BY Celia Becker
Africa tax in brief
AFRICA: African Continental Free Trade Area Agreement enters into force
The Parliament of Zimbabwe and the Ethiopian House of Representatives approved the African Continental Free Trade Area Agreement (“ACFTA”) on 14 March and 21 March 2019, respectively. The Moroccan Council of Government approved the ACFTA on 21 February 2019.
A number of African countries deposited their instruments of ratification for the ACFTA during April 2019: Egypt on the 8th, Ethiopia on the 10th, the Gambia on the 16th and Sierra Leone and the Sahrawi Arab Democratic Republic on the 29th. Following this, the requirement that the ACFTA will enter into force 30 days after the 22nd country has deposited its instrument of ratification, was met and the ACFTA will enter into force on 30 May 2019.
ANGOLA: Value Added Tax Code gazetted
The Value Added Tax (“VAT”) Code, approved by Law No. 7/19, was gazetted on 24 April and replaces the existing Consumption Tax Code. With effect from 1 July 2019, VAT at the rate of 14% will apply to the supply of goods and services and imports. Entities that have chosen not to be immediately subject to the general VAT regime and have a turnover or imports in excess of USD250 000 will be subject to a transitional regime until 2021, when VAT will apply to all taxpayers.
CONGO-BRAZZAVILLE: Finance Act 2019 assented to by the president
The president assented to Law No. 40-2018 of 28 December 2018 on the Finance Act 2019, which is yet to be published in the Official Gazette. Significant amendments, generally effective from 1 January 2019, include:
Corporate income tax
- Companies operating under a short-term business licence subject to withholding tax and companies realising more than 70% of their turnover from business with oil and gas companies are obliged to invoice their services within two months following the execution of the services or deliveries of the goods. Failure to comply with the deadline entails the spontaneous payment of the tax due.
- All companies realising more than 70% of their turnover from business with oil and gas companies are required to submit their financial statements to the tax authorities by no later than 20 May 2019.
- Companies exempt from corporate income tax are subject to a minimum tax calculated at the higher of 2% of turnover, exclusive of taxes, and F.CFA2-million.
- The withholding tax rate on payments made to local independent contractors has been increased from 5% to 10%. Failure to withhold and pay over tax is subject to fines of up to 200% of the amount due.
- The basis for the 20% withholding tax payable by non-resident persons without a permanent establishment in the Congo is now the gross amount paid, excluding VAT, plus ancillary costs.
- The VAT registration threshold is set at annual turnover of F.CFA60-million. Voluntary registration is allowed for taxpayers with turnover below the threshold.
- The sale of locally produced cement is subject to VAT at a reduced rate of 5%.
- VAT paid under the reverse charge mechanism on behalf of foreign suppliers receiving income not subject to tax in the Congo is not deductible.
- Royalties will be introduced in the energy sector at 0.75% to 1% of turnover, and in the hydraulic sector, ranging from F.CFA0 to F.CFA400 per cubic metre of water depending on the nature of the use (mining, industrial, agro pastoral, etc.).
- A 1% fee will be introduced on electronic transactions based on the amount of transactions and electronic payments generated by a digital hub.
DEMOCRATIC REPUBLIC OF CONGO (“DRC”): Prescribed format for super profits tax return published
The General Manager of the National Tax Authority (Direction Générale des Impôts, DGI), via Official Statement No. 01/0041/DGI/DG/DLEG/MA/2019 of 14 March 2019, announced that the super profits tax return is now available to taxpayers concerned at the DGI's offices.
The super profits tax is levied at a rate of 50% on “super profits” earned by mining companies as a result of the unexpected increase in prices of commodities exploited by mining operators during a fiscal year.
DRC: New corporate income tax rate for 2018 fiscal year
The General Manager of the National Tax Authority (Direction Générale des Impôts) confirmed in Official Statement No. 01/015/DGI/DG/CR/GM/2019 of 4 April 2019, that the new corporate income tax rate of 30%, introduced by Finance Bill No. 18/025 of 13 December 2018, applies to the calculation of corporate income tax for the 2018 year of assessment (1 January to 31 December 2018).
