LAWS OF MALAYSIA
REPRINT
Act 169
REAL PROPERTY GAINS TAX
ACT 1976
Incorporating all amendments up to 1 January 2006
PUBLISHED BY
THE COMMISSIONER OF LAW REVISION, MALAYSIA
UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968
IN COLLABORATION WITH
PERCETAKAN NASIONAL MALAYSIA BHD
2006
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ACT 169
REAL PROPERTY GAINS TAX ACT 1976
Date of Royal Assent
...............
18 March 1976
Date of publication in the Gazette ... ... ...
25 March 1976
PREVIOUS REPRINTS
First Reprint
... ... ... ... ...
1998
Second Reprint
... ... ... ... ...
2001
Real Property Gains Tax
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LAWS OF MALAYSIA
Act 169
REAL PROPERTY GAINS TAX ACT 1976
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1.
Short title and commencement
2.
Interpretation
PART II
IMPOSITION OF THE TAX
3.
Taxation of chargeable gains
4.
Rate of tax
Situation of interests, options, etc.
5.
6.
Chargeable persons
7.
Chargeable gains, allowable losses and tax relief for allowable
losses
8.
Private residence
9.
Exemptions
PART III
ASSESSMENT AND COLLECTION
10.
Year of assessment
11.
Chargeable person to be assessed on chargeable gains
(Deleted)
12.
13.
Returns
14.
Assessments
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Section
15.
Additional assessments
16.
Cases where acquirer may be assessed
17.
Notice of assessment
18.
Right of appeal
19.
Error or mistake
20.
Finality of assessment
21.
Payment of the tax
21.
Certificate of clearance
21.
Requisition to acquirer
22.
Recovery from persons leaving Malaysia
23.
Recovery by suit
24.
Refund of overpayments
25.
Anti-avoidance provisions
26.
Remission
PART IV
INVESTIGATORY AND PENAL
Power to call for information, etc.
27.
Power of access to buildings and documents, etc.
28.
29.
Failure to notify or make return of disposal
Incorrect returns, etc.
30.
31.
Wilful evasion
32.
Leaving Malaysia without payment of tax
33.
Obstruction of officers
34.
Breach of secrecy
35.
Offences by officials and unauthorized collection
36.
Other offences
37.
Additional provisions as to offences under section 30, 32, 33 or 36
38.
Tax payable notwithstanding proceedings
(Deleted)
39.
40.
Compounding of offences and abatement of penalties
41.
Recovery of penalties
42.
Jurisdiction of subordinate court
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PART V
ADMINISTRATIVE AND SUPPLEMENTAL
Section
43.
The Director General
44.
Power of Minister to give directions to Director General
45.
Delegation of Director General's functions
46.
Identification of officials
47.
Certain materials to be treated as confidential
48.
Evidential provisions
Returns, etc., presumed to be made with due authority
49.
50.
Persons by whom returns to be made
51.
Power to appoint agent
Errors and defects in assessments, etc.
52.
53.
Service of notices and requisitions
Power to direct where returns, etc., are to be sent
54.
55.
Authentication of notices and other documents
56.
Free postage
57.
Forms
58.
Power to make rules
59.
Repeal of Act 126
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
SCHEDULE 4
SCHEDULE 5
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ACT 169
Real Property Gains Tax
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LAWS OF MALAYSIA
Act 169
REAL PROPERTY GAINS TAX ACT 1976
An Act to provide for the imposition, assessment and collection
of a tax on gains derived from the disposal of real property and
matters incidental thereto.
[7 November 1975]
BE IT ENACTED by the Seri Paduka Baginda Yang di-Pertuan
Agong with the advice and consent of the Dewan Negara and
Dewan Rakyat in Parliament assembled, and by the authority of
the same, as follows:
PART I
PRELIMINARY
Short title and commencement
1.  This Act may be cited as the Real Property Gains Tax Act
1976, and shall be deemed to have come into force on 7 November
1975.
Interpretation
2. (1) In this Act, unless the context otherwise requires--
"accountant" means an accountant as defined in subsection 153(3)
of the Income Tax Act 1967 [Act 53];
"acquire" includes, subject to subsection (4), acquire by way of
purchase, grant, exchange, gift, settlement or otherwise;
"allowable loss" has the meaning assigned by section 7;
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"assessment" means any assessment or additional assessment
made under this Act;
"asset" includes an interest or right in or over an asset;
"authorized officer" means an officer appointed or authorized
under section 45 to exercise any function of the Director General
or to exercise or assist in exercising any such function;
"body of persons" means an unincorporated body of persons
(not being a company) including a Hindu joint family but excluding
a partnership;
"business" includes profession, vocation and trade and any
manufacture, adventure or concern in the nature of trade;
"chargeable gain" has the meaning assigned by section 7;
"chargeable person" means a person chargeable with the tax;
"company" means a body corporate and includes any body of
persons established with a separate legal identity by or under the
laws of a territory outside Malaysia;
"consideration" means consideration in money or money's worth;
"control", in relation to a company, means control of the kind
described in section 139 of the Income Tax Act 1967;
" c o - p r o p r i e t o r " and "co-proprietorship" have the meaning
r e s p e c t i v e l y assigned to them by the National Land Code
[Act 56 of 1965];
"Director General" means the Director General of Inland Revenue
or any authorized officer;
"dispose" means, subject to subsection (4), sell, convey, transfer,
assign, settle or alienate whether by agreement or by force of law;
"executor" means the executor, administrator or other person
administering the estate of a deceased person;
"gain" means--
(a) gain other than gain or profit chargeable with or exempted
from income tax under the income tax law; or
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(b) in the case of a unit trust, gain not treated as income
under the income tax law;
"Hindu joint family" means what in any system of law prevailing
in India is known as a Hindu joint family or a coparcenary;
"incapacitated person" means a minor or a person adjudged
under any law to be in a state of unsoundness of mind (however
described);
"income tax" includes any tax of a substantially similar character
(by whatever name called) imposed in Malaysia;
"income tax law" means the law in force in Malaysia regulating
income tax;
"Inland Revenue Board of Malaysia" means the Inland Revenue
Board of Malaysia established under the Inland Revenue Board of
Malaysia Act 1995 [Act 533];
"land" includes--
(a) the surface of the earth and all substances forming that
surface;
(b) the earth below the surface and substances therein;
(c) buildings on land and anything attached to land or
permanently fastened to any thing attached to land (whether
on or below the surface);
(d) standing timber, trees, crops and other vegetation growing
on land; and
(e) land covered by water;
"option" includes an option in a case where--
(a) the grantor binds himself to sell what he does not own
and, because the option is abandoned, never has occasion
to own; and
(b) the grantor binds himself to buy what, because the option
is abandoned, he does not acquire;
"partnership" means an association of any kind (including joint
adventures, syndicates and cases where a party to the association
is itself a partnership) between parties who have agreed to combine
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any of their rights, powers, property, labour or skill for the purpose
of carrying on a business and sharing the profits therefrom, but
excludes a Hindu joint family although such a family may be a
partner in a partnership;
"permanent resident" means a person treated as such under any
written law relating to immigration;
"person" includes a company, a partnership, a body of persons
and a corporation sole;
"prescribed" means prescribed by rules made under section 58
or, in relation to a form, prescribed under section 57;
"precedent partner" has the meaning assigned by paragraph 86(1)(a)
of the Income Tax Act 1967;
"real property" means any land situated in Malaysia and any
interest, option or other right in or over such land;
"resident" means resident in Malaysia for the purposes of the
Income Tax Act 1967, except that references to basis year or basis
year for a year of assessment in that Act shall be read as references
to a year of assessment under this Act;
"shares" means all or any of the following:
(a) stock and shares in a company;
(b) loan stock and debentures issued by a company or any
other corporate body, wherever incorporated;
(c) a member's interest in a company not limited by shares
whether or not it has a share capital;
(d) any option or other right in, over or relating to shares as
defined in paragraphs (a) to (c);
"Special Commissioners" means the Special Commissioners of
Income Tax appointed under section 98 of the Income Tax Act
1967;
"tax" means the tax imposed by this Act;
"valuer" means any person lawfully carrying on the business of
valuing or appraising the value of real property;
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"wife" means a woman who (whether or not she has gone through
any religious or other ceremony) is regarded by virtue of any law
or custom as the wife of a man or as one of his wives;
"year of assessment" has the meaning assigned by section 10.
(2) References in this Act to this Act or to any other written
law includes references to any subsidiary legislation made thereunder.
(3) Unless the context otherwise requires, a reference in this
Act to the acquisition or disposal of a building includes a reference
to the acquisition or disposal of the land on which the building
stands.
(4) Where any land which is held by two or more persons as
co-proprietors is partitioned so as to vest in each of them, under
a separate title, a portion of the land of an area proportionate as
nearly as may be to his undivided share in the whole, the partition
of the land shall not be regarded for the purposes of this Act as
involving the acquisition or disposal of any part of or interest in
the land by any such person.
PART II
IMPOSITION OF THE TAX
Taxation of chargeable gains
3. (1) A tax, to be called real property gains tax, shall be charged
in accordance with this Act in respect of chargeable gain accruing
on the disposal of any real property (hereinafter referred to as
"chargeable asset").
(2) Subject to this Act, the tax shall be charged on every ringgit
of the total amount of chargeable gains accruing to a chargeable
person in a year of assessment in respect of each category of
disposal of chargeable assets specified in Schedule 5.
Rate of tax
4. (1) The tax shall be charged at the appropriate rate specified
in Schedule 5 in respect of each category of disposal stated therein.
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(2) The Minister, where he is satisfied that it is the intention
of the Government to promote the introduction of a Bill to vary
in any particular way the rate of tax, may by statutory order
declare the rate to be varied in that way, and, where he does so,
then, subject to subsections (3) and (4), this Act shall have effect
as if the rate as so varied had come into force at the beginning of
the first year of assessment for which the Bill seeks to vary that
rate.
(3) Every order made under subsection (2) shall be laid before
the Dewan Rakyat as soon as may be after it has been made and
shall cease to have effect--
(a) at the expiration of three months (or such longer period
as may be specified by resolution of the Dewan Rakyat)
beginning on the date when the order was made; or
(b) on the coming into force (after the date when the order
was made) of an Act varying the rate of tax, whichever
is the earlier.
(4) Where an order made under subsection (2) ceases to have
effect pursuant to subsection (3)--
(a) the amount of any tax which--
(i) has been charged by any assessment by reference
to the order; and
(ii) is payable (whether or not it is due or due and
payable) but not paid at the date when the order
ceases to have effect,
shall be taken to be amended to the amount which
would have been payable if the order had not been
made; and
(b) so much of any tax paid by any person in consequence
of the order as exceeds the tax payable under the law in
force immediately after the date when the order ceases
to have effect shall be repaid by the Director General if
that person--
(i) makes a claim therefor in the prescribed form within
one year after that date; and
(ii) furnishes to the Director General such further
particulars of the claim as the Director General
may require.
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Situation of interests, options, etc.
5. (1) The situation of interests, options and other rights in or
over land is that of the land.
