Category: Tax

  • Capital Gains, Crypto, and Compliance: Understanding SEC’s Incubation Programs and Tax Implications

    Capital Gains, Crypto, and Compliance: Understanding SEC’s Incubation Programs and Tax Implications

    The Nigerian Securities and Exchange Commission (SEC) recently announced significant advancements in its regulatory approach to digital assets through its Accelerated Regulatory Incubation Program (ARIP) and Regulatory Incubation (RI) Program. These programs, which aim to foster innovation while ensuring investor protection, have now granted “Approval-in-Principle” to two digital asset exchanges and admitted five firms to test their models and technologies.

    This development marks a critical step towards integrating digital assets into the Nigerian capital market, but it also raises some important tax considerations, particularly relating to some of the amendments introduced by the Finance Act 2023.

    SEC’s Regulatory Incubation Programs: A Catalyst for Innovation

    The SEC’s ARIP was introduced to strategically onboard firms that had begun operations before the release of the Rules on Virtual Assets Service Providers in May 2022. The focus of the ARIP is to fast-track the onboarding of Virtual Assets Service Providers (VASPs) and other Digital Investment Service providers (DISPs) who want to register with the SEC.

    The RI Program, on the other hand, is designed to assess the business models of new digital assets (Fintech) firms, testing innovative products, services, and technologies in a controlled environment via basic but limited regulations. RI is aimed at innovators who have been assessed and considered eligible for SEC regulation, but for which no rules currently exist or for which amendment of current rules are required.

    These initiatives are characterized by the increasing use of Distributed Ledger Technology (DLT) in the creation and trading of crypto assets. The participating firms under these programs, such as Busha Digital Limited and Quidax Technologies Limited, operate digital assets exchanges that facilitate cryptocurrency trading with fiat currencies. Others, like Trovotech Ltd and Wrapped CBDC Ltd, focus on offering platforms for tokenizing real-world assets and introducing stablecoins pegged to the Nigerian Naira (₦).

    The programs are designed to ensure that these digital assets and platforms operate within a secure and regulated environment, paving the way for broader adoption in the Nigerian financial ecosystem.

    Tax Implications Under the Finance Acts 2023

    While the SEC’s programs are a leap forward for the digital assets space in Nigeria, they also bring to the fore some critical tax considerations.

    Capital Gains Tax (CGT)

    The Finance Act 2023 included digital assets {Cryptocurrencies, Non-Fungible Tokens (NFTs), etc} as part of qualifying assets for CGT purpose. This means that any gains realized from the disposal of these digital assets would be subject to CGT.  The tax rate for capital gains in Nigeria is currently 10%, and this applies to both individuals and corporate entities. 

    This underpins the need for robust tax reporting and compliance mechanisms to ensure that CGT is accurately assessed and remitted on all capital gains from digital assets. The CGT Act requires that entities should compute CGT on all chargeable assets disposed, pay the tax computed and file self-assessment returns at least twice yearly (i.e. not later than ‘30 June’ and ‘31 December’).

    For example, taxpayers who hold ‘tokenized real estate investments’ offered by platforms like HousingExchange.NG Ltd and Dream City Capital, must account for CGT on any capital gains realized from the disposal of these digital tokens. Similarly, the capital gains from trading cryptocurrencies on exchanges like Busha and Quidax would also be subject to CGT.

    Other Related Taxes

    There are provisions for the taxation of income derived from digital platforms, including income from staking, lending, trading of various forms of digital assets and other decentralized finance (DeFi) activities. For firms operating under SEC’s regulatory incubation programs, it is essential to navigate these tax obligations carefully.

    The Nigerian tax law requires that all income derived by corporate entities (with Nigerian Income Tax Presence – either via local incorporation, Permanent Establishment or Significant Economic Presence) from digital assets must be reported and taxed in Nigeria, where such income is deemed to be derived from Nigeria.  However, individuals who are Nigerian residents earning income (other than capital gains) from digital assets may be assessed to Personal Income Tax in Nigeria on their global income, whether such income is realized locally or from international sources. This underscores the importance of compliance with Nigeria’s tax laws and the need for digital assets firms and business owners to establish clear tax strategies that align with their business models and objectives.

    Regulatory and Tax Compliance

    As digital assets continue to gain traction in Nigeria, the intersection of regulatory oversight and taxation will become increasingly significant. The SEC’s ARIP and RI programs are a step in the right direction, providing a structured framework for the introduction and regulation of digital assets in the Nigerian capital market. However, the success of these programs will largely depend on the ability of participating firms to continuously ensure compliance with the relevant regulatory requirements and tax obligations.

    For digital assets exchanges, offering platforms, and custodians, this means not only adhering to SEC’s guidelines but also ensuring full compliance with the extant tax provisions.  Firms must implement robust tax reporting systems, maintain accurate records of all transactions, and ensure timely payment of taxes, including CGT, VAT, and income tax.

