| 1 | 2 | 3 |
(CHAPTER 111)
(CHAPTER 111)
17. Duty of executor as to unregistered shares
(1) Every executor, within one year after obtaining probate or letters of
administration to the estate of a deceased person and before selling or
otherwise disposing of any shares in any company, registered under or
incorporated by any Ordinance of Hong Kong, of which shares the deceased
person was at the date of his death the beneficial owner under a transfer
in blank and not the registered owner, shall cause such shares to be
transferred on the registers of the appropriate companies into the name of
the deceased, who shall then be deemed to have been so registered at the
time of his death. (Amended 31 of 1990 s. 10)
(2) Every such company, notwithstanding anything in any enactment or in
its constitution, memorandum, articles or regulations to the contrary,
shall effect registration on payment of the usual registration charges (if
any) and in default shall be liable on summary conviction to a fine of
$1,000.
(3) Every executor who without reasonable excuse omits to obtain the
registration of any such shares as aforesaid within the time limit
aforesaid shall be liable to pay to the Commissioner in addition to the
estate duty (if any) a penalty of $1,000, or, at the option of the
Commissioner, a penalty equal to the amount of the estate duty (if any) at
the rate set out in the applicable Schedule.
18. Charge of estate duty on property
(1) Subject to subsection (2)-
(a) a rateable part of the estate duty on an estate, in proportion to the
value of any property which does not pass to the executor as such, shall
be a first charge on the property in respect of which estate duty is
leviable;
(b) a rateable part of the estate duty on an estate paid by instalments
under section 12 (8), in proportion to the value of any leasehold property
held solely by the deceased, shall be a first charge on the property:
Provided that the property shall not be chargeable as against a bona fide
purchaser thereof for valuable consideration without notice. (Replaced 1
of 1959 s. 15)
(2) Notice of any charge on any leasehold property constituted by
subsection (1) may be given by the Commissioner registering in the Land
Registry against the property affected thereby a Memorial signed by him
specifying the subsection under which the charge is constituted, the name,
description, and date of death of the deceased in respect of whose estate
the claim to estate duty arises, and particulars of the property charged.
(Added 1 of 1959 s. 15. Amended 8 of 1993 s. 2)
(3) A notice in writing of any charge under subsection (1) or (2) may be
entered in the Land Registry as an instrument affecting land. (Added 1 of
1959 s. 15. Amended 8 of 1993 s. 2)
(4) If the rateable part of the estate duty in respect of any property is
paid by the executor, it shall where occasion requires be repaid to him by
the trustees or owners of the property.
(5) A person authorized or required to pay the estate duty in respect of
any property shall, for the purpose of paying the estate duty or raising
the amount of the estate duty when already paid, have power, whether the
property is or is not vested in him, to raise the amount of such estate
duty and any interest and expenses properly paid or incurred by him in
respect thereof by the sale or mortgage or a terminable charge on that
property or any part thereof.
(6) A person having a limited interest in any property who pays the estate
duty in respect of that property shall be entitled to the like charge as
if the estate duty in respect of that property had been raised by means of
a mortgage to him.
(7) Any money arising from the sale of property comprised in a settlement
or held upon trust to lay out upon the trusts of a settlement may be
expended in paying any estate duty in respect of property comprised in the
settlement and held upon the same trusts. [cf. 1894 c. 30 s. 9 U. K.]
19. Apportionment of estate duty
(1) In the case of property which does not pass to the executor as such,
an amount equal to the proper rateable part of the estate duty may be
recovered by the person, who being authorized or required to pay the
estate duty in respect of any property has paid such duty, from the person
entitled to any sum charged on such property (whether as capital or as an
annuity or otherwise) under a disposition not containing any express
provision to the contrary.
(2) Any dispute as to the proportion of estate duty to be borne by any
property or person may be determined upon application by way of summons in
the High Court, and where the amount claimed does not exceed the sum
mentioned in section 33 of the District Court Ordinance (Cap. 336) such
application shall be made to the District Court. (Amended 35 of 1950 s. 4;
35 of 1966 s. 6; 68 of 1973 s. 5; 79 of 1981 s. 3)
(3) Any party from whom a rateable part of estate duty can be recovered
under this section shall be bound by the accounts and valuations as
settled between the person entitled to recover the same and the
Commissioner.
[cf. 1894 c. 30 s. 14 U. K.]
20. Remission and refunding of estate duty on certain grounds. Proviso
regarding war deaths
The Governor in Council may remit the payment of any estate duty or may
order a refund of the whole or any portion of any estate duty which may
have been paid to the Commissioner, for the remission or refund of which
any equitable claim is proved to his satisfaction:
Provided that in respect of deaths occurring on or between 8 June 1941 and
1 March 1946, the Commissioner in lieu of the Governor in Council may
remit the payment of any estate duty or order the refund of the whole or
any portion of any estate duty, and for the purpose of the exercise of
such discretion the Commissioner shall take into account the provisions of
paragraph 1 of Order No. 3, made on 1 March 1946, under Proclamation No.
16 made by the British Military Administration, as amended from time to
time, whether that Order shall have been repealed or not. (Added 24 of
1950 Schedule)
21. Remission in case of successive war deaths
Where the Commissioner is satisfied-
(a) that estate duty has become payable on property passing on a death
between 8 December 1941 and 16 September 1945 of a person who-
(i) dies from wounds inflicted, accident occurring or disease contracted,
within 3 years before death, on active service against the enemy on land
or sea or in the air or on service which in the opinion of the
Commissioner is of a warlike nature or involves the same risk as active
service and such person was at the time when the wounds were inflicted or
when the accident occurred or disease was contracted subject to any naval
military or air force discipline; or
(ii) dies from injuries received within 3 years of death and which were in
the opinion of the Commissioner caused by operations of war or received
during internment or imprisonment in Hong Kong or in any territory
controlled at the time of such internment or imprisonment by a sovereign
or state then at war with His Majesty or dies from any cause which in the
opinion of the Commissioner was attributable to such internment or
imprisonment; and (Amended 31 of 1990 s. 10)
(b) that subsequent estate duty has again become payable during the same
period on the same property or any part thereof on another such death,
being the death of a person to whom that property or that part thereof
passed on the earlier death,
then the whole of the estate duty payable on the later death on that
property or that part thereof shall be remitted or, if paid, shall be
repaid. That property or that part thereof shall not be aggregated with
any other property passing on a later death for the purpose of determining
the rate of estate duty.
(Added 24 of 1950 Schedule)
22. Appeal to High Court
(1) Any person who is aggrieved by a decision of the Commissioner under
section 14 (12) or by an assessment of the Commissioner under section 14
(15) as to the amount of estate duty payable and whether he is aggrieved
on the ground of-
(a) property being considered to be property in respect of which estate
duty is payable and for which he is considered accountable;
(b) the valuation of any property; or
(c) the rate of duty charged,
may, subject to subsection (1A), on payment of or giving security for as
hereinafter mentioned, the duty claimed by the Commissioner or such
portion of it as is then payable by him, appeal to the High Court within 3
months from the date of notification of the decision or assessment and his
accountability or the amount of duty payable shall be determined by the
High Court and if the duty is less than that paid to the Commissioner or
if no duty is payable the excess shall be repaid. (Replaced 29 of 1970 s.
5) (1A) The Commissioner may, where satisfied that a person proposes to
appeal under subsection (1), allow payment of the duty claimed by him to
be postponed for such period, to such extent and on payment of such
interest (if any) not exceeding 8 per centum per annum and on such terms
as the Commissioner may think fit. (Added 29 of 1970 s. 5)
(1B) Where the value of the property as alleged by the Commissioner in
respect of which the dispute arises does not exceed $200,000 the appeal
under this section shall be to the District Court. (Added 29 of 1970 s. 5.
Amended 79 of 1981 s. 2)
(1C) The amount mentioned in subsection (1B) may be amended by resolution
of the Legislative Council. (Added 79 of 1981 s. 2)
(2) No appeal shall be allowed from any order, direction, determination or
decision of the High Court or the District Court under any appeal under
this section except with the leave of the High Court or the District
Court, as the case may be, or of the Court of Appeal. (Added 29 of 1970 s.
5)
(3) The costs of the appeal shall be in the discretion of the court, and
the court, where it appears to the court just, may order the Commissioner
to pay on any excess of duty repaid by him interest at such rate per cent
per annum and for such period as appears to the court just.
(4) Provided that the High Court or the District Court, as the case may
be, if satisfied that it would impose hardship to require the appellant as
a condition of the appeal to pay the whole or, as the case may be, any
part of the duty claimed by the Commissioner or of such portion of it as
is then payable by him, may allow an appeal to be brought on payment of no
duty or of such part only of the duty as to the court seems reasonable and
on security to the satisfaction of the court being given for the duty or
so much of the duty as is not paid, but in such case the court may order
interest at such rate per cent per annum as appears to the court just to
be paid on the unpaid duty so far as it becomes payable under the decision
of the court. (Amended 29 of 1970 s. 5)
23. Schedule of property to be annexed to probate
(1) A schedule under the hand of the Commissioner of all the property
passing on the death of a deceased person upon which estate duty has been
paid or is payable on the death, and of all the property of a deceased
person which, being trust property, is exempt from duty on the death shall
be annexed to the probate or letters of administration, and any person
who, without lawful authority or reasonable excuse, in any way deals with
any estate of the deceased or any property held by the deceased in trust,
which is not set out in such schedule, shall be liable to a penalty of
$1,000, or to a penalty equal to 3 times the amount of the estate duty at
the rate set out in the applicable Schedule to this Ordinance payable upon
the estate so dealt with, at the election of the Commissioner:
Provided that the disclosure of any trust relating to property in any such
schedule shall not constitute notice of the trust as against any purchaser
or mortgagee for valuable consideration.
(2) Whenever a further affidavit is delivered, the probate or letters of
administration in respect of which such affidavit is delivered shall be
lodged with the Commissioner who shall insert in the schedule particulars
of the additional property set out in the said affidavit.
(3) Where the Commissioner has granted exemption to an executor under
section 14A (1)-
(a) there shall be annexed to the probate or letters of administration the
certificate of exemption issued to the executor under section 14A (2); and
(b) the penalties referred to in subsection (1) of this section shall
apply to any person who, without lawful authority or reasonable excuse, in
any way deals with any property-
(i) belonging to a deceased; or
(ii) held by a deceased in trust for another person,
which was not disclosed to the Commissioner under section 14A (1). (Added
21 of 1972 s. 6)
24. Penalties for intermeddling
(1) Subject to subsection (3A), every person who, being neither the
executor appointed by the will of the deceased nor (in the case of an
intestacy) the person entitled in priority to the administration of the
estate of the deceased, without lawful authority or excuse or without
first delivering to the Commissioner accounts of the estate of the
deceased as required by section 14, takes possession of or in any way
administers any part of the estate of a deceased person, or any part of
the income of any part of such estate, shall be liable to a penalty of
$1,000 and shall also be liable to a further penalty equal to 3 times the
amount of the estate duty at the rate set out in the applicable Schedule
payable upon the whole estate of the deceased. (Amended 21 of 1972 s. 7)
(2) Subject to subsection (3A), every person who, being the executor
appointed by the will of the deceased or (in the case of an intestacy) the
person entitled in priority to the administration of the estate of the
deceased, takes possession of or in any way administers any part of the
estate of a deceased person or any part of the income of any part of such
estate, within 6 months of the death of the deceased, and fails within the
said period of 6 months to deliver to the Commissioner accounts of the
estate of the deceased as required by section 14, shall be liable to a
penalty of $1,000, and shall also be liable to a further penalty equal to
3 times the amount of the estate duty at the rate set out in the
applicable Schedule payable upon the whole estate of the deceased.