(2) The term "rights in or over" includes rights to purchase.
Chargeable persons
6. (1) Subject to this Act, every person whether or not resident
in Malaysia for a year of assessment shall be chargeable with the
tax in respect of a chargeable gain accruing to him in that year
on the disposal of any chargeable asset.
(2) The supplementary provisions in Schedule 1 shall have effect
with respect to persons chargeable with the tax.
Chargeable gains, allowable losses and tax relief for allowable
losses
7. (1) Where a chargeable asset is disposed of, then--
(a) if the disposal price exceeds the acquisition price, there
is a chargeable gain;
(b) if the disposal price is less than the acquisition price,
there is an allowable loss; and
(c) if the disposal price is equal to the acquisition price,
there is neither a chargeable gain nor an allowable loss.
(2) In this section, an allowable loss means a loss suffered on
the disposal of a chargeable asset which, if it had been a gain,
would have been chargeable with the tax.
(3) Subsection (1) shall be subject in its operation to Schedule
2, which shall have effect for computing acquisition and disposal
prices and otherwise as provided therein.
(4) (a) Where there is an allowable loss in respect of a disposal,
tax relief shall be allowed in respect of such allowable loss in an
amount equal to the sum arrived at by applying to every ringgit
of such allowable loss the appropriate rate of tax specified in
Schedule 5 in respect of the category of disposal giving rise to that
allowable loss as a deduction from the total tax assessed for the
year of assessment in which the disposal was made; and
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(b) where, by reason of an insufficiency or absence of total
tax assessed for the year of assessment in which the
allowable loss arose, effect cannot be given or cannot be
given in full to paragraph (a), the tax relief which has
not been so allowed (or so much thereof as has not been
so allowed for that year) shall be allowed for the first
subsequent year of assessment for which there is total tax
assessed and so on for subsequent years of assessment
until the whole amount of the tax relief to be allowed has
been allowed.
Private residence
8.  Subject to Schedule 3, a gain shall be exempt from the tax if
it accrues to an individual who is a citizen or an individual who
is not a citizen but is a permanent resident in respect of the
disposal by him of his private residence.
Exemptions
9. (1) Notwithstanding any other provision of this Act, the gains
specified in Schedule 4 shall be exempt from the tax.
(2) The Dewan Rakyat may by resolution delete any item in
Schedule 4 or add any further item or items thereto.
(3) The Minister may by statutory order exempt any person or
class of persons from all or any of the provisions of this Act.
(4) Any order made under subsection (3) shall be laid before
the Dewan Rakyat.
PART III
ASSESSMENT AND COLLECTION
Year of assessment
10.  The first year of assessment shall be a period beginning on
7 November 1975 and ending on 31 December 1976 and thereafter
the year of assessment shall be the calendar year starting with the
calendar year 1977.
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Chargeable person to be assessed on chargeable gains
11.  A chargeable person shall be assessed for any year of assessment
in respect of the total amount of his chargeable gains as ascertained
under subsection 3(2) in that year.
(Deleted by Act 323).
12.
Returns
13. (1) Every chargeable person who disposes of a chargeable
asset and every person who acquires the asset so disposed of shall,
within one month (or such further period as the Director General
may allow on a written request being made to him) of the date of
disposal of that asset, make a return--
(a) specifying in respect of the asset disposed of the acquisition
price, the disposal price and the gain or loss on the
disposal;
(b) furnishing all information necessary to determine the
acquisition price and disposal price of the asset disposed
of; and
(c) where the market value of the asset is to be taken for the
purposes of this Act, submit a written valuation of the
asset by a valuer.
(2) Every nominee shall, within one month (or such further
period as the Director General may allow on a written request
being made to him) of the date of disposal by him of a chargeable
asset on behalf of any person, make a return specifying--
(a) the name and address of the person on whose behalf the
disposal was made;
(b) the asset disposed of; and
(c) the date on which he first began to hold that asset as
nominee for that person.
(3) Where any assets acquired--
(a) from any person by a company controlled by that person,
by his wife or by him jointly with his wife or a connected
person; or
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(b) with the approval of the Director General under paragraph
17 of Schedule 2, by a company from another company
in the same group,
are transferred by the acquiring company to its stock in trade, the
acquiring company shall within thirty days after the transfer make
a return giving particulars of the assets transferred.
(4) Where a person makes a return under this Act, the return
shall be in the prescribed form:
Provided that, where the person making the return is a nominee,
the return shall be made to the income tax office nearest to the
nominee's principal place of business or abode in Malaysia or if
he has no place of business or abode in Malaysia, to the office of
the Director General in Kuala Lumpur.
(5) Where a person is required to make a return for the purposes
of the income tax law, he shall make a declaration in that return
whether or not he has made a disposal of chargeable assets in the
year immediately preceding the year of assessment for which that
return is made.
Assessments
14. (1) Where a person makes a return under subsection 13(1),
the Director General may--
(a) accept the return and make an assessment accordingly;
(b) make an assessment after making such adjustments as he
considers necessary; or
(c) reduce an assessment made for the year of assessment for
which the return was made, in giving effect to paragraph
7(4)(a).
(2) Where a person does not make a return under subsection
13(1), the Director General, if he is of the opinion that that person
is chargeable with the tax, may make an assessment accordingly:
Provided that the making of an assessment in respect of a person
under this subsection shall not affect any liability otherwise incurred
by that person by reason of his failure to make the return.
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(3) The Director General, where it appears to him desirable,
either because a chargeable person is about to leave Malaysia or
for any other reason, that an assessment should be made forthwith,
may at any time make whatever assessment he considers appropriate;
and any assessment so made shall, when the year of assessment
to which it relates and the time allowed under subsection 13(1) for
making a return of disposals have expired, be adopted with such
revision (if any) as the Director General thinks necessary as the
assessment for that year.
(4) The death of a chargeable person shall not prevent the making
of an assessment in respect of disposals by him before his death,
and where any such assessment is made--
(a) the notice of assessment under section 17 may be served
on the executor of the deceased person; and
(b) the assessment shall have the same effect as regards
imposing a liability on the estate of the deceased person
as it would have had if it had been made during his life
time:
Provided that no such assessment shall be made more than three
years after the end of the year of assessment in which the death
took place.
Additional assessments
15. (1) The Director General, where in respect of any year of
assessment it appears to him that no or no sufficient assessment
has been made on a person chargeable with the tax, may within
six years after the end of that year of assessment make on that
person whatever assessment or additional assessment he considers
to be appropriate.
(2) The Director General, where it appears to him that a person
chargeable with the tax has been guilty of any form of fraud or
wilful default in connection with or in relation to the tax, may at
any time make an assessment in respect of that person for the
purpose of making good any loss of the tax attributable to the
fraud or wilful default.
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Cases where acquirer may be assessed
16. (1) Where in a case to which section 13 applies--
(a) the consideration on the disposal of a chargeable asset
consists of another asset (whether chargeable or not);
(b) there is a failure by both the disposer and the acquirer
to submit a return to the Director General in the prescribed
form as required under section 13; or
(c) the consideration on the disposal of a chargeable asset
is for the purposes of the Act the market value of the
asset,
the Director General may make on the acquirer an assessment of
an amount equal to the amount of the tax payable by the disposer.
(1A) Where the Director General makes an assessment on the
acquirer under paragraph (1)(b) there shall be included in that
assessment a sum equal to ten per cent of the tax payable by the
disposer, which shall be deemed to be an increase of the kind
mentioned in subsection 21(4).
(2) An assessment made under this section shall for all the
purposes of this Act have effect and be treated as though it were
an assessment made on a person disposing of a chargeable asset:
Provided that--
(a) the acquirer assessed under this section shall not be entitled
to any deduction from the tax assessed for any tax relief
for allowable losses suffered by the disposer; and
(b) in relation to the notice of assessment, paragraph 17(b)
shall have effect as if it did not contain a reference to
allowable losses.
(3) An acquirer of a chargeable asset who is assessed under this
section shall be entitled--
(a) to recover as a debt due to him from the disposer the
a m o u n t of any payment made in pursuance of the
assessment; and
(b) for that purpose to require the Director General to furnish
a certificate specifying the amount paid,
and any certificate so furnished shall be conclusive evidence of the
facts stated therein.
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Notice of assessment
17.  The Director General shall cause to be served on every person
assessed a notice of assessment indicating--
(a) the year of assessment to which the assessment relates;
(b) the chargeable gains and allowable losses taken into account
in making the assessment;
(c)
(i) the amount of the chargeable gains on which the
tax has been assessed;
(ii) the amount of the tax assessed;
(iii) the amount of the tax relief allowed for allowable
losses;
(iv) the amount of the tax payable; and
(v) the place at which and the time within which payment
is to be made; and
(d) the existence of the right of appeal conferred by
section 18.
Right of appeal
18. (1) A person aggrieved by an assessment made on him may
appeal to the Special Commissioners against the assessment in the
same manner as an appeal against an assessment of income tax
made under the Income Tax Act 1967, and sections 99, 100, 101,
101(1A), 101(1B), 101(1C) and 102 of that Act, as far as they are
applicable and with the necessary modifications, shall apply to an
appeal against an assessment made under this Act as if--
(a) every reference in those sections to income tax or to tax
were a reference to real property gains tax; and
(b) every reference in those sections to income were a reference
to chargeable gains.
(2) Schedule 5 to the Income Tax Act 1967, shall apply with
necessary modifications to the hearing of appeals to the Special
Commissioners and to the hearing of further appeals.
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(3) Where a person appeals under this Act, he shall not be
entitled in the appeal to re-open any issue which has been finally
and conclusively settled by virtue of subsection 20(1) unless it is
an issue already re-opened by the Director General.
Error or mistake
19. (1) A person upon whom a notice of assessment is served
may within six years after the end of the year of assessment in
which the assessment was made apply in writing to the Director
General for a revision of the assessment on the ground that the
assessment is excessive by reason of an error or mistake in a return
or other statement made by that person for the purposes of the
assessment.
(2) No relief shall be given under subsection (1) in respect of
an error or mistake as to the basis on which the liability of the
person concerned ought to have been computed where the return
containing the error or mistake was in fact made on the basis of
or in accordance with the practice of the Director General generally
prevailing at the time when the return was made.
(3) An application under subsection (1) shall be, as nearly as
may be, in the same form as a notice of appeal under section 18
(indicating as the grounds of appeal the error or mistake relied on),
and shall be deemed to be, and shall be disposed of as if it were,
an appeal under that section, the application itself being taken as
the notice of appeal.
Finality of assessment
20. (1) Subject to this section, an assessment shall become final
and conclusive for all the purposes of this Act as regards the
amount of the tax assessed under it or the tax relief for allowable
losses indicated in it, as the case may be--
(a) on the expiry of the time for appeal against the assessment;
or
(b) where an appeal is made, on the appeal being finally
disposed of.
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(2) Subsection (1)--
(a) shall not apply to an assessment made under subsection
14(3) until it is adopted as the assessment for the year
of assessment to which it relates;
(b) shall not prevent the Director General from making in
respect of any year of assessment--
(i) an assessment under subsection 15(1) or (2); or
(ii) a revision under subsection 19(1).