    Balancing Innovation with Compliance

    The ongoing efforts of SEC to regulate digital assets through its ARIP and RI programs reflect a commitment to fostering innovation while safeguarding the interests of investors. As these programs evolve, they will likely serve as a model for other regulatory jurisdictions looking to integrate digital assets into their financial markets.

    However, as the digital assets landscape in Nigeria expands, so too will the complexity of the tax and regulatory environment. For firms operating in this space, the key to success will lie in balancing innovation with compliance, ensuring they not only seek to exploit the opportunities presented by digital assets, but also keen to fulfilling their obligations under Nigerian law. By doing so, they can contribute to the growth and stability of the Nigerian capital market, paving the way for a new era of financial innovation and inclusion.

    Empowering Businesses for the Future

    As the digital asset landscape in Nigeria continues to evolve, the intersection of innovation, regulation, and taxation becomes increasingly complex. At Stransact, we understand the unique challenges businesses face in navigating this dynamic environment. Our team of tax, regulatory, and advisory experts is well-positioned to guide firms through the intricacies of compliance while fostering growth and innovation.

    We offer tailored solutions that go beyond mere compliance—by deeply understanding your business needs, we help you seize new opportunities while mitigating risks. Whether you’re a digital asset provider seeking regulatory clarity or a business looking to optimize tax strategies under the Finance Act 2023, our holistic approach ensures you remain competitive in this rapidly changing landscape.

    Let us empower your business with forward-thinking strategies and expert guidance that drive success and sustainability for the future. Together, we’ll help you navigate the challenges of today and thrive in the opportunities of tomorrow.

  • The Legal Propriety of Ungazetted Acts or Regulations in Nigeria

    The Legal Propriety of Ungazetted Acts or Regulations in Nigeria

    Law-making in Nigeria is strictly the primary function of the legislative arm of government, whether at federal or state level.  This function is enshrined under the broad heading – “Legislative Powers” in section 4 of the 1999 Constitution of the Federal Republic of Nigeria, as amended (the Constitution).  Section 4(1) of the Constitution provides that:


    “The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives”


    The Constitution further outlines the procedures for making of laws which typically begins with the first stage, where the bill is presented before the constituted legislative body through to the final stage when the President assents. In line with the provisions in section 58 of the Constitution, the President’s signing of a bill into law gives legal force or effect to such Law or Act.  Also, where an Act gives anybody or a committee the inherent power to make regulations, rules or policies to operate such Act, such regulations, rules, or policies are deemed legally effective if made by the designated person or committee.

    Official Gazetting of Legislation 

    Official gazetting of laws upon assent by the President has become a conventional and administrative process of making laws in Nigeria. Official gazettes are primary sources of law published by federal, state, or local governments to disseminate new legislation, regulations, and decisions of governmental bodies.  The essence of this administrative process is principally to create public awareness about such Acts, Regulations, and Policies. The official gazette serves as proof of the existence and authenticity of a law.

    While it is a settled conventional and administrative principle that all regulations, ordinances, etc made under an Act are required to be published in the Official Gazette, the pertinent question is: What happens to Acts, Regulations, and Ordinances that are not gazetted? What is their legal force or validity?

    The Legal Basis for Ungazetted Laws in Nigeria

    Ungazetted laws or regulations are legal enactments that have not been officially published in the Federal or State Government Gazette.  While the gazette proves the existence and authenticity of a law or regulation, failure to gazette does not necessarily invalidate such a law or regulation.  Also, where a Principal Act provides that a Minister or any other person can make regulations or rules for the operation of the Act, such regulations if duly made by the Minister or other designated person in line with the process outlined in the Principal Act shall have full legal effect and force. These apply to tax legislations also.

    However, whether an ungazetted law is enforceable depends on several legal principles and precedents, which are considered below.

    Constitutional Provisions

    The 1999 Constitution of the Federal Republic of Nigeria (as amended) is the supreme law in Nigeria. As such, any law or regulation that is inconsistent with the Constitution becomes null and void to the extent of the inconsistency.  Section 1(3) of the Constitution states thus:


    “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”


    However, the Constitution itself does not mandate that laws must be gazetted for such laws to be enforceable or effective, though certain statutes require this for official recognition.  Therefore, it would be an aberration to hold the view that Acts or Regulations must be gazetted before being considered legal or effective. Such a view contradicts the provisions of the Nigerian Constitution.

     

    Download the full article

     

    Interpretation Act, Cap I23, LFN 2004

    The Interpretation Act governs how statutes and subsidiary legislations are to be interpreted and gives guidance on the operation of laws in Nigeria.  Section 2 of the Interpretation Act stipulates that the operation or commencement of a law may be determined by its publication or by another mechanism specified in the law itself.  Section 2 provides that:


    1. “An Act is passed when the President assents to the Bill for the Act whether or not the Act then comes into force.
    2. Where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection, come into force-
      • in the case of an enactment contained in an Act of the National Assembly, on the day when the Act is passed;
      • in any other case, on the day when the enactment is made. 
    3. Where an enactment is expressed to come into force on a particular day, it shall be construed as coming into force immediately on the expiration of the previous day “

    The above provisions imply that a signed law or regulation becomes effective on either “the day it is passed” or “on any other date or in line with any other provision that is stipulated in the law or regulation”. Once effective, such law or regulation then becomes legally enforceable.  This means where the law or regulation does not stipulate that publishing it in the official gazette will be a pre-condition for its enforceability, then failure to gazette it should never affect its validity or legality.