(Amended 21 of 1972 s. 7)
(3) Subject to subsection (3A), every person who, being the executor
appointed by the will of the deceased or (in the case of an intestacy) the
person entitled in priority to the administration of the estate of the
deceased, takes possession of or in any way administers any part of the
estate of a deceased person, or any part income of any part of such
estate, after the expiration of 6 months from the death of the deceased,
without first delivering to the Commissioner accounts of the estate of the
deceased as required by section 14, shall be liable to a penalty of $1,000
and shall also be liable to a further penalty equal to 3 times the amount
of estate duty at the rate set out in the applicable Schedule payable on
the whole estate of the deceased. (Amended 21 of 1972 s. 7)
(3A) Subsections (1), (2) and (3) shall not apply in any case where the
Commissioner has granted exemption to an executor under section 14A (1).
(Added 21 of 1972 s. 7)
(4) The Commissioner shall have power to allow in writing the use of any
specified part of the estate of a deceased person, or of any specified
part of the income of any such estate, for the purpose of the burial of
the deceased or for the purpose of the maintenance of the former
dependants of the deceased notwithstanding the non-delivery of the
accounts required by section 14, or for the purpose of preparing such
accounts, and such authorized use of the estate or income as the case may
be shall not render the person in question liable to any of the penalties
provided by this section.
(5) The recovery of any penalty provided in this section shall be without
prejudice to the liability of the accountable person to the payment of
estate duty on the estate of the deceased:
Provided however that the amount of the estate duty and the penalty shall
not in any case exceed 4 times the rate set out in the applicable
Schedule.
(6) For the purposes of this section, no account shall be deemed to have
been delivered until the duty which reasonably appears to be payable in
respect thereof has been paid, unless the Commissioner shall have allowed
payment of the estate duty in respect of the said account to be postponed.
25. Notification of interest of deceased person in bank or business
undertaking
(1) Where a deceased person had at the date of his death any interest,
whether as partner, depositor or creditor, in any bank or business
undertaking within Hong Kong, the bank or business undertaking, or, in the
case of a bank or business undertaking which is not a body corporate, the
person having the management thereof, shall, within one month from the
date of first receiving information of either his interest or the death of
such deceased person, whichever shall be the later, notify the
Commissioner of such death and of the extent of the interest of the
deceased in the bank or business undertaking, and in default of such
notification as aforesaid a penalty of $1,000 shall be recoverable from
the bank or business undertaking, or the owner thereof in the case or an
unincorporated body. (Amended 31 of 1990 s. 10)
(2) Where any business undertaking is carried on in a firm name the
penalty prescribed by this section shall also be deemed to be due from the
firm and may be recovered in an action against the firm in the firm name.
(3) In any proceedings for the recovery of the penalty prescribed by this
section, the onus of proving that he has not rendered himself liable to
the penalty shall be on the person, company or firm from whom it is sought
to recover it.
(Replaced 29 of 1970 s. 6)
26. Executor's accounts
At any time or times after the date of the probate or letters of
administration, it shall be lawful for the Commissioner, by notice in
writing sent to an executor at his last-known address, to require him to
deliver to the Commissioner a statement in writing (which statement in
writing shall be supported by a statutory declaration if the Commissioner
shall so require) containing the names and addresses of all persons who
were and are beneficially interested in the estate of the deceased,
together with the respective dates on which such persons respectively
became so interested and the extent of their respective interests, and
also all such particulars in regard to such persons or any of them as the
Commissioner may from time to time require, and the executor shall, within
2 months from the date of the service of such notice at such address,
deliver the said statement to the Commissioner and shall verify the same
to his satisfaction within the further period of one month, and in default
the executor shall be personally liable on summary conviction to a fine of
$1,000 or to imprisonment for 6 months, unless he can prove to the
satisfaction of the magistrate that his default was due to circumstances
not under his control.
27. Power to reduce penalty and duty
The Commissioner may in his discretion remit or reduce any penalty or the
interest on any duty and he may reduce any duty chargeable under this
Ordinance, provided that such duty is not reduced below the rate set out
in the applicable Schedule. (Amended 47 of 1962 s. 10)
28. Power to Governor in Council to make rules and prescribe forms, fees
and charges
Subject to the provisions of this Ordinance, the Governor in Council may
make such rules, prescribe such forms and generally do such things as he
thinks expedient for regulating the practice under this Ordinance. The
powers conferred by this section shall include a power to prescribe fees
and charges in respect of affidavits for the Commissioner.
29. Presumption as to shares standing in the name of the deceased
(1) If the registered owner of any share on a share register which is by
law required to be kept within Hong Kong dies, such shares shall for the
purposes of this Ordinance be deemed to be part of the estate of the
deceased, unless the executor of the deceased proves to the satisfaction
of the Commissioner that such share did not form part of the estate of the
deceased at his death. (Amended 29 of 1970 s. 7; 31 of 1990 s. 10)
(2) An appeal to the High Court as under section 22 shall lie from any
decision of the Commissioner under subsection (1).
30. Relief in the case of certain settlements
(1) If estate duty has already been paid in respect of any settled
property since the date of the settlement, upon the death of one of the
parties to a marriage, no estate duty shall be payable on the death of the
other party to the marriage unless such person was at the time of his or
her death or had been at any time during the continuance of the settlement
competent to dispose of such property.
(2) For the purposes of this section, the term "settlement" means any
deed, will, agreement for a settlement, or other instrument, or any number
of instruments, whether made before or after or partly before and partly
after the commencement of this Ordinance, under or by virtue of which
instrument or instruments any property, or any estate or interest in any
property, stands for the time being limited to or in trust for any persons
by way of succession, and the term "settled property" means the property
comprised in a settlement.
[cf. 1894 c. 30 s. 5 (2) U. K.; 1914 c. 10 s. 14 U. K.]
31. Relief in respect of quick succession where property consists of
leasehold property or a business
Where the Commissioner is satisfied that estate duty has become payable on
any property consisting of leasehold property or a business (not being a
business carried on by a company), or any interest in leasehold property
or such a business, passing upon the death of any person, and that
subsequently within 5 years estate duty has again become payable on the
same property or any part thereof passing on the death of the person to
whom the property passed on the first death, the amount of estate duty
payable on the second death (if the death occurs on or after 27 February
1931), in respect of the property so passing shall be reduced as follows-
(a) where the second death occurs within 1 year of the first death, by 50
per cent;
(b) where the second death occurs within 2 year of the first death, by 40
per cent;
(c) where the second death occurs within 3 year of the first death, by 30
per cent;
(d) where the second death occurs within 4 year of the first death, by 20
per cent;
(e) where the second death occurs within 5 year of the first death, by 10
per cent; Provided that where the value, on which the duty is payable, of
the property on the second death exceeds the value, on which the duty was
payable, of the property on the first death, the latter value shall be
substituted for the former for the purpose of calculating the amount of
duty on which the reduction under this section is to be calculated.
[cf. 1914 c. 10 s. 15 U. K.]
32. Reduction of full amount of duty where the margin above the limit of
value is small The amount of estate duty payable on an estate at the rate
applicable thereto under the scale of rates of duty shall, where
necessary, be reduced so as not to exceed the highest amount of duty which
would be payable at the next lower rate, with the addition of the amount
by which the value of the estate exceeds the value on which the highest
amount of duty would be so payable at the lower rate.
[cf. 1914 c. 10 s. 13 (1) U. K.]
33. Relief in the case of certain interests which do not fall into
possession
(1) In the case of settled property, where the interest of any person
under the settlement fails or determines by reason of his death before it
becomes an interest in possession, and subsequent limitations under the
settlement continue to subsist, the property shall not be deemed to pass
on his death.
(2) For the purposes of this section, the term "settlement" means any
deed, will, agreement for a settlement, or other instrument, or any number
of instruments, whether made before or after or partly before and partly
after 27 February 1931, under or by virtue of which instrument or
instruments any property, or any estate or interest in any property,
stands for the time being limited to or in trust for any persons by way of
succession, and the term "settled property" means the property comprised
in a settlement.
[cf. 1894 c. 30 s. 5 (3) U. K.]
34. Controlled companies
(1) The companies to which sections 35, 41, 44 and 45 respectively apply
are any company which, at any relevant time, is deemed to have been under
the control of not more than 5 persons not being a company which, at any
such time, is deemed to have been either a subsidiary company or a company
in which the public were substantially interested. [cf. 1922 c. 17 s. 21
(6) U. K.; 1936 c. 34 s. 19 U. K.; 1940 c. 29 s. 58 (1) U. K.]
(2) A company shall be deemed to be under the control of not more than 5
persons-
(a) if any 5 or fewer persons together exercise, or are able to
exercise, or are entitled to acquire, control, whether direct or indirect,
over the company's affairs, and in particular, but without prejudice to
the generality of the foregoing words, if any 5 or fewer persons together
possess, or are entitled to acquire, the greater part of the share capital
or voting power of the company; or
(b) if any 5 or fewer persons together possess, or are entitled to
acquire, either the greater part of the issued share capital of the
company, or such part of that capital as would, if the whole of the
profits of the company had been in fact distributed to the members,
entitle them to receive the greater part of the amount so distributed; or
[cf. 1936 c. 34 s. 19 (1) (a) & (b) U. K.]
(c) if in any relevant accounting year, more than half of the profits of
the company have been, or could have been, apportioned among not more than
5 persons; or [cf. 1936 c. 34 s. 19 (1) (c) U. K.]
(d) if any 5 or fewer persons would, if the company were wound up, be
entitled as members or loan creditors of the company to receive more than
half of the assets of the company which would be available for
distribution to members and loan creditors. [cf. 1936 c. 34 s. 20 (3) U.
K.]
(3) In determining for the purposes of subsection (2) whether a company is
deemed to be under the control of not more than 5 persons, persons in any
one of the following classes shall be treated as a single person with
other persons of that same class, namely-
(a) persons who are relatives of one another;
(b) nominees of another person together with that person;
(c) persons in a partnership within the meaning of section 3 of the
Partnership Ordinance (Cap. 38); and
(d) persons interested in any shares or obligations of the company which
are subject to any trust or are part of the estate of a deceased person.
[cf. 1936 c. 34 s. 19 (2) U. K.]
(4) For the purposes of subsection (3), a person shall be deemed to be the
nominee of another person if, whether directly or indirectly, he possesses
on behalf of that other person, or may be required to exercise on the
direction of or on behalf of that other person, any right or power which
is material in determining whether a company is, or is not to be deemed to
have been under the control of not more than 5 persons.
