Malawi
Stamp Duties Act
Chapter 43:01
- Commenced on 16 May 1969
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
1. Short title
This Act may be cited as the Stamp Duties Act.2. Interpretation
In this Act, unless the context otherwise requires–"adhesive stamp" means a stamp which may be securely fixed by means of an adhesive paste and by no other means;"banker" includes the Reserve Bank of Malawi, any banking business registered under the Banking Act, and any person conducting such a banking business: "bill of lading" includes a through bill of lading, but does not include a mate’s receipt;[Cap. 44:01]"bond" includes–(a)any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;(b)any instrument (other than a bill of exchange or promissory note) attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and(c)any instrument so attested, whereby a person obliges himself to deliver any agricultural produce to another;"chargeable", as applied to an instrument executed or first executed after the commencement of this Aet, means chargeable under this Act, and, as applied to any other instrument means chargeable under the law in force in Malawi when such instrument was executed, or where several persons executed the instrument at different times, first executed;"cheque" has the meaning assigned to that expression in the Bills of Exchange Act;[Cap. 43:01]"the Commissioners" means the Commissioners of Stamp Duties appointed, or deemed to have been appointed under section 4, and includes one or any of them;"consideration" or "valuable consideration" includes valuable consideration in money or money’s worth, marriage or natural love and affection;"die" includes any plate, type, tool or implement whatever used under the direction of the Commissioners for expressing or denoting any duty, or rate of duty, or the fact that any duty or rate of duty or penalty has been paid, or that any instrument is duly stamped, or is not chargeable with any duty or for denoting any fee, and includes any part of any such plate, type, tool or implement;"duty" and "stamp duty" means any stamp duty for the time being leviable by means of stamps under any written law;"executed" and "execution" used with reference to any instrument not under seal means "signed" and "signature" respectively;"franked stamp" means a stamp denoted by means of a stamp franking machine in accordance with this Act or any regulations made thereunder;"impressed stamp" includes–(a)labels affixed and impressed by the proper officer;(b)stamps embossed or engraved on stamped paper;(c)adhesive stamps over-embossed; and(d)franked stamps;"instrument" includes every kind of written document;"marketable security" includes a security of such a description as to be capable of being sold on any stock exchange;"material" includes every sort of material on which words and figures can be expressed or denoted;"money" includes all sums expressed in Malawi currency, or in the currency of any country;"power of attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it;"settlement" means any non-testamentary disposition in writing of movable or immovable property made–(a)in consideration of marriage;(b)for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him; or(c)for any religious or charitable purpose, and includes an agreement in writing to make such a disposition, and, where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition;"stamp" means an impressed stamp, or an adhesive stamp used for denoting the payment of any stamp duty or fees or penalty under this Act;"stamped" or "duly stamped" means that the instrument referred to is stamped with the required and sufficient stamp and that such stamp has been cancelled, if necessary, in accordance with this Act;"stock" includes any share in the stock transferable at the Bank of England, and any share in the stocks or funds of the government of any Commonwealth or foreign country, or in the capital stock or funded debt of any local authority, corporation, company or society in Malawi or any Commonwealth country, or of any foreign corporation, company or society;"write", "written", and "writing" includes every mode in which words or figures can be expressed or denoted upon material.3. Application of Act
This Act shall apply to all stamp duties and to all fees and penalties which are for the time being directed to be collected or received by means of stamps under or by virtue of any written law.4. Appointment of Commissioner of Stamp Duties
The Minister may, by notice published in the Gazette, appoint such public officers as he deems necessary to be Commissioners of Stamp Duties, who shall have the care and management of all stamp duties, fees and penalties to be collected or received under or by virtue of this Act:Provided that, until such time as the Minister appoints Commissioners under this section, the Commissioners appointed under section 4 of the Stamps Ordinance, repealed by this Act, shall be deemed to have been appointed Commissioners under this Act.[Cap. 162]Part II – Provisions applicable to instruments generally