     

    Read More: New Withholding Tax Regulations Explained

     

    Judicial Decisions on Ungazetted Laws

    Judicial decisions form part of the secondary law-making process in Nigeria.  They help with the interpretation of laws. The courts have ruled about the propriety of ungazetted laws in Nigeria as represented in the cases below:

    • Uwaifo v. Attorney-General of Bendel State (1982) LPELR-3448(SC)

    In this case, the Supreme Court of Nigeria held that laws take effect from the date specified for their commencement and not necessarily from the date of publication in the Gazette unless the law expressly states that gazetting is a pre-condition for its operation. The implication of this ruling is that: failure to gazette a law does not automatically invalidate it unless the law specifically stipulates so.

    • Afolabi v. Governor of Oyo State (1985) LPELR-215(SC)

    The Supreme Court held that administrative orders, policies, or laws that have not been gazetted could still be valid, provided they meet all other requirements of due process and do not conflict with statutory or constitutional provisions. Gazetting, while important for public notice, is not always a pre-condition for validity.

    • Chief Felix Ogunmade & Ors v. Federal Republic of Nigeria (2003) LPELR-2327(SC)

    The court ruled that the failure to gazette a regulation may render it unenforceable against the public unless there is evidence that the public was made aware of the regulation through other means. This therefore implies that if the public is overwhelmingly aware of any regulation or law that is not gazetted, the presumption of enforceability is then deemed valid.  The principle of fairness in the enforcement of laws implies that the public should have access to laws that govern their conduct.


     

    While it is agreed that the publication of a law or regulation in an official gazette gives authenticity to such law or regulation, this does not extinguish the fact that where a law or regulation was not made by following the due process as contained in the enabling statute, publication of such law or regulation in an official gazette does not make it valid or legal.  This was the decision of the Tax Appeal Tribunal in Check Point Software Technologies B.V Nig Ltd v Federal Inland Revenue Service where the Tribunal declared the Income Tax (Country-By-Country Reporting) Regulations, 2018 as void, invalid, or illegally made regulations.  This decision was on the premise that ‘the Regulations’ was not made by the FIRS Board, which is the body empowered by the enabling statute to make such regulations.

    Finance Act 2023 and Deduction of Tax at Source (Withholding) Regulations 2024

    • The Finance Act 2023

    The Finance Act 2023 (FA 2023) was signed into law by former President Muhammadu Buhari on 28 May 2023, and was meant to take effect on the same day.  However, President Bola Ahmed Tinubu subsequently issued an executive order in July 2023, upon his assumption of office to postpone the commencement of the FA 2023 to 1 September 2023.

    Though the FA 2023 has not been published in the official gazette since it was signed into law by the President, the various Tax/Regulatory authorities as well as taxpayers and the general public have continued to fully apply the provisions of the Act.  This, therefore, underscores the fact that an Act or Regulation does not need to be gazetted before it is considered legal or valid, except where a law specifically provides otherwise.

     

    • Deduction of Tax at Source (Withholding) Regulations 2024

    The Deduction of Tax at Source (Withholding) Regulations 2024 (WHT Regulations 2024) was made by the Minister of Finance based on the powers conferred on him by the enabling statute.  The WHT Regulations 2024 was expressly set to commence on 1 July 2024.  However, since its publication by the Federal Ministry of Finance, an official gazetted copy has not been published.

    This halt in the administrative procedure of publishing the Regulations in the official gazette has been misconstrued by some tax administrators as a basis for invalidating the ‘WHT Regulations 2024’.  Their argument is that ‘the New Regulations’ lacks proper legal force just because it has not been gazetted.  Nonetheless, it is clear from our comprehensive analyses presented above, that such a view is purely a fundamental misconception that is contrary to the extant provisions of the Nigerian Constitution and all available judicial precedents.

    Conclusion 

    An ungazetted law or regulation is not automatically illegal or invalid in Nigeria except a legislation specifically provides that gazetting such law or regulation would be a pre-condition for its legality or validity.  The date of commencement of a law is crucial in determining its enforceability; meanwhile, gazetting is merely an administrative or conventional process that is used to notify the public, but is not relevant for determining the law’s inherent legality.  Judicial precedents have affirmed that the failure to gazette a law or regulation does not necessarily invalidate it, but may only affect its enforceability where such failure has denied the public the reasonable opportunity of being aware of the said law or regulation.

