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tax

2011 TAX CHANGES

highlights and implications

Eddie Lee

BUDGET 2011 WaS cONSIDErED VErY "PLaIN", FOcUSING ON ThE MacrO EcONOMY aND DID NOT cONTaIN TOO MaNY aNNOUNcEMENTS Or Tax PrOPOSaLS ThaT aFFEcTED INDIVIDUaLS aND cOMPaNIES DIrEcTLY. ThE BUDGET 2011 PrOPOSaLS & rEcENT DEVELOPMENTS SEMINar ON 18 JaNUarY 2011 OrGaNISED BY ThE MaLaYSIaN INSTITUTE OF accOUNTaNTS FOcUSED ON ThE hIGhLIGhTS aND IMPLIcaTIONS OF 2011 Tax chaNGES FOr TaxPaYErS

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2011 Tax chaNGES ­ hIGhLIGhTS aND IMPLIcaTIONS

udget 2011 is aimed at transforming the nation into a developed plus high-income economy while promoting sustainable development in line with the theme "Transformation towards a Developed and High-Income Nation". In the analysis of Budget 2011, it can be seen that no new taxes were introduced, and there were no new tax reductions for individuals and corporations. Neither were there many tax incentives or tax exemptions announced. Although Budget 2011 lacked many tax changes or proposals, there were still pockets of goodies in store, said speakers at the Budget 2011 Proposals & Recent Developments seminar organised by the Malaysian Institute of Accountants. So what can taxpayers expect?

B

the same basis period on the same promoted product," noted Chow Kuo Seng, Executive Director, Deloitte KassimChan Tax Services Sdn Bhd during the Budget 2011 Proposals & Recent Developments seminar. "However," said Kuo, "with the proposed legislation, pioneer status incentive and reinvestment allowance incentive cannot be claimed in the same basis period

on the same promoted product from year of assessment 2011 onwards." Participants asked if Investment Tax Allowances (ITA) had been affected. According to Kuo, with the proposed legislation, it is now clear that a company is allowed to enjoy both ITA incentive and RA incentive in the same basis period on the same promoted product in the absence of amendment to "basis period."

witHHolding tax

reinvestMent allowance (ra) and investMent tax allowance

nn Currently, a company is eligible to claim a RA immediately following the expiration of pioneer status, a special tax incentive. The Budget proposal effectively delays the claim period starting point if the company's pioneer status expires anytime during its taxable year. Under this proposal, the company can claim the RA only after the end of the taxable year in which the pioneer status has expired. As a result, if it expires in the earlier part of the taxable year, the taxpayer must hold off the claim for some months. "It is debatable, in the current legislation, as to whether a company is allowed to enjoy both pioneer status incentive and reinvestment allowance incentive in

nn Elsewhere, the withholding tax (WT) provisions under the Income Tax Act, 1967 place a tremendous demand on payers. Payers are obliged to withhold tax on certain payments to non-residents and remit the tax withheld to the IRB within a stipulated time frame. Non-compliance would result in hefty penalties and also raises a non-tax deductibility issue for the payers. The tax issues connected to transactions on a cross-border basis can be complicated and tedious. These range from withholding tax implications to tax treatment of "foreign source income" and the connected expenses, to name a few. The current law does not have a specific definition of when a withholding agent can claim a taxable deduction on payments that are subject to Malaysian withholding tax. As a result, many withholding agents have claimed deductions when payments were made to a foreign person, so long as the corresponding withholding tax and late payment penalties were remitted to the Malaysian tax authority eventually. To ensure withholding tax compliance, the Budget allows the withholding agent to claim the deduction only when the withholding tax and penalties, if applicable, are remitted by the due date of filing a tax return on which the deduction is claimed. Failure to pay tax is subject to a 10 per cent late payment penalty, which, under no circumstances, would be waived. For example, say a company's payment of interest of RM100,000 is due on 1 September 2011 and the due date for the corporate tax return is on 31 July 2012. The withholding tax of RM15,000 was paid on 31 July 2012 and deduction of RM100,000 interest claimed. The penalty for late withholding tax payment is RM1,500. The incorrect return penalty is RM100,000 x 25 per cent at 45 per cent penalty which works out to RM11,250. On tax paid in excess, under the present laws, a taxpayer is entitled for refund of tax overpaid for any year of assessment under the Income Tax Act, 1967. But the Director-General is empowered under Section 111(4A) of the Income Tax Act, To ensure withholding tax com1967 to utilise any excess tax paid pliance, the Budget allows the for tax due and payable by the withholding agent to claim the person under the Income Tax Act, deduction only when the withPetroleum (Income Tax) Act and holding tax and penalties, if Real Property Gains Tax Act. And applicable, are remitted by the the effective date is upon coming due date of filing a tax return on into operation of the Finance (No. which the deduction is claimed. 2) Act 2010.