Charge of duty upon instruments
5. Liability to stamp duty and alterations of stamp duty
6. Time of stamping and liability for stamping
7. Duties, how to be paid
8. How instruments are to be written and stamped
9. Instruments to be separately charged in certain cases
10. Facts and circumstances affecting duty to be set forth in instruments
11. Mode of calculating ad valorem duty in certain cases
12. Instruments to be in English
Every instrument chargeable with duty shall be written in the English language, or shall have annexed thereto a full and accurate translation thereof into the English language, certified to the satisfaction of the Commissioners.Use of adhesive stamps
13. General directions as to cancellation of adhesive stamps
14. Penalty for frauds in relation to adhesive stamps
If any person–Denoting stamps
15. Denoting stamps
Where the duty with which an instrument is chargeable depends in any manner upon the duty paid upon another instrument, the payment of the last-mentioned duty shall, upon application to the Commissioners and production of both the instruments, be denoted upon the first-mentioned instrument in such manner as may be prescribed.Adjudication stamps
16. Adjudication
17. Persons dissatisfied may appeal
Production of instruments in evidence and instruments not duly stamped
18. Non admissibility, of unstamped instruments in evidence; and penalty
19. Stamping out of time
20. Certain improperly stamped instruments
Subject to this Act, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable and of a penalty of ten shillings, be certified to be duly stamped, and any instrument so certified shall then be deemed to have been duly stamped.21. Effect of non-compliance in case of certain bills of exchange
Notwithstanding any written law to the contrary, a bill of exchange, which is presented for acceptance, or accepted, or payable, outside Malawi, or a cheque, whether presented for acceptance, or accepted, or payable, outside or inside Malawi, shall not be invalid by reason only that it is not stamped in accordance with this Act, and any such bill of exchange or cheque which is unstamped or not properly stamped may be received in evidence on payment of the proper duty and penalties as provided by sections 18 and 19.22. Instruments executed out of Malawi
Every instrument executed out of Malawi by any person, not being a bill of exchange or a promissory note, shall, before being used, brought into force or registered, within Malawi be stamped according to the rate of duty chargeable thereon in accordance with this Act, whatever the provision of the Schedule may be with regard to the time before which or the period within which such an instrument, if executed in the first instance within Malawi, should be stamped.Miscellaneous
23. Refund where instrument erroneously assessed
Where the Commissioners are satisfied that an instrument has been erroneously assessed with duty or penalty, they may, if application for a refund is made at any time within one year after the date of the payment of that duty or penalty, refund the amount thereof to the person by whom it was paid.24. Splitting
25. Penalty for evasion of duty by splitting
Any person executing an instrument in contravention of section 24 shall be guilty of an offence and liable to a fine of £250.26. Stamp where value of subject-matter is indeterminate
Where the amount or value of the subject-matter of any instrument chargeable with ad valorem duty cannot be, or (in the case of an instrument executed before the commencement of this Act) could not have been, ascertained at the date of its execution, or first execution, nothing shall be claimable under such instrument more than the highest amount or value for which, if stated in an instrument of the same description, the stamp actually used would, at the date of such execution, have been sufficient:Provided that if the owner of an instrument which was duly stamped in accordance with the information then available to him receives information showing that the instrument is insufficiently stamped, and produces the instrument with the information to the Commissioners within fourteen days after such receipt, the instrument may be stamped without penalty for such further sum as is proper, but this proviso shall not apply to instruments which are required to be stamped before execution.Recovery of stamp duty
27. Recovery of stamp duty
Stamp duty in arrear may be recoverable by civil suit as a debt due to the Commissioners from any person liable, or, on the ex parte application of the Commissioners to any competent court and without the institution of a suit, may be recovered from the person liable in manner following–28. Stay of execution pending appeal
Where, in any proceedings for the recovery of stamp duty or for the discharge of an order for payment of stamp duty, it appears that an appeal against the assessment is pending or that the time for so appealing has not yet elapsed, the court may, if it thinks fit, grant a stay of execution for such period and on such terms as it thinks just.Part III – Regulations applicable to particular instruments