  • Comprehensive Review: Deduction of Tax at Source (Withholding) Regulations 2024

    Comprehensive Review: Deduction of Tax at Source (Withholding) Regulations 2024

    The Deduction of Tax at Source Withholding Tax (WHT) Regulations 2024 released on July 1, 2024, by the office of the Honourable Minister of Finance and Coordinating Minister of the Economy, has now been gazetted on October 2, 2024.

    The regulations have an effective date of 1 January 2025 and supersede all previous regulations concerning deductions at source or Withholding Tax.  It also simplified areas of complexity in the old regulations as well as the issue of reduced rates for industries with low margins have now been adequately addressed by the new regulations.

    Also, the regulations are designed to promote easier tax compliance and administration, reduce arbitrage between corporate and non-corporate business structures, and address emerging issues, while also aligning with global best practices.

    What to Know about Withholding Tax (WHT)

    Withholding Tax (WHT) is a tax deducted at source from payments made to a taxable person for the supply of goods and services or any other eligible transaction involving both passive and non-passive income.  It is not a separate form of tax but an advance payment of income tax.

    WHT can be used as a tax credit to offset any subsequent income tax liability.  However, in certain cases, the WHT deducted at source serves as the final tax in the hands of the recipients. WHT was designed to curb tax evasion by widening the tax net, which in the long run improves overall tax revenue generation.

    Key Updates on the New Withholding Tax Regulations

    Below are the notable changes brought by the “Deduction of Tax at Source (Withholding) Regulations 2024” to address the challenges faced by taxpayers and to promote tax compliance:

    Tax to be deducted at source

    • ‘The new Regulations’ has expanded the list of eligible transactions liable to WHT, providing simplified and clear descriptions.  There have also been reduced rates to address low-margin industries.  Additionally, if a double tax treaty (DTT) duly ratified by the National Assembly exists between Nigeria and any other country, the reduced rates specified in the treaty will apply to eligible recipients who are residents of that treaty country.
    • If recipients of payments for goods, services, or other eligible non-passive income transactions do not have a Tax Identification Number (TIN), the amount to be deducted at source shall be twice the specified rate. This is a drive to widen the tax net.

    Exemption of small businesses from Withholding Tax compliance.

    The new Regulations exempt “small companies” (defined under the Companies Income Tax Act as having a gross turnover of N25 million or less) and unincorporated business entities with the same turnover threshold from the requirement to deduct tax at source from any transactions, provided the supplier is registered for tax (i.e. has a Valid TIN) and the transaction value is N2 million or less during the calendar month.

    This exemption encourages small companies and unincorporated business entities to maximize their working capital without the burden of tax compliance.  Remember, WHT deductions will not apply to transactions of small companies, since their profits are exempted from income tax.

    Deduction at Source Obligations (i.e. When to deduct?)

    • For transactions between independent parties, the obligation to deduct at source shall arise at the earliest of when payment is made or the amount due is otherwise settled (i.e. deduction is solely on a “cash basis”).
    • For transactions between related parties, a deduction shall be made at the time of payment or when the liability is recognized, whichever is earlier.
    • Also, deductions on any payment to a non-resident person shall be the final tax except such income is still subject to any other further tax by reason of a taxable presence in Nigeria.

    Deduction to be Receipted

    • The Regulations mandate that when an entity deducts tax from a supplier’s invoice and remits it to the relevant tax authority, it must provide the supplier with a receipt for tax deducted at source.
    • This receipt should include all relevant information about the supplier, such as their name, address, Tax Identification Number, National Identification Number (for individuals), or RC number (for companies), nature of the transactions, the gross amount payable or settled, the amount deducted, and the month of the transaction.
    • The person from whom the deduction has been made (i.e. the beneficiary) may submit the receipt to the relevant tax authority as evidence of the amount deducted for the purpose of claiming tax credit irrespective of whether the amount has been remitted or not.

    Offences

    The regulations also specify the penalties for those who either fail to withhold tax at source (WHT) or, after withholding, fail to remit the deducted amount to the appropriate tax authority. The penalties include:

    • Failure to deduct the required amount attracts an administrative penalty.
    • Failure to remit the amount already deducted attracts an administrative penalty, and annual interest.

    Transactions Exempt from WHT deductions:

    The following transactions are exempt from withholding tax deductions as stipulated by the regulations.

    • Compensating payments under a Registered Securities Lending Transaction
    • Any distribution or dividend payment to Real Estate Investment Trust or Real Estate Investment Company
    • Across-the-counter- transactions: This refers to “any transaction carried out between parties without an established contractual relationship or any prior formal contracting arrangement and in which payment is made instantly in cash or on the spot via electronic means”. (i.e. transactions where there is no formal agreement or contract).
    • Interest and fees paid to a Nigerian bank by way of direct debit of the funds domiciled with the bank
    • Goods manufactured or materials produced by the person making the supply: This involves the assembling of a final product or the making of a part or component of a product utilizing raw materials or other inputs including labor and production overhead.  This also includes the production of energy, including electricity, gas, and petroleum products.
    • Imported goods where the non-resident suppliers do not have an Income tax presence in Nigeria
    • Any payment in respect of income or profit which exempt from tax
    • Out-of-pocket expense that is normally expected to be incurred directly by the supplier and is distinguishable from the contract fees.
    • Insurance Premium
    • Telephone charges, internet data and airline tickets.
    • Supply of Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG), Premium Motor Spirits (PMS), Automotive Gas Oil (AGO), Low Pour Fuel Oil (LPFO), Dual Purpose Kerosene (DPK) and JET-A1.
    • Commission retained by a broker from monies collected on behalf of the principal in line with the industry norm for such transactions
    • Winnings from games of chance or reality shows with contents designed exclusively to promote entrepreneurship, academics, technological or scientific innovation.

