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DR 14/2010
A BILL
i n t i t u l e d
An Act to amend the Stamp Act 1949.
[ ]
ENACTED by the Parliament of Malaysia as follows:
1. Short title and commencement
(1) This Act may be cited as the Stamp (Amendment) Act 2010.
(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.
2. Amendment of section 2
The Stamp Act 1949 [Act 378], which is referred to as the "principal Act" in this Act, is amended in section 2 by substituting for the definition of "duly stamped" the following definition:
‘ "duly stamped", as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount or the amount of initial duty or the amount of advance duty paid under subsection 37(1) and that such stamp has been affixed or used in accordance with the law for the time being in force:-
Provided that a stamp certificate or official receipt for the proper amount or amount of initial duty or amount of advance duty may be attached or affixed to any instrument in lieu of the stamp, and the instrument shall be deemed to be duly stamped;’.
3. New section 36AA
The principal Act is amended by inserting after section 36A the following section:-
"36AA. Advance duty
(1) Notwithstanding sections 36 and 36A, the Collector may, on an application made by any person assess the advance duty for an instrument for the transfer of an immovable property where the consideration consists wholly of money.
(2) For the purposes of subsection (1), the Collector shall, prior to the market value of the immovable property being ascertained by a valuer employed by the Government for the purpose of subsection 36B(1A), ascertain the market value in advance for which the instrument referred to in that subsection is chargeable in accordance with the following formula:-
A x 100 83.333 where A is the money value of the consideration in respect of an instrument for the transfer of an immovable property as submitted by the person. (3) The Collector shall assess the duty chargeable on the instrument referred to in subsection (1) based on the market value as ascertained in advance under subsection (2).".
4. Amendment of section 36B
Section 36B of the principal act is amended:-
(a) by inserting after subsection (1) the following subsection:-
"(1A) Where section 36AA applies and it appears to the Collector that based on the market value of the immovable property as ascertained by the valuer employed by the Government, the proper amount of duty chargeable on the instrument is higher than the advance duty paid, he may make an additional assessment on the person liable to pay such duty in the additional amount of duty chargeable.";
(b) in subsection (2), by inserting after the words "subsection (1)" the words "or (1A)";
(c) in paragraph (3)(a), by inserting after the words "initial duty" the words "or advance duty";
(d) in subsection (5), by substituting for the word "duty" the words "initial duty";
(e) by inserting after subsection (6) the following subsection:
"(6A) Where advance duty due and payable under subsection (4) has not been paid within thirty days after the service of the notice of additional assessment, so much of the duty remaining unpaid upon the expiration of that date shall without any further notice being served, be increased by a sum equal to ten per cent of the duty so unpaid."; and
(f) in subsection (7), by inserting after the words "subsection (6)" the words "or (6A)".
5. New section 36C
The principal act is amended by inserting after section 36B the following section:
"Where duty chargeable is equal or lower than advance duty paid and refund of advance duty paid in excess
36(1) Notwithstanding section 36B(1A), where section 36AA applies and it appears to the Collector that based on the market value of the immovable property as ascertained by the valuer employed by the Government, the proper amount of duty chargeable on the instrument is equal to or lower than the advance duty paid, he may notify the person in writing of the valuation on the proper amount of duty and such notification shall be deemed to be an assessment for the purposes of this Act.
(2) Where it is proved to the satisfaction of the Collector that the person has paid the advance duty chargeable under section 36AA in excess of the proper amount of duty referred to in subsection (1), the excess shall be refunded by the Collector.".
6. Amendment of section 37
Section 37 of the principal Act is amended in subsection (1):-
(a) by substituting for the words "section 36 or 36A the words " section 36, 3636AA or 36B";
(b) by inserting after the semi-colon at the end of paragraph (a) the word "or";
(c) in paragraph (b):-
(i) by substituting for the word "section" the words "sections, as the case may be"; and
(ii) by substituting for the word "; or" a comma;
(d) by deleting paragraph (c); and
(e) by substituting for the words "or initial duty" the words "initial duty, advance duty or additional duty, as the case may be".