Agreements
29. Certain mortgages of stock to be chargeable as agreements
30. Hire purchase or installment sale agreement to be stamped
The exemption numbered (1) under the heading AGREEMENT OR ANY MEMORANDUM OF AN AGREEMENT in the Schedule shall not apply in the case of any agreement for or relating to the supply of goods on hire, whereby the goods, in consideration of periodical payments, become or may become the property of the person to whom they are supplied.Bills of exchange and promissory notes
31. Meaning of "bill of exchange" and "promissory note"
For the purposes of this Act, “bill of exchange” and “promissory note” shall have the meanings assigned to these expressions in the Bills of Exchange Act.[Cap. 48:02]32. Provisions as to stamping foreign bills and notes
33. As to bills and notes purporting to be drawn abroad
A bill of exchange or promissory note which purports to be drawn or made outside Malawi shall, for the purpose of determining the mode in which the stamp duty thereon is to be denoted, be deemed to have been so drawn or made, although it may in fact have been drawn or made within Malawi.34. Penalty for issuing, etc., any unstamped bill or note
35. One bill only of a set need be stamped
Where a bill of exchange is drawn in a set according to the custom of merchants, and one of the set is duly stamped, the others of the set shall, unless issued or in some manner negotiated apart from the stamped bill, be exempt from duty; and, upon proof of the loss or destruction of a duly stamped bill forming one of the set, any other bill of the set which has not been issued or in any manner negotiated apart from the lost or destroyed bill may, although unstamped, be admitted in evidence to prove the contents of the lost or destroyed bill.Conveyances on sale
36. Meaning of "conveyance on sale"
37. How ad valorem duty is to be calculated in respect of stock and securities
38. How consideration consisting of periodical payments to be charged
39. Conveyance on sale with further covenant
A conveyance on sale made for any consideration in respect whereof it is chargeable with ad valorem duty, and in further consideration of a covenant by the purchaser to make, or of his having previously made, any substantial improvement of or addition to the property conveyed to him, or of any covenant relating to the subject-matter of the conveyance, shall not be chargeable, and shall be deemed not to have been chargeable, with any duty in respect of such further consideration.40. How conveyance in consideration of a debt etc., to be charged
Where any property is conveyed to any person in consideration, wholly or in part, of any debt due to him, or subject either certainly or contingently to the payment or transfer of any money or stock, whether being or constituting a charge or encumbrance or not, the debt, money or stock shall be deemed to be the whole or part, as the case may be, of the consideration in respect whereof the conveyance is chargeable with ad valorem duty.41. Direction as to duty, in certain cases of conveyances mortgages and settlements
42. Certain contracts to be chargeable as conveyances on sale
43. As to sale of an annuity or right not before in existence
44. Principal instrument how to be ascertained
The parties may determine for themselves which of several instruments shall be deemed to be the principal instrument and may pay the ad valorem duty thereon accordingly:Provided that the duty chargeable on the instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instruments.45. Duty on gifts inter vivos
Conveyances on any occasion except sale or mortgage
46. What is to be deemed a conveyance on any occasion not being a sale or mortgage
Every instrument, and every decree or order of any court, whereby any property on any occasion, except a sale or mortgage, is transferred to or vested in any person, shall be charged with duty as a conveyance or transfer of property:Provided that a conveyance or transfer made for effectuating the appointment of a new trustee, or for effectuating the retirement of a trustee although no new trustee is appointed, shall not be charged with any higher duty than thirty shillings.Leases and licences
47. Agreements to be charged as leases
48. Duty on leases in other cases
A lease shall, so far as the consideration therefor consists of any premium or other consideration whatsoever other than rent, moving either to the lessor or to any other person, be charged with ad valorem stamp duty computed on that consideration, as if it were a conveyance on sale for the amount of that consideration.49. Duty on leases granted in perpetuity
A lease granted in perpetuity shall be charged with ad valorem stamp duty as if it were a conveyance on sale, and the duty shall be computed on the value of the property.50. Leases, how to be charged in respect of produce, etc.