Payment of the tax
21. (1) Subject to this section, the tax payable under an assessment
shall, on the service of the notice of assessment on the person
assessed, be due and payable at the place specified in that notice
whether or not that person appeals against the assessment.
(2) Where the tax payable under an assessment is increased on
appeal the additional tax payable by virtue of the increased assessment
shall, on the service of the notice of the increased assessment on
the person assessed, be due and payable at the place specified in
that notice.
(3) Where any tax is payable in accordance with subsection (1)
or (2) the Director General may allow the tax to be paid by instalments
in such amounts and on such dates as he may determine.
(4) Subject to subsection (3), where any tax due and payable
on the service of a notice in accordance with subsection (1) or (2)
has not been paid within thirty days after the service of that notice
(or within such longer period as may be allowed by the Director
General), so much of the tax as is unpaid upon the expiration of
those days or that period, as the case may be, shall without any
further notice being served on him be increased by a sum equal
to ten per cent of the tax so unpaid, and that sum shall be recoverable
as if it were tax due and payable under this Act:
Provided that--
(a) if the tax payable is reduced on appeal or otherwise, the
sum paid or payable by way of increase shall be reduced
proportionately; and
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(b) the Director General may in his discretion for any good
cause shown remit the whole or any part of any increase
in the tax payable under this subsection.
Certificate of clearance
21A.  The Director General shall send to both the disposer and the
acquirer a certificate of clearance in the prescribed form--
(a) on payment being made in accordance with section 21;
or
(b) where he is satisfied that no chargeable gain has arisen,
on being so satisfied.
Requisition to acquirer
21B. (1) Where on a disposal to which section 13 applies, the
consideration consists wholly or partly of money--
(a) the acquirer shall until he receives the Director General's
certificate of clearance under section 21A, retain the whole
of that money or a sum not exceeding five per cent of
the total value of the consideration whichever is the less;
(b) the Director General may, at any time, before he sends
the certificate of clearance, serve upon the acquirer a
written requisition in the prescribed form calling upon
him to pay the whole or any part of the sum retained
under paragraph (a) (or, where the acquirer has failed to
comply with that paragraph, the sum which should have
been so retained) within a time specified in the requisition;
(c) in a case where paragraph (b) applies, the acquirer shall
deliver the sum stated in the requisition to the Director
General within the time specified in the requisition.
(2) A requisition issued under this section shall be deemed to
be an assessment for the purposes of this Act.
(3) An acquirer who is required under this section to deliver to
the Director General a sum which he should have, but has not
retained under paragraph (1)(a), shall, on complying with the
requisition, be deemed for the purposes of subsection 16(3) to
have been assessed in the sum under subsection 16(1) and to have
paid that sum in pursuance of that assessment.
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Recovery from persons leaving Malaysia
22. (1) The Director General, where he is of the opinion that any
person is about or likely to leave Malaysia without paying--
(a) all the tax payable by him (whether or not due or due and
payable); and
(b) all sums payable by him under subsection 21(4),
may issue to any Commissioner of Police or Director of Immigration
a certificate containing particulars of the tax and sums so payable
with a request for that person to be prevented from leaving Malaysia
unless and until he pays all the tax and sums so payable or furnishes
security to the satisfaction of the Director General for their payment.
(2) Subject to any order issued or made under any written law
relating to banishment or immigration, any Commissioner of Police
or Director of Immigration who receives a request under subsection
(1) in respect of any person shall take or cause to be taken all such
measures (including the use of reasonable force and the seizure,
removal or retention of any certificate of identity and any passport,
exit permit or other travel document relating to that person) as may
be necessary to give effect to it.
(3) The Director General shall cause notice of the issue of a
certificate under subsection (1) to be served personally or by
registered post on the person to whom the certificate relates:
Provided that the non-receipt of the notice by that person shall
not invalidate anything done under this section.
(4) Where a person in respect of whom a certificate has been
issued under subsection (1)--
(a) produces a written statement signed on or after the date
of the certificate by the Director General or an authorized
officer to the effect that all the tax and sums specified
in the certificate have been paid or that security has been
furnished for their payment; or
(b) pays all the tax and sums specified in the certificate to
the officer in charge of a police station or to an immigration
officer,
the statement or the payment, as the case may be, shall be sufficient
authority for allowing that person to leave Malaysia.
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(5) No legal proceedings shall be instituted or maintained against
the Government, a State Government, a police officer or any other
public officer in respect of anything lawfully done under this
section or subsection 32(2).
(6) In this section--
"Commissioner of Police" includes a Chief Police Officer;
"Director of Immigration" means the Director of Immigration
in any part of Malaysia;
"immigration officer" means a public officer having official
duties in connection with the control of immigration into Malaysia
or any part of Malaysia.
Recovery by suit
23. (1) Tax due and payable may be recovered by the Government
by civil proceedings as a debt due to the Government.
(2) The Director General and all authorized officers shall be
deemed to be public officers authorized by the Minister under
s u b s e c t i o n 25(1) of the Government Proceedings Act 1956
[Act 359], in respect of all proceedings under this section.
(3) In any proceedings under this section the court shall not
entertain any plea that the amount of tax sought to be recovered
is excessive, incorrectly assessed, under appeal or incorrectly
increased under subsection 21(4).
Refund of overpayments
24. (1) Subject to this section, where it is proved to the satisfaction
of the Director General that any person has paid tax for any year
of assessment in excess of the amount payable under this Act, that
person shall be entitled to have the excess refunded by the
Government.
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(2) Where in a case of the kind mentioned in subsection (1) the
excess has been paid (or is deemed under subsection 21B(3) to
have been paid) by the acquirer of a chargeable asset in pursuance
of an assessment made on him under subsection 16(1), the excess--
(a) shall not be refunded to the acquirer unless he satisfies
the Director General that he has not under subsection
16(3) recovered it from the disposer;
(b) shall be refunded to the disposer if he satisfies the Director
General that the acquirer has under subsection 16(3)
recovered it from him;
(c) shall be retained by the Government if the Director General
is not so satisfied.
(3) No claim for repayment under this section shall be valid
unless it is made within six years after the end of the year of
assessment to which the claim relates.
(4) Nothing in this section shall operate--
(a) to extend any time limit for appeal, validate any appeal
which is otherwise invalid or authorize the revision of
any assessment or other matter which has become final
and conclusive;
(b) to compel the Government to refund the excess amount
of tax paid in respect of an assessment unless the assessment
has been finally determined.
(5) The representative of a disabled or deceased person shall be
entitled to a refund under subsection (1) for the benefit of that
person or his estate of any excess payment within the meaning of
that subsection.
(6) The Director General shall--
(a) certify the amount of any sum repayable under this section;
and
(b) cause repayment to be made forthwith,
and the sum required for making the repayment shall be charged
to the Consolidated Fund.
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ACT 169
(7) For the purposes of this section--
(a) references to payment of the tax includes references to
payment of the amount payable in pursuance of section
21B; and
(b) a payment of the tax by the representative of a disabled
or deceased person shall be deemed to have been made
by that person.
(8) In this section--
"disabled person" means a person who through incapacity,
bankruptcy or liquidation, or for any other reason is unable to
manage his own affairs;
"representative" means, in the case of a deceased person, his
executor, and, in the case of a disabled person, the trustee, guardian,
committee or other person who manages his affairs.
Anti-avoidance provisions
25. (1) Where a chargeable asset which is disposed of was previously
acquired by the disposer for a consideration wholly or substantially
provided by a connected person within the meaning of Schedule
2 (otherwise than as a bona fide loan made in the course of
carrying on business as a moneylender), the asset shall be deemed
to have been disposed of by that person and not by the disposer:
Provided that, where the asset disposed of was acquired by the
disposer from that person, that person shall, for the purpose of
computing any gain accruing to or loss suffered by him by the
operation of this subsection, be deemed to have acquired the asset
at an acquisition price equal to the consideration which, by virtue
of paragraph 9 and subparagraph 23(1) of Schedule 2, he is deemed
to have received when the asset was acquired by the disposer.
(2) The Director General, where he has reason to believe that
any transaction has the direct or indirect effect of--
(a) altering the incidence of tax which is payable or suffered
by or which would otherwise have been payable or suffered
by any person;
(b) relieving any person from any liability which has arisen
or which would otherwise have arisen to pay tax or to
make a return;
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27
(c) evading or avoiding any duty or liability which is imposed
or would otherwise have been imposed on any person by
this Act; or
(d) hindering or preventing the operation of this Act in any
respect,
may, without prejudice to such validity as it may have in any other
respect or for any other purpose, disregard or vary the transaction
and make such assessments as he considers just and proper in the
circumstances.
(3) In this section "transaction" means any trust, grant, covenant,
agreement, arrangement or other disposition or transaction made
or entered into (whether before or after the commencement of this
Act), and includes a transaction entered into by two or more persons
with another person.
Remission
26. (1) The tax paid or payable by any person may be remitted,
wholly or in part--
(a) on grounds of poverty, by the Director General;
(b) on grounds of undue hardship or justice and equity, by
the Minister.
(2) Where a person granted remission under subsection (1) has
paid any of the tax to which the remission relates, he shall be
entitled to have the amount which he has paid refunded to him as
if it were an overpayment to which section 24 applies.
PART IV
INVESTIGATORY AND PENAL
Power to call for information, etc.
27. (1) The Director General may by notice in writing require any
person to furnish within fourteen days or such further period as
may be specified in the notice any information respecting any
matter as to which a return under this Act has been made or is
required to be made:
Provided that, where that person is a public officer or an officer
in the employment of a local authority or other public body, he
shall not be obliged to disclose any particulars as to which he is
under a statutory obligation to observe secrecy.
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(2) For the purpose of obtaining full information as to any
person's liability to the tax, the Director General may require that
or any other person by notice in writing--
(a) to complete and deliver to the Director General within
a time specified in the notice (not being less than fourteen
days from the date of service of the notice) any return
specified in the notice; or
(b) to attend personally before the Director General and produce
for examination all books, accounts, returns and other
d o c u m e n t s which the Director General considers
necessary.
(3) The Director General may by notice in writing require any
person to furnish within a time specified in the notice (not being
less than thirty days from the date of service of the notice) a
statement containing particulars of--
(a) all banking accounts (whether current or deposit, business
or private or in his own name, the name of his wife or
any other name)--
(i) in which he is or has been interested jointly or
solely; or
(ii) on which he has or has had power to operate jointly
or solely,
being accounts which are in existence or have been in existence
at any time during a period specified in the notice;
(b) all savings and loan accounts, deposits, building society
accounts and co-operative society accounts in regard to
which he has or has had any interest or power to operate
jointly or solely during that period;
(c) all assets other than those referred to in paragraphs (a)
and (b) which he has possessed during that period;
(d) all moneys receivable by him during that period otherwise
than from the sources mentioned in paragraphs (a) to (c);
and
(e) all facts bearing upon his present or past liability to the
tax.
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29
Power of access to buildings and documents, etc.
