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Business Licence Act 1998

Commencement: 01 August 1998


REPUBLIC OF VANUATU


BUSINESS LICENCE ACT
NO. 19 OF 1998


Arrangement of Sections


1. Interpretation
2. Business licences
3. Licensing authority
4. Application for licences
5. Issue of licence
6. Foreign investors' entitlement to business licence
7. Issue of business - business listed in section 13
8. Issue of business - business not listed in section 13
9. Renewal of business licences
10. Transfer of business licences
11. Reasons for decision
12. Appeal
13. Minister to approve or refuse applications in certain cases
14. Licence to be displayed
15. Licences lost or destroyed
16. Power of search
17. Confidentiality of information
18. Fees
19. General provisions
20. Revenue from fees
21. Abatement of fees
22. Reduction of fees
23. Penalties
24. Cancellation of licence
25. Rules
26. Repeals
27. Commencement


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REPUBLIC OF VANUATU


BUSINESS LICENCE ACT
NO. 19 OF 1998


Assent: 25/08/98
Commencement: 01/08/98


To provide for the licensing of businesses and for matters connected therewith.


INTERPRETATION


1. In this Act unless the context otherwise requires:


"approval certificate" means an approval certificate issued by the Vanuatu Foreign Investment Board;


"business" means any lawful form of trade, commerce, profession, craftsmanship, calling or other activity carried on for the purpose of gain, provided that a person shall not be deemed to carry on a business in respect of which is sole gain is by way of salary or wages;


"Director" means the director of the department of Government responsible for the administration of business licences;


"employee" means an individual who works under a contract of employment whether written or oral and any related expression shall be construed accordingly;


"Foreign Investment Board" means the Board established by the Foreign Investment Act 1998;


"foreign investor" has the same meaning as in the Foreign Investment Act 1998;


"investment proposal" has the same meaning as in the Foreign Investment Act 1998;


"Minister" means the Minister responsible for finance;


"negative list" means the list of activities in Schedule 1 of the Foreign Investment Act 1998;


"person" includes any company or association or body of persons corporate or unincorporated;


"premises" includes buildings, ships, vehicles or other places where a business is carried on, together with any place which constitutes a necessary annex to the principal place of business;


"proprietor" means the owner of a business or any natural person or corporation carrying on a business within Vanuatu or his or its own account, in association with others or on behalf of a person outside Vanuatu;


"reserved occupation" means an occupation declared under section 9 of the Labour (Work Permits) Act to be a reserved occupation.


BUSINESS LICENCES


  1. (1) Subject to the exemptions contained in Schedule 2, no person shall carry on a business without a licence issued under this Act.

Penalty: fine not exceeding VT500,000 or imprisonment not exceeding 1 year or both.


(3) Where a person is charged under this section with carrying on any business without a licence, the burden of proving that a licence was issued to him in respect of the current year shall be on that person.

LICENSING AUTHORITY


  1. (1) There shall for the purposes of this Act be the following licensing authorities:
(2) The Director may in writing delegate his or her functions to his or her subordinate, except his power of delegation.

(3) The instrument of delegation must state:

(4) The following provisions apply to a delegation by the Director:

APPLICATION FOR LICENCES


  1. (1) Every application for the issue or renewal of a licence under this Act shall be made to the licensing authority in such form as may be prescribed by the Director.

Penalty: a fine not exceeding VT100,000 or imprisonment not exceeding three (3) months or both.


ISSUE OF LICENCE


  1. (1) The issue or renewal of a licence under this Act shall be in the form prescribed by the Director.

FOREIGN INVESTORS' ENTITLEMENT TO BUSINESS LICENCE


  1. A foreign investor who has received an approval certificate from the Foreign Investment Board for an investment proposal is entitled to be issued with the business licences specified in the certificate for the proposal.

ISSUE OF BUSINESS LICENCE - BUSINESS LISTED IN SECTION 13


7. (1) If a foreign investor:


(a) produces to the Minister an approval certificate that specifies a business licence for a business listed in section 13; and

(b) gives the Minister a completed application form; and

(c) pays the business licence fee payable for the licence, in accordance with section 18;

the Minister must direct the Director to issue to the investor the business licences specified in the certificate.


(2) If:

the Minister must direct the Director to issue the business licence to the person.


(3) The Minister must give the direction within seven (7) days after he foreign investor complies with subsection (1), or the person complies with subsection (2).