(5) A company shall be deemed to be-
(a) "a subsidiary company" if, by reason of the beneficial ownership of
shares therein, the control of the company is in the hands of a company
not being a company to which the provisions of this section apply, or of 2
or more companies none of which is a company to which the said provisions
apply; and
(b) "a company in which the public were substantially interested" if
shares of the company (not being shares entitled to a fixed rate of
dividend, whether with or without a further right to participate in
profits) carrying not less than 25 per cent of the voting power were
allotted unconditionally to, or acquired unconditionally by, and were at
the end of the year or other period for which the accounts of the company
were made up beneficially held by, the public (not including a company to
which the provisions of this section apply), and any such shares were in
the course of such year or other period the subject of dealings on the
Unified Exchange and the shares were quoted in any list of that exchange.
(Amended 12 of 1974 s. 150; 31 of 1990 s. 5) [cf. 1922 c. 17 s. 21 (6) U.
K.]
(6) For the purpose of this section and in relation to any body corporate
incorporated outside Hong Kong- (Amended 31 of 1990 s. 10)
(a) references to winding-up shall include references to the dissolution
or cancellation of the registry of the body corporate in any manner
authorized by any rules, regulations or other instrument constituting or
regulating the body corporate or any enactment applying to the body
corporate; and
(b) references to an order or resolution for winding-up shall include
references to the signing of any instrument, the making of any application
or the doing of any other act which is authorized as aforesaid with a view
to dissolving, or cancelling the registry of, the body corporate; and
(c) references to the liquidator shall include references to any person in
charge of the winding up of the affairs of the body corporate. [cf. 1936
c. 34 s. 19 (3) U. K.; 1940 c. 29 s. 58 (1) (b) (i) U. K.]
(7) In this section-
"loan creditor" means a creditor in respect of any debt incurred by the
company-
(a) for any money borrowed or capital assets acquired by the company; or
(b) for any right to receive income created in favour of the company; or
(c) for consideration the value of which to the company was, at the time
when the debt was incurred, substantially less than the amount of the debt
including any premium thereon, or in respect of any redeemable loan
capital issued by the company:
Provided that a bank licensed to carry on banking business under section
16 of the Banking Ordinance (Cap. 155), shall not be deemed to be a loan
creditor in respect of any loan capital or debt issued or incurred by the
company for money lent by such bank to the company in the ordinary course
of the bank's business; (Amended 27 of 1986 s. 137)
"member" includes any person having a share or interest in the capital or
profits of a company; [cf. 1922 c. 17 s. 21 (7) U. K.]
"relative" has the meaning attributed thereto in section 7; and
"relevant time" means any time during the period ending with the death of
the deceased and beginning, as respects section 44, 3 years before his
death, and, as respects sections 35, 41 and 45 at the date of the
disposition transfer or other transaction or event relevant for the
purposes of those sections, or if that disposition transfer or other
transaction or event was one of associated operations, at the date of the
earliest of those operations. [cf. 1940 c. 29 s. 58 (1) (a) U. K.]
[cf. 1936 c. 34 s. 20 (7) U. K.]
(Added 1 of 1959 s. 10)
35. Charge on assets of controlled companies
(1) Where a person has made to a company to which this section applies a
transfer of any property, other than an interest limited to cease on his
death or property which he transferred in a fiduciary capacity, and any
benefits accruing to the deceased from the company accrued to him in the 3
years ending with his death, the assets of the company shall be deemed for
the purposes of estate duty to be included in the property passing on his
death to an extent determined, in accordance with subsection (2), by
reference to the proportion that the aggregate amount of the benefits
accruing to the deceased from the company bore to the net profits of the
company.
(2) The extent to which the assets of the company are to be deemed to be
included as aforesaid shall be the proportion ascertained by comparing the
aggregate amount of the benefits accruing to the deceased from the company
in the last 3 accounting years with the aggregate amount of the net
profits of the company for the said years:
Provided that-
(a) where, in any of the said accounting years, the company sustained a
loss, the amount of that loss shall be deducted in ascertaining the said
aggregate net profits of the company;
(b) where the company came into existence in the last but one, or in the
last, of the said accounting years, the references in this subsection to
the said accounting years shall be construed as references to the last 2
or the last, of those years, as the case may be.
(3) The assets of the company which are deemed to be included in the
property passing on the death of the deceased by virtue of this section
shall include any assets thereof which have been disposed of or
distributed by the company at any time between the beginning of the first
of the accounting years aforesaid and the death of the deceased, either-
(a) in or towards satisfaction of rights attaching to shares in or
debentures of the company; or
(b) otherwise howsoever except as follows, that is to say, by way of sale
for full consideration in money or money's worth received by the company
for its own use and benefit, or in or towards discharge of taxes or rates
or other liability imposed by or under any enactment, or in or towards
discharge of a fine or penalty or of a liability for tort incurred without
collusion with the injured party,
including assets which have been so disposed of or distributed in a
winding-up, whether continuing at or completed before the death:
Provided that this subsection shall not apply to assets disposed of or
distributed by way of payments of dividends of amounts not exceeding in
the aggregate, as respects payments made in any accounting year or in the
period between the end of the last accounting year and the death of the
deceased, the amount of the profits of the company for that year or
period.
(4) The provisions contained in the Twentieth Schedule shall have effect
for the purpose of supplementing and interpreting this section, section 34
and sections 36 to 45 inclusive.
(Added 1 of 1959 s. 10. Amended 47 of 1962 s. 11; 24 of 1967 s. 3; 37 of
1970 s. 3; 27 of 1972 s. 4; 24 of 1974 s. 3; 31 of 1976 s. 4; 31 of 1977
s. 4; 33 of 1980 s. 3; 29 of 1981 s. 6; 28 of 1982 s. 5; 29 of 1987 s. 4;
31 of 1990 s. 6; 29 of 1993 s. 3) [cf. 1940 c. 29 s. 46 U. K.; 1946 c. 64
s. 47 U. K.]
36. Benefits from company to deceased
The following shall be treated as benefits accruing to the deceased from
the company, that is to say-
(a) any profits of the company, and any periodical payment out of the
resources or at the expense of the company, which the deceased received
for his own benefit whether directly or indirectly, and any enjoyment in
specie of land or other property of the company or of a right there over
which the deceased had for his own benefit whether directly or indirectly;
(b) any such profits or payment or enjoyment which the deceased was
entitled to receive or have as aforesaid; and
(c) any such profits or payment or enjoyment which the deceased could have
become entitled to receive or have as aforesaid by an exercise in the 3
years ending with his death of any power exercisable by him or with his
consent,
and where the deceased could, by an exercise in the said 3 years of any
such power as aforesaid, have become entitled to receive as aforesaid any
payment out of the resources or at the expense of the company not being a
periodical payment, but did not in fact receive or become entitled to
receive that payment, there shall be treated as a benefit accruing to the
deceased from the company interest on that payment at the average rate
from the earliest date on which he could have become entitled to receive
it. (Added 1 of 1959 s. 10)
[cf. 1940 c. 29 s. 47 (1) U. K.]
37. Surrender of benefits
(1) Subject to the provisions of subsection (3), if the deceased has made,
whether for value or not, a surrender of his title to receive any such
profit or payment or enjoyment as is mentioned in section 36, or of any
such power as is therein mentioned, section 36 shall have effect as if the
surrender had not been made.
(2) The deceased shall be deemed to have made such a surrender as
aforesaid if a right which he had to receive any such profit or payment or
enjoyment as aforesaid, or if any such power as aforesaid, has been
extinguished or suspended by the effect solely or partly of any
disposition made by him or with his consent of shares in or debentures of
a company or of any other property or right, or of the exercise or the
leaving unexercised by him or with his consent of any power or right, or
of the extinguishment or suspension by him or with his consent of any
power or right, otherwise than in a fiduciary capacity, or if apart from
such a disposition or other act or omission he would have become entitled
to receive any such profit or payment or enjoyment as aforesaid but by the
effect solely or partly thereof he did not become entitled to receive it.
(3) This section shall not apply to a surrender bona fide made before the
beginning of the 3 years ending with the death of the deceased, or, if it
was made for such purposes as are recognized by the Commissioner as public
or charitable, one year before the beginning of the year ending with his
death, if the deceased was at all times during those 3 years, or during
that year, as the case may be, entirely excluded from receiving, or being
entitled to receive, or having any capacity by an exercise of any power
exercisable by him or with his consent to receive, any periodical payment
by virtue of the surrender or of any associated operations of which the
surrender was one. (Added 1 of 1959 s. 10)
[cf. 1940 c. 29 s. 48 U. K.]
38. Determination of net profits of company
(1) The profits of the company for any accounting year, or for the period
between the end of the last accounting year and the death of the deceased,
hereinafter referred to as the assessable profits, shall be determined by
ascertaining the profits of the company from all sources, in accordance
with the provisions of the Inland Revenue Ordinance (Cap. 112) relating to
the ascertainment of assessable profits as if that Ordinance applied to
profits not arising in or not derived from Hong Kong, in the same way as
it does to profits arising in or derived from Hong Kong, subject to the
modification that such assessable profits shall be computed by reference
to the actual profits for that year or period, and not by reference to the
profits for any other period: (Amended 31 of 1990 s. 10)
Provided that-
(a) there shall be excluded from the ascertainment of such assessable
profits any profits which were not bona fide acquired in the ordinary
course of business nor the produce of income yielding assets; and
(b) in determining such assessable profits no account shall be taken of
sections 19, 19C and 26 of the Inland Revenue Ordinance (Cap. 112).
(Replaced 7 of 1975 s. 43)
(2) The net profits of the company for the purpose of this Ordinance for
any accounting year shall be determined by adding to the assessable
profits for that year computed in accordance with subsection (1) the
amount of any interest on debentures in the company deduction for which
has already been made under the Inland Revenue Ordinance (Cap. 112) in
assessing the assessable profits of the company.
(3) The provisions of subsection (1) shall, for a like purpose and with
any necessary adaptations, apply to the determination of any loss
sustained by a company, as it applies to the determination of the
assessable profits of a company. [cf. 1944 c. 23 s. 37 U. K.]
(Added 1 of 1959 s. 10)
[cf. 1940 c. 29 s. 49 U. K.]
39. Allowances in the valuation of assets
(1) In determining the value of the estate for the purpose of estate duty
the provisions of section 13 (1) as to making allowance for debts and
incumbrances shall not have effect as respects any debt or incumbrance to
which assets of the company passing on the death by virtue of section 35
were liable, but the Commissioner shall make an allowance from the
principal value of those assets for all liabilities of the company
(computed as regards liabilities which have not matured at the date of
death, by reference to the value thereof, at that date, and, as regards
contingent liabilities, by reference to such estimation as appears to the
Commissioner to be reasonable) other than-
(a) liabilities in respect of shares in or debentures of the company; and
(b) liabilities incurred otherwise than for the purposes of the business
of the company wholly and exclusively.
(2) In estimating for the purpose of subsection (1), the principal value
of the assets deemed to pass on the death by virtue of section 35, the
Commissioner shall fix the price thereof on the basis of a sale of the
business of the company as a going concern, and the proportion of that
value upon which estate duty is payable by virtue of section 5 as modified
by section 10 (b), shall be ascertained by comparing-
(a) the aggregate value at the date of death of the deceased of those
items of property which together form the assets of the company other than
those situate at that date outside Hong Kong; with
(Amended 31 of 1990 s. 10)
(b) the aggregate value at that date of those items of property
wheresoever situate, which together form the assets of the company.