28. (1) For the purposes of this Act the Director General shall at
all times have full and free access to all lands, buildings and other
places and to all books and other documents and may search such
lands, buildings and places and may inspect, copy or make extracts
from any such books or documents without making any payment
by way of fee or reward.
(2) The Director General may take possession of any books or
documents to which he has access under subsection (1) where in
his opinion--
(a) the inspection of them, the copying of them or the making
of extracts from them cannot reasonably be undertaken
without taking possession of them; or
(b) they may be interfered with or destroyed unless he takes
possession of them; or
(c) they may be needed as evidence in any legal proceedings
instituted under or in connection with this Act.
(3) Where in the opinion of the Director General it is necessary
for the purpose of this Act to examine any book, account, record
or other document which is--
(a) made or kept by, or in the possession or under the control
of, a person liable to the tax; and
(b) made or kept in a language other than the national language,
he may by notice in writing require that person to furnish a translation
in the national language:
Provided that in Sarawak this subsection shall have effect as if
the words "or English" were inserted after the words "national
language" wherever they occur.
Failure to notify or make return of disposal
29. (1) Any person who, without reasonable excuse, fails to make
a return required by subsection 13(1) or fails to make a declaration
under subsection 13(5), shall be guilty of an offence and on conviction
shall be liable to a fine not exceeding five thousand ringgit or to
imprisonment for a term not exceeding twelve months or to both.
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(2) In any prosecution under subsection (1) the burden of proving
that a return has been made or a notification given or a declaration
made shall be upon the accused person.
(3) Where in relation to a year of assessment a person fails to
make a return required by subsection 13(1) or fails to make a
declaration under subsection 13(5) and no prosecution under
subsection (1) has been instituted in relation to that failure--
(a) the Director General may require that person to pay a
penalty equal to treble the amount of the tax which is
payable for that year; and
(b) if that person pays that penalty (or, where the penalty is
abated or remitted under subsection 40(3) so much, if
any, of the penalty as has not been abated or remitted),
he shall not be liable to be charged on the same facts with
an offence under subsection (1).
Incorrect returns, etc.
30. (1) Any person who--
(a) makes an incorrect return on behalf of himself or another
person by omitting any particulars required by this Act
relating to any disposal of chargeable assets, understating
any chargeable gains or overstating any allowable loss;
or
(b) gives any other incorrect information in relation to any
other matter affecting his own or any other person's
liability to the tax,
shall, unless he satisfies the court that the incorrect return or other
incorrect information was made or given in good faith, be guilty
of an offence and on conviction shall be liable to a fine not
exceeding five thousand ringgit, and shall pay a special penalty
of double the amount of the tax which has been undercharged in
consequence of the incorrect return or other information or which
would have been undercharged if the return or information had
been accepted as correct.
(2) Where a person makes an incorrect return or gives other
incorrect information in the manner described in paragraph (1)(a)
or (b), the Director General may, if no prosecution under subsection
(1) has been instituted in relation to the incorrect return or incorrect
information, require that person to pay a penalty equal to the
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31
amount of the tax which has been undercharged in consequence
of the incorrect return or information or which would have been
undercharged if the return or information had been accepted as
correct, and if that person pays that penalty (or, where the penalty
is abated or remitted under subsection 40(3), so much, if any, of
the penalty as has not been abated or remitted), he shall not be
liable to be charged on the same facts with an offence under
subsection (1).
Wilful evasion
31. (1) Any person who wilfully and with intent to evade or assist
any other person to evade the tax--
(a) omits from a return under this Act any particulars required
under this Act relating to any disposal of a chargeable
asset; or
(b) makes a false statement or entry in a return made under
this Act; or
(c) gives a false answer (orally or in writing) to a question
asked or request for information made under this Act; or
(d) prepares or maintains or authorizes the preparation or
maintenance of any false books of account or other false
records; or
(e) falsifies or authorizes the falsification of any books of
account or other records; or
(f) produces or allows or authorizes the production of, books
of accounts which he knows to be false; or
(g) makes use or authorizes the use of any fraud, art or
contrivance; or
(h) makes in respect of the tax a fraudulent claim for repayment,
shall be guilty of an offence and on conviction shall be liable to
imprisonment for a term not exceeding three years or to a fine not
exceeding ten thousand ringgit or to both, and shall pay a special
penalty of treble the amount of the tax which has been undercharged
in consequence of the offence or which would have been undercharged
if the offence had not been detected.
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(2) Where in any proceedings under this section it is proved
that a false statement or false entry (whether by omission or otherwise)
has been made in a return made under this Act by or on behalf
of any person or in any books of account or other records maintained
by or on behalf of any person, that person shall be presumed until
the contrary is proved to have made that false statement or entry
with intent to evade the tax.
Leaving Malaysia without payment of tax
32. (1) Any person who, knowing that a certificate has been issued
in respect of him under section 22, voluntarily leaves or attempts
to leave Malaysia without paying all the tax payable by him or
furnishing security to the satisfaction of the Director General for
its payment shall be guilty of an offence and on conviction shall
be liable to imprisonment for a term not exceeding two years or
to a fine not exceeding five thousand ringgit or to both.
(2) A police officer or immigration officer may arrest without
warrant any person whom he reasonably suspects to be committing
or about to commit an offence under this section.
Obstruction of officers
Any person who--
33.
(a) obstructs or refuses to permit the entry of the Director
General or an authorized officer into any land, building
or place in pursuance of section 28; or
(b) obstructs the Director General or an authorized officer in
the exercise of his functions under this Act; or
(c) refuses to produce any books or other documents in his
custody or under his control on being required to do so
by the Director General or an authorized officer for the
purposes of this Act; or
(d) fails to give reasonable assistance to the Director General
or an authorized officer for any of those purposes; or
(e) refuses to answer any question relating to any of those
purposes lawfully asked of him by the Director General
or an authorized officer,
shall be guilty of an offence and on conviction shall be liable to
a fine not exceeding five thousand ringgit or to imprisonment for
a term not exceeding two years or to both.
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Breach of secrecy
Any person having any official function under this Act who--
34.
(a) having possession of or control over any information or
any return or other document relating to the chargeable
gains or allowable losses of any person, at any time,
otherwise than for the purposes of this Act or another tax
law within the meaning of section 47 or otherwise than
with the express authority of the Minister--
(i) communicates or attempts to communicate the
information or anything contained in the return or
other document to any other person; or
(ii) suffers or permits any other person to have access
to the information or to anything contained in the
return or other document; or
(b) aids, abets or incites any other person to contravene
paragraph (a),
shall be guilty of an offence and on conviction shall be liable to
imprisonment for a term not exceeding one year or to a fine not
exceeding two thousand ringgit or to both.
Offences by officials and unauthorized collection
Any person who--
35.
(a) being a person having any official function under this
Act--
(i) otherwise than in good faith, demands from any
person an amount in excess of the tax or penalties
due under this Act; or
(ii) withholds for his own use or otherwise any portion
of the amount of the tax collected; or
(iii) defrauds any person, embezzles any money or
otherwise uses his position so as to deal wrongfully
with the Director General or any other person; or
(b) not being authorized under this Act to do so, collects or
attempts to collect the tax,
shall be guilty of an offence and on conviction shall be liable to
imprisonment for a term not exceeding three years or to a fine not
exceeding ten thousand ringgit or to both.
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Other offences
36.  Any person who, without reasonable excuse, fails to comply
with--
(a) the requirements of subsection 13(2) or (3); or
(b) the requirements of a notice given under section 27 or
subsection 28(3),
shall be guilty of an offence and on conviction shall be liable to
imprisonment for a term not exceeding one year or to a fine not
exceeding two thousand ringgit or to both.
Additional provisions as to offences under section 30, 32, 33 or
36
37. (1) No criminal proceedings for an offence under section 30,
32, 33 or 36 shall be instituted more than twelve years after the
offence was committed.
(2) Any person who aids, abets or incites another person to
commit an offence under section 30, 32, 33 or 36 shall be deemed
to have committed the same offence and shall be liable to the same
penalty.
Tax payable notwithstanding proceedings
38.  The institution of proceedings or the imposition of a penalty,
fine or term of imprisonment under this Part shall not relieve any
person from liability for the payment of any amount of the tax for
which he is or may be liable or from liability to make any return
which he is required by this Act to make.
(Deleted by Act A1028).
39.
Compounding of offences and abatement of penalties
40. (1) Where any person has committed any offence under this
Act, the Director General may at any time before conviction
compound the offence and order that person to pay such sum of
money, not exceeding the amount of the maximum fine and any
special penalty to which that person would have been liable if he
had been convicted of the offence, as he thinks fit:
Provided that the Director General shall not exercise his powers
under this section unless that person in writing admits that he has
committed the offence and requests the Director General to deal
with the offence under this section.
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35
(2) Where under this section the Director General compounds
a n offence committed by any person and makes an order
accordingly--
(a) the order shall be made in writing under the hand of the
Director General and there shall be attached to it the
written admission and request referred to in subsection
(1);
(b) the order shall specify--
(i) the offence committed;
(ii) the sum of money ordered to be paid; and
(iii) the date on which the payment is to be made or the
dates on which instalments of that sum are to be
paid, as the case may be, and, where the order
provides for payment by instalments and there is
default in payment of any instalment, the whole of
the balance then outstanding shall become due and
payable forthwith;
(c) a copy of the order shall be given, if he so requests, to
the person who committed the offence;
(d) that person shall not be liable to any prosecution or, as
the case may be, any further prosecution in respect of the
offence and, if any such prosecution or further prosecution
is brought, it shall be a good defence for that person to
prove that the offence has been compounded under this
section;
(e) the order shall be final and shall not be subject to any
appeal;
(f) the order may be enforced in the same way as the judgment
of a subordinate court (as defined in Schedule 5 to the
Income Tax Act 1967) for the payment of the amount
stated in the order or the amount outstanding, as the case
may be; and
(g) the order shall, on production to any court, be treated as
proof of the commission of the offence by that person
and of the other matters set out therein.
(3) The Director General may abate or remit any penalty imposed
under this Act except a penalty imposed on conviction.
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Recovery of penalties
41. (1) The special penalties imposed by subsections 30(1) and
31(1) shall be recoverable in the same way as fines imposed on
conviction.
(2) Any penalty imposed on any person by subsection 29(3),
30(2) or subparagraph 5(3) of Schedule 1 shall be collected as if
it were part of the tax payable by that person.
Jurisdiction of subordinate court
42.  Notwithstanding any other written law, a subordinate court
(as defined in Schedule 5 to the Income Tax Act 1976) shall have
power to try any offence under this Act and on conviction to
impose the full penalty therefor.
PART V
ADMINISTRATIVE AND SUPPLEMENTAL
The Director General
43.  The Director General of Inland Revenue appointed under the
law in force relating to income tax shall have the care and management
of the tax.
Power of Minister to give directions to Director General
44.  The Minister may give to the Director General directions of
a general character (not inconsistent with this Act) as to the exercise
of the functions of the Director General under this Act; and the
Director General shall give effect to any directions so given.