    Timeline for Remittance

    • In case of payment to the Federal Inland Revenue Service (FIRS), not later than the 21st day of the month following the month of payment.
    • In case of payment to the State Internal Revenue Service (SIRS), with respect to Capital Gains Tax and Pay-As-You-Earn, not later than the 10th day of the month following the month of payment, while with respect to any other deduction, not later than the 30th day of the month following the month of payment.

     

    Download summarised fact sheet

    Legal Implications of the Gazetted Regulations

    The earlier version of the WHT regulations that was initially published stated 1 July 2024 as its commencement date. A lot of taxpayers had since commenced implementation of the regulations. However, the recently gazetted version states that implementation of the regulations shall be effective from 1 January 2025. It also stated in the new Regulations that the relevant tax authority shall, with the permission of the Minister, issue guidelines for the effective implementation of the Regulations.

    The Federal Inland Revenue Service (FIRS) subsequently issued a public notice stating that the new regulations shall take effect from 1 January 2025, while the Companies Income Tax (Rates, etc of Taxes Deducted at Source (Withholding Tax) Regulations (old CIT WHT Regime) shall continue up until 31 December 2024. However, it is important to note that this FIRS notice only affects corporate taxpayers. All other unincorporated business entities, whose taxes are administered by their respective State Revenue Authorities, are not affected by this FIRS notice.

    Nonetheless, corporate taxpayers who began complying with the new regulations from July may be concerned about whether their actions were lawful or whether they have inadvertently breached the regulations.

    Did Taxpayers Breach the Law by Complying Early?

    No, taxpayers who began complying with the new regulations from July were acting within the confines of the law, based on the information available at the time. While the gazetted version has now shifted the official start date to January 2025, any deductions made before it was published in the official gazette are not considered unlawful.

    We understand that tax compliance can be complex, especially with shifting regulatory landscapes, but rest assured that your early compliance efforts were entirely legitimate. For more detailed information on why early compliance with ungazetted regulations does not constitute a breach of law, we encourage you to read our in-depth article on this topic: The Legal Propriety of Ungazetted Acts or Regulations in Nigeria.

    Next Steps for Taxpayers

    Now that the gazetted version is officially in place and the FIRS has clarified the start date for corporate taxpayers, we advise all taxpayers to discontinue the use of the new regulations and revert to the previous withholding tax regulations until 1st January 2025. This delay provides additional time to adjust and prepare for the new WHT regulations without fear of legal consequences.

     

    Written By:

    Ajaba Okachi – Tax Consultant

    Similoluwa Awodeyi – Tax Consultant

    Victor Athe – Partner, Tax & Strategy Services

  • Nigeria’s New Withholding Tax Regulations Explained

    Nigeria’s New Withholding Tax Regulations Explained

    In an exclusive interview with The Nation newspaper’s Ibrahim Apekhade Yusuf, Victor Athe, partner at Stransact (Chartered Accountants), correspondent firm of RSM in Nigeria, shared insights on the federal government’s latest withholding tax policy. He discussed the advantages and disadvantages of the new regime, providing a comprehensive overview of its implications for taxpayers and businesses.

    Who is exempted from withholding tax?

    The original idea behind the introduction of the WHT system in Nigeria, as early as 1977,was to widen the tax net by capturing details of entities that were then engaged in business transactions, without being formally registered for tax compliance. The implication of being unregistered for tax compliance purpose, is that these entities would continue to do business and earn income, but would never pay their fair share of income taxes to the government, whilst enjoying benefits from the resources contributed by the registered taxpayers.

    However, with the Withholding Tax system in place, the invoices issued by an entity for goods or services sold would have to be subjected to tax deduction at a specified rate. A credit note is then issued in favour of the tax deduction suffered, such that the taxpayer can then apply the Withholding Tax credit note against the final income tax payable when filing its income tax returns for the relevant year. This is why Withholding Tax is referred to as an advance payment of income tax. It therefore follows that if an entity is not liable to pay income tax, perhaps due to some tax incentive that confers exemption on its income, its sales invoices should never be subject to Withholding Tax deductions. This is currently the case for Non-Resident Companies that have no income tax presence and are not rendering Technical, Management, Consultancy or Professional services to Nigerian customers, Small companies (i.e. those having gross turnover of N25 million or less), Companies that currently enjoy the Pioneer Status Incentive and other category of Nigerian companies that are outrightly exempted from income tax payment.