(3) Where the assets passing on the death by virtue of section 35 include
any distributed assets, if partial consideration, other than the
extinguishment, or an alteration of rights attaching to shares in or
debentures of a company to which that section applies, was given for the
distribution in money or money's worth received by the company for its own
use and benefit, a further allowance shall be made, in addition to the
allowances specified in subsection (1), of an amount equal to the value of
the consideration given.
(4) For the purpose of the estimation of the principal value of any
distributed assets, section 13 (5) (a) shall have effect with the
substitution for the reference therein to the time of the death of the
deceased of a reference to the time of the distribution, and effect shall
be given to the proviso to paragraph (b) of the said subsection as at the
time of the distribution only, due regard being had to the expectation of
life of the deceased at that time.
(Added 1 of 1959 s. 10)
[cf. 1940 c. 29 s. 50 (1) (4) U. K.]
40. Limitation on charge
(1) If it is shown to the satisfaction of the Commissioner that-
the value of all such property as is mentioned in section 35 (1) of which
the deceased made a transfer to the company, together with an amount equal
to any excess of interest at the average rate on the value thereof from
the date or respective dates of transfer to the death of the deceased over
the aggregate amount of the benefits received by the deceased by virtue of
the transfer is less than the value on which estate duty would be
chargeable on the death under section 35 if all benefits accruing to him
from the company other than benefits received by him by virtue of the
transfer were disregarded,
then, an amount equal to the deficiency shall be deducted from the
proportion of the value of the company's assets that corresponds to the
benefits received by him by virtue of the transfer. [cf. 1940 c. 29 s. 51
(1) U. K.]
(2) References in subsection (1) to benefits received by the deceased by
virtue of a transfer shall be construed as references to benefits accruing
to him from the company which he received or had as consideration for the
transfer, or in consequence of his having received as consideration
therefor shares or debentures or other property which produced any of
those benefits. [cf. 1940 c. 29 s. 51 (1) U. K.]
(3) Where the following conditions are satisfied, that is to say, that the
deceased has, within 3 years before his death, disposed of any shares in
or debentures of the company for consideration in money or money's worth
paid to him for his own use or benefit, and that any benefits accrued to
the deceased from the company by virtue of those shares or debentures or
by virtue of a power's having been exercisable by him or with his consent
in relation to those shares or debentures, then-
(a) if the value of the said consideration or the aggregate value of the
shares or debentures ascertained as if they passed on the death, whichever
is the greater, is equal to or greater than the proportion of the value of
the company's assets that corresponds to the benefits that so accrued to
him, or if the Commissioner is satisfied that the said proportion would
not, if fully ascertained, be found to be substantially in excess of that
value, duty on the said proportion shall not be payable; (b) in any other
case, the amount on which duty is to be charged in respect of the said
proportion shall be reduced by the amount of the value of the said
consideration or of the said aggregate value whichever is the greater:
Provided that-
(i) if estate duty on the death is payable upon such shares or debentures
on their value or any part thereof, or would be so payable but for an
exemption from estate duty, that value, aggregated if necessary, shall be
taken into account as aforesaid, and in such a case references in this
subsection to the value of the consideration shall not apply; and
(ii) in assessing the value of such shares or debentures for the purposes
of this subsection if they have since the deceased disposed of them, been
substantially increased in value by reason of a transfer of property to
any company by any person, or by reason of the extinguishment of, or any
alteration of the rights attaching to, shares in or debentures of any
company, their principal value shall be reduced to such an extent as in
the opinion of the Commissioner is necessary to offset the increase
attributable to the transfer, extinguishment or alteration.
[cf. 1950 c. 15 s. 47 U. K.; 1952 c. 33 s. 72 U. K.]
(4) Where the following conditions are satisfied, that is to say, that any
benefits accrued to the deceased from the company by virtue of any
interest that he at any time had in shares or in debentures of the
company, or by virtue of a power's having at any time been exercisable by
him or with his consent in relation to shares in or debentures of the
company, and apart from this subsection estate duty would be payable on
the death both on the value of those shares or debentures by virtue of any
provision of this Ordinance other than section 35 and on the proportion of
the value of the company's assets that corresponds to the benefits that so
accrued to him by virtue of that section, then-
(a) if the value of the shares or debentures is equal to, or greater than,
the said proportion, or if the Commissioner is satisfied that the said
proportion would not, if fully ascertained, be found to be substantially
in excess of the value of the shares or debentures, duty on the said
proportion shall not be payable;
(b) in any other case, the amount on which duty is to be charged in
respect of the said proportion shall be reduced by the amount of the value
of the shares or debentures. [cf. 1944 c. 23 s. 38 U. K.]
(5) Where the conditions set out in subsection (4) would be satisfied but
for the fact that, by reason of an exemption from estate duty, not being
an exemption on the ground that the deceased or other person having an
interest in the shares or debentures ceasing on the death of the deceased
had only an interest as the holder of an office, nor being, in the case of
a person dying on or after the commencement of the Estate Duty (Amendment)
(No. 2) Ordinance 1979, an exemption conferred by section 10 (b), that
duty is not payable on the value of the shares or debentures, paragraphs
(a) and (b) of that subsection shall apply as if that exemption did not
operate and as if the duty had been payable on the value of the shares and
debentures accordingly: (Amended 44 of 1979 s. 2)
Provided that where-
(a) the exemption in question depends on a payment of any duty on an
earlier death, or does not depend on such a payment but depends wholly or
partly on any dispositions having been made; and
(b) since the date of that death or disposition, as the case may be, the
shares or debentures have been substantially increased in value by reason
of a transfer of property to any company by any person or by reason of the
extinguishment of, or any alteration of the rights attaching to, shares in
or debentures of any company,
then, unless the exemption takes the form of a deduction from the value of
the shares or debentures of a fixed amount which is independent of the
value of the shares or debentures, the references in paragraphs (a) and
(b) of subsection (4) to the value of the shares or debentures therein
mentioned shall have effect as if they were references to the value
thereof reduced to the extent to which, in the opinion of the
Commissioner, that value is attributable to that transfer, extinguishment
or alteration. [cf. 1944 c. 23 s. 38 U. K.]
(6) Where, by reason of an exemption from estate duty, that duty is
payable on part only of the value of the shares or debentures, subsection
(4) shall, with the necessary adaptations, be applied to the part of the
value of the shares or debentures on which duty is payable and subsection
(5) shall be applied to the part of the value of the shares or debentures
affected by the exemption; and, where there are 2 or more exemptions from
estate duty each of which operates on part only of the value of the shares
or debentures and the exemptions are such that subsection (5) would
operate differently in relation to them, then, whether or not there is any
part of the value of the shares or debentures on which estate duty is
payable, subsection (5) shall, with the necessary adaptations, be applied
separately in relation to the parts of the value of the shares or
debentures affected by each exemption. [cf. 1944 c. 23 s. 38 U. K.]
(7) In this section, the expression "exemption from estate duty" includes
any exemption conferred by any provision of this or any other enactment
which has the effect of exempting property, in whole or in part, from
estate duty, whether that provision takes the form that the property is
not to be deemed to pass, or the form that the duty is not to be payable,
or the form that a deduction is to be made from the value of the property,
or any other form; and the reference in paragraph (b) of the proviso to
subsection (5) to an increase in the value of shares or debentures
includes, where those shares or debentures have been acquired in
substitution for any other property, any increase in the value of any
property which those shares or debentures directly or indirectly
represent. [cf. 1944 c. 23 s. 38 U. K.]
(8) References in this section to the proportion of the value of the
company's assets that corresponds to any particular benefits shall be
construed as references to so much of the value on which estate duty is
chargeable on the death by virtue of section 35 as is chargeable by reason
of the bringing of those benefits into the computation made under
subsection (2) of that section.
[cf. 1940 c. 29 s. 51 (3) U. K.]
(9) So much of any profit or periodical payment or enjoyment of a kind
mentioned in section 36 as is shown to the satisfaction of the
Commissioner to have represented, or to have been such that it would if
received have represented, reasonable remuneration to the deceased for any
services rendered by him as the holder of an office under the company
shall, notwithstanding anything in that section, not be treated for the
purposes of sections 34 to 45 inclusive, as a benefit accruing to the
deceased from the company; and any liability of the company in respect of
the remuneration of any person as the holder of an office under the
company shall be treated for the purposes of the aforesaid sections as
incurred for the purposes of the business of the company wholly and
exclusively to the extent to which it is shown to the satisfaction of the
Commissioner that the amount thereof was reasonable, and that extent only.
[cf. 1940 c. 29 s. 51 (4) U. K.]
(Added 1 of 1959 s. 10)
41. Limitation of exceptions
(1) If a company to which section 35 applies was concerned in a
transaction falling within the scope of that section, or in any one or
more of associated operations of which that transaction formed one, the
provisions of section 10 (a), and of section 40 (3), shall have no effect
as respects that transaction or operation. [cf. 1940 c. 29 s. 56 (1) U.
K.; 1950 c. 15 s. 47 (b) (ii) U. K.]
(2) Where a disposition has been made or an interest determined or
surrendered to which either the proviso to section 6 (1) (h), or section
37 (3), applies and, that disposition, determination or surrender, or one
or more associated operations of which that disposition or determination
or surrender formed one, concerned-
(a) a company to which section 35 applies; and
(b) another person being the owner of the beneficial interest involved,
then the conditions as to the entire exclusion of the person referred to
in paragraph (b) shall not be treated for the purpose of the aforesaid
provisions as having been satisfied if it can be shown that at the time of
the said disposition, determination or surrender, or at any time
thereafter, the said person had any benefit by virtue of that disposition,
determination or surrender. [cf. 1940 c. 29 s. 56 (2) U. K.; 1950 c. 15 s.
43 (1) U. K.]
(Added 1 of 1959 s. 10)
42. Duty to give information on death
(1) A company to which section 35 applies shall be under obligation to
inform the Commissioner, within one month from the date of the death of
the deceased, of the death, of the fact that the deceased made a transfer
of property to the company, and of the fact that benefits accrued to the
deceased from the company, and every person who was an officer of the
company at that date, or, if the company has been wound up and dissolved
before that date, who was an officer of the company at any time, shall be
under the like obligation as respects such of the facts aforesaid as are
within his knowledge, unless he knows, or has reasonable cause for
believing, that the information in question has already been given to the
Commissioner by the company or some other person.
(2) If such company or any such person as aforesaid who is under
obligation by virtue of subsection (1) to give any information to the
Commissioner makes default in the performance of that obligation, every
such defaulter shall be liable to a penalty of $10,000 and shall also be
liable to a further penalty equal to 3 times the amount of the estate duty
at the rate set out in the applicable Schedule payable upon the whole
estate of the deceased. (Added 1 of 1959 s. 10)
[cf. 1940 c. 29 s. 53 U. K.]