Delegation of Director General's functions
45. (1) Any function of the Director General under this Act (not
being a function exercisable by statutory order or a function
exercisable under section 57) may be exercised by a Deputy Director
General appointed under the law relating to income tax.
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37
(2) The Director of Inland Revenue, Sabah, appointed under the
law relating to income tax, and the Director of Inland Revenue,
Sarawak, similarly appointed, may exercise any function of the
Director General under this Act (not being a function exercisable
by statutory order or a function exercisable under section 57).
(3) The Assistant Directors General of Inland Revenue appointed
under the law relating to income tax may exercise any function of
the Director General under this Act (not being a function exercisable
by statutory order or a function exercisable under sections 46 and
57).
(4) Senior Assistant and Assistant Directors of Inland Revenue
appointed under the law relating to income tax may exercise any
function of the Director General under this Act (not being a function
exercisable by statutory order or a function exercisable under
sections 46 and 57).
(5) Any public officer or an employee of the Inland Revenue
Board of Malaysia who is authorized under subsection 136(5) of
the Income Tax Act 1967, to exercise or assist in exercising any
function of the Director General under that Act shall be deemed
to be an officer authorized to exercise or assist in exercising any
function of the Director General under this Act which is exercisable
under subsection (4) by a Senior Assistant Director or Assistant
Director.
(6) Where a public officer or an employee of the Inland Revenue
Board of Malaysia exercises under this Act any of the Director
General's functions by virtue of any provision of subsections (1)
to (5), he shall do so subject to the general supervision, direction
and control of the Director General.
(7) The delegation by or under any provision of subsections (1)
to (5) of the exercise of any function of the Director General shall
not prevent the exercise of that function by the Director General
himself.
(8) References in this Act to the Director General shall be
construed, in relation to any case where a public officer or an
employee of the Inland Revenue Board of Malaysia is authorized
or deemed to have been authorized by any provision of subsections
(1) to (5) to exercise the functions of the Director General, as
including references to that officer or employee.
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Identification of officials
46. (1) Any person exercising the right of access or the right to
take possession conferred by section 28 shall carry a warrant in
the prescribed form issued by the Director General which shall
identify the holder and his office and shall be produced by the
holder on demand to any person having reasonable grounds to
make the demand.
(2) Where a person purporting to be a public officer or an
employee of the Inland Revenue Board of Malaysia exercising
functions under this Act produces a warrant in the form prescribed
under subsection (1) or any written identification or authority,
then, until the contrary is proved, the warrant, identification or
authority shall be presumed to be genuine and he shall be presumed
to be the person referred to therein.
(3) A warrant issued to any person by the Director General
under section 137 of the Income Tax Act 1967, shall be deemed
to be a warrant issued for the purposes of this section.
Certain materials to be treated as confidential
47. (1) Subject to this section, every classified person shall regard
and deal with classified material as confidential; and, if he is an
official, he shall make and subscribe before the prescribed authority
a declaration in the prescribed form that he will do so:
P r o v i d e d that a person who has made and subscribed a
corresponding declaration or oath under the income tax law shall
be deemed to have made and subscribed the declaration required
by this subsection.
(2) No classified material shall be produced or used in court or
otherwise except--
(a) for the purposes of this Act or another tax law;
(b) in order to institute or assist in the course of a prosecution
for any offence committed in relation to the tax or in
relation to any tax or duty imposed by another tax law;
or
(c) with the written authority of the Minister or of the person
to whose affairs it relates.
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39
(3) No official shall be required by any court--
(a) to produce or disclose classified material which has been
supplied to him or another official otherwise than by or
on behalf of the person to whose affairs it relates; or
(b) to identify the person who supplied that material.
(4) Nothing in this section shall prevent--
(a) the production or disclosure of classified material to the
Auditor General (or to public officers under his direction
and control) or the use of classified material by the Auditor
General, to such an extent as is necessary or expedient
for the proper exercise of the functions of his office;
(b) the Director General from publicizing, from time to time
in any manner as he may deem fit, the following particulars
in respect of a person who has been found guilty or
convicted of any offence under this Act or dealt with
under subsection 30(2) or section 40--
(i) t h e name, address and occupation or other
description of the person;
(ii) such particulars of the offence or evasion as the
Director General may think fit;
(iii) the year of assessment to which the offence or
evasion relates;
(iv) the disposal of any chargeable asset or the amount
of the chargeable gain not disclosed;
(v) the aggregate of the amount of the tax evaded and
penalty (if any) charged or imposed;
(vi) the sentence imposed or other order made:
Provided that the Director General may refrain from publicizing
any particulars of any person to whom this paragraph applies if
the Director General is satisfied that, before any investigation or
inquiry has been commenced in respect of any offence or evasion
falling under section 30 or 31, that person has voluntarily disclosed
to the Director General or to any authorized officer complete
i n f o r m a t i o n and full particulars relating to such offence or
evasion.
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(5) In this section--
"another tax law" means the Income Tax Act 1967 and any
written law repealed by that Act, the Petroleum (Income Tax) Act
1967 [Act 45 of 1967], the Land Speculation Tax Act 1974 [Act
126] and any written law relating to stamp duty, estate duty and
film hire duty and any written law declared by the Minister by
statutory order to be another tax law for the purposes of this
section;
"classified material" means any return or other document made
for the purposes of this Act and relating to the gains of any person
and any information or other matter or thing which comes to the
notice of a classified person in his capacity as such;
"classified person" means--
(a) an official;
(b) the Auditor General and public officers under his direction
and control;
(c) any person advising or acting for a person who is or may
be chargeable to the tax and any employee of a person
so acting or advising if he is an employee who in his
capacity as such has access to classified material;
(d) the Director General of Valuation and public officers
under his direction and control; or
(e) any employee of the Inland Revenue Board of Malaysia;
"official" means a person having an official duty under or employed
in carrying out the provisions of this Act;
"prescribed authority" means the persons specified in the Second
Schedule to the Income Tax (Official Declaration) Rules 1970
[P.U.(A) 38/70].
Evidential provisions
48. (1) In a suit under section 23 a certificate signed by the
Director General giving the name and address of the defendant and
the amount of the tax due from him shall be sufficient evidence
of the amount so due and sufficient authority for the court to give
judgment for that amount.
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(2) A transcript of any particulars contained in a return or other
document relating to the tax, if it is certified by or on behalf of
the Director General or an authorized officer to be a true copy of
the particulars, shall be admissible in evidence as proof of those
particulars.
(3) No statement made or document produced by or on behalf
of any person shall be inadmissible in evidence against that person
in any proceedings against him for an offence under section 29,
30 or 31 or for the recovery of any sum due by way of tax or
penalty, by reason only of the fact that he was or may have been
induced to make the statement or produce the document by any
lawful inducement or promise proceeding from the Director General
or an authorized officer.
(4) (a) Save as provided in paragraph (b) nothing in this Act
shall--
(i) affect the operation of Chapter IX of Part III of the
Evidence Act 1950 [Act 56]; or
(ii) be construed as requiring or permitting any person to
produce or give to a court, the Special Commissioners,
the Director General or any other person any document,
thing or information which by that Chapter or those
provisions he would not be required or permitted to produce
or give to a court.
(b) Notwithstanding the provisions of any other written law,
where any document, thing, matter, information, communication
or advice consists wholly or partly of, or relates wholly or partly
to, the receipts, payments, income, expenditure, or financial
transactions or dealings of any person (whether an advocate and
solicitor, his client, or any other person), it shall not be privileged
from disclosure to a court, the Special Commissioners, the Director
General or any authorized officer if it is contained in, or comprises
the whole or part of, any book, account, statement, or other record
prepared or kept by any practitioner or firm of practitioners in
connection with any client of the practitioner or firm of practitioners
or any other person.
(c) Paragraph (b) shall also apply with respect to any document,
thing, matter, information, communication or advice made or brought
into existence before the commencement of that paragraph.
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Returns, etc., presumed to be made with due authority
49.  A return, statement or other similar document purporting to
be made for the purposes of this Act by or on behalf of any person
shall be presumed to have been made by that person or on his
authority, as the case may be, until the contrary is proved; and any
person signing such a return, statement or document shall be deemed
to be cognizant of its contents.
Persons by whom returns to be made
50.  Unless otherwise provided in Schedule 1, returns under this
Act on behalf of a person shall be made by the person responsible
under the income tax law for making a return of the income of that
person, or, if that person is not resident in Malaysia, by the trustee,
guardian, committee, attorney, factor, agent, receiver, branch or
manager of that person in Malaysia.
Power to appoint agent
51. (1) The Director General may by notice in writing, if he
thinks it necessary, declare any person to be the agent of any other
person, and the person so declared the agent shall be the agent of
that other person for the purposes of this Act and may be required
to pay any tax due from any money (including pensions, salary,
wages or any other remuneration) which may be held by him for,
or due by him to, the person whose agent he has been declared
to be; and in default of payment the tax shall be recoverable from
him in the manner provided in section 23.
(2) For the purposes of this section the Director General may
require any person to give him information as to any moneys,
funds or other assets which may be held by him for, or of any
moneys due by him to, any other person.
(3) Where a person declared under subsection (1) to be the
agent of another person is aggrieved by the declaration, he may
a p p e a l under section 18 as if the declaration were an
assessment.
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Errors and defects in assessments, etc.
52. (1) No assessment, requisition, notice or other document
purporting to be made or issued for the purposes of this Act shall
be quashed or deemed to be void or voidable for want of form,
or be affected by any mistake, defect or omission therein, if--
(a) it is in substance and effect in conformity with or according
to the intent and meaning of this Act; and
(b) the person to whom it is addressed and any other person
referred to therein are designated according to common
intent and understanding.
(2) A requisition or notice of assessment shall not be impeached
or affected by reason of a mistake therein as to--
(a) the name of the person liable; or
(b) the description of any chargeable gain or allowable loss,
so long as the requisition or notice of assessment is duly served
on the person on whom it was intended to be served and contains
in substance and effect the particulars on which the requisition or
assessment is founded.
Service of notices and requisitions
53. (1) Subject to any express provision of this Act, notices or
requisitions may be served for the purposes of this Act either
personally or by ordinary or registered post.
(2) A notice or requisition relating to the tax which is sent by
ordinary or registered post shall be deemed to have been served
on the person to whom it is addressed on the day succeeding the
day on which the notice or requisition would have been received
in the ordinary course of post if it is addressed--
(a) in the case of a company, partnership or body of persons
having a registered office in Malaysia--
(i) to that registered office;
(ii) to its last known address; or
(iii) to any person authorized by it to accept service of
process;
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(b) in the case of a company, partnership or body of persons
not having a registered office in Malaysia--
(i) to any registered office of the company, partnership
or body of persons (wherever that office may be
situated);
(ii) to the principal place of business or other activity
of the company, partnership or body (wherever
that place may be situated); or
(iii) to any individual authorized (by or under the law
of any place where the company, partnership or
body is incorporated, registered or established) to
accept service of process; and
(c) in the case of an individual, to his last known address.