51. Directions, as to duty in certain cases
52. Duty on leases granted for inadequate consideration
A lease granted for a consideration which in the opinion of the Commissioners is inadequate, unless it is a lease granted by the Government or its predecessors in title, shall, in respect of the consideration therefor, be charged in accordance with the foregoing provisions; and such a lease shall also be charged as if it were an instrument operating as a voluntary disposition inter vivos in respect of the value of the leasehold interest after deducting the amount of the consideration.53. Duty where consideration cannot be fixed with accuracy
Where, in the opinion of the Commissioners, the amount of the consideration for a lease cannot be ascertained with reasonable accuracy, they may, in their discretion, either disregard that consideration to the extent to which its amount is deemed to be unascertainable and stamp the lease as if it were a voluntary disposition inter vivo in accordance with section 45, or they may assess the lease with a fixed duty of five pounds in respect of the consideration so far as it is deemed to be unascertainable.54. Licences
Marketable securities
55. Meaning of marketable securities for charge of duty and foreign and Commonwealth share certificate
Marketable securities, for the purpose of the charge of duty thereon, whether or not transferable by delivery, include-56. Meaning of marketable security transferable on delivery and instrument to bearer
An instrument used for the purpose of assigning, transferring or in any manner negotiating the right to any marketable security, share or stock shall, if the delivery thereof is by usage treated as sufficient for the purpose of a sale on the market, whether that delivery constitutes a legal assignment, transfer or negotiation or not, be deemed to be a marketable security transferable on delivery, or an instrument to bearer, as the case may be, and the delivery thereof an assignment, transfer or negotiation.Mortgages, etc.
57. Meaning of "mortgage" and "equitable mortgage" and provisions in relation to equitable mortgages
58. Direction as to duty in certain cases
59. Security for future advances, how to be charged
Partitions
60. Partitions
Policies of insurance
61. Meaning of "policy of insurance", "policy of life insurance" and "policy of insurance against accident"
62. Penalty for not making out policy or making, etc., any policy not duly stamped
Every person who–63. Assignment or surrender of policy of life insurance to be stamped
Receipts
64. Provisions as to duty upon receipts
For the purposes of this Act, “receipt” includes any note, memorandum or writing whereby any money amounting to K4 or upwards, or any bill of exchange, cheque or promissory note for money amounting to K4 or upwards, is acknowledged or expressed to have been received or deposited or paid, or whereby any debt or demand, or any part of a debt or demand, of the amount of K4 or upwards is acknowledged to have been settled, satisfied or discharged, or which signifies or imports any such acknowledgement, and whether the same is or is not signed with the name of any person.65. Obligation to give receipt in certain cases, and penalty for offences in relation to receipts
Settlements
66. As to settlement of policy or security
Where any money which may become due or payable upon any policy of life insurance, or upon any security, not being a marketable security, is settled or agreed to be settled, the instrument whereby the settlement is made or agreed to be made shall be charged with ad valorem duty in respect of that money:Provided that–67. Settlements, when not to be charged as securities
An instrument chargeable with ad valorem duty as a settlement in respect of any money, stock or security shall not be charged with any further duty by reason of containing provision for the payment or transfer of the money, stock or security, or by reason of containing, where the money, stock or security is in reversion or is not paid or transferred upon the execution of the instrument, provision for the payment by the person entitled in possession to the interest or dividends of the money, stock or security during the continuance of such possession of any annuity or yearly sum not exceeding interest at the rate of four per centum per annum upon the amount or value of the money, stock or security.68. Where several instruments one only to be charged with ad valorem duty
Part IV – Allowances for stamps in certain cases
69. Allowance for spoiled stamps
Subject to the provisions of section 70, and of any regulations made under this Act, and to the production of such evidence by statutory declaration or otherwise as the Commissioners may require, allowance shall be made by the Commissioners for stamps spoiled in the cases hereinafter mentioned–70. Conditions upon which applications under section 69 shall be granted
No application for relief under section 69 shall be granted–71. Allowance, for misused stamps