Corporate income tax returns for the 2018 year of assessment were due by 30 April 2019.
DRC: New rates for parafiscal taxes in mining sector announced
The Minister of Mining and Minister of Finance adopted Ministerial Decrees No.0001/CAB/MIN/MINES/01/2019 and No.CAB/MIN/FINANCES/2019/009 of 22 February 2019, establishing new rates for parafiscal taxes in the mining sector.
Significant provisions include the introduction of a new tax on exceptional treatment of exported raw minerals at the rate of USD500/30 tonnes, and a new tax of USD5 000 on mining cooperative agreements. The mining royalty rate has also been increased from 0% to 6% depending on the type of mineral and 10% on the gross commercial value for strategic minerals, which are to be determined by the government.
DRC: VAT deductibility returns to be filed online
As per Official Statement No. 01/017/DGI/DG/DESCOM/MT/2019 of 9 April 2019 issued by the General Manager of the National Tax Authority (Direction Générale des Impôts), the monthly VAT deductibility return must be filed electronically in accordance with the provisions of the Procedural Tax Law (article 3 of Law No. 004/2003 of 13 March 2003 and Ministerial Decree No. CAB/MIN/FINANCES/2018/012 of 20 March 2018).
ETHIOPIA: Excise Tax Proclamation, 2002 to replaced
The Ministry of Finance, on 24 April 2019, held a consultation with the business community on the Draft Excise Tax Amendment (Bill), which is to repeal and replace the existing Excise Tax Proclamation 307/2002.
ETHIOPIA: Various directives published
During March and April 2019, Ethiopia’s Ministry of Finance issued a number of directives, including the following:
Directive on implementation of seizure and sale of taxpayer's property (No. 6/2011)
The directive became effective on 9 April 2019 and:
- applies to taxpayers that have failed to pay any type of tax or duties, including customs duties, within the stipulated payment deadline;
- lists certain properties that cannot be subject to seizure; and
- indicates that open tender is the principal method used for the disposal of seized properties. However, the Ministry of Revenue may opt for another disposal method taking into account the status of a property.
Directive on registration and de-registration of taxpayers (No. 3/2011)
The directive became effective on 11 April 2019 and:
- lists persons that are liable to tax that have to be registered for tax purposes, including, inter alia, individuals engaged in business, independent contractors, individuals receiving rental income, employees, permanent establishments, international organisations with tax privileges and shareholders;
- prescribes the procedure and requirements for registration;
- provides for the issuance and use of tax identification numbers; and
- lists the grounds for deregistration, whether initiated by the taxpayer or by the tax authority.
Directive on implementation of licensing of tax agents (No. 4/2011)
The directive became effective on 9 April 2019 and provides:
- that tax agent services may be provided by individuals and entities that meet the necessary requirements;
- for two categories of tax agents: Level 1 agents, who are allowed agent services to all taxpayers, and Level 2 tax agents, who are not allowed to provide tax agent services to category "A" taxpayers;
- that to obtain a Level 1 or Level 2 tax agent licence, an individual applicant, members of a partnership and the chief executive officers, directors and other managers of a company wishing to be appointed as tax agent must have a first degree in at least one of the following fields: tax administration, accounting, law, economics, management or any other similar discipline; have appropriate working experience, either locally or abroad, as a tax officer; or have provided tax agent services under the supervision of a licensed tax agent in the past five years; and
- that tax agent licences will only be granted to applicants provided that they take the necessary training prepared by the Ministry of Revenue and pass the tax agent licensing examinations.