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2011 Tax chaNGES ­ hIGhLIGhTS aND IMPLIcaTIONS

tax instalMents and revisions

nn Under present laws, if a taxpayer fails to submit any tax estimates, the DGIR is empowered to ask for tax instalments to be paid for a year of assessment. But things are going to be different. The IRB may at any time issue a directive (Form CP 205) for tax instalments. The CP 205 issued by the DGIR is deemed to be the revised estimate for the purposes of determining the underestimation penalty. Where the CP 205 by the Inland Revenue Board is made before the 9th month of the basis period for a year of assessment, the taxpayer may furnish their revision of tax instalment in the 6th or 9th month of that basis period. All these amendments take effect from 2012 onwards. Taxpayers are given six months to rectify errors for selfamendment that resulted in underpayment of tax within 6 months from their respective filing deadlines. Corrections are allowed for failure to report over-claimed expenses or deductions, unreported income and over-claimed capital allowances or incentives. However, revisions attract penalties; 10 per cent within 60 days from the filing due date and 15.5 per cent for 60 days. Any tax payable or additional tax payable including the relevant penalty has to be paid on the date of submission of the Amended Return Form. The penalty for under-estimation of tax payable is also applicable where the difference in tax exceeds the 30 per cent threshold. n Service tax aside, the government will strengthen the revenue collection system by increasing enforcement and audit as well as expanding coverage on all parties that should be paying taxes. This is the direct result of the failure of taxpayers to furnish tax estimates which is costing the government dearly in millions of lost or uncollected revenue.

service tax

nn Service Tax was increased from 5 per cent to 6 per cent with effect from 1 January 2011. This will impact quite a number of service industries as well as individual consumptions. This may be a temporary measure to increase government revenue while pending the implementation of the Goods and Services Tax (GST).

ths given six mon Taxpayers areors for selfto rectify err hat resulted in amendment t t of tax within 6 underpaymen their respective months fromes. filing deadlin

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tax

Preparation of Statement of Remuneration ­ Form EA / Form EC

It's normally a yearly routine that in the month of February every employer compiles payroll records to prepare an annual report of their employees' gross remuneration for income tax submission purposes.

wHat is contained in tHe payroll record?

Payroll, in a nutshell, is a summary of all financial records of salaries, wages and deductions such as Monthly Tax Deductions (MTD or formerly known as Schedular Tax Deductions, STD), Employees Provident Fund (EPF) and Social Security (SOCSO). These deductions are mandatory under legislation, to be paid for services rendered by employees during a certain period of time. Wages, on the other hand, refer to all remuneration due to

an employee under his contract of service or apprenticeship whether it was agreed to be paid monthly, weekly, daily or otherwise. This includes bonus, commission or any allowance which an employer is required to pay whether such a payment is payable under his contract of service or apprenticeship or others". It is imperative that employers maintain systems that can generate accurate payroll records and ensure timely remittance of the appropriate amount of tax and deductions to the relevant authority.

Mandatory Deduction Payments liable to mandatory deductions for payroll purposes in Malaysia include the following:MTD (or formerly known as STD) Salary; Wages; Overtime payment; Commission; Tips; Allowance; Bonus/incentive; Director's fee; Perquisites; Employees Share Option Scheme (ESOS); Tax borne by employer; Gratuity; Compensation for loss of employment; Other remuneration related to employment.

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EPF · Salary; · Payment for unutilised leave; · Bonuses; · Allowances; · Commissions; · Arrears of wages; · Wages for maternity leave; · Wages for study leave; · Wages for half-day leave; and · Directors' salary (as an employee).