(3) Where a person to whom there has been addressed a registered
letter containing a notice or requisition under this Act--
(a) is informed that there is a registered letter awaiting him
at a post office; and
(b) refuses or neglects to take delivery of the letter,
the notice or requisition shall be deemed to have been served upon
him on the date on which he was informed that the letter was
awaiting him.
(4) For the purposes of subsection (3), an affidavit by the
officer in charge of a post office stating that to the best of his
knowledge and belief there has been delivered to the address
appearing on the registered letter a post office notification informing
the addressee that there is a registered letter awaiting him shall,
until the contrary is proved, be evidence that the addressee has
been so informed.
Power to direct where returns, etc., are to be sent
54.  The Director General may by statutory order direct that any
information, return, notification or document required to be supplied,
sent or delivered to the Director General for the purposes of this
Act shall, subject to any conditions contained in the order, be
supplied, sent or delivered to such public officer or employee of
the Inland Revenue Board of Malaysia or to such address as may
be specified in the order.
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Authentication of notices and other documents
55. (1) Subject to subsection (2), every notice, requisition or other
document issued, served or given for the purposes of this Act by
the Director General or an authorized officer shall be sufficiently
authenticated if the name and office of the Director General, the
Director of Inland Revenue, Sabah or the Director of Inland Revenue,
Sarawak, is printed, stamped or otherwise written thereon.
(2) Where this Act provides for a notice, requisition, certificate
or other document to be under the hand of any officer, the notice,
requisition, certificate or document shall be signed in manuscript
by that officer.
(3) A notice, requisition, certificate or other document issued,
made, served or given for the purposes of this Act and purporting
to be signed in manuscript by the Director General or an authorized
officer shall be presumed, until the contrary is proved, to have
been so signed.
Free postage
56.  All returns made under this Act and all remittances of the
tax (and any correspondence resulting from or connected with any
such return or remittance) may, if posted in Malaysia in envelopes
marked "Real Property Gains Tax", be sent free of postage to the
Director General, to the Director of Inland Revenue, Sabah, to the
Director of Inland Revenue, Sarawak, or to an officer or address
specified in an order made under section 54:
Provided that the Director General may in certain cases by
notice in writing require any person to send any return, remittance
or correspondence by registered post.
Forms
57. (1) The Director General may prescribe forms to be used for
the purposes of this Act and may authorize the use of a suitable
substitute for any form so prescribed.
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(2) Where in order to comply with any provision of this Act a
person is required to use a prescribed form, he shall not be regarded
as complying with that provision unless he uses all reasonable
diligence to procure and use--
(a) a printed copy of the form so prescribed under subsection
(1); or
(b) a copy of any substitute for the form authorized under
subsection (1), being a printed copy unless the authorization
provides otherwise.
Power to make rules
58. (1) The Minister may make rules for facilitating the operation
of this Act.
(2) Without prejudice to the generality of subsection (1), the
Minister may make rules--
(a) providing for returns to be made in cases other than those
referred to in section 13 and specifying the persons by
whom the returns are to be made and the information to
be contained therein;
(b) prescribing, except where subsection 57(1) applies, any
other thing required by this Act to be prescribed.
(3) Any rules made under subsection (1) shall be laid before the
Dewan Rakyat.
Repeal of Act 126
59. (1) The Land Speculation Tax Act 1974 is hereby repealed
with effect from 7 November 1975, but without prejudice to the
right of the Director General to take any action which he was
empowered to take under that Act so repealed to assess and enforce
payment of land speculation tax for the years of assessment 1974
and 1975 which at the date of the said repeal remains to be assessed
or collected for those years.
(2) For the purpose of that Act so repealed, the year of assessment
1975 shall be the period commencing on 1 January 1975 and
ending on 6 November 1975.
(3) The Minister, at any time, may by statutory order make such
transitional or saving provisions as he considers necessary or
expedient.
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SCHEDULE 1
[Section 6]
CHARGEABLE PERSONS
Body of persons, partnership and co-proprietorship
1. (1) A partnership or a body of persons and not the persons constituting it
shall, subject to paragraph 9, be assessable and chargeable with the tax in
respect of any chargeable gains accruing on the disposal of any chargeable asset
of the partnership or the body of persons.
(2) Any person who at the time of disposal of a chargeable asset of a
partnership or a body of persons is the precedent partner or the manager, the
secretary or the treasurer, as the case may be, shall be assessable and chargeable
with the tax payable by the partnership or the body of persons under this Act.
(3) In the case of a co-proprietorship a disposal by one of the co-proprietors
of his share of the chargeable asset shall be deemed to be part disposal of an
asset by him alone and he shall be assessable and chargeable to tax on the
chargeable gain resulting from such disposal.
Incapacitated persons
2.  A receiver appointed by the court and a trustee, guardian, curator or committee
having the direction, control or management of any property on behalf of an
incapacitated person shall be assessable and chargeable with the tax to the same
extent as the incapacitated person would be assessable and chargeable if he
were not incapacitated.
Non-residents
3.  A person who is absent from Malaysia shall be assessable and chargeable
with the tax either directly or in the name of his attorney, factor, agent, receiver
or manager in Malaysia.
Rulers and Ruling Chiefs
4. (1) Subject to this paragraph any person nominated by a Ruler or Ruling
Chief for the purposes of this Act as the person executing the functions of
administrator of the private property of the Ruler or Ruling Chief shall be
assessable and chargeable with the tax on behalf of the Ruler or Ruling Chief.
(2) The administrator may pay the tax out of any private property in his
hands or under his control belonging to the Ruler or Ruling Chief and may, to
the extent that he pays any such tax out of his own property, recover it from
any such private property.
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(3) The administrator shall not be personally liable in respect of the tax
except to the extent that he--
(a) has in his possession, custody or control any private property belonging
to the Ruler or Ruling Chief; or
(b) had any such private property in his possession, custody or control
at any time after receiving notice of the tax having become due.
(4) Unless the sanction of the Attorney General is first obtained, no prosecution,
suit or other legal proceedings shall be instituted against the administrator on
the ground of any offence or default by him in respect of any act, matter or
thing for which he was responsible under this paragraph.
(5) In this paragraph "Ruler or Ruling Chief" means--
(a) the Yang di-Pertuan Agong;
(b) the Raja Permaisuri Agong;
(c) the Timbalan Yang di-Pertuan Agong or other Ruler exercising the
functions of the Yang di-Pertuan Agong;
(d) a State Authority or any person exercising the functions of a State
Authority;
(e) the Undang of Sungai Ujong, the Undang of Jelebu, the Undang of
Johol, the Undang of Rembau or the Tunku Besar of Tampin.
Companies
5. (1) The manager or other principal officer in Malaysia, the directors or the
secretary, of a company shall be jointly and severally assessable and chargeable
with the tax payable by the company under this Act.
(2) The liquidator of a company which is being wound up shall be responsible
for the payment of any tax which he knows or might reasonably be expected
to be payable by the company under this Act; and shall not distribute any of
the assets of the company to its shareholders unless he has made provision for
the payment of such tax.
(3) Any liquidator who fails to comply with this paragraph shall be liable
to pay a penalty equal to the amount of the tax to which the failure relates.
Hindu joint family
6.  The manager or karta of a Hindu joint family shall be assessable and
chargeable with the tax in respect of any chargeable gains accruing to the
family.
Executor
7.  The executor of the estate of a deceased person shall be assessable and
chargeable with the tax in respect of any chargeable gains accruing on the
disposal by the executor of any chargeable asset of the estate.
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Trustees
8.  A trustee (other than the trustee of an incapacitated person) shall be assessable
and chargeable with the tax in respect of any chargeable gains accruing on the
disposal of any chargeable asset of the trust.
Joint and several liability of trustees and executors
9.  Where two or more persons act in the capacity of trustees of a trust or
executors of the estate of a deceased person, they shall be jointly and severally
liable for the payment of the tax payable on any chargeable gains accruing to
the trust or estate, as the case may be.
Responsibility of specified persons
10.  Where this Act specifies a person to be chargeable or assessable and
chargeable with the tax under this Act, the person so specified shall, subject
to this Act, be responsible for paying the tax payable by the chargeable person
or body of persons in question and for all matters required to be done by virtue
of this Act for or in connection with making the return or assessing the tax so
payable.
SCHEDULE 2
[Section 7]
CHARGEABLE GAINS AND ALLOWABLE LOSSES
ARRANGEMENT OF PARAGRAPHS
Paragraph
1.
Interpretation
2.
Acquisition and disposal generally
3.
Transactions in which disposal price is deemed equal to acquisition
price
4.
Acquisition price
5.
Disposal price
6.
Incidental costs
7.
Excluded expenditure
8.
Effect of acquisition of capital sum in certain cases
9.
Certain transactions deemed to be at market value
10.
Subsequent disposal of asset deemed to be acquired at market value
11.
Definition of market value
12.
Gifts
13.
Exchanges
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Paragraph
14.
Time of accrual of chargeable gains
15.
Date of disposal and acquisition generally
15A. Date of disposal in particular cases
15B. Date of acquisition in specific cases
16.
Conditional contracts
17.
Transfer of assets between companies in same group
18.
Acquirer's default in payment
19.
Acquisition price in particular cases
20.
Incumbrances
21.
Part disposals
Distribution of assets of partnership, etc.
22.
23.
Connected persons
24.
Certain acquisitions before coming into force of Act
25.
Leases
26.
Contingent liabilities
27.
Options
28.
Dealings by nominees and certain trustees
29.
Dealings for enforcement of security
30.
Exclusion of reimbursed expenditure
31.
Prohibition of deduction for tax relief for allowable losses from tax
assessed for earlier years
32.
Deductions allowable only once
33.
Certain losses not to be allowable
34.
Transfer of assets to controlled companies
34A. Acquisition and disposal of shares in real property companies
35.
Trustees and partners
36.
Conclusiveness of income tax decisions
CHARGEABLE GAINS AND ALLOWABLE LOSSES
Interpretation
1. (1) In this Schedule, unless the context otherwise requires--
"asset" means a chargeable asset;
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"child" means a legitimate child, a step-child or a child adopted by an
individual or the husband or wife of the individual in accordance with any law;
"connected person" has the meaning assigned by paragraph 23;
"Islamic bank" has the meaning assigned to it under the Islamic Banking Act
1983 [Act 276] and includes a person carrying on banking or financing activities
in accordance with the Syariah;
"lease" means a lease over land, and includes a sub-lease, tenancy or licence,
an agreement for a lease, sub-lease, tenancy or licence;
"legatee" includes any person entitled under a testamentary disposition or
on an intestacy or partial intestacy;
"permitted expenses" means the expenditure specified in subsubparagraphs
5(1)(a) and (b);
"relative" means child, brother, sister, ancestor or lineal descendant.
(2) For the purposes of this Schedule, a principal company and all its subsidiaries
form a group and, where a principal company is a member of another group
as being itself a subsidiary, both groups shall be treated as one group for those
purposes.
(3) References to a disposal of an asset include, except where the context
otherwise requires, references to a part disposal of an asset.
(4) For the purposes of this Schedule, "a consideration consisting substantially
of shares" means a consideration consisting of not less than seventy-five per
cent of shares.