    The Federal Ministry of Finance recently published the new “Deductions at Source (Withholding) Regulations 2024” which now replaces the previous Withholding Tax Regulations.  The new Regulations now exempts small companies and unincorporated business entities (with the same turnover threshold as small companies) from the requirement to deduct tax at source provided the supplier is registered for tax and the transaction value is N2 million or less.

    The debacle over the interpretation of the term “Sales in the ordinary Course of Business” has now also been effectively put to rest.  The new Regulations now specifically exempts “Across -the-counter- transactions” (defined as transactions involving no established contractual relationship) from deductions at source.

    Is withholding tax any different from VAT?

    Withholding Tax is an advance income tax deduction. On the other hand, Value Added Tax is tax charged on the supply of goods and services. They are both governed by entirely different laws and regulations. Withholding Tax is principally governed by the Companies Income Tax Act (CITA), CITA Withholding Tax Regulations, Personal Income Tax Act (PITA) & PITA Withholding Tax Regulations, while VAT is governed by the VAT Act.

    There are instances in which some entities like oil and gas companies, some Telcos (specifically MTN & Airtel) and Deposit Money Banks are statutorily required to withhold both Withholding Tax and VAT from invoices issued by suppliers before making net payments to them. In such situations, some suppliers would typically misunderstand and bemoan such multiple tax deductions.  However, it should be noted that while the Withholding Tax deduction would eventually be credited against the final income tax payable by the supplier, the VAT charged on the supplier’s invoice would be remitted to a separate Federal Government VAT Account on behalf of the supplier.

    Who really benefits from withholding taxes?

    When an entity’s invoice suffers Withholding Tax deduction, credits would typically be issued to that entity which it would then apply against its eventual income tax payment when filing its Corporate Income Tax returns for the year. What this means, is that Withholding Tax, and should not constitute a different source of revenue for the government, knowing that it is merely part of an entity’s income tax that has been deducted in advance.

    Withholding Tax deduction is typically applied directly on each of the supplier’s sales invoices, whilst the eventual income tax payable by the supplier is computed as 20-30% of its Taxable Profit for the year (i.e. Revenue less all expenses plus/minus all relevant tax adjustments, less capital allowances claimable).  Now, where the total Withholding Tax deduction suffered on an entity’s sales invoices, all year round, is higher than its Income Tax payable for the year, it would give rise to an excess Withholding Tax credit situation. This would usually occur where the sales invoices are not properly structured to show the ‘profit component’ separate from the cost/reimbursement components, in which case, Withholding Tax would have to be applied on the entire invoice amount, rather than just the specific profit component. Since Withholding Tax is an advance payment of income tax, it should be applied on a base that constitutes the profit component of each of the sales invoices, and not the entire invoice amounts (which translate to the revenue reported for the year).

    A lot of low-margin businesses are caught in this “Excess Withholding Tax Credits” web, which creates an unfavourable cash-flow situation for them.  The plight of these businesses is further worsened by the consistently deteriorating value of the Naira, which means that the real value of the Withholding Tax credits when they are eventually utilised at a future date would even be further eroded. This constitutes a huge dis-benefit to these taxpayers.

    In a case where an entity continues to have excess Withholding Tax credits, the whole essence of the Withholding Tax system would be defeated, since Withholding Tax is actually meant to be an advance payment of income tax rather than an excess payment above the income tax payable for the year. It is important to get professional help from well-experienced tax advisors, if this happens to be your peculiar situation at the moment.

    Based on hindsight, what’s the projected revenue the country stands to get from the receipt of withholding taxes?

    Improved compliance with Withholding Tax should actually bring about an increase in the number of taxpayers in the tax net. While increased Withholding Tax payment should not actually translate into increased revenue for the government, it can potentially improve collection of major taxes like income tax- corporate, personal and VAT.

    Part of the amendments introduced by the New Withholding Regulations is that where a non-registered entity issues a sales invoice, the Withholding Tax rate to be applied should be double the rate ordinarily applicable. This would potentially drive a lot of businesses currently operating outside the tax net to get registered quickly for tax compliance purposes, since they would not want to suffer the attendant cash-flow implications.

    The new Regulations now also requires that where an entity makes tax deductions from the invoice of a supplier and remits to the relevant tax authority, it should issue the supplier a receipt containing all relevant information of the supplier (name, address, Tax Identification Number, National Identification Number in the case of an individual or RC number in the case of a company, nature of transactions, gross amount payable, amount deducted and month of the transaction). The supplier can use this receipt to claim the income tax credit from its relevant tax authority (whether the entity that made the tax deduction has remitted the amount deducted, or not). The relevant tax authority will impose applicable penalty and interest charges where the tax amounts deducted are not remitted timely.

    Would this not add to multiple taxation, which has rendered almost most businesses prostate?