(4) If the Minister does not within seven (7) days direct the issue or refusal or the licence:

(5) If the business licence involves a business situated in an area that is outside a municipality, references to the Director in this section are to be read as references to the local government council for the area.

ISSUE OF BUSINESS LICENCE - BUSINESS NOT LISTED IN SECTION 13


8. (1) If a foreign investor:


(a) produces to the Director an approval certificate that specifies a business licence for a business not listed in section 13; and

(b) gives the Director a completed application form; and

(c) pays the business licence fee payable for the licence in accordance with section 18;

the Director must issue to the investor the licences specified in the certificate.


(2) If:

the Director must issue the business licence to the person.


(3) The Director must issue the business licence within five (5) working days after the foreign investor complies with subsection (1), or the person complies with subsection (2).

(4) If the business licence involves a business situated in an area that is outside a municipality, references to the Director in this section are to be read as references to the local government council for the area.

RENEWAL OF BUSINESS LICENCES

  1. If a person (whether a foreign investor or not) to whom a business licence was issued under section 5,6, 7 or 8;

the Director or local government council, as the case requires, must renew the business licence.


TRANSFER OF BUSINESS LICENCES


10. (1) Subject to this section, a business licence may be transferred.


(2) The holder of a business licence must give the Director or, if the licence was issued by a local government council, that council, notice that the holder proposes to transfer the licence.


(3) The notice must state:


(a) the business licence number; and

(b) the name and address of the holder; and

(c) the location and nature of the business; and

(d) the name and address of the transferee; and

(e) the date of the transfer.

(4) The Director of the local government council concerned must:

(5) However, the Director or local government council may issue the new business licence if:

in the Director or council's opinion the monopoly would not be detrimental to the public interest,


(b) the Director or local government council must issue the new business licence within seven (7) days of receiving the application and the fee.

REASONS FOR DECISION


11. If:


(a) the Minister refuses to direct the Director or the local government council to issue a business licence; or

(b) the Director or the local government council refuses to issue, renew or transfer a business licence;

the Minister, Director or local government council, as the case requires, must:


(c) record the decision, and reasons for the decision, in writing; and

(d) send a copy of the decision and the reasons:

within seven (7) days of making the decision.


APPEAL


  1. (1) A person may appeal to the Minister against a decision of the

Director or local government council refusing to issue, renew or transfer a business licence.


(2) The Minister must consider and decide the matter within 30 days.

(3) The Minister must:

(4) A person may appeal to the Supreme Court against a decision of the Minister under section 7 or under subsections (2) and (3), refusing to direct the Director or local government council to issue, renew or transfer a business licence;

(5) The Supreme Court has the jurisdiction to hear and determine an appeal brought under this section.

MINISTER TO APPROVE OR REFUSE APPLICATIONS IN CERTAIN CASES


  1. (1) Where an application is made to a local government council or the Director for the issue or renewal of a licence to which this section applies, the local government council or the Director shall refer such application as directed by the Minister.

(2) In giving the direction, the Minister must act in accordance with section 6 to 12.


(3) This section applies to licences in respect of businesses in any of the following business activity:

LICENCE TO BE DISPLAYED


  1. (1) Every licence shall be displayed and kept displayed in a prominent place by the licence holder on the premises to which it relates and shall be made available at any hour at which such premises are normally open for business for inspection by any person authorized under this Act to demand its production.

Penalty: fine not exceeding VT100,000.


LICENCES LOST OR DESTROYED


  1. Where it is shown to the satisfaction of the licensing authority by which a licence was issued that such licence has been lost or destroyed, it shall, upon payment of the prescribed fee, issue a duplicate of such licence to the licence holder.

POWER OF SEARCH


  1. A person authorized in writing in that behalf by any licensing authority and by the Public Prosecutor may without warrant enter and search premises during normal business hours for the purposes of ascertaining the category of the business or assessing the licence fee and the identity of the proprietor thereof. The proprietor shall make available for inspection on demand by any such person books, documents, electronic records however recorded or any other records relating to the business and copies thereof or extracts there from may be made. The provisions of this section shall not derogate from any privilege or immunity arising with respect to such premises, proprietor, books, documents or records under the provisions of any law applicable thereto within Vanuatu.