Directive on implementation of exempt income (No. 1/2011)
The directive became effective on 9 April 2019 and provides for an exemption of:
- travelling expenses incurred in the course of discharging employment duties, being the lower of one quarter of an employee's gross monthly salary or ETB 2 200 per month;
- in the case of foreign employees, expenses incurred for travelling to and from their country of origin, and for transporting up to a maximum of 300kg in personal effects;
- transport allowances for home-to-work commuting up to a maximum of ETB600 per month;
- per diem allowances in the case of domestic trips to an amount of the higher of ETB500 or 4% of an employee's gross monthly salary per day; where accommodation costs at a bed and breakfast can be reconciled to invoices, to an amount of the higher of ETB300 and 2.5% of an employee's gross monthly salary for lunch and dinner; and for chief executive officers (“CEOs”) and deputy CEOs, to an amount of the higher of ETB1 000 or 5% of the CEO's or deputy CEO's gross monthly salary;
- per diem allowances, in the case of travelling abroad, for government appointees and public sector employees, to an amount paid as per the directive, issued by the government, determining the per diem allowances for travelling abroad; and for employees in the private sector, to an amount of the per diem allowed for employees in the public sector plus 20% thereof;
- hardship allowances paid for performing work in difficult locations in accordance with the directive on hardship allowances issued by the Civil Service Commission;
- hardship allowances paid for performing work under difficult working conditions based on evidence provided by an employer, the maximum being 60% of the employee's gross monthly salary;
- certain public awards for outstanding performance; and
- food and beverages provided for free to employees in mining, manufacturing, agriculture, horticulture, hotel and restaurant businesses will be exempt only where detailed documents of such provisions are verified by leaders of trade unions, or where agreements for the same purpose are concluded with leaders of trade unions and submitted.
Directive on deductible expenditure (No 5/2011)
The directive became effective on 9 April 2019 and provides for the following expenses to be deductible:
- any expenditure to the extent necessarily incurred, including municipality taxes and other non-recoverable indirect taxes, by a taxpayer during the year in deriving, securing, and maintaining amounts included in business income;
- interest expenses, with the exception of financial institutions having incurred such expenses, to the extent that the taxpayer has used the debt proceeds or benefits to derive business income;
- waste and scrap resulting from production and delivery to the extent to be determined by the Ministry of Revenue, on a case-by-case basis;
- food and beverages provided for free to employees in mining, manufacturing, horticulture and agriculture businesses up to 30% of the total amount of the beneficial employees' gross monthly salary; for hotel and restaurant businesses, up to 20% of the total amount of the beneficial employees' gross monthly salary;
- business promotion expenditure incurred through sponsorship up to 3% of the gross income of the business; and business promotion expenditure incurred through media broadcasting or advertising agencies up to the full amount, provided that the expenditure is incurred in full to promote the taxpayer's business; and
- charitable donations up to 10% of the taxable income of the business in the tax year concerned.
Directive on implementation of advance payment of tax (No. 2/2011)
The directive became effective on 9 April 2019 and applies to:
- advance payment of business income tax in relation to importation of goods for commercial use, equal to 3% of the cost, insurance and freight value of the goods; and
- withholding tax from domestic payments at the rate of 2% of the gross amount of the payment made for goods and services.
A directive on utilization and administration of tax receipt (No. 149/2011) was issued on 19 March 2019 and provides for the administrative requirements in respect of withholding tax receipts.
A directive on the extension of time for payment of tax was issued on 29 March 2019 determining that the Ministry of Revenue may grant a taxpayer an extension of time for payment of tax due when application to this effect is made and the taxpayer pays at least 25% of the amount of the tax due.
A directive determining the approval procedures for amending self-assessment tax returns (No. 144/2011) was issued on 29 March 2019, specifying the key requirements for taxpayers wishing to amend their self- assessed tax returns.
A directive to determine notification of changes related to business activities (No. 143/2011) was issued on 29 March 2019, providing a list of changes that a registered taxpayer must communicate to the Ministry of Revenue, including changes in the memorandum and articles of association, shareholders, registered and paid-up capital, business address, business name and activities.
A directive providing procedures for obtaining VAT refunds (No. 148/2011) was issued on 1 April 2019, consolidating the VAT refund procedures previously addressed by six directives and four circulars. The statutory period set to obtain the refund amount after the VAT-registered person files an application for a refund is also reduced from 60 to 45 days.
