Transfer Duty Amendment Act – Transition Guidelines

The Transfer Duty Amendment Act (“the Amendment Act”) came into effect of 1st March 2020 (“the Commencement Date”). As at the Commencement Date, the responsibility of collecting transfer duty was transferred from the Registrar of the Deed Registry (“the Registrar”) to the Commissioner General of Botswana Unified Revenue Services (“the Commissioner”).

On the 23rd March 2020, a tripartite meeting (“the Meeting”) was held between the Botswana Unified Revenue Service (“BURS”), the Deeds Registry and the Law Society of Botswana. The main aim of the Meeting was to address the issues of immediate concern that would affect property transfers and overcome the apparent challenges being expressed by stakeholders with the implementation of the Amendment Act.

As a result of the meeting, the following guidelines were agreed upon and published by BURS on the 27th March 2020;

Property Transactions entered into prior to the Commencement Date

It was established that the Amendment Act would not have retrospective application and therefore will not apply to property sale transactions entered into prior to the Commencement Date. Effectively, for all transactions in which the date of sale was before the Commencement Date, the Transfer Duty Act [ Cap 53:01] (“the Old Act”) shall apply.

It follows that for transactions entered into after the Commencement Date are obligated to submit their transfer duty payments and assessments to BURS directly.

Property Valuations

All transactions shall be lodged with valid valuations in order to enable BURS to determine and access the transfer duty payable. In order to be valid, a valuation shall comply with the following;

  1. It should have been undertaken within a period of two years prior to;
    1. The date of lodgement at the Deeds Registry (applicable to transactions entered into prior to the Commencement Date); and
    2. The date of submission to BURS of the Transfer Duty Declaration Form (“the Declaration”) (applicable to transactions entered into after the Commencement Date).

Declaration form for transfer of immovable property

The Declaration is to be completed and lodged at BURS together with the transfer documents for assessment.

The following clarifications were made in relation to the Declaration:

  1. The Declaration provides that it is to be signed exclusively by the conveyancer, it was discussed and agreed that it would be satisfactory that either the conveyancer or the beneficiary may sign;
  2. If either the party does not have a Taxpayer Identification Number (“TIN”), the relevant portion is to be completed as N/A (not applicable). If only one of the parties has a TIN, it must be provided;
  3. The TIN of the conveyancer responsible for lodging the Declaration shall be entered, however, it does not prevent another conveyancer from signing the transfer documentation that is eventually submitted to the Registrar for registration;
  4. If there is an exemption from the payment of transfer duty, the basis should be clearly stated on the form by specifying the nature of the exemption and the relevant applicable provision of either the Old Act or the Amendment Act. Further, all exemptions must be submitted with an affidavit providing the basis on which the purchaser qualifies for the relevant exemption.

The above outlined guidelines are meant to assist the public with the transition and assumption of responsibilities from the Deeds Registry to BURS.

For further information contact One Lisa Seikano on email: one@bookbinderlaw.co.bw.