CONFIDENTIALITY OF INFORMATION


  1. Information relating to the business of any person obtained under section 16 shall be treated as strictly confidential and shall not be disclosed save for the purposes of any prosecution with respect to the business.

FEES


  1. (1) Subject to the provisions of this Act, there shall be payable in respect of a licence issued under this Act, a business licence fee as prescribed in the First Schedule.

(2) The fee provided in subsection (1) shall be an annual fee and shall be due and paid on the first day of the month in which the business is first commenced and thereafter -


(a) where the fee payable does not exceed VT20,000 shall be paid in full on or before the 31st of January of each succeeding year;

(b) where the fee payable exceeds VT20,000, shall be paid in two equal instalments on or before the 31st January and 31st July each year.


(3) The fee provided in subsection (1) together with any increase provided for in subsection (4) shall be recoverable by the licensing authority as a civil debt.


(4) If the business licence fee has not been paid in full or in part by instalments in accordance with subsection (2), that fee or part of the fee remaining unpaid shall be increased by 10% for each month or part thereof during which the fee remains unpaid.


(5) The Director may, with the approval of the Minister, remit in whole or in part the increase imposed under subsection (4) where:


(a) the business becomes insolvent;

(b) the business becomes subject to unforeseen adverse trading conditions affecting its financial capability;

(c) an inadvertent error or omission is made in good faith in the completion of a business licence application form or in the calculation of the fee; or

(d) undue financial hardship would be caused by the imposition of such an increase.

GENERAL PROVISIONS


  1. (1) A licence shall be required in respect of each and every premises at which a business is carried on other than premises used for storage or other purposes which are incidental to the carrying on of the business:

Provided that one licence shall suffice for premises which are immediately adjacent and intercommunicating.


(2) Where a person carries on more than one business or category of business, he shall take out a licence in respect of each business or category of business:

Provided that in any case where a person is liable to pay more than one licence fee as aforesaid and where any business is of such minor extent that it is only incidental to another business or a necessary adjunct thereto, such person shall be exempted from the obligation to take out a licence and pay any fee therefore.


(3) Where two or more than persons are carrying on a business independently of each other at the same premises a licence shall be taken out in respect of each business.

(4) Where a licence is taken out for a newly formed business for part of a year only the fee payable shall be proportionate to the period covered by the licence and for the purpose of the assessment of that proportion any part of a month shall count as a whole month.

(5) Where during the course of the year the nature or extent of a business changes for whatever reason thereby rendering the licence holder liable to the payment of a different licence fee he shall forthwith so inform the licensing authority and shall pay or receive such adjustment of fee as may be appropriate.

(6) A licence may be surrendered to the licensing authority at any time and thereupon the licence holder shall be entitled to a proportionate refund of the licence fee commencing from the first day of the month next following.

REVENUE FROM FEES


  1. (1) All fees collected by a local government council under this Act shall become part of the recurrent revenue of such council.

ABATEMENT OF FEES


  1. (1) The Director, with the approval of the Minister, having regard to the actual level of turnover or gross income of any business in order to avoid hardship may, at his discretion, abate the licence fee payable in respect of any person or business by such amount not exceeding 50 percent (50%) of the fee, as he may think fit.

REDUCTION OF FEES


22. The licensing authority may reduce the fee in respect of:


(a) part time businesses; or

(b) newly formed businesses.

Provided that no reduction shall be in excess of 50 percent (50%) of the fee and provided further that no such reduction shall be granted to newly formed businesses for more than three (3) consecutive years, in respect of any one licence holder.


PENALTIES


  1. (1) Any person who fails to pay a requisite licence fee including any increase imposed in accordance with section 18(4) within a period of six (6) months from the date when the fee is due shall be guilty of an offence and liable on conviction to a fine not exceeding VT500,000.

CANCELLATION OF LICENCE


  1. Where a licence holder is convicted of any offence under this Act or any law providing for the payment of a tax, or value added tax or customs or excise duty, the Minister may cancel his licence, and no refund of fees shall be payable.

RULES


  1. The Minister may make rules and may prescribe anything which is necessary or convenient to be prescribed for the carrying out or giving effect to, but which is not inconsistent with, this Act.