Where any person has inadvertently used for an instrument liable to duty an impressed stamp of sufficient amount but of improper description or an impressed stamp of greater value than was necessary, or has inadvertently used an impressed stamp for an instrument not liable to any duty, the Commissioners may, on application made within one year after the date of the instrument, or, if it is not dated, within six months after the execution thereof by the person by whom it was first or alone executed, and upon the instrument, if liable to duty, being stamped with the proper duty, and subject to the provisions of section 21, cancel and allow as spoiled the stamp so misused.72. Allowance for spoiled or misused stamps, how to be made
In any case in which allowance is made for spoiled or misused stamps, the Commissioners may give in lieu thereof–Part V – Miscellaneous
73. As to discontinuance of dies
Whenever the Commissioners determine to discontinue the use of any die and provide a new die to be used in lieu thereof and give public notice thereof in the Gazette, then from and after any day to be stated in the notice (such day not being within one month after the same is so published) the new die shall be the only lawful die for denoting the duty chargeable in any case in which the discontinued die would have been used; and every instrument first executed by any person or bearing date after the day so stated and stamped with the discontinued die shall be deemed to be not duly stamped:Provided that-74. Conditions and agreements as to duty void
Every condition of sale framed with the view to precluding objection or requisition upon the ground of absence or insufficiency of stamp upon any instrument executed after the commencement of this Act, and every contract, arrangement or undertaking for assuming the liability on account of absence or insufficiency of stamp upon any such instrument or indemnifying against such liability, absence or insufficiency, shall be void.75. Compounding duty on cheques
76. The Commissioners may call for, and refuse to proceed without, evidence
With reference to any instrument, the Commissioners may require to be furnished with such evidence as they may deem necessary in order to show to their satisfaction whether all the facts and circumstances affecting the liability of the instrument to duty, or the amount of the duty chargeable thereon, are fully and truly set forth therein, and may refuse to proceed upon any application to them under this Act until such evidence has been furnished accordingly.77. Registers, books, etc., to be open to inspection
Every officer or servant of a local authority or statutory corporation having in his custody any registers, books, records, papers, documents or proceedings, the inspection whereof may tend to secure any duty, or to prove or lead to the discovery of any fraud or omission in relation to any duty, shall at all reasonable times permit any person thereto authorized by the Commissioners to inspect the registers, books, records, papers, documents and proceedings, and to take such notes and extracts as he may deem necessary, without fee or reward, and in case of refusal shall be guilty of an offence and liable to a fine of £25.78. Search
79. Penalty for enrolling, etc., instrument not duly stamped
If any person, whose office it is to enrol, register or enter in or upon any rolls, books or records any instrument chargeable with duty, enrols, registers or enters any such instrument not being duly stamped, he shall be guilty of an offence and liable to a fine of £25.80. Responsibility for loss of or damage to instrument
81. Commissioners may administer oaths
The Commissioners may administer any oath or affirmation which may be necessary for the purposes of this Act.82. Power to reward informers
The Commissioners may in their discretion reward any person who informs any Commoner of any offence under tins Act or assists in the recovery of any fine or penalty, but a reward exceeding £5 shall not be paid in any case without the consent of the Treasury.Part VI – Criminal offences and procedure
83. Penalty for not drawing full number of bills purporting to be in sets
Any person drawing or executing a bill of exchange purporting to be drawn or executed in a set of two or more and not at the same time drawing or executing, on paper duly stamped, the whole number of bills of which such bill purports the set to consist shall be guilty of an offence and liable to a fine of £500.84. Penalty for post-dating bills and for other devices to defraud the revenue
Any person who–85. Penalty for frauds in relation to stamp duties
86. Liability in the case of corporate bodies and firms
87. General penalty for acting and practising, etc., without licence
If any person practises or acts in any capacity, or does anything in respect of which a licence subject to stamp duty is required without having such a licence duly stamped, he shall, in the absence of a specific penalty in any other law provided, be guilty of an offence and liable to a fine of £50.88. Exemptions from stamp duty
89. Regulations
The Minister may make regulations as may appear to him to be necessary or expedient for the proper carrying out of the intent and provisions of this Act, and, without prejudice to the generality of the foregoing, may make regulations respecting–History of this document
31 December 2014 this version
Consolidation
16 May 1969
Commenced
Subsidiary legislation
Title | Numbered title |
---|---|
Stamp Duties (Exemption) Notice, 2020 | Government Notice 85 of 2020 |
Stamp Duties Order, 2020 | Government Notice 86 of 2020 |