7. Amendment of section 38
Section 38 of the principal Act is amended:-
(a) in the shoulder note, by inserting after the words "sections 36" the words "36A, 36AA, 36B, 36C"; and
(b) by inserting after the words "sections 36A the words ", 36AA, 36B, 36C".
8. Amendment of section 38A
The principal Act is amended in subsection 38A(1) by substituting for the words "section 36 or 36A the words "this Part".
9. New Section 74A and 74B
The principal Act is amended by inserting after section 74 the following sections:
"74A. Recovery from persons leaving Malaysia
(1) The Collector, where he is of the opinion that any person is about or likely to leave Malaysia without paying any duties, penalties or other sums required to be paid under this act, may issue to any Commissioner of Police or Director of immigration a certificate containing particulars of those duties, penalties or sums so payable with a request for that person to be prevented from leaving Malaysia unless and until he pays all the duties, penalties or sums so payable or furnishes security to the satisfaction of the Collector 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 as may be necessary to give effect to it.
(3) The Collector shall cause notice of the issue of the 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 Collector to the effect that all the duties, penalties or sums specified in the certificate have been paid or that security has been furnished for the payment; or
(b) pays all the duties, penalties or 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.
(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 subsection 74B(2).
(6) In this section:-
"Commissioner of Police" includes a Chief Police Officer;
"Director of immigration" means the Director of immigration in West Malaysia, Sabah or Sarawak;
"immigration officer" means a public officer having official duties in connection with the control of immigration into Malaysia or any part of Malaysia.
74B. Leaving Malaysia without payment of duties, etc
(1) Any person, to whom a certificate has been issued in respect of him under section 74A, voluntarily leaves or attempts to leave Malaysia without paying all the duties, penalties or sums specified in the certificate or without furnishing security to the satisfaction of the Collector for the payment thereof shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit.
(2) A police officer or immigration officer may arrest without warrant any person whom he reasonably suspects to be committing or is about to commit an offence under this section.
(3) In this section, "immigration officer" has the same meaning as in section 74A.".
EXPLANATORY STATEMENT
This bill seeks to amend the Stamp Act 1949 ("Act 378").
2. Clause 1 contains the short title and provision on the commencement of the proposed Act.
3. Clause 2 seeks to amend section 2 of Act 378. The proposed amendment seeks to amend the definition of "duly stamped" as a consequence of the introduction of advance duty.
4. Clause 3 seeks to introduce a new section 36AA into Act 378. The proposed amendment seeks to introduce a new mechanism to pay duty for an instrument of transfer of an immovable property where the duty payer may apply to the Collector to pay duty in advance based on the formula as provided in the new section.
5. Clause 4 seeks to amend section 36B of Act 378. The proposed amendment seeks to empower the Collector to make an additional assessment where the proper amount of duty is higher than the advance duty paid.
6. Clause 5 seeks to introduce a new section 36C into Act 378. Under the new section, where the proper amount of duty is equal or lower than the advance duty paid, the Collector shall notify the duty payer on the proper amount of duty and refund any advance duty paid in excess.
7. Clause 6 seeks to amend section 37 of Act 378 to require the Collector to make an indorsement of any advance duty paid on any instrument which would enable the instrument to be deemed to have been duly stamped for the purposes of Act 378.
8. Clause 7 seeks to amend section 38 of Act 378 to provide that nothing in sections 36AA, 36B and 36C shall extend to any instrument chargeable with ad valorem duty and made as a security for money or stock without limit.
9. The amendment of section 38A of Act 378 in clause 8 is a consequential amendment.
10. Clause 9 seeks to introduce new sections 74A and 74B into Act 378 to empower the Collector to issue a certificate to prevent a person from leaving Malaysia without paying any duties, penalties or sums required to be paid under the act and the consequence of leaving Malaysia without paying such duties, penalties or sums required.
FINANCIAL IMPLICATIONS
This bill will not involve the Government in any extra financial expenditure.