REPEALS


26. The Business Licence Act [CAP. 173] is repealed.


COMMENCEMENT

  1. This Act shall be deemed to have come into force on the first day of August, 1998.

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Section 18


SCHEDULE 1


________________________________________________________________________


RATES OF BUSINESS LICENCE FEE


===============================================================


________________________________________________________________________


CLASSES AND CATEGORIES
OF BUSINESS ANNUAL FEE REMARKS
(VATU)
===============================================================


CLASS A


MINING, QUARRYING AND LOGGING
______________________________________


Category A. Mining, Quarrying and Logging 20,000 1. Class A licence includes

the importing of materials required in mining, quarrying, logging and sawmill business operations.


Plus for each non-citizen employee, principal 90,000 2. Include the extraction,

or partner dressing, smelting, crushing, etc. and the beneficiations in any way of any mineral or mineral ore other than stone, gravel, clay or sand.


3. (i) Includes the extraction, dressing, crushing or otherwise treating to render marketable stone, gravel, clay or sand.


(ii) Excludes the manufacture of structural clay and cement products such as bricks, concrete blocks and tiles, which is licensed under Category B.


4. (i) Includes logging camps, logging contractors and lodgers engaged in cutting timber and in producing rough, round, hewn or riven forest or wood raw materials.


CLASS B


MANUFACTURING INDUSTRIES AND TRADE
_____________________________________________


Category B. Manufacturing Industries and Trades 20,000 1. Manufacturing

means any process which transforms inorganic or organic substances into new products.


Plus for each non-citizen employee, principal or partner 90,000
engaged in the business

2. Covers the importing of materials and supplies required in the manufacturing processes.


  1. Does not include imports for resale (either wholesale or retail) without transformation or adaptation and not subjected to manufacturing or repairing process. (A Category D1 Import Licence is required for all such imports plus a D3 Licence is required for direct resale).
  2. Holders of a Class B Licence are permitted to sell, wholesale or retail, without a D3 Licence, through one outlet, those goods or products which they have processed, produced or manufactured in Vanuatu. The one outlet is restricted to the manufacturing business headquarters or adjacent premises.

CLASS C


CONSTRUCTION INDUSTRIES AND TRADE
__________________________________________


Category C. Construction, Industries and Trade 10,000 Generally class C:


Plus for each non-citizen employee, principal or partner 90,000 1. Covers

engaged in the business importing of

materials and supplies required in the construction, repair and maintenance business.


  1. Does not include imports for resales (either wholesale or retail) without transformation or adaptation, and not subjected to the construction, repairing or maintenance processes. (A Category D1 Import Licence is required for all such imports, plus a D2 licence is required for direct resale).
  2. Holders of Class C Licences are not permitted to import and directly re-sell any materials, supplies etc., without D1 and D2 Licences.

CLASS D


WHOLESALE AND RETAIL
MERCHANDISING TRADES
____________________________


Category D1. Importers 10,000 D1. (i) Subject to

paragraph (ii) a Category D1 licence is required as a supplementary licence by importing business of all classes.


(ii) Importing means direct importing for resale (without transformation), wholesale or retail, of merchandise of any description, but excludes:


(a) the direct importing of equipment, materials or supplies for use in the business and not purchased for resale;


(b) the direct importing of equipment, materials or supplies for use or for transformation by the business in mining, manufacturing, construction or repairing processes (Class A, B & C), or for use in transport operations (Class E), or for use in businesses of Classes F, G or I;


(iii) Resale or wholesale under Category D1 includes acting as agents in buying or selling merchandise to other business.


Category D2. Retailer or Wholesaler 20,000 D2. (i) A Category D2

licence is required for businesses which sell wholesale or retail
plus for each non-citizen employee, principal or 90,000 merchandise

partner engaged in the business of every description and includes butchers.


(ii) Business in the merchandising trades who are holders of D1 must also hold a D2 licence.


(iii) Excludes open air vendors and mobile shops.


Category D3. Hotels, Motels, Restaurants, Cafes 20,000 D3. Hotels

and Bars operating

recreational and personal services require in addition appropriate licences for those services.


Plus for each non-citizen employee, principal or 90,000
partner engaged in the business


Category D4. Take-Away Food Outlets 5,000 D4. Licence must
be held by all
Plus for each non-citizen employee, principal or 90,000 take-ways or

partner engaged in the business fast food outlets in addition to any D licence required.