    The New Withholding Regulations have directly listed a number of laudable exemptions from deductions at source, which include: Interest and fees paid to a Nigerian bank by way of direct debit of the funds domiciled with the bank, Supply of goods/materials by the manufacturer, Imported goods by non-resident supplier without Income tax presence in Nigeria, Insurance Premium, Payment relating to income/profit that is tax-exempt, Reimbursable expenses, Supply of Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG), Premium Motor Spirits (PMS), Automotive Gas Oil (AGO), Low Pour Fuel Oil (LPFO), Dual Purpose Kerosene (DPK) and JET-A1, etc.

    The direct exemption of these transactions from deductions at source would further strengthen the cash-flows of the affected businesses (that are mostly characterised by low-margins).  However, this should not be misinterpreted as exemption from income tax obligations. The reduction of the withholding rates for other low-margin businesses like retail and construction are also commendable.

    Furthermore, the new Regulations also specifically states that the reduced Withholding Tax rates, as contained in a Double Tax Treaty between Nigerian and any other country, shall apply to an eligible recipient to the extent that such reduced rates are contained in the relevant Treaty or Protocol duly ratified by the National Assembly. This means the reduced Withholding Tax rates would now be automatically enjoyed by eligible non-residents without them having to write formally to the Federal Inland Revenue Service as previously required.

    Under the new regime of withholding taxes, what’s the possibility of compliance given the penchant by unscrupulous businessmen to cut corners and commit tax avoidance?

    The new Withholding Regulations contain some punitive provisions that aim to directly tackle non-compliance.  For instance, The Regulations provide that where an entity that is not registered for tax issues an invoice for supply of goods or services, the rate of deduction that should be applied should be twice the normal applicable rate.

    The new Regulations also require that an entity that makes tax deductions should issue a receipt to the supplier. The supplier would then be able to claim the tax credit from the relevant tax authority (whether the entity that made the deduction has remitted, or not).  In this instance, the Tax Authority would be required to hold accountable the entity that has deducted and failed to remit the deductions. The tax authority will also impose additional penalty and interest charges.

    The new Regulations further state where an entity fails to make deductions at source from a supplier’s invoice, the entity shall only be liable to payment of just an administrative penalty and one-off annual interest charge (not including the Principal Withholding Tax amount not deducted). This is understandable, since it is expected that the supplier from whom tax deductions were not made, would eventually declare its entire income and file its income tax returns for the relevant year. Therefore, seeking to collect the principal Withholding amount from the entity that failed to deduct at source, would only be tantamount to double taxation. However, where an entity has made the Withholding Tax deduction, and failed to remit, the new regulations require payment of the principal amount deducted, in addition to the administrative penalty and interest charges.

    The Regulations also specifically states that Withholding Tax deductions should not constitute a separate tax or an extra cost. What this means is that, where an entity has paid the full invoice amount to a supplier without deducting Withholding Tax, and then decides to bear the Withholding Tax burden from its own cash-flows, that extra Withholding Tax payment paid, will not be admissible as valid business expenses for income tax purposes. The less onerous approach for an affected taxpayer in this situation would be to either “seek to make the omitted Withholding Tax deductions from future payments to the supplier” or “just make provisions for payment of penalty and interest resulting from the non-deduction.”

    Can digital products fall under withholding taxes too?

    The application of Withholding Tax deductions on digital supplies will depend on the nature of the transaction (whether B2B or B2C). Typically, Business-to-customer (B2C) type of digital supplies would usually not require detailed contracting between both parties before they are made, while most Business-to-Business (B2B) type digital supplies would require detailed contracting that would be tailored to the specific needs of the service recipient.

    Following the definition of “Across-the-counter transactions” in the new Withholding Regulations, it then means that B2C-type digital supplies would enjoy exemption from Withholding Tax deductions while B2B supplies involving contracts between both parties will be subject to Withholding Tax deductions.  Where the B2B supplies are from a non-resident entity, the Withholding Tax deducted shall be the final tax, except where the non-resident is involved in other transactions that trigger income tax presence in Nigeria.

  • How Multiplicity Of Taxes, Levies Hinder Businesses In Nigeria

    How Multiplicity Of Taxes, Levies Hinder Businesses In Nigeria

    In this interview with ROLAND OGBONNAIYA of Independent Newspaper, our Managing Partner, Eben Joels, discusses tax reforms in Nigeria, President Bola Tinubu’s one-year administration, and what the federal government must do to put the country on a path of progressive growth and socio-economic development

    Tax reform is widely discussed in Nigeria. What do you think the government should prioritise in terms of tax reform?

    If President Bola Tinubu remains in office for another eight years, his tax reform efforts in Nigeria should prioritise broadening the tax base and improving tax collection efficiency while lowering the tax rate. Broadening the tax base should entail implementing a tax system that requires every Nigerian to file a tax return with the government. I plan to propose a nominal federal income tax for individuals and require states to share data with the Federal Inland Revenue Service. This will increase the efficiency of the state’s Internal Revenue Services. I will eliminate all other taxes disguised as levies for specific purposes, such as the Education Tax, Police Trust Fund, NITDA levy, and so on. All of these levels have resulted in our corporate tax rate being among the highest in the world. For example, Russia recently raised its corporate tax rate to 25%. That is a country with a wartime economy. However, ours is approximately 34%. These special causes taxes I mentioned are primarily used to offset the administrative costs of the bureaucracy they fund, or they are mostly stolen. I would rather have a lower tax rate and a broader tax base.