GHANA: ECOWAS protocol on free movement of persons implemented
The Ghana Revenue Authority (“GRA”) on 4 April 2019 announced that the implementation of article 5 of the ECOWAS protocol on "Movement of Vehicles for the Transportation of Persons" would take effect from 1 May 2019. Both private and commercial vehicles registered in the territory of an ECOWAS Member State will now be able to enter Ghana and remain there for a period not exceeding 90 and 15 days, respectively, if certain specified documents are presented.
GHANA: Individuals to file annual tax returns online
The Integrated Tax Application and Preparation system (“iTaPS”) by the GRA was launched on 4 April 2019, allowing individuals to prepare, apply for and receive GRA services online. The iTaPS will be launched in phases, with the first phase being accessible to individual taxpayers on 5 April 2019.
KENYA: High Court ruling on Mauritius treaty
On 15 March 2019, The High Court of Kenya gave its decision in the case of Tax Justice Network Africa (TJN-A) v. Cabinet Secretary for the National Treasury, The Kenya Revenue Authority and The Attorney General (Petition No 494 of 2014) regarding the constitutionality of the double tax agreement between Kenya and Mauritius.
Kenya and Mauritius concluded the treaty on 11 May 2012 and on 23 May 2014, the Cabinet Secretary to Treasury published Legal Notice No. 59 of 2014 on the enactment of the treaty.
TJN-A argued that the treaty was unconstitutional on the basis that:
- it limited Kenya's taxing rights under various articles and, in doing so, undermined Kenya's ability to attain sustainable development;
- the treaty contains a five-year restriction on its termination;
- the treaty waives a tax that is imposed by the Constitution and such waiving demands public participation, transparency and accountability; and
- its enactment failed to follow the process laid out in the Treaty Making and Ratification Act, 2012 (“TMRA”).
The Kenya Revenue Authority and Attorney General argued that:
- the limitation of Kenya's taxing rights is necessary to attract investment;
- termination is allowed after five years so as to allow investors time to adjust and oversee the implementation of the treaty; and
- tax treaties are not treaties as defined under the TMRA and are therefore exempt from the process laid out by the TMRA.
The court held that:
- the involvement of the Kenya Revenue Authority and the Attorney General's office met the requirement of public participation, as it showed openness and accountability;
- the treaty had some form of ratification as required since both states agreed to be bound by it, and the process of its formulation was open and transparent;
- however, the Legal Notice that was intended to domesticate it was void because it was not tabled before parliament within the time required by the Statutory Instruments Act, 2013.
Although the court’s decision did not invalidate the treaty, it does not have current legal effect in Kenya. The Cabinet Secretary is to issue a new Legal Notice and ensure full compliance with the Statutory Instruments Act, including presenting it; with all the required information, on time to parliament.
KENYA: New Treaty with Mauritius signed
Following the outcome of above court case, Kenya and Mauritius signed a new tax treaty in Port Louis on 10 April 2019. Details of the new treaty are yet to be published.
KENYA: Court of Appeal issues ruling on interpretation of "paid" for withholding tax purposes
The Court of Appeal gave its decision in the case of Kenya Revenue Authority v. Republic (Ex Parte: Fintel Ltd (Civil Appeal No. 311 of 2013) on 5 February 2019, overruling the High Court decision that withholding tax was not due on accrued payments.
The court held that any amount recognised as an expense in the books of accounts is a credited amount in the payee’s account and is therefore “paid” as defined by the Income Tax Act and subject to withholding tax.
MOZAMBIQUE: Taxpayers to report on transfer pricing transactions
With the deadlines for the submission of annual corporate tax returns (31 May 2019) and Annual Tax and Accounting Information Return – M/20 (30 June 2019) fast approaching, taxpayers are reminded that, for the first time, they are required to report on transactions with related entities during 2018 as part of their M/20 return. Taxpayers are also required to prepare a transfer pricing file up to 30 June 2019.
MOZAMBIQUE: e-Taxation System data to be updated
The Maputo First Tax Office informed taxpayers by a notice dated 14 March 2019 that all taxpayers whose taxpayer identification numbers (“NUITSs”) have been issued prior to 2013 must update their tax data for purposes of the e-Taxation System within five days from the date of publication of the notice.