Category D5. Open-Air Vendors, Mobile Shops 5,000 D5. (i) Applies to all
And Door-to-door Sales vendors,

carrying out
plus for each non-citizen employee, principal 90,000 their trade in

or partner engaged in the business the open air or under movable shelters including vendors of cooked foodstuffs.


(ii) Does not apply to vendors of local agricultural products, raw fish (including shells) or locally made artifacts.


CLASS E


TRANSPORT, STORAGE
FACILITIES AND TOURISM SERVICES
_______________________________________


Category E. Transportation, Storage Facilities and 20,000
Tourism Services


Plus for each non-citizen, principal or partner 90,000
engaged in the business


CLASS F


FINANCIAL AND MONETARY INSTITUTIONS
INSURANCE AND REAL ESTATE COMPANIES,
PROFESSIONAL AND BUSINESS SERVICES
_____________________________________________


Category F1. Commercial Banks F1. (i) Commercial

bank includes

2.00% of turn over for the licensing year 2.00% combined

trading and

subject to a minimum fee of 5,000,000 savings bank

activities, accepting deposits of money with drawable by cheque.


Category F2. Other Financial Institutions


2.00% of turn over for the licensing year 2.00% 'Turnover' means:


subject to a minimum fee of 300,000 (a) net interest

income (interest income less interest expenses)


(b) all other operational gross income including trustee, corporate, administration, management fees and commissions plus all other operational charges made by the institution;


where that operational gross income is charged at a rate of zero percent or an exempt supply under the Value Added Tax Act 1998


Category F3. Insurance 'Turnover' is gross

premiums, other than premiums paid in respect of policies that represent supplies subject to VAT at 12.5% under Value Added Tax Act 1998


F3. (a) Domiciled Vanuatu licensed insurance company 2.00%


F3. (b) Non domiciled Vanuatu licensed insurance company 2.00%


F3. (c) Insurance Agents 20,000


F3. (d) Insurance Brokers 200,000


plus for each non citizen, principal or partner engaged 90,000
in the business


Category F4. Other Professional and Business
Services 20,000


plus for each non citizen, principal or partner 90,000 'Turnover' means:
in the business

(a) net interest

income (interest
2.00% income less

interest expenses)

(b) all other operational gross income including trustee, corporate, administration management fees and commissions plus all other operational charges made by the institution:


where that operational gross income is charged at a rate of zero percent or an exempt supply under the Value Added Tax Act 1998


CLASS G


PERSONAL, SOCIAL, RECREATIONAL AND
REPAIR SERVICES
__________________________________________


Category G1. Medical and Dental Practitioners

Optometrists, Chiropractors, 20,000

Osteopaths, Nursing Services and

Veterinary Services


plus for each non-citizen employee, principal or partner 90,000
engaged in the business


Category G2. Personal, Social, Recreational and 20,000
Repair Services


plus for each non-citizen employee principal or partner 90,000
engaged in the business


CLASS I


UTILITIES


Category I1 Electricity Generation and 20,000

Distribution Companies


plus for each non-citizen employee, principal or 90,000
partner, engaged in the business


Category I2 Telegraphic and Communication 20,000 I2. Includes both

Services Companies and Providers national and
international

telephone, telegraphic and telecommunication services.


plus for each non-citizen employee, principal or 90,000
engaged in the business


Category I3 Water Works, Distribution and 20,000 I3. Includes the

Supply Companies and Providers collection,

purification distribution, supply and sale of water to household, industrial and
plus for each non-citizen employee, principal or 90,000 commercial
partner, engaged in the business users.


Category I4 Radio and Television Broadcasting 20,000 I4. Includes radio
Companies and Providers and television

stations
plus for each non-citizen employee, principal or 90,000 engaged in the

partner, engaged in the business production and dissemination to the public of oral and visual programmes. Includes close circuit television and relay stations.


The printing and or publishing of newspaper, periodical etc. is covered under Category B.


___________________________________


Section 2


SCHEDULE 2


________________________________________________________________________


EXEMPTION FROM LICENCES


Teachers and professors in schools or institutions not conducted for profits


Artist and sculptors


Planters, farmers and dairymen, market and other gardeners, stock breeders, vegetable and fruit hawkers


Fishermen


Masters, officers and crews of merchant or trading vessels unless they are engaged in business


Non-proprietary clubs, whose main purpose is social, cultural, sporting or educational and are not conducted for profit


Religious missions and ministers of religion


Exporters of any products from Vanuatu


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