SOCSO Basic salary or wages; Overtime; Commission; Service charges; Food/housing/shift/maternity allowance; Allowance such as incentive, good behaviour and cost of living (COLA) Sick leave pay; Annual leave pay; Holiday pay; Weekly rest day pay; and Payments due for work done on holidays and rest days.

PrEParaTION OF STaTEMENT OF rEMUNEraTION ­ FOrM Ea / FOrM Ec

Mandatory Deduction Payments liable to mandatory deductions for payroll purposes in Malaysia include the following:MTD (or formerly known as STD) Remuneration not subject to MTD deductions: Benefits-in-kind (BIK); Value of living Accommodation (VOLA). However, employee may make an irrevocable election to include the BIK and VOLA as part of his/her remuneration to be subjected to MTD by completing a prescribed form issued by the Inland Revenue Board (IRB), but subject to employer's concurrence. · Service charge; · Overtime payment; Payments by employer to any pension or provident fund for employees Mileage claims EPF The payments below are not regarded as wages and is not subject to EPF contributions: SOCSO The payments below are not regarded as wages and is not subject to SOCSO contributions:

· Gratuity; · Director's fee; · Retirement benefits; · Payment in lieu of notice of termination of employment; · Retrenchment, temporary and lay-off termination benefits; and · Any travelling allowance or the value of any travelling concession.

Gratuity payment(s) for dismissal or retrenchment Annual bonus

Employer's Obligation under the Income Tax Act 1967

With effect from year of assessment (YA) 2009, every employer shall for each year, prepare and render to his/her employee a statement of remuneration of that employee on or before the last day of February in the year immediately following a YA. The Income Tax Act 1967 (ITA 1967) provides that any person to whom or for whose benefit a service is rendered or performed by another person shall be deemed to be an employer, whether or not he employs that other person or is responsible for paying remuneration to that other person. Such employer is responsible to remunerate the employees in accordance with the ITA 1967. The ensuing sections will provide some pointers in the preparation of the Form EA, paying particular emphasis on pertinent parts of the Form EA. It is important too that employees are aware and have the knowledge if the Form EA has been correctly prepared.

Part E Contributions to Approved Pension/ Provident Fund, Scheme or Society Part F Particulars of Payment in Arrears and Other Payments in respect of Preceding Years (Prior to Current Year) Part G Total Tax Exempt Allowances/ Perquisites/ Gifts/ Benefits This publication contains discussion on Part B and Part G of the Form EA in greater detail.

Part B of Form EA

Employment Income, Benefits and Living Accommodation (Excluding Tax Exempt Allowances/ Perquisites/ Gifts/ Benefits) This Section requires disclosure of gross income of an employee in respect of gains or profits from an employment under Section 13(1) of ITA 1967. The various forms of employment income is grouped into different categories in accordance with subsection 13(1)(a) to 13(1)(e). These categories are elaborated (following the order of the Form EA) below:

Form EA is segregated into seven (7) parts i.e. Part A to Part G that have to be completed by the employer as follows:

Part A Particulars of Employee Part B Employment Income, Benefits and Living Accommodation (Excluding Tax Exempt Allowances/ Perquisites/ Gifts/ Benefits) Part C Pensions and Others Part D Total Deduction

1. Section 13(1)(a) ­ covers gross income which includes the following:

· · · Gross salary, Wages, Leave pay,

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PrEParaTION OF STaTEMENT OF rEMUNEraTION ­ FOrM Ea / FOrM Ec

· · · · · · · · · ·

Overtime pay, Fee (including director fees), Commission, Bonuses, Gross tips, Perquisites, Awards/rewards, Gratuity, Other allowances (whether in money or otherwise), Income tax borne by the employer i.e. tax allowance in respect of the employees.

Allowances include money received for:

· Travelling and entertainment · Clothing · Housing

2. Section 13(1)(b) : Value of Benefits-in-Kind (BIK)

Employer is required to report the value of any benefits provided to their employees for personal use which are not convertible into money such as company car, food, clothing, servants, etc. The amount to be declared in the Form EA is determined as follows:a) Motorcars(tostatetheactualdatethemotorcarisprovidedtogetherwiththetype,yearandmodel); (i) The value of motorcar and petrol based on the commonly preferred method i.e. prescribed methods are shown in TableA: Table A Cost of motorcar (Brand new) (RM) Up to 50,000 50,001-75,000 75,001-100,000 100,001-150,000 150,001-200,000 200,001-250,000 250,001-350,000 350,001-500,000 500,001 and above Annual prescribed benefit of motorcar (RM) 1,200 2,400 3,600 5,000 7,000 9,000 15,000 21,250 25,000 Annual^ prescribed benefit of petrol (RM) 600 900 1,200 1,500 1,800 2,100 2,400 2,700 3,000