43. Collection and incidence of duty
(1) The following persons shall be accountable for the duty payable on the
death of the deceased by virtue of section 35, that is to say-
(a) the company;
(b) any person, other than a bona fide purchaser for full consideration in
money or money's worth received by the company for its own use and
benefit, who receives, whether directly from the company or otherwise, or
disposes of, any assets which the company had, whether as capital or as
income, at the death or at any time thereafter;
(c) any person who received any distributed assets of the company on their
distribution: Provided that a person shall not-
(i) by virtue of paragraph (b), be accountable in respect of any assets
for any duty in excess of the value of those assets; or
(ii) by virtue of paragraph (c), be accountable in respect of any assets
for more than a part of the duty bearing to the whole thereof the same
proportion that the value of the distribution of those assets bears to the
principal value of the assets of the company passing on the death by
virtue of section 35 after making the allowances to be made under section
39.
(2) For the purposes of subsection (1), the expressions "distributed
assets" and "assets of the company passing on the death" do not include
any distributed assets of the company which the deceased received on their
distribution; and a person who, having received any distributed assets of
the company, has died before the deceased shall be deemed to have been a
person accountable by virtue of paragraph (c) of that subsection.
(3) Where a company incorporated outside Hong Kong is accountable for any
duty by virtue of subsection (1) or of this subsection, every person who
is a member of that company at the death shall also be accountable for a
rateable part of that duty in proportion to the value of his interest in
that company. (Amended 31 of 1990 s. 10)
(4) A person accountable for any duty by virtue of this section shall, for
the purpose of raising and paying the duty, have all the powers conferred
on accountable parties by this Ordinance.
(5) On a winding-up of the company section 265 (1) of the Companies
Ordinance (Cap. 32) (which determines what debts shall have priority over
other debts in a winding-up) shall have effect as if there were included
in paragraph (d) of that subsection a reference to any duty payable in
respect of assets of the company passing on a death by virtue of section
35 of this Ordinance, and section 79 of the Companies Ordinance (Cap. 32)
shall have effect accordingly. (Amended 6 of 1984 s. 259)
(6) The duty payable on the death of the deceased by virtue of section 35
shall be a first charge by way of floating security on the assets which
the company had at the death or has at any time thereafter, and any part
of the duty for which by virtue of subsection (1) (c) any person is
accountable in respect of any distributed assets shall be a first charge
also on those assets:
Provided that nothing in this subsection shall operate to make any
property chargeable as against a bona fide purchaser thereof for valuable
consideration without notice.
(7) Where any duty has been-
(a) paid by a person accountable therefor by virtue only of subsection (1)
(c); or
(b) raised by virtue of subsection (6) out of any distributed assets
charged therewith, that person, or, as the case may be, the person who was
entitled to those assets subject to the charge, may, without prejudice to
any right of contribution or indemnity which he may have apart from this
subsection, recover the amount of duty so paid or raised as aforesaid from
any person who is accountable therefor otherwise than by virtue of
subsection (1) (c).
(8) No part of the duty paid by the company shall be recoverable by it
from any person on the ground only that he is entitled to any interest in,
or to any sum charged on, the assets which the company had at the death of
the deceased.
(9) The following provisions shall not have effect in relation to the duty
payable by virtue of section 35, that is to say-
(a) so much of section 12 (2) as relates to payment of estate duty on all
property of which the deceased was competent to dispose at his death;
(b) so much of section 14 (6) as relates to the accountability of the
executor of the deceased in respect of all property of which the deceased
was competent to dispose at his death, and subsection
(7) of that section,
and section 18 (1) shall have effect in relation to the estate as if the
property passing by virtue of section 35 had been property passing to the
executor as such. (Added 1 of 1959 s. 10)
[cf. 1940 c. 29 s. 54 U. K.]
44. Value of shares and debentures of controlled companies
(1) Where for the purposes of estate duty there pass shares in or
debentures of a company to which by virtue of section 34 this section
applies, then if the deceased had the control of the company at any time
during the 3 years ending with his death, the principal value of the
shares or debentures, in lieu of being estimated in accordance with the
provisions of section 13 (5) (a), shall be estimated by reference to the
net value of the assets of the company in accordance with the provisions
of subsection (2) of this section:
Provided that any liability of the company arising, or which may arise,
after the death for corporation profits tax shall be taken into account as
if it were an actual but contingent liability at the date of the death, in
so far as the liability or its amount is referable to profits accruing
before the death, whether then realized or not; and in estimating any such
liability for taxation charged on profits arising after the death the
Commissioner shall take into account the extent, if any, to which the
last-mentioned profits are likely to be insufficient to meet the
liability.
[cf. 1940 c. 29 s. 55 U. K.; 1954 c. 44 ss. 29 (1) (a) & 30 (3) U. K.]
(2) The principal value of the shares and debentures mentioned in
subsection (1) shall be estimated as follows-
(a) the net value of the assets of the company shall be taken to be the
principal value thereof estimated in accordance with the said section 13
(5) (a), less the like allowance for liabilities of the company as is
provided by section 39 (1) in relation to the assets of a company passing
on a death by virtue of section 35, but subject to the modification that
allowance shall be made for such a liability as is mentioned in section 39
(1) (b) unless it also falls within paragraph (a) thereof;
(b) the aggregate value of all the shares and debentures of the company
issued and outstanding at the death of the deceased shall be taken to be
the same as the net value of the assets of the company;
(c) in a case in which there are both shares in and debentures of the
company issued and outstanding at the death, or different classes of
either, the net value of the assets of the company shall be apportioned
between them with due regard to the rights attaching thereto respectively;
and
(d) the value of any share, or of any debenture, or of a share or
debenture of any class, shall be a rateable proportion, ascertained by
reference to nominal amount, of the net value of the assets of the company
as determined under paragraph (a), or, in the case mentioned in paragraph
(c), of the part thereof apportioned under that paragraph to the shares of
the company, or to its debentures, or to that class thereof, as the case
may be. [cf. 1940 c. 29 s. 55 (2) U. K.]
(3) For the purposes of this section, a person shall be deemed-
(a) to have control of a company at any time if he then had the control of
powers of voting on all questions, or on any particular question,
affecting the company as a whole, which if exercised would have yielded a
majority of the votes capable of being exercised thereon, or if he could
have obtained such control by an exercise at that time of a power
exercisable by him or with his consent; or
(b) to have powers equivalent to control of a company if he either has the
capacity, or could by an exercise of a power exercisable by him or with
his consent obtain the capacity, to exercise or to control the exercise of
any of the following powers, that is to say, the powers of a board of
directors or of a governing director of the company, power to nominate a
majority of directors or a governing director thereof, power to veto the
appointment of a director thereof, or powers of a like nature. [cf. 1940
c. 29 s. 55 (3) U. K.; 1954 c. 44 ss. 29 (1) (b) & 31 (1) (e) U. K.]
(4) This section shall not apply to the valuation of shares or debentures
of a class which have been dealt with on the Unified Exchange in the
ordinary course of business on that exchange and such dealings have been
recorded during the year ending with the death of the deceased, and, in
making an apportionment under subsection (2) (c) in the case of a company
having shares or debentures of such a class, the part of the value of the
assets of the company to be apportioned to shares or debentures of that
class shall be determined by reference to the prices recorded of such
dealings. (Amended 31 of 1990 s. 7) [cf. 1940 c. 29 s. 55 (4) U. K.]
(5) Control of a company which a person had in a fiduciary capacity shall
be disregarded for the purposes of this section but in the cases dealt
with in subsection (7), this section shall apply as if the deceased had,
within 3 years of his death, had control of the company otherwise than in
a fiduciary capacity, but only as to the valuation of the shares in or
debentures of the company as respects which one of the conditions
contained in paragraph (a) or (b) or the proviso hereto is satisfied,
namely-
(a) that immediately after the deceased's death a person having control or
powers equivalent to control of the company, either alone or in
conjunction with his relatives, has a beneficial interest in possession in
the shares or debentures;
(b) that immediately before and after the death the shares or debentures
are held by the trustees of some trust who then have control of the
company by virtue of shares in or debentures of the company held by them
as such trustees, notwithstanding the fact that such trustees had control
in a fiduciary capacity:
Provided that, in the case of shares or debentures falling to be valued on
the death by virtue of a gift inter vivos made by the deceased, or by
virtue of a disposition or determination, in relation to which subsection
(1) (h) and subsection (2) of section 6 have effect, of an interest
limited to cease on the death, the above conditions shall not apply, and
the conditions shall be that immediately after the death or at any
previous time since the gift, or since the disposition or determination,
as the case may be, the donee, or the person becoming entitled by virtue
of or upon the disposition or determination, has or had control or powers
equivalent to control of the company, either alone or in conjunction with
his relatives. [cf. 1940 c. 29 s. 55 (5) U. K.; 1954 c. 44 ss. 29 (1) &
(5) &31 (2) U. K.]
(6) In determining for the purpose of subsection (5), whether a person at
any time has or had control of a company either alone or in conjunction
with his relatives, or a beneficial interest in possession in any shares
in or debentures of a company-
(a) where that person or a relative of his is or was at any time entitled
under a trust, either alone or in conjunction with that person's
relatives, to not less than nine-tenths of the income arising from any
such shares or debentures, that person or the relative in question, as the
case may be, shall be treated as being or having been able at that time to
control the exercise by the trustees of the trust or other persons in whom
those shares or debentures are or were vested of any powers attached to
those shares or debentures;
(b) any shares in or debentures of the company, or interests therein,
which form part of a person's estate at his death shall be treated as
vesting immediately on his death in the legatees or persons entitled on
intestacy, without regard to the powers exercisable for the administration
of the estate;
(c) there shall, in so far as the Commissioner so directs, be disregarded-
(i) any limited interest subsisting at the relevant time in any shares in
or debentures of the company; and
(ii) any voting rights exercisable by virtue of any preference shares in
the company, being voting rights which the Commissioner is satisfied do
not materially affect the effective control of the company's affairs. [cf.
1954 c. 44 s. 31 (3) U. K.]
(7) The cases referred to in subsection (5) as being dealt with in this
subsection are as follows-
(a) if during a continuous period of 2 years falling wholly within the 3
years ending with his death, the deceased had powers equivalent to control
of the company; or
(b) if during any such period as aforesaid the dividends declared by the
company and the interest accruing due on debentures of the company as
defined in paragraph (c) (ii) are, as to amounts forming in the aggregate
more than one-half of the total amount of the dividends and interest, to
be treated by virtue of sections 36 and 37 as benefits accruing to the
deceased from the company, or would have fallen to be so treated if the
deceased had made a transfer of property to the company; or
(c) if at any time during the 3 years ending with the death of the
deceased, not being a time when some other person had control or powers
equivalent to control of the company, the deceased had a beneficial
interest in possession in shares in or debentures of the company, or in
both, of an aggregate nominal amount representing one-half or more of the
aggregate nominal amount of the shares in and debentures of the company
then outstanding, but for this purpose-
(i) at any time when both the deceased and another person had such an
interest in the same share or debenture, the deceased's interest in it
shall be treated as extending only to the same fraction of it as that
interest would have been deemed for purposes of estate duty to extend to
if the share or debenture had passed on his death at that time; and
(ii) the expression "debenture" shall not include an obligation of the
company in respect of a debt incurred by it for money borrowed by way of
temporary loan, if the loan was not one of a series of temporary loans by
the same person and either was repaid within 2 years of being made or was
made less than 2 years before the deceased's death. [cf. 1954 c. 44 s. 29
(2) - (4) U. K.]