Documents to be provided include the Declaration of Registration or Attribution of NUIT of Corporate Entity or Equivalent (M/01C), Declaration of Commencement of Tax Activity (M/02) and Declaration of Registration or Amendment of NUIT of Individuals for each shareholder (M/01S).
Tax collection through the e-Taxation System will commence in April 2019.
MOZAMBIQUE: Notice on ring-fencing of mining activities issued
The National Institute of Mines (“INAMI”) published a notice (signed on 15 March 2019) on 10 April 2019, providing that:
- each holder of a prospecting and research licence, a mining certificate or a mining concession must present a separate unique NUIT for each mining title;
- holders of more than one mining title must create a separate legal entity and have organised accounts and separate NUIT for each mining title and/or legal entity; and
- the separate NUIT for each mining title and/or legal entity must be presented to the INAMI within 90 days from the date of publication of the notice.
NAMIBIA: Notification on online submission of employees tax returns published
According to a press release published by the Ministry of Finance – Inland Revenue Department on 23 April 2019, submission of monthly PAYE returns must be done online through the ITAS portal as from March 2019. The notification also grants a grace period until September 2019 to allow employers unable to immediately submit their returns electronically to submit them manually.
NAMIBIA: 2020 Budget presented to parliament
The Minister of Finance presented the 2020 Budget to parliament on 27 March 2019. Significant proposed amendments include:
- introducing a 10% dividend tax for dividends paid to residents;
- taxing all income earned from foreign sources by residents;
- disallowing the tax deduction of services, royalties and interest paid to non-residents when calculating taxable income, unless proof of withholding tax payment is provided;
- disallowing the tax deduction of mineral royalties paid by non-diamond mining entities when determining taxable income
- abolishing the current practice of a conduit principle in the taxation of trusts;
- phasing out the current tax incentive for manufacturers and exporters of manufactured goods;
- repealing the provisions on the export processing zone and introducing the special economic zones, with a sunset clause for current operators with export processing zone status;
- subjecting income derived from commercial activities of charitable, religious, educational and other exempt institutions to normal corporate tax requirements.
- introducing VAT on income of listed asset managers and proceeds of the sale of shares or membership of a company owning commercial immovable property;
- scrapping the VAT zero-rating on sugar.
- increasing the export levy for dimension stones from the current 2% to a maximum of 15%;
- introducing an export levy of 15% for timber; and
- including other specific agricultural, forestry and game products and other mining products currently not covered.
NIGERIA: National Housing Fund Bill rejected by the president
President Buhari declined asset to the National Housing Fund (Establishment) Bill, 2018, which was passed by the National Assembly in November 2018 and meant to repeal the National Housing Fund Act, Cap. N45. The Bill now has to be overhauled to address the identified flaws.
NIGERIA: Tax administration issues guidelines on mutual agreement procedure
The Federal Inland Revenue Service, on 21 February 2019, published Guidelines on Mutual Agreement Procedure (“MAP”), providing that taxpayers may seek the assistance of the competent authority on matters relating to transfer pricing, dual residence status, withholding tax, permanent establishment and characterisation of income.
The guidelines also provide guidance on interaction between the MAP process and the domestic appeal process, termination and withdrawal from the MAP process, implementation of the MAP decision, tax collection during MAP, etc, and useful contacts for the MAP process.
NIGERIA: Freezing of taxpayer bank accounts resumed
Following the Federal Inland Revenue Service’s recent 30-day suspension of its directive to Nigerian banks to freeze the accounts of defaulting taxpayers, it has issued a notice that it will recommence the imposition of liens on the bank accounts of delinquent taxpayers with effect from 15 March 2019.
UGANDA: Tax Amendment Bills presented to parliament
The Tax Amendment Bills 2019 were tabled by the Minister of Finance, Planning and Economic Development for deliberation by parliament. Once the Bills are passed by parliament and signed by the president, the Bills will become effective on 1 July 2019.