Perquisites in this context are benefits in cash or in kind which can be converted into money received by an employee from his employer or from third parties in respect of having or exercising an employment. Examples of the perquisites are: · Employee share option scheme; · Entrance fees/monthly/annual subscription on individual membership in a recreational club under the name of the individual; · Rewards for long service such as watch (with cash value); · Electricity bills, water and telephone bills, road tax, car insurance premiums (provided the bills are under the name of the individual); · Car maintenance charges; · Annual credit card membership fees (covering private usage); · Loan interest borne by employer on (where aggregate of loan exceeding RM300,000) ­ interest free loan; ­ where only part of the interest is borne by the employer; or ­ interest charged below market rate but excluding internally generated funds/loan; · Payment or reimbursement of tuition or school fees for the employee's children whether studying in or outside Malaysia but excluding reimbursement from an education refund plan on successfully obtaining qualification by the employees; · Annual insurance premium for an insurance scheme where the employee, members of his family or his nominee is the beneficiary; · Gardener, driver, domestic help or guard (hired by the employee); · Waiver of loan or advances provided to employee; · Assets such as houses, cars or other items provided free of charge or sold at discounted prices; · Gift vouchers which are recurring in nature and provided in the circumstances where the employee expects such gifts as part of his remuneration; · Excellent Public Service award to the officers and staff of the public sector by the Government; · Professional subscriptions reimbursed by employer which is not requisite to the business of the employer.

^refer to explanation in Part G of Form EA (item No. 1 & 2) on the exemption on free petrol provided by the employer. (ii) Value of driver (please refer to Table B) b) Electricity,water,telephoneandotherbenefits(please referTableB) Table B Type of benefit 1 2 3 4 5 Telephone (including mobile phone) * Driver Gardener Household servant Service charges and other bills such as water, electricity and telephone Annual Prescribed Value of BIK per year (RM) Hardware: 300 per telephone Bill : 300 per telephone 7,200 per driver 3,600 per gardener 4,800 per servant Service charges and bill paid by the employer

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Recreational club cor- Monthly/annual membership subporate membership scription paid by the employer

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PrEParaTION OF STaTEMENT OF rEMUNEraTION ­ FOrM Ea / FOrM Ec

* Effective YA 2008, benefits on telephone and telephone bill are fully tax exempted. However, monthly telephone allowance is not tax exempted.

f)Others(forexamplefoodandgarments) To assess the prescribed value of other benefits, please refer to TableC.

3. Section 13(1)(c) ­ Accommodation provided by employer

c) Valueofhouseholdbenefits (i) Semi-furnished with furniture; or (ii) Fully-furnished with kitchen/air-conditioner/ curtain/carpet; or (iii)Separate items: Furniture and fittings, kitchen equipment, entertainment and recreation The prescribed value of household furnishing, apparatus and appliances is shown in TableC: Table C Category Type of Benefit Annual Prescribed Value of BIK provided (RM) 840 This refers to the value of living accommodation (VOLA) in Malaysia provided by the employer. As prescribed in the Public Rulings, the computation of the VOLA provided to employees by employers is divided into 3 categories as illustrated below: Category Computation of Annual VOLA Persons (RM) 1 3% x Gross employment income under Section 13(1) (a) excluding gross income in respect of any right to acquire shares in a company. This category applies to living accommodation provided in a: - Hotel, hostel or similar premise; - Premise on a plantation, in a forest or any premise which although in a rateable area, is not subject to public rates. 30% x Gross employment income under Section 13(1) (a) excluding gross income in respect of any right to acquire shares in a company; or the Define value; whichever is lower. Define value1 The VOLA is the defined value of the living accommodation provided without any comparison with 30% of the gross employment income. The defined value can be adjusted appropriately if the living accommodation is shared with other employees working in the same company. Living accommodation for employee/ service director / Government or Statutory Body officer