(8) Where any shares or debentures which fall to be valued in accordance
with this section have also fallen to be so valued on a previous death
within 5 years, then for the purposes of section 31 those shares and
debentures shall, in relation to those deaths, be treated in the same way
as an interest in land or in a business not carried on by a company, if on
both deaths their value is wholly or partly attributable to the value of
land of the company or any subsidiary of it or to the value of assets used
by the company or any subsidiary of it in a business not consisting mainly
in the holding of or dealing in investments other than land:
Provided that the amount on which the reduction under the said section 31
is to be calculated shall be limited, where necessary, to the duty on the
part so attributable of the value, on which duty is payable, of the shares
or debentures, and references to that part of the value shall, in the
proviso to the said section 31, be substituted for the references to the
whole value, whether in relation to the first or the second death. [cf.
1954 c. 44 s. 30 (4) U. K.]
(9) In determining for the purposes of subsection (8) what part of the
value of any shares in or debentures of a company is attributable to the
value of particular assets, -
(a) the value of the shares or debentures shall be apportioned in
proportion to the net value of the company's assets after allowing for
liabilities other than liabilities in respect of shares in or debentures
of the company; and
(b) the value apportioned under this subsection to the value of any shares
in or debentures of another company, being a subsidiary either of the
first-mentioned company or of a company of which that company is a
subsidiary, shall, where material, be similarly apportioned between the
other company's assets. [cf. 1954 c. 44 s. 31 (5) U. K.]
(10) Where a company alters its share capital by sub-dividing any shares
into shares of smaller amount, or by consolidating and dividing any shares
into shares of large amount, subsection (8) shall apply to shares derived
by those means from shares of the same class which have fallen to be
valued in accordance with this section on a death occurring before the
alteration of share capital, as if those shares and the equivalent amount
of the shares from which they were so derived were the same shares; and if
a company has issued to holders of any shares other shares as fully paid
bonus shares, that subsection shall apply both to the shares in respect of
which the issue was made and to the shares so issued as if they were
derived from the former by sub-division. [cf. 1954 c. 44 s. 30 (5) U. K.]
(11) In this section-
(a) references to the assets of a company shall be construed as references
to the assets that it had at the death of the deceased;
(b) references to a subsidiary company shall be construed in accordance
with the interpretation attributed to that expression in section 34 (5)
(a); and
(c) the expression "relative" has the meaning attributed to it in
section 7. [cf. 1940 c. 29 s. 55 (6) U. K.; 1954 c. 44 s. 31 (1) (c) & (d)
U. K.]
(Added 1 of 1959 s. 10)
45. Limitation on dispositions through a controlled company in favour of
relatives
(1) If a company to which by virtue of section 34, this section applies,
was concerned in a transaction in relation to which it is claimed that the
provisions of paragraph (a) of or the proviso to section 7 (1) have
effect, those provisions shall have effect in relation thereto if and only
if, and to the extent only to which, the Commissioner is satisfied that
those provisions would have had effect in the following circumstances,
namely, if the assets of the company had been held by it on trust for the
members thereof and any other person to whom it is under any liability
incurred otherwise than for the purposes of the business of the company
wholly and exclusively, in accordance with the rights attaching to the
shares in and debentures of the company and the terms on which any such
liability was incurred, and if the company had acted in the capacity of a
trustee only with power to carry on the business of the company and to
employ the assets of the company therein. [cf. 1950 c. 15 s. 46 (1) U.
K.]
(2) Any gifts made in favour of a relative of the deceased by a company of
which the deceased at the time of the gift had control within the meaning
of section 44 (3) shall be treated for the purposes of section 6 (1) (c)
as a gift made by the deceased, and the property taken under the gift
shall be treated as included by virtue of that paragraph in the property
passing on the death of the deceased, if and to the extent to which the
Commissioner is satisfied that it would fall to be so treated in the
circumstances mentioned in subsection (1).
(3) If the deceased has made in favour of a company to which, by virtue of
section 34, this section applies, a disposition which, if it had been made
in favour of a relative of his, would have fallen within section 7 (1),
this section shall have effect in like manner as if the disposition had
been made in favour of a relative of his, unless it is shown to the
satisfaction of the Commissioner that no relative of the deceased was, at
the time of the disposition or subsequently during the life of the
deceased, a member of the company and for the purposes of this subsection
a person who is, or is deemed by virtue of this provision to be, a member
of a company to which this section applies and which is a member of
another such company shall be deemed to be a member of that other company.
[cf. 1940 c. 29 s. 44 (4) U. K.]
(4) In this section, the expressions "annuity" and "relative" have the
meaning attributed to them respectively in section 7.
(Added 1 of 1959 s. 10)
FIRST SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying before 27 February 1931)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 500 and does not exceed 1,000 ..... 1
" 1,000 " " " " 10,000 ..... 2
" 10,000 " " " " 100,000 ..... 3
" 100,000 " " " " 250,000 ..... 5
" 250,000 " " " " 500,000 ..... 5.50
" 500,000 " " " " 750,000 ..... 6
" 750,000 " " " " 1,000,000 ..... 6.50
" 1,000,000 " " " " 1,500,000 ..... 7
" 1,500,000 " " " " 2,500,000 ..... 7.50
" 2,500,000 ........................................ 8
(Amended 20 of 1948 s. 4)
SECOND SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after 27 February 1931
but before 1 July 1936)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 500 and does not exceed 5,000 ..... 1
" 5,000 " " " " 10,000 ..... 2
" 10,000 " " " " 25,000 ..... 3
" 25,000 " " " " 50,000 ..... 4
" 50,000 " " " " 100,000 ..... 5
" 100,000 " " " " 200,000 ..... 6
" 200,000 " " " " 400,000 ..... 7
" 400,000 " " " " 600,000 ..... 8
" 600,000 " " " " 800,000 ..... 9
" 800,000 " " " " 1,000,000 ..... 10
" 1,000,000 " " " " 2,000,000 ..... 11
" 2,000,000 ........................................ 12
(Amended 20 of 1948 s. 4)
THIRD SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after 1 July 1936
but before 1 April 1941)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 500 and does not exceed 5,000 ..... 1
" 5,000 " " " " 10,000 ..... 2
" 10,000 " " " " 25,000 ..... 3
" 25,000 " " " " 50,000 ..... 4
" 50,000 " " " " 100,000 ..... 5
" 100,000 " " " " 200,000 ..... 6
" 200,000 " " " " 300,000 ..... 7
" 300,000 " " " " 400,000 ..... 8
" 400,000 " " " " 500,000 ..... 9
" 500,000 " " " " 600,000 ..... 10
" 600,000 " " " " 700,000 ..... 11
" 700,000 " " " " 800,000 ..... 12
" 800,000 " " " " 1,000,000 ..... 13
" 1,000,000 " " " " 2,000,000 ..... 14
" 2,000,000 " " " " 3,500,000 ..... 15
" 3,500,000 " " " " 5,000,000 ..... 16
" 5,000,000 " " " " 10,000,000 ..... 17
" 10,000,000 " " " " 15,000,000 ..... 18
" 15,000,000 " " " " 20,500,000 ..... 19
" 20,000,000 ........................................ 20
(Amended 26 of 1936 s. 4)
FOURTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after 1 April 1941
but before 1 April 1948)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 500 and does not exceed 5,000 ..... 1
" 5,000 " " " " 10,000 ..... 2
" 10,000 " " " " 25,000 ..... 3
" 25,000 " " " " 50,000 ..... 4
" 50,000 " " " " 100,000 ..... 5
" 100,000 " " " " 200,000 ..... 6
" 200,000 " " " " 300,000 ..... 7
" 300,000 " " " " 350,000 ..... 8
" 350,000 " " " " 400,000 ..... 9
" 400,000 " " " " 450,000 ..... 10
" 450,000 " " " " 500,000 ..... 11
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 500,000 and does not exceed 550,000 ..... 12
" 550,000 " " " " 600,000 ..... 13
" 600,000 " " " " 650,000 ..... 14
" 650,000 " " " " 700,000 ..... 15
" 700,000 " " " " 750,000 ..... 16
" 750,000 " " " " 800,000 ..... 17
" 800,000 " " " " 900,000 ..... 18
" 900,000 " " " " 1,000,000 ..... 19
" 1,000,000 " " " " 1,250,000 ..... 20
" 1,250,000 " " " " 1,500,000 ..... 21
" 1,500,000 " " " " 1,750,000 ..... 22
" 1,750,000 " " " " 2,000,000 ..... 23
" 2,000,000 " " " " 2,500,000 ..... 24
" 2,500,000 " " " " 3,000,000 ..... 25
" 3,000,000 " " " " 3,500,000 ..... 26
" 3,500,000 " " " " 4,000,000 ..... 27
" 4,000,000 " " " " 4,500,000 ..... 29
" 4,500,000 " " " " 5,000,000 ..... 31
" 5,000,000 " " " " 7,000,000 ..... 34
" 7,000,000 " " " " 10,000,000 ..... 37
" 10,000,000 " " " " 15,000,000 ..... 40
" 15,000,000 " " " " 20,000,000 ..... 43
" 20,500,000 " " " " 25,000,000 ..... 46
" 25,000,000 " " " " 30,000,000 ..... 49
" 30,000,000 ........................................ 52
(Added 7 of 1941 s. 3)
FIFTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after 1 April 1948
and before 1 February 1959)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 5,000 and does not exceed 10,000 ..... 2
" 10,000 " " " " 25,000 ..... 3
" 25,000 " " " " 50,000 ..... 4
" 50,000 " " " " 100,000 ..... 5
" 100,000 " " " " 200,000 ..... 6
" 200,000 " " " " 300,000 ..... 7
" 300,000 " " " " 350,000 ..... 8
" 350,000 " " " " 400,000 ..... 9
" 400,000 " " " " 450,000 ..... 10
" 450,000 " " " " 500,000 ..... 11
" 500,000 " " " " 550,000 ..... 12
" 550,000 " " " " 600,000 ..... 13
" 600,000 " " " " 650,000 ..... 14
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 650,000 and does not exceed 700,000 ..... 15
" 700,000 " " " " 750,000 ..... 16
" 750,000 " " " " 800,000 ..... 17
" 800,000 " " " " 900,000 ..... 18
" 900,000 " " " " 1,000,000 ..... 19
" 1,000,000 " " " " 1,250,000 ..... 20
" 1,250,000 " " " " 1,500,000 ..... 21
" 1,500,000 " " " " 1,750,000 ..... 22
" 1,750,000 " " " " 2,000,000 ..... 23
" 2,000,000 " " " " 2,500,000 ..... 24
" 2,500,000 " " " " 3,000,000 ..... 25
" 3,000,000 " " " " 3,500,000 ..... 26