(5) Any reference in this Schedule to interest shall apply, mutatis mutandis,
to expenses incurred in lieu of interest, in transactions conducted in accordance
with the Syariah.
Acquisition and disposal generally
2.  Subject to this Schedule, every method, scheme or arrangement by which
the ownership of an asset is transferred from one person to another shall
constitute an acquisition of the asset by the transferee and a disposal of the asset
by the transferor.
Transactions in which disposal price is deemed equal to acquisition price
3.  In the following cases the disposal price shall be deemed to be equal to
the acquisition price, that is to say--
(a) the devolution of the assets of a deceased person on his executor or
legatee under a will or intestacy or on the trustees of a trust created
under his will;
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(b) the transfer of assets between spouses or the transfer of assets owned
by an individual, by his wife or by an individual jointly with his wife
or with a connected person to a company (whether or not resident in
Malaysia) controlled by the individual, by his wife or by the individual
jointly with his wife or with a connected person for a consideration
consisting of shares in the company, or for a consideration consisting
substantially of shares in the company and the balance of a money
payment;
(c) acquisitions from or disposals to a nominee or trustee resident in
Malaysia by an individual or his wife or by both being absolutely
entitled as against the nominee or trustee;
(d) the conveyance or transfer of an asset by way of security, or the
transfer of a subsisting interest or right by way of security in or over
an asset (including re-transfer on the redemption of the security);
(e) gifts made to the Government, a State Government, a local authority
or a charity exempt from income tax under the income tax law;
(f) the disposal of an asset as a result of a compulsory acquisition under
any law;
(g) the disposal of any chargeable asset pursuant to a scheme of financing
approved by the Central Bank or the Securities Commission as a
scheme which is in accordance with the principles of Syariah, where
such disposal is strictly required for the purpose of compliance with
those principles but which will not be required for any other schemes
of financing.
Acquisition price
4. (1) Subject to subparagraphs (2), (3) and (4) and the other provisions of this
Schedule, the acquisition price of an asset is the amount or value of the consideration
in money or money's worth given by or on behalf of the owner wholly and
exclusively for the acquisition of the asset (together with the incidental costs
to him of the acquisition) less--
(a) any sum received by him by way of compensation for any kind of
damage or injury to the asset or for the destruction or dissipation of
the asset or for any depreciation or risk of depreciation of the asset;
(b) any sum received by him under a policy of insurance for any kind of
damage or injury to or the loss, destruction or depreciation of the
asset; and
(c) any sum forfeited to him as a deposit made in connection with an
intended transfer of the asset.
(2) Subject to subparagraph (3), where any sum of the kind mentioned in
subsubparagraph (1)(a), (b) or (c) which is received by the owner of an asset
exceeds the consideration and incidental costs referred to in that subparagraph,
the amount of the excess shall constitute a chargeable gain accruing to the
owner at the time when he receives the sum.
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(3) Where an asset, which is disposed of, was acquired by the disposer prior
to 1 January 1970, the market value of the asset as at 1 January 1970 shall be
substituted for--
(a) the consideration and incidental costs of the kind mentioned in
subparagraph (1);
(b) the market value of the asset as at the date of transfer of ownership
of the asset mentioned in subparagraphs 19(1) and (3A);
(c) the amount of the legacy or the market value of the asset as at the
date of transfer of ownership of the asset, whichever is the lower,
mentioned in subparagraph 19(2); or
(d) the value of the asset for estate duty purposes referred to in subparagraph
19(3),
as the case may be, and the sum of the kind referred to in subsubparagraph
(1)(a), (b) or (c) which relates to the period prior to 1 January 1970 shall be
disregarded.
(4) Where--
(a) on the transfer of an asset the acquisition price paid for the asset by
the transferor plus the permitted expenses incurred by him or, if the
asset was acquired by that transferor prior to 1 January 1970, the
market value of that asset as at 1 January 1970 plus the permitted
expenses incurred by that transferor as from 1 January 1970 less the
sum of the kind referred to in subsubparagraph 4(1)(a), (b) or (c)
received by or forfeited as the case may be to that transferor as from
1 January 1970 are to be taken for the purposes of this Schedule as
the acquisition price paid by the transferee; and
(b) subsequently to the transfer, the transferee receives any sum of the
kind mentioned in subsubparagraph (1)(a), (b) or (c),
that sum shall be deducted from the acquisition price taken to have been paid
by the transferee to the same extent as it would have been deducted from that
transferor's acquisition price if it had been received by that transferor before
the transfer:
Provided that where that sum exceeds the acquisition price taken to have
been paid by the transferee, the amount of the excess shall constitute a chargeable
gain accruing to the transferee at the time when he receives that sum.
(5) Where by virtue of subparagraph (2) or the proviso to subparagraph (4)
any sum constitutes a chargeable gain accruing to a person in respect of an
asset, his acquisition price for that asset shall, in relation to any subsequent
disposal of that asset by him, be taken as nil.
Disposal price
5. (1) Subject to subparagraph (2), the disposal price of an asset is the amount
or value of the consideration in money or money's worth for the disposal of
the asset less--
(a) the amount of any expenditure wholly and exclusively incurred on the
asset at any time after its acquisition by or on behalf of the disposer
for the purpose of enhancing or preserving the value of the asset,
being expenditure reflected in the state or nature of the asset at the
time of the disposal;
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(b) the amount of any expenditure wholly and exclusively incurred at any
time after his acquisition of the asset by the disposer in establishing,
preserving or defending his title to, or to a right over, the asset; and
(c) the incidental costs to the disposer of making the disposal.
(2) Where an asset which is disposed of was acquired by the disposer prior
to 1 January 1970, the amount of the expenditure of the kind mentioned in
subsubparagraphs (1)(a) and (b) which relates to the period prior to 1 January
1970 shall be disregarded.
Incidental costs
6. (1) For the purposes of paragraphs 4 and 5 the incidental costs of the
acquisition or disposal of an asset shall consist of expenditure wholly and
exclusively incurred by the disposer for the purposes of the acquisition or (as
the case may be) the disposal, being--
(a) fees, commission or remuneration paid for the professional services
of any surveyor, valuer, accountant, agent or legal adviser;
(b) costs or transfer (including stamp duty);
(c) in the case of an acquisition, the cost of advertising to find a seller
and, subject to subparagraph (2), any interest paid on capital employed
to acquire the asset; and
(d) in the case of a disposal, the cost of advertising to find a buyer and
costs reasonably incurred for the purposes of this Act in making any
valuation or in ascertaining market value.
(2) Where the interest paid on capital employed to acquire an asset is expenditure
of the kind mentioned in subsubparagraph 7(a), (b) or (c), it shall be disregarded
for the purposes of subsubparagraph (1)(c).
Excluded expenditure
7.  There shall not to be taken into account in computing the acquisition price
or disposal price of an asset--
(a) any outgoings and expenses allowable as a deduction in computing
any adjusted income or adjusted loss for income tax purposes;
(b) any outgoings and expenses which would have been allowable for
income tax purposes, but for an exemption or insufficiency of gross
income; and
(c) without prejudice to the preceding provisions of this subsubparagraph,
any outgoings and expenses which, if the asset on or in respect of
which they were incurred was and had at all times been held or used
as part of the fixed capital of a business the profits or gains of which
were chargeable with income tax, would be allowable as a deduction
in computing the adjusted income or adjusted loss of the business for
income tax purposes.
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Effect of acquisition of capital sum in certain cases
8. (1) There shall be deemed to be a disposal of assets by their owner where
any capital sum not being a sum of the kind mentioned in subsubparagraph
4(1)(a), (b) or (c) is derived in respect of assets notwithstanding that no asset
is acquired by the person paying the capital sum, and this paragraph applies
in particular to--
(a) capital sums received in return for forfeiture or surrender of rights,
or for refraining from exercising rights; and
(b) capital sums received as consideration for use or exploitation of assets.
(2) In the case of a disposal within the meaning of subparagraph (1) the time
of the disposal shall be the time when the capital sum is received and the sum
received shall constitute a chargeable gain accruing at that time.
Certain transactions deemed to be at market value
9.  The acquisition or disposal of an asset by a person shall be deemed to be
for a consideration equal to the market value of the asset--
(a) where he acquires or disposes of the asset otherwise than by way of
a bargain made at arm's length and, in particular, where he acquires
or disposes of it by way of gift;
(b) where he acquires or disposes of the asset wholly or partly--
(i) for a consideration that cannot be valued;
(ii) in connection with his own or another's loss of office or
employment or diminution of emoluments;
(iii) in consideration for or recognition of his or another's services
or past services in any office or employment or of any other
service rendered or to be rendered by him or another;
(c) where he acquires an asset as trustee for the creditors of any person
in full or part satisfaction of any debt due from that person or where
he transfers an asset as trustee for the creditors of any person to the
creditors in full or part satisfaction of any debt due to the creditors;
(d) where he acquires or disposes of an asset in a transaction for the
transfer of a business for a lump sum consideration; or
(e) where subsection 25(2) applies.
Subsequent disposal of asset deemed to be acquired at market value
Where a person--
10.
(a) is deemed for the purposes of this Act to acquire an asset at its market
value; and
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(b) subsequently disposes of the asset, the market value at which he is
deemed to have acquired the asset shall be adopted as the acquisition
price for the purpose of computing any gain accruing to or loss
suffered by him on the disposal.
Definition of market value
11. (1) Subject to this paragraph, the market value of an asset, which is acquired
or disposed of is the price which it would fetch if it were sold in a transaction
between independent persons dealing at arm's length at the time of the acquisition
or disposal.
(2) If--
(a) the parties to the disposal of an asset are unable to agree on its market
value; or
(b) there is only one party to the disposal of an asset; or
(c) the Director General is of the opinion that the market value of an asset
as agreed on by the parties to its disposal is incorrect,
the market value in question shall be determined by the Director General.
Gifts
12.  Where an asset is disposed of by way of a gift, the disposal shall be
deemed to be a disposal at the market value of the asset:
Provided that, where the donor and recipient are husband and wife, parent
and child or grandparent and grandchild, and the gift is made within five years
after the date of acquisition of the asset by the donor, the donor shall be deemed
to have received no gain and suffered no loss on the disposal and the recipient
shall be deemed to have acquired the asset at an acquisition price equal to the
acquisition price paid by the donor plus the permitted expenses incurred by the
donor.
Exchanges
13.  Where an asset is disposed of by being exchanged for another asset
(whether chargeable or not) the market value of the asset received by the
disposer shall be taken as the consideration for the disposal:
Provided that, if the asset received by the disposer has no market value, the
Director General may take the market value of the asset disposed of as the
consideration for the disposal.
Time of accrual of chargeable gains
14.  Subject to this Schedule, where an asset is disposed of, the chargeable
gain or allowable loss is deemed to accrue to or suffered by the disposer at the
time of the disposal whether the consideration is payable by instalments or not.