1

Semi-furnished with furniture in the lounge, dining room or bedroom. Semi-furnished with furniture as in Column (i) and one or two of the following: - air-conditioners - curtains and alike - carpets Fully furnished with benefits as in Columns (i) and (ii) as above plus one or more of kitchen equipment, crockery, utensils and appliances

2

1,680

2 3,360

3

Employee (other than officer of a Government/ Statutory Body) or service director

d)Householdservantandgardener(pleasereferTableB) e)Benefitofleavepassagefortravel The following leave passage received by an employee is exempted from tax: (i) leave passage including meals and accommodation for travel within Malaysia of not more than 3 times in one calendar year; or (ii)one oversea leave passage in any calendar year, limited to a maximum of RM3,000. (a) Leave passage cost means costs of fares; and (b) The exemption of item (i) and (ii) is only confined to employee and members of his/her immediate family i.e. wife or wives and children or husband and children. (iii)benefits used by an employee solely for purposes of performing his employment duty such as free transport or subsidized meals.

3

This category only applies to accommodation provided for directors of controlled companies by the employer.

Where accommodation is provided for less than 12 months, the VOLA should be apportioned appropriately. Section 38 of the ITA 1967 allows deduction on the following expenses paid by the employee in respect of living accommodation provided: rent, any public rates or insurance premiums; expenses on repair or maintenance of premises.

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PrEParaTION OF STaTEMENT OF rEMUNEraTION ­ FOrM Ea / FOrM Ec

4. Section 13(1)(d) ­ Refund/ Receipts from unapproved Pension/ Provident Fund, Scheme or Society

This refers to the amount attributable to employer's contribution only.

home and place of work and/ or the amount of value of petrol provided for travel in exercising the employment. 3. 4. Child care allowance. Gift of fixed line telephone, mobile phone, pager or Personal Digital Assistant (PDA) registered in the name of the employee or employer including cost of registration and installation. Monthly bills for subscription of broadband, fixed line telephone, mobile phone, pager and PDA registered in the name of the employee or employer including cost of registration and installation. Gift of new personal computer (one unit). `Personal computer' means a desktop computer, laptop computer and handheld computer but does not include a handphone with computer facilities. [P.U. (A) 191/2008]. RM2,400 and children up to 12 years of age. Limited to only 1 unit for each category of assets

5. Section 13(1)(e) ­ Compensation for loss of employment

This refers to any amount received by an employee from his/her employer as compensation for loss of employment before or after his / her employment ceases. However, payments are exempted from tax (either in full or in part) in the following circumstances: a) Compensation received due to ill-health; or b) In cases other than (a) above, where the individual ceased employment on or after 1 July 2008, exemption of RM10,000 is granted for each completed year of service with the same employer or companies in the same group. The above exemption is not applicable to payment made by a controlled company to a director of the company who is not a full-time service director. PartG:Totaltaxexemptallowances/perquisites/gifts/ benefits Tax exempt allowances / perquisites / gifts / benefits listed below are required to be declared under Part G of the Form EA. However these exemptions are not applicable to employees having control over2 the company, sole proprietors or partners of partnership businesses. The checklist on these exemptions are as follows:No. 1. Description Petrol card, petrol allowance or travel allowance or any of its combination for travelling between the home and place of work. Petrol card, petrol allowance, travelling allowance or toll payment or any of its combination for official duties. Any amount received exceeding RM6,000 a year, the employee can make a further deduction in respect of the amount spent for official duties. Combination of 1 and 2 above, where employer is unable to identify the amount of actual value of petrol provided to the employee for travel between Amount restricted yearly Up to RM2,400. Applicable only for YA 2008 to YA 2010 Up RM6,000.

5.

Limited to only 1 line for each category of assets

6.

Limited to 1 unit only. Applicable only for YA 2008 to YA 2010

7.

2.

Up to RM2,000 Perquisite (whether in money or otherwise) provided to the employee pursuant to his employment in respect of:(i) past achievement award; (ii)service excellence award, innovation award or productivity award; and (iii)long service award (provided that the employee has exercised an employment for more than 10 years with the same employer). Parking rate and parking allowance. This includes parking rate paid by the employer directly to the parking operator. Actual amount expended

8. Records pertaining to the claim for official duties and the exempted amount must be kept for a period of 7 years for audit purpose. The amount of benefit on free petrol exempted is limited to RM6,000.