" 3,500,000 " " " " 4,000,000 ..... 27
" 4,000,000 " " " " 4,500,000 ..... 29
" 4,500,000 " " " " 5,000,000 ..... 31
" 5,000,000 " " " " 7,000,000 ..... 34
" 7,000,000 " " " " 10,000,000 ..... 37
" 10,000,000 " " " " 15,000,000 ..... 40
" 15,000,000 " " " " 20,000,000 ..... 43
" 20,000,000 " " " " 25,000,000 ..... 46
" 25,000,000 " " " " 30,000,000 ..... 49
" 30,000,000 ........................................ 52
(Added 17 of 1948 s. 3 Amended 1 of 1959 s. 11)
SIXTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after 1 February 1959
and before 1 February 1959)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 50,000 and does not exceed 100,000 ..... 2
" 100,000 " " " " 200,000 ..... 3
" 200,000 " " " " 300,000 ..... 5
" 300,000 " " " " 350,000 ..... 7
" 350,000 " " " " 400,000 ..... 8
" 400,000 " " " " 450,000 ..... 9
" 450,000 " " " " 500,000 ..... 10
" 500,000 " " " " 550,000 ..... 11
" 550,000 " " " " 600,000 ..... 12
" 600,000 " " " " 700,000 ..... 14
" 700,000 " " " " 800,000 ..... 15
" 800,000 " " " " 900,000 ..... 16
" 900,000 " " " " 1,000,000 ..... 17
" 1,000,000 " " " " 1,500,000 ..... 18
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 1,500,000 and does not exceed 2,000,000 ..... 19
" 2,000,000 " " " " 3,000,000 ..... 20
" 3,000,000 " " " " 4,000,000 ..... 23
" 4,000,000 " " " " 5,000,000 ..... 27
" 5,000,000 " " " " 7,000,000 ..... 30
" 7,000,000 " " " " 10,000,000 ..... 33
" 10,000,000 " " " " 15,000,000 ..... 35
" 15,000,000 ........................................ 40
(Added 1 of 1959 s. 12. Amended 47 of 1962 s. 12)
SEVENTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after 1 January 1963
and before 1 April 1967)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 100,000 and does not exceed 200,000 ..... 3
" 200,000 " " " " 300,000 ..... 5
" 300,000 " " " " 350,000 ..... 7
" 350,000 " " " " 400,000 ..... 8
" 400,000 " " " " 450,000 ..... 9
" 450,000 " " " " 500,000 ..... 10
" 500,000 " " " " 550,000 ..... 11
" 550,000 " " " " 600,000 ..... 12
" 600,000 " " " " 700,000 ..... 14
" 700,000 " " " " 800,000 ..... 15
" 800,000 " " " " 900,000 ..... 16
" 900,000 " " " " 1,000,000 ..... 17
" 1,000,000 " " " " 1,500,000 ..... 18
" 1,500,000 " " " " 2,000,000 ..... 19
" 2,000,000 " " " " 3,000,000 ..... 20
" 3,000,000 " " " " 4,000,000 ..... 23
" 4,000,000 " " " " 5,000,000 ..... 27
" 5,000,000 " " " " 7,000,000 ..... 30
" 7,000,000 " " " " 10,000,000 ..... 33
" 10,500,000 " " " " 15,000,000 ..... 35
" 15,000,000 ........................................ 40
(Added 47 of 1962 s. 13. Amended 24 of 1967 s. 4)
EIGHTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after 1 April 1967 and
before 1 April 1970)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 100,000 and does not exceed 200,000 ..... 3
" 200,000 " " " " 300,000 ..... 5
" 300,000 " " " " 350,000 ..... 7
" 350,000 " " " " 400,000 ..... 8
" 400,000 " " " " 450,000 ..... 9
" 450,000 " " " " 500,000 ..... 10
" 500,000 " " " " 550,000 ..... 11
" 550,000 " " " " 600,000 ..... 12
" 600,000 " " " " 700,000 ..... 14
" 700,000 " " " " 800,000 ..... 15
" 800,000 " " " " 900,000 ..... 16
" 900,000 " " " " 1,000,000 ..... 17
" 1,000,000 " " " " 1,500,000 ..... 18
" 1,500,000 " " " " 2,000,000 ..... 19
" 2,000,000 " " " " 3,000,000 ..... 20
" 3,000,000 " " " " 4,000,000 ..... 23
" 4,000,000 ........................................ 25
(Added 24 of 1967 s. 5. Amended 37 of 1970 s. 4)
NINTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after 1 April 1970 and
before 1 April 1972)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 200,000 and does not exceed 300,000 ..... 5
" 300,000 " " " " 350,000 ..... 7
" 350,000 " " " " 400,000 ..... 8
" 400,000 " " " " 450,000 ..... 9
" 450,000 " " " " 500,000 ..... 10
" 500,000 " " " " 550,000 ..... 11
" 550,000 " " " " 600,000 ..... 12
" 600,000 " " " " 700,000 ..... 14
" 700,000 " " " " 800,000 ..... 15
" 800,000 " " " " 900,000 ..... 16
" 900,000 " " " " 1,000,000 ..... 17
" 1,000,000 " " " " 1,500,000 ..... 18
" 1,500,000 " " " " 2,000,000 ..... 19
" 2,000,000 ....................................... 20
(Added 37 of 1970 s. 5. Amended 27 of 1972 s. 5)
TENTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after 1 April 1972
and before 1 April 1974)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 200,000 and does not exceed 300,000 ..... 5
" 300,000 " " " " 400,000 ..... 6
" 400,000 " " " " 500,000 ..... 7
" 500,000 " " " " 550,000 ..... 8
" 550,000 " " " " 600,000 ..... 9
" 600,000 " " " " 650,000 ..... 10
" 650,000 " " " " 700,000 ..... 11
" 700,000 " " " " 800,000 ..... 12
" 800,000 " " " " 900,000 ..... 13
" 900,000 " " " " 1,000,000 ..... 14
" 1,000,000 ....................................... 15
(Added 27 of 1972 s. 6. Amended 24 of 1974 s. 4)
ELEVENTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after 1 April 1974
and before the commencement of the Estate
Duty (Amendment) Ordinance 1976)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 300,000 and does not exceed 400,000 ..... 6
" 400,000 " " " " 500,000 ..... 7
" 500,000 " " " " 550,000 ..... 8
" 550,000 " " " " 600,000 ..... 9
" 600,000 " " " " 650,000 ..... 10
" 650,000 " " " " 700,000 ..... 11
" 700,000 " " " " 800,000 ..... 12
" 800,000 " " " " 900,000 ..... 13
" 900,000 " " " " 1,000,000 ..... 14
" 1,000,000 ....................................... 15
(Added 24 of 1974 s. 5. Amended 31 of 1976 s. 5)
TWELFTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after the commencement of the Estate Duty
(Amendment) Ordinance 1976 and before the commencement
of the Estate Duty (Amendment) Ordinance 1977)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 300,000 and does not exceed 400,000 ..... 6
" 400,000 " " " " 500,000 ..... 7
" 500,000 " " " " 550,000 ..... 8
" 550,000 " " " " 600,000 ..... 9
" 600,000 " " " " 650,000 ..... 10
" 650,000 " " " " 700,000 ..... 11
" 700,000 " " " " 800,000 ..... 12
" 800,000 " " " " 900,000 ..... 13
" 900,000 " " " " 1,000,000 ..... 14
" 1,000,000 " " " " 1,500,000 ..... 15
" 1,500,000 " " " " 2,000,000 ..... 16
" 2,000,000 " " " " 3,000,000 ..... 17
" 3,000,000 ....................................... 18
(Added 31 of 1976 s. 6. Amended 31 of 1977 s. 5)
THIRTEENTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after the commencement of the Estate Duty
(Amendment) Ordinance 1977 and before the commencement
of the Estate Duty (Amendment) Ordinance 1980)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 400,000 and does not exceed 500,000 ..... 7
" 500,000 " " " " 550,000 ..... 8
" 550,000 " " " " 600,000 ..... 9
" 600,000 " " " " 650,000 ..... 10
" 650,000 " " " " 700,000 ..... 11
" 700,000 " " " " 800,000 ..... 12
" 800,000 " " " " 900,000 ..... 13
" 900,000 " " " " 1,000,000 ..... 14
" 1,000,000 " " " " 1,500,000 ..... 15
" 1,500,000 " " " " 2,000,000 ..... 16
" 2,000,000 " " " " 3,000,000 ..... 17
" 3,000,000 ....................................... 18
(Added 31 of 1977 s. 6. Amended 33 of 1980 s. 4)
FOURTEENTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after the commencement of the Estate Duty
(Amendment) Ordinance 1980 and before the commencement
of the Estate Duty (Amendment) Ordinance 1981)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 600,000 and does not exceed 650,000 ..... 10
" 650,000 " " " " 700,000 ..... 11
" 700,000 " " " " 800,000 ..... 12
" 800,000 " " " " 900,000 ..... 13
" 900,000 " " " " 1,000,000 ..... 14
" 1,000,000 " " " " 1,500,000 ..... 15
" 1,500,000 " " " " 2,000,000 ..... 16
" 2,000,000 " " " " 3,000,000 ..... 17
" 3,000,000 ....................................... 18
(Added 33 of 1980 s. 5. Amended 29 of 1981 s. 7)
FIFTEENTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after the commencement of the Estate Duty
(Amendment) Ordinance 1981 and before the commencement
of the Estate Duty (Amendment) Ordinance 1982)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 1,000,000 and does not exceed 1,500,000 ..... 15
" 1,500,000 " " " " 2,000,000 ..... 16
" 2,000,000 " " " " 3,000,000 ..... 17
" 3,000,000 ....................................... 18
(Added 29 of 1981 s. 8. Amended 28 of 1982 s. 6)
SIXTEENTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after the commencement of the Estate Duty
(Amendment) Ordinance 1982 and before the commencement
of the Estate Duty (Amendment) Ordinance 1987)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 2,000,000 and does not exceed 2,500,000 ..... 10
" 2,500,000 " " " " 3,000,000 ..... 12
" 3,000,000 " " " " 3,500,000 ..... 14
" 3,500,000 " " " " 4,000,000 ..... 16
" 4,000,000 ....................................... 18
(Added 28 of 1982 s. 7. Amended 29 of 1987 s. 5)
SEVENTEENTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after the commencement of the Estate Duty
(Amendment) Ordinance 1987 and before the commencement
of the Estate Duty (Amendment) Ordinance 1990)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 2,000,000 and does not exceed 2,500,000 ..... 6
" 2,500,000 " " " " 3,000,000 ..... 8
" 3,000,000 " " " " 3,500,000 ..... 10
" 3,500,000 " " " " 4,000,000 ..... 12
" 4,000,000 " " " " 4,500,000 ..... 14
" 4,500,000 " " " " 5,000,000 ..... 16
" 5,000,000 ....................................... 18
(Added 29 of 1987 s. 6. Amended 31 of 1990 s. 8)
EIGHTEENTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after the commencement of the Estate Duty
(Amendment) Ordinance 1990 and before the commencement
of the Estate Duty (Amendment) Ordinance 1993)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 4,000,000 and does not exceed 4,500,000 ..... 6
" 4,500,000 " " " " 5,000,000 ..... 12
" 5,000,000 ....................................... 18
(Added 31 of 1990 s. 9. Amended 29 of 1993 s. 4)
NINETEENTH SCHEDULE
[ss. 3, 5, 14, 16,
17, 23, 24 & 27]
(Persons dying on or after the commencement of the
Estate Duty (Amendment) Ordinance 1993)
Estate duty shall
Where the principal value of the estate be payable at the
rate per cent of
$ $
Exceeds 5,000,000 and does not exceed 6,000,000 ..... 6
" 6,000,000 " " " " 7,000,000 ..... 12
" 7,000,000 ....................................... 18
(Added 29 of 1993 s. 5)
TWENTIETH SCHEDULE [s. 35]
PROVISIONS SUPPLEMENTARY TO SECTIONS 34 TO 45 INCLUSIVE
Amounts to be taken into account in respect of benefits, and time when
benefits are to be treated as accruing
1. (1) The provisions of this paragraph shall have effect for the purpose
of determining the amounts to be taken into account, for the purposes of
section 35 (2), as the amounts of benefits accruing to the deceased from
the company.