Significant amendments include:
- for purposes of section 88 of the Income Tax Act, amending the definition of "beneficial owner" to a natural person who owns or has controlling interest over a legal person other than an individual and who exercises control over the management and policies of a legal person or legal arrangement, directly or indirectly whether through ownership or voting securities, by contract or otherwise;
- ring-fencing rental income earned by a company from multiple rental properties by requiring that income and expenses earned from more than one rental property must be accounted for taxed separately per property;
- reducing the thresholds for income tax exemptions on investments;
- exempting the interest paid on infrastructure bonds (defined as all listed bonds, notes or other similar securities used to raise funds for public infrastructure and other services, if those bonds have a maturity period of at least five years);
- excluding financial institutions from the limitations on interest deductions (currently 30% of EBITDA);
- a taxpayer that has carried forward assessed losses for a consecutive period of seven years is to pay tax at a rate of 0.5% of the gross turnover for every year of income in which the taxpayer continues to carry forward the assessed losses after the seventh year;
- introducing withholding tax at the rate of 6% on the gross payment in respect of the purchase of a business or business asset by a resident person; and
- reducing withholding tax on interest payments on government securities (whose period of maturity is at least 10 years) from 20% to 10% for both non-residents and residents. The rate in respect of government securities whose maturity is below 10 years has been retained at 20%.
- reintroduction of 6% withholding VAT on domestic supplies and imports to be withheld and remitted by persons identified by the minister by gazette notice designate persons;
- the introduction of regulations prescribing the equivalent tax treatment of supplies made in the course of Islamic financial transactions for purposes of VAT and excise duty;
- exempting from VAT, inter alia, aircraft insurance services, rice mills, agricultural sprayers; the supply of drugs and medicines, imported mathematical and geometrical sets used for technical and vocational education, woodworking machines, welding and sewing machines,
- limiting the supply of drugs and medicine qualifying for zero-rating to drugs and medicines manufactured in Uganda.
- introducing a reward for whistle-blowers providing information leading to the recovery of tax to the equivalent of 5% of the principal tax recovered.
ZAMBIA: Sales Tax Bill published
Parliament published the Sales Tax Bill 2019, intended to repeal and replace the VAT Act, 1995 on 1 April 2019. The Bill is currently pending parliamentary approval.
Significant provisions include:
- the introduction of a sales tax on the supply of goods and services in Zambia, as well as for manufacturers, producers, distributors, wholesalers, retailers and importers of goods and services in Zambia;
- a discretion to the Minister of Finance to exempt, by statutory instrument, certain supplies, imports and exports of goods and services from sales tax;
- the imposition of 9% sales tax on goods and services supplied within Zambia and 16% sale tax on imported goods and services;
- the following transitional provisions:
- a supplier registered for VAT purposes that meets the registration requirements is deemed to be registered under the Bill and will be issued a certificate of registration;
- the dates for filing returns and paying tax due, among other things, will be prescribed, by statutory instrument, by the Minister of Finance;
- refunds will be paid to existing taxable suppliers whose allowable credits exceed their tax liabilities;
- obligations to keep records for existing taxable suppliers will continue as if the records were kept according to the requirements of the Bill; and
- any legal proceeding or application relating to VAT pending immediately before the commencement of the Bill will be continued pursuant to the (repealed) VAT Act.
ZAMBIA: Regulations on suspension of tax on payment of interest to non-residents issued
On 22 March 2019, the Income Tax Act (Suspension of tax on payment of interest to non-residents)(Treasury Bill and Bond) Regulations 2019 were gazetted. In terms of the regulations, for the period 1 January 2019 to 31 December 2019, withholding tax on interest or any other sum accruing to a non-resident on a treasury bill or bond will be imposed at a rate of 15%, thereafter a rate of 20% will apply.
ZAMBIA: Turnover tax threshold revised
On 1 April 2019, parliament enacted the Income Tax (Amendment) Act 2019 so as to revise the turnover tax threshold from ZMW 800 000 to ZMW 500 000 per annum.
Sources include IBFD’s Tax Research Platform; www.allafrica.com; http://tax-news.com