9.

Actual amount Meal allowance received on a expended regular basis and given at the same rate to all employees. Meal allowance provided for purposes such as overtime or outstation / overseas trips and other similar purposes in exercising an employment are only exempted

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PrEParaTION OF STaTEMENT OF rEMUNEraTION ­ FOrM Ea / FOrM Ec

if given based on the rate fixed in the internal circular or written instruction of the employer. 10. Subsidised interest is fully exempted for housing, education or car loan provided the total amount of loan taken in aggregate does not exceed RM300,000. However, if the total amount of loan exceeds RM300,000, the amount of subsidised interest exempted from tax is limited, with the following formula: = A x B C where, A : is the difference between the amount of interest to be borne by the employee and the amount of interest payable by the employee in the basis period for a year of assessment; B : is the aggregate of the balance of the principal amount of housing, education or car loan taken by the employee in the basis period for a year of assessment or RM300,000, whichever is lower; C : is the total aggregate of the principal amount of housing, education or car loan taken by the employee

ers as a replacement to SOCSO contributions; and g) Group insurance premium to cover workers in the event of an accident. The above benefits will not be exempted if the benefits are received by an employee from a company within the same group of companies as its employer. For this purpose, a holding company and all its subsidiaries are regarded as companies within the same group regardless whether the companies are in or outside Malaysia. Benefits provided to a spouse or unmarried children of the employee (as defined under Section 48 of ITA 1967) is deemed to be benefits received by an employee. n Reference materials: Public Ruling No. 1/2006 : Perquisites from Employment and its Addendum; · Public Ruling No. 2/2004 : Benefits-In-Kind and its Addendums; and · Public Ruling No. 3/2005 : Living Accommodation Benefit provided for the Employee by the Employer and its Addendum. This article was prepared by the Professional Standards & Practices department of MIA.

1. Define Value means: i) where the accommodation is not affected by any written law providing for the restriction or control of rents and the person so providing the accommodation holds the accommodation on lease, the rent which is or would have been paid if the accommodation is or had been unfurnished and the lessor and the lessee were independent persons dealing at arm's length. ii) in any other cases, the rateable value or, in the absence of rateable value, the economic rent. iii) Where the rental includes the rental of furniture, the amount used to compute the defined value shall be net of the rental of furniture.

Footnotes

2 . Control over his employer means a. for a company, the power of the employee to secure by means of the holding of shares or the possession of voting power in or in relation to that or any other company, or by virtue of powers conferred by the articles of association or other document regulating that or any other company, that the affairs of the first mentioned company are conducted in accordance with the wish of the employee; b. for a partnership, the employee is a partner of the employer; or c. for a sole proprietor, the employee and the employer is the same person. 3. Traditional medicine means Malay, Chinese and Indian Traditional Medicine given by a medical practitioner registered with bodies which are certified or registered in accordance with the rules governing traditional medicine as laid down by the Ministry of Health. Examples: Malay traditional massage, ayurvedic or acupuncture, excluding complimentary medicine and homeopathy. Complimentary medicine and homeopathy refers to aromatheraphy, reflexology, spa and Thai traditional massage. 4 It includes either goods manufactured or trading stocks of the employer. Amount exempted is up to RM1,000 effective YA 2008 based on sales value.

It is important to note that the following benefits which are exempted from tax are not required to be declared in Part G of Form EA. They are: a) Medical, dental or child-care benefit. Effective YA 2008, tax exempt medical benefits are extended to include traditional medicine3 and maternity expenses i.e. pregnancy and child birth; b) Consumable business products of the employer4 offered at discounted price; c) Services provided by the employer offered at discounted price; d) Food and drink provided free of charge; e) Free transportation between pick-up points or home and the place of work (to and fro); f) Insurance premiums which are obligatory for foreign work-

"rateable value" - in relation to premises, means the annual value as determined for rating purposes by the local rating authority such as City Hall, the Municipal Council and other similar authorities for the purpose of imposition of assessment rates. "economic rent" - in relation to any premises or part of any premises, means the rent at which premises might reasonably be expected to be let if a. the lessor covenanted to pay the cost of fire insurance, public rates and work of repair and maintenance; and b. any written law providing for the restriction or control of rents were disregarded.

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