(2) No amount shall be taken into account more than once.
(3) Where an amount is taken into account by reference to the deceased's
having been entitled to a benefit which he did not in fact receive, or by
reference to a power which was not in fact exercised or was surrendered,
due regard shall be had to the effect that his receiving the benefit, or
the power's being exercised, would have had in relation to other benefits.
(4) The amounts that are to be taken into account by reference to the
deceased's having been entitled to a benefit which he did not in fact
receive, or by reference to a power which was not in fact exercised or was
surrendered, shall be such as would have fallen to be taken into account
as benefits received by the deceased if he had acted in relation to the
claiming to benefits and the exercising of powers during the 3 years
ending with his death to his greatest financial advantage, due regard
being had to any consideration which he would have had to give in respect
of a claim to any benefit or the exercise of any power.
(5) In making for the purposes of sub-paragraph (4) a computation of any
diminution of income which the deceased would have sustained by giving any
such consideration as it therein mentioned, or of any increase of income
which the company would have obtained from any such consideration to be
given to the company, it shall be assumed that the consideration would
have yielded income equal to interest at the average rate on the amount or
value thereof.
(6) The amounts to be taken into account shall include any tax charged
under the Inland Revenue Ordinance (Cap. 112), in respect of the benefits
in question.
(7) The amount to be taken into account in respect of a benefit consisting
of any enjoyment in specie of land or buildings or land and buildings or
other property of the company or of a right thereover shall be the value
of the enjoyment thereof for the period during which the benefit
subsisted. and that value shall be calculated in the case of leasehold
property situate in Hong Kong by reference to the annual assessment as
ascertained for the purposes of section 5 of the Inland Revenue Ordinance
(Cap. 112), and in the case of other land or buildings or land and
buildings by such method as the Commissioner may consider just and
reasonable. (Amended 31 of 1990 s. 10)
2. (1) The provisions of this paragraph shall have effect for the purpose
of determining-
(a) whether a benefit accruing to the deceased from the company is to be
treated as having accrued to him during the 3 years ending with his death,
or during a particular accounting year, or at any other relevant time; and
(b) the period during which a benefit consisting of any enjoyment in
specie of land or buildings or land and buildings or other property of the
company or of a right thereover is to be treated as having subsisted.
(2) A benefit consisting of profits of the company or a periodical payment
which the deceased received, or became entitled to, but did not in fact,
receive, shall be treated as having accrued to him at the earliest time at
which he could have obtained receipt thereof.
(3) A benefit consisting of profits of the company or a periodical payment
which the deceased could have become entitled to receive by an exercise in
the 3 years ending with his death of a power which was not in fact
exercised or was surrendered shall be treated as having accrued to him at
the earliest time at which he could have obtained receipt thereof if he
had acted as mentioned in paragraph 1 (4).
(4) A benefit consisting of interest on such a payment other than a
periodical payment as is mentioned in section 36 which the deceased could
have become entitled to receive shall be treated as having accrued to him
in any accounting year to the extent to which the period during which the
interest is to be treated as accruing fell within that year.
(5) A benefit consisting of any such enjoyment is specie as aforesaid
shall be treated as having accrued to the deceased in the said 3 years if
any part of the period during which it subsisted fell within those years,
and shall be treated as having accrued to him in any accounting year to
the extent to which the period during which it subsisted fell within that
year.
(6) A benefit consisting of any such enjoyment is specie as aforesaid
shall be treated as having subsisted during the following period, that is
to say-
(a) in the case of enjoyment that the deceased had, during the period for
which he had it;
(b) in the case of enjoyment which he became entitled to, but did not in
fact, have, during the period for which he could have had it;
(c) in the case of enjoyment which he could have become entitled to have
by an exercise in the 3 years ending with his death of a power was not in
fact exercised or was surrendered, during the period for which he could
have had it if he had acted as mentioned in paragraph 1 (4).
Adjustments as to Distributed Assets and Additions to Assets
3. (1) Where the assets of the company passing on the death of the
deceased by virtue of section 35 include any distributed assets, or by
reason of the company's having been would up or dissolved before the death
consist of distributed assets, the following provisions of this paragraph
shall have effect.
(2) The net profits of the company shall be determined as if the income of
the company had included, or the company had income equal to, interest on
a sum equal to the value of such distribution at the average rate from the
date thereof.
(3) If on any distribution the deceased received beneficially an interest
in any of the distributed assets, the benefits accruing to the deceased
from the company shall be ascertained as if the amount brought into the
income of the company under subparagraph (2) by reference to the value of
the distribution of those assets had been income of the company which the
deceased was entitled to receive immediately on its accrual to the
company, or, where the interest in those assets which the deceased
received was less than an absolute interest, had been such income to an
extent corresponding to the proportion which the value of the interest in
those assets received by him bore to the value of those assets.
(4) Where sub-paragraph (3) has effect-
(a) the value on which, apart from this provision, estate duty would be
payable on the death of the deceased by virtue of section 35 shall be
reduced by an amount equal to the value of the distribution of the assets
in question, or, where the interest in those assets which the deceased
received was less than an absolute interest, by an amount equal to the
proportion of that value; and
(b) any amount which is treated as a benefit accruing to the deceased from
the company by virtue of that sub-paragraph shall be treated for the
purposes of section 40 (1) and (2) as a benefit received by him.
4. (1) Where the principal value of the assets of the company passing on
the death of the deceased by virtue of section 35 is increased by reason
of an addition's having been made to the assets of the company, otherwise
than by way of profits in respect of which the company was chargeable to
tax under the Inland Revenue Ordinance (Cap. 112), between the beginning
of the first of the relevant accounting years and the death of the
deceased, either-
(a) in consideration of an issue of shares in or debentures of the
company; or
(b) otherwise howsoever, except by way of purchase for full consideration
in money or money's worth given by the company.
the following provisions of this paragraph shall have effect in relation
to the added assets.
(2) The net profits of the company shall be determined as if the income of
the company had included interest on a sum equal to the value of the
addition at the average rate from the beginning of the first of the
relevant accounting years to the date of the addition.
(3) If a transfer of any of the added assets or of any interest in any of
them was made to the company by the deceased, the benefits accruing to the
deceased from the company shall be ascertained as if the amount brought
into the income of the company under sub-paragraph (2) by reference to the
value of the addition of those assets had been income of the company which
the deceased was entitled to receive immediately on its accrual to the
company, or had been such income to an extent corresponding to the
proportion which the value of the interest transferred bore to the value
of those assets, as the case may be.
(4) Where sub-paragraph (3) has effect, if the deceased received as
consideration for the addition of the assets in question an interest in
any shares in or debentures of the company in respect of which estate duty
would be payable on his death apart from anything in section 40 (3), any
amount which is treated as a benefit accruing to him from the company by
virtue of that sub-paragraph shall be treated for the purposes of section
40 (3) as a benefit accruing to him by virtue of his interest in those
shares or debentures.
(5) In this paragraph, the expression "value of the addition" means, in
relation to any added assets, the value thereof or, if partial
consideration, other than an issue of, or an alteration of rights
attaching to, shares in or debentures of the company, was given therefor
in money or money's worth out of the resources or at the expense of the
company, the value thereof less the value of the consideration given.
Prevention of duplication of charge in respect of benefits and charge in
respect of shares
5. For the purposes of section 40 (3), where the benefits that accrued to
the deceased from the company in the relevant accounting years included
benefits that accrued to him otherwise than as mentioned in that
subsection, but the deceased had at any time an interest in, or a power
was at any time exercisable in relation to, shares in or debentures of the
company in respect of which estate duty would be payable on his death
apart from anything in that subsection, and by virtue of that interest or
power benefits accrued to the deceased from the company in those years, or
would so have accrued to him if any payments had been made by virtue of
rights attached to those shares or debentures, then-
(a) if the first-mentioned benefits consisted to any extent of payments
made out of moneys which, if not so applied, could have been applied in
increasing the last-mentioned benefits, or as payments which would have
constituted such benefits; or
(b) if the first-mentioned benefits are brought into the computation made
section 35 (2) to the exclusion to any extent of the last-mentioned
benefits,
the first-mentioned benefits shall to that extent be treated as if they
had accrued to the deceased by virtue of his interest in, or of the power
exercisable in relation to, the said shares or debentures.
Accounting Year
6. (1) The expression "accounting year" means in relation to a company, if
the company has, before the death of the deceased, made up accounts for a
period of 12 months ending in the last year of his life, that period and
each previous period of 12 months ending on the date corresponding to that
to which the accounts were made up, or, if not, a period of 12 months
ending on such date in the last year of his life as the Commissioner may
determine and each previous period of 12 months ending on the date
corresponding to the date determined.
(2) The expression "relevant accounting years" means the accounting years
by reference to which the extent of the passing of the assets of the
company is to be determined under section 35.
(3) Where an accounting year does not coincide with a period for which
accounts of the company were made up, the Commissioner may, for the
purpose of determining the profits or net profits of the company for that
accounting year, divide any such period and make such apportionments and
aggregations of the profits of the company as may be necessary, so,
however, that any apportionments so made shall be made in proportion to
the number of months or fractions of amounts in the respective periods for
which the apportionment is made.
Grant of prior assurances
7. Where at any time a transfer of property has been made by any person to
a company to which section 35 applies the company may apply to the
Commissioner for an assurance that the provisions of that section will not
be applied on the death of such person by reason only of such transfer and
the Commissioner may if he is satisfied that the transfer and any
associated operations were effected bona fide for commercial reasons and
such transfer and any associated operations have not been effected with
the purpose of avoiding estate duty payable upon such death, give such an
assurance. (Added 1 of 1959 s. 12. Amended 47 of 1962 s. 14; 24 of 1967
s. 6; 37 of 1970 s. 5; 27 of 1972 s. 6; 24 of 1974 s. 5; 31 of 1976 s. 6;
31 of 1977 s. 6; 33 of 1980 s. 5; 29 of 1981 s. 8; 28 of 1982 s. 7; 29 of
1987 s. 6; 31 of 1990 s. 9; 29 of 1993 s. 5) [cf. 1940 c. 29 7 th Sch. U.
K.]
| 1 | 2 | 3 |
|