017, hopefully guarantees the jobs of 2500, maybe for another year or two.

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The Era of “The Diplomat”

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Land Board appointments of party activists is political corruption

30th November 2020

Parliament has rejected a motion by Leader of Opposition (LOO) calling for the reversing of the recent appointments of ruling party activists to various Land Boards across the country. The motion also called for the appointment of young and qualified Batswana with tertiary education qualifications.

The ruling party could not allow that motion to be adopted for many reasons discussed below. Why did the LOO table this motion? Why was it negated? Why are Land Boards so important that a ruling party felt compelled to deploy its functionaries to the leadership and membership positions?

Prior to the motion, there was a LOO parliamentary question on these appointments. The Speaker threw a spanner in the works by ruling that availing a list of applicants to determine who qualified and who didn’t would violate the rights of those citizens. This has completely obliterated oversight attempts by Parliament on the matter.

How can parliament ascertain the veracity of the claim without the names of applicants? The opposition seeks to challenge this decision in court.  It would also be difficult in the future for Ministers and government officials to obey instructions by investigative Parliamentary Committees to summon evidence which include list of persons. It would be a bad precedent if the decision is not reviewed and set aside by the Business Advisory Committee or a Court of law.

Prior to independence, Dikgosi allocated land for residential and agricultural purposes. At independence, land tenures in Botswana became freehold, state land and tribal land. Before 1968, tribal land, which is land belonging to different tribes, dating back to pre-independence, was allocated and administered by Dikgosi under Customary Law. Dikgosi are currently merely ‘land overseers’, a responsibility that can be delegated. Land overseers assist the Land Boards by confirming the vacancy or availability for occupation of land applied for.

Post-independence, the country was managed through modern law and customary law, a system developed during colonialism. Land was allocated for agricultural purposes such as ploughing and grazing and most importantly for residential use. Over time some land was allocated for commercial purpose. In terms of the law, sinking of boreholes and development of wells was permitted and farmers had some rights over such developed water resources.

Land Boards were established under Section 3 of the Tribal Land Act of 1968 with the intention to improve tribal land administration. Whilst the law was enacted in 1968, Land Boards started operating around 1970 under the Ministry of Local Government and Lands which was renamed Ministry of Lands and Housing (MLH) in 1999. These statutory bodies were a mechanism to also prune the powers of Dikgosi over tribal land. Currently, land issues fall under the Ministry of Land Management, Water and Sanitation Services.

There are 12 Main Land Boards, namely Ngwato, Kgatleng, Tlokweng, Tati, Chobe, Tawana, Malete, Rolong, Ghanzi, Kgalagadi, Kweneng and Ngwaketse Land Boards.  The Tribal Land Act of 1968 as amended in 1994 provides that the Land Boards have the powers to rescind the grant of any rights to use any land, impose restrictions on land usage and facilitate any transfer or change of use of land.

Some land administration powers have been decentralized to sub land boards. The devolved powers include inter alia common law and customary law water rights and land applications, mining, evictions and dispute resolution. However, decisions can be appealed to the land board or to the Minister who is at the apex.

So, land boards are very powerful entities in the country’s local government system. Membership to these institutions is important not only because of monetary benefits of allowances but also the power of these bodies. in terms of the law, candidates for appointment to Land Boards or Subs should be residents of the tribal areas where appointments are sought, be holders of at least Junior Certificate and not actively involved in politics.  The LOO contended that ruling party activists have been appointed in the recent appointments.

He argued that worse, some had no minimum qualifications required by the law and that some are not inhabitants of the tribal or sub tribal areas where they have been appointed. It was also pointed that some people appointed are septuagenarians and that younger qualified Batswana with degrees have been rejected.

Other arguments raised by the opposition in general were that the development was not unusual. That the ruling party is used to politically motivated appointments in parastatals, civil service, diplomatic missions, specially elected councilors and Members of Parliament (MPs), Bogosi and Land Boards. Usually these positions are distributed as patronage to activists in return for their support and loyalty to the political leadership and the party.

The ruling party contended that when the Minister or the Ministry intervened and ultimately appointed the Land Boards Chairpersons, Deputies and members , he didn’t have information, as this was not information required in the application, on who was politically active and for that reason he could not have known who to not appoint on that basis. They also argued that opposition activists have been appointed to positions in the government.

The counter argument was that there was a reason for the legal requirement of exclusion of political activists and that the government ought to have mechanisms to detect those. The whole argument of “‘we didn’t know who was politically active” was frivolous. The fact is that ruling party activists have been appointed. The opposition also argued that erstwhile activists from their ranks have been recruited through positions and that a few who are serving in public offices have either been bought or hold insignificant positions which they qualified for anyway.

Whilst people should not be excluded from public positions because of their political activism, the ruling party cannot hide the fact that they have used public positions to reward activists. Exclusion of political activists may be a violation of fundamental human or constitutional rights. But, the packing of Land Boards with the ruling party activists is clear political corruption. It seeks to sow divisions in communities and administer land in a politically biased manner.

It should be expected that the ruling party officials applying for land or change of land usage etcetera will be greatly assisted. Since land is wealth, the ruling party seeks to secure resources for its members and leaders. The appointments served to reward 2019 election primary and general elections losers and other activists who have shown loyalty to the leadership and the party.

Running a country like this has divided it in a way that may be difficult to undo. The next government may decide to reset the whole system by replacing many of government agencies leadership and management in a way that is political. In fact, it would be compelled to do so to cleanse the system.

The opposition is also pondering on approaching the courts for review of the decision to appoint party functionaries and the general violation of clearly stated terms of reference. If this can be established with evidence, the courts can set aside the decision on the basis that unqualified people have been appointed.

The political activism aspect may also not be difficult to prove as some of these people are known activists who are in party structures, at least at the time of appointment, and some were recently candidates. There is a needed for civil society organizations such as trade unions and political parties to fight some of these decisions through peaceful protests and courts.

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