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Date of disposal and acquisition generally
15. (1) Except where this Schedule provides otherwise, a disposal of an asset
shall be deemed to take place--
(a) where there is a written agreement for the disposal of the asset, on
the date of such agreement; or
(b) where there is no written agreement, on the date of completion of the
disposal of the asset.
(2) Except where this Schedule provides otherwise, where there is a disposal
of an asset, the date of acquisition of the asset by the acquirer shall be deemed
to coincide with the date of disposal of that asset by the disposer to that
acquirer.
(3) For the purposes of this Schedule--
(a) the date of completion of a disposal means--
(i) the date on which the ownership of the asset disposed of is
transferred by the disposer; or
(ii) the date on which the whole of the amount or value of the
consideration (in money or money's worth) for the transfer has
been received by the disposer,
whichever is the earlier;
(b) a transfer of ownership of an asset is deemed to take place on the date
when the last of all such things shall have been done under any written
law as are necessary for the transfer of ownership of the asset.
Date of disposal in particular cases
A disposal of an asset shall be deemed to take place--
15A.
(a) in the case of a gift of an asset on death, on the date of transfer of
ownership of the asset to the recipient;
(b) in the case where a legatee accepts an asset in place of a money
legacy, on the date of transfer of ownership of the asset to the legatee;
(c) in the case where an asset of a deceased person is transferred to a
legatee by his executor (irrespective of whether he himself is the
legatee or not) or by the trustee of a trust created under his will, on
the date of transfer of ownership of the asset to the legatee.
Date of acquisition in specific cases
15B. (1) Where an asset of a deceased person is disposed of (otherwise than
to a legatee) by his executor or by the trustee of a trust created under his will
such executor or trustee shall be deemed to have acquired it on the date of death
of the deceased person.
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(2) Where an asset is acquired with a financing facility provided by an
Islamic Bank in accordance with the Syariah, the acquirer shall be deemed to
have acquired the asset on the date of the agreement for the acquisition of the
asset entered into between the acquirer and a person other than such Islamic
bank or, in the case where the asset is owned by such bank, on the date of the
agreement for the acquisition of the asset entered into with the bank.
(3) Where land vested in a person as a result of a partition mentioned in
subsection 2(4) is disposed of, the disposer shall be deemed to have acquired
it on the date of acquisition of his undivided share in the land as a co-proprietor.
Conditional contracts
Where--
16.
(a) a contract for the disposal of an asset is conditional; and
(b) the condition is satisfied (by the exercise of a right under an option
or otherwise),
the acquisition and disposal of the asset shall be regarded as taking place at
the time the contract was made, unless the amount of the consideration depends
wholly or mainly on the value of the asset at the time when the condition is
satisfied in which case the acquisition and disposal shall be regarded as taking
place when the condition is satisfied.
Transfer of assets between companies in same group
17. (1) Subject to this paragraph, where with the prior approval of the Director
General--
(a) an asset is transferred between companies in the same group to bring
about greater efficiency in operation for a consideration consisting of
shares in the company or substantially of shares in the company and
the balance of a money payment;
(b) an asset is transferred for any consideration between companies in
any scheme of reorganization, reconstruction or amalgamation; or
(c) an asset is distributed by a liquidator of a company and the liquidation
o f the company was made under a scheme of reorganization,
reconstruction or amalgamation;
and the transferee company is resident in Malaysia, the transfer shall be treated
as a disposal on which the transferor company or the liquidator receives no gain
and suffers no loss:
Provided that no approval shall be given for any transfer or distribution of
asset in any scheme under subsubparagraph (1)(b) or (1)(c) unless the Director
General is satisfied that such an asset is transferred to implement any such
scheme directly connected with any transfer or distribution of ownership of an
asset in Malaysia to a company resident in Malaysia which is being restructured
under such scheme in compliance with Government policy on capital participation
in industry.
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(2) Where in a transfer of the kind mentioned in subparagraph (1)--
(a) the asset is taken into the trading stock of the transferee company on
or after the coming into force of this Act; and
(b) the value at which the asset is so taken in exceeds the acquisition price
paid by the transferor company plus the permitted expenses incurred
by the transferor company or, if the asset was acquired by that transferor
company prior to 1 January 1970, the market value of the asset as at
1 January 1970 plus the permitted expenses incurred by that transferor
company as from 1 January 1970 less the sum of the kind referred
to in subsubparagraph 4(1)(a), (b) or (c) received by or forfeited as
the case may be to that transferor company as from 1 January 1970,
the taking in shall be deemed to be a disposal of the asset by the transferee
company and the excess shall constitute a chargeable gain accruing to the
transferee company at the date when the asset or part thereof was taken into
stock.
(3) The Director General may withdraw any approval for a transfer given
under subparagraph (1) within three years after giving it if--
(a) it appears to him that the transfer was made wholly or partly for some
purpose other than the purpose mentioned in that subparagraph;
(b) in the case of approval under subsubparagraph (1)(a), the transferee
company ceases to be in the same group of companies as the transferor
company; or
(c) the transferee company ceases to be resident in Malaysia.
(4) Where approval of a transfer is withdrawn under subparagraph (3)--
(a) the provisions of subparagraph (1) as to the acquisition and disposal
prices shall cease to have effect; and
(b) the Director General shall make such assessment on the transferor or
transferee company as he considers proper in the circumstances.
(5) Notwithstanding the provisions of other paragraphs in this Act and for
the purposes of this paragraph, where an asset is transferred for the purposes
of restructuring in compliance with Government policy on capital participation
in industry which has been approved by the Director General, the date of
acquisition by the transferee company is deemed to be the date when the
transferor company first acquired that asset.
Acquirer's default in payment
18.  Where the disposer of an asset satisfies the Director General that by
reason of the acquirer's default the consideration for the disposal (or part
thereof) has not been received by the disposer, the chargeable gain accruing in
respect of the disposal shall be reduced by an amount equal to the value of so
much of the consideration as has not been received, and the Director General
shall make such adjustment by way of repayment of the tax or otherwise as the
circumstances require:
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Provided that any subsequent receipts of any kind relating to the disposal
by the disposer shall be brought into account as part of the chargeable gain and
may be assessed by the Director General accordingly.
Acquisition price in particular cases
19. (1) Subject to subparagraph 4(3), in the case of a gift of an asset on death,
there shall be deemed to be an acquisition of the asset by the recipient at an
acquisition price equal to the market value of the asset as at the date of transfer
of ownership of the asset to the recipient less the sum of the kind referred to
in subsubparagraph 4(1)(a), (b) or (c) received by or forfeited as the case may
be to that recipient.
(2) Subject to subparagraph 4(3), where a legatee accepts an asset in place
of a money legacy, there shall be deemed to be acquisition of the asset by the
legatee at an acquisition price equal to the amount of the legacy or the market
value of the asset as at the date of transfer of ownership of the asset to the
legatee, whichever is the lower less the sum of the kind referred to in
subsubparagraph 4(1)(a), (b) or (c) received by or forfeited as the case may be
to that legatee.
(3) Subject to subparagraph 4(3), where an asset of a deceased person is
disposed of (otherwise than to a legatee) by his executors or by the trustees of
a trust created under his will, such executors or trustees shall be deemed to have
acquired it at an acquisition price equal to the market value of the asset as at
the date of the death of that deceased person less the sum of the kind referred
to in subsubparagraph 4(1)(a), (b) or (c) received by or forfeited as the case
may be to such executors or trustees.
(3A) Subject to subparagraph 4(3), where an asset of a deceased person is
transferred to a legatee by his executor (irrespective of whether he himself is
the legatee or not) or by the trustee of a trust created under his will, there shall
be deemed to be an acquisition of the asset by the legatee at an acquisition price
equal to the market value of the asset as at the date of transfer of ownership
of the asset to the legatee less the sum of the kind referred to in subsubparagraph
4(1)(a), (b) or (c) received by or forfeited, as the case may be, to that legatee.
(4) Where an asset which with the prior approval of the Director General
under paragraph 17 has been transferred from one company to another is
subsequently disposed of, the disposer shall be deemed to have acquired the
asset at an acquisition price equal to the acquisition price paid for the asset by
the transferor plus the permitted expenses incurred by the transferor or, if the
asset was acquired by the transferor prior to 1 January 1970, the market value
of the asset as at 1 January 1970 plus the permitted expenses incurred by the
transferor as from 1 January 1970 less the sum of the kind referred to in
subsubparagraph 4(1)(a), (b) or (c) received by or forfeited as the case may be
to the transferor as from 1 January 1970.
(5) Where an asset which has been transferred under subparagraph 3(b) is
subsequently disposed of by the spouse or the company, the disposer shall be
deemed to have acquired the asset at an acquisition price equal to the acquisition
price paid by the transferor plus the permitted expenses incurred by the transferor
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or, if the asset was acquired by the transferor prior to 1 January 1970, the market
value of the asset as at 1 January 1970 plus the permitted expenses incurred
by the transferor as from 1 January 1970 less the sum of the kind referred to
in subsubparagraph 4(1)(a), (b) or (c) received by or forfeited as the case may
be to the transferor as from 1 January 1970.
(6) Where an asset on being transferred to a company in the circumstances
mentioned in subparagraph (5) is taken into the trading stock of the company
at a value which exceeds the acquisition price paid by the transferor plus the
permitted expenses incurred by him or, if the asset was acquired by the transferor
prior to 1 January 1970, the market value of the asset as at 1 January 1970 plus
the permitted expenses incurred by the transferor as from 1 January 1970 less
the sum of the kind referred to in subsubparagraph 4(1) (a), (b) or (c) received
by or forfeited as the case may be to the transferor as from 1 January 1970,
the taking in shall be deemed to be a disposal of the asset by the company and
the excess shall constitute a chargeable gain accruing to the company at the time
when the asset or part thereof is taken into stock.
(7) Where an asset is acquired by a person (hereinafter referred to as "the
acquirer") with a financing facility provided by an Islamic bank in accordance
with the Syariah, the acquisition price of the asset shall be the amount or value
of the consideration given by or on behalf of the acquirer to the person disposing
that asset other than such Islamic bank or in the case where the asset is owned
by such bank, the amount or value of the consideration given to the bank, for
the acquisition of the asset (together with the incidental costs to him of the
acquisition) less the sum of the kind referred to in subsubparagraph 4(1)(a), (b)
or (c) received by or forfeited, as the case may be, to that acquirer.
(8) Where land vested in a person as a result of a partition mentioned in
subsection 2(4) is disposed of, the disposer shall be deemed to have acquired
it at the acquisition price paid by him for the acquisition of his undivided share
in the land as a co-proprietor or, if his undivided share in the land was acquired
by him prior to 1 January 1970, at the market value thereof as at 1 January 1970
plus the permitted expenses incurred by him as from 1 January 1970 less the
sum of the kind referred to in subsubparagraph 4(1) (a), (b) or (c) received by
or forfeited as the case may be to him as from 1 January 1970.
Incumbrances
20. (1) Where an asset is acquired subject to a subsisting charge or incumbrance,
any payment made by the acquirer on account of the charge or incumbrance
shall be deemed to form part of the acquisition price.
(2) Where an asset is disposed of subject to a subsisting charge or incumbrance,
the