    There are other radical tax proposals. For example, given that Nigeria is a republic, I am not sure why the President and Governors are exempt from paying taxes. This is absurd, given that even in a monarchy like the United Kingdom, where the King and Prince of Wales are tax-exempt, they choose to voluntarily pay taxes to the state. If the President of the world’s largest economy, the United States, is not tax-exempt, I see no reason for a relatively poor country like ours to exempt certain offices from taxes.

    Finally, I hope the President is brave enough to implement an inheritance tax system in Nigeria. Most advanced countries impose a high tax on estates, sometimes exceeding 40%, when they are passed down. This tax is one way for these capitalist countries to ensure that wealth is redistributed in some way. The tax applies only to the very wealthy. In the United Kingdom, the threshold is estates worth over GBP325,000. The system provides substantial relief to anyone who chooses to donate to a charitable non-profit. This is another way to expand the charitable non-profit sector. Consider this: anyone inheriting assets worth N5 billion or more must pay 40% to the state, or 20% if they donate a certain amount to charity. There are several advantages. However, I hope that such a system reduces the incentive to steal large sums of money and leave them to your heirs.

    Diageo, the owner of Guinness PLC, is exiting Nigeria and selling its 58% stake in the company to Singapore-based Tolaram. What are your thoughts on this, and what does it mean for the immediate future?

    Diageo’s decision to exit Nigeria and sell its stake in Guinness PLC to Tolaram suggests that it sees better opportunities elsewhere or believes that the challenges in the Nigerian market outweigh the potential benefits. This move could indicate a strategic shift in Diageo’s global portfolio or a reassessment of its investment priorities. Diageo has devised a more profitable way to generate revenue in Nigeria without having to deal with the harsh operating environment for businesses.

    Tolaram Group will likely see this acquisition as an opportunity to strengthen its presence in Nigeria. They already have operations in Nigeria, primarily through subsidiaries in various industries, such as Dufil Prima Foods Plc, which manufactures popular Indomie instant noodles, and the Lekki Deep Sea Port project. The acquisition of Diageo’s stake in Guinness PLC demonstrates that they recognise the value of the Nigerian market and are willing to invest in it. Tolaram may bring a new perspective and strategy to the table, which could lead to changes in how Guinness PLC operates in Nigeria. It may also indicate increased competition or consolidation in the Nigerian beverage industry. While Diageo’s exit raises concern about the Nigerian market’s attractiveness to multinational corporations, Tolaram’s investment indicates continued interest and opportunities for growth in the region.

    Kimberly-Clark, an American multinational and baby product manufacturer, Huggies, GlaxoSmithKline Consumer Nigeria Plc, Sanofi-Aventis Nigeria Limited, and Procter & Gamble are among the multinationals that have recently ceased operations in Nigeria, either completely or partially. Some International Oil Companies (IoCs), including Shell, ExxonMobil, and ENI, are rumoured to be actively selling assets to exit Nigeria. Should we be concerned about multinationals’ exit from Nigeria?

    The departure of multinational corporations from any country, particularly those as large as those you mentioned, should normally raise concerns. These exits can have an impact on employment, economic growth, and overall stability. These multinational corporations are among the few places where you can find best practices in employee recruitment, training, and compensation. They are among the few companies where graft is not tolerated. Many Nigerian-owned businesses do not adhere to best practices. However, it is critical to understand the reasons for these exits. They are influenced by a variety of factors, including economic challenges, regulatory issues, and security concerns, which lead to companies making strategic business decisions to exit the market. Addressing these underlying issues may attract and retain multinational investments. The government should prioritise improving the business environment, increasing security, providing regulatory clarity, and promoting economic diversification to mitigate the negative effects of multinational exits and encourage future investments.

    Some of the clauses in the new bank recapitalisation plan have sparked heated debate. Do you think the Central Bank of Nigeria has good intentions for the banking sector?

    Overall, whether the CBN has good intentions for the banking sector is determined by the balance it strikes between strengthening financial stability, promoting competitiveness, and ensuring that the needs of the economy, businesses, and consumers are adequately met. Open dialogue and collaboration among the CBN, banks, regulators, and other stakeholders are critical for navigating these challenges and achieving positive outcomes for the banking sector and the broader economy. Overall, I am hopeful. The previous round of capitalization fueled the capital market and boosted the economy. I hope this yields the same result.

    Despite CBN efforts to reduce non-performing loans, many banks still have a high percentage on their books. What can be done to make banks solvent and reduce their debt burden?

    To address the persistent issue of high non-performing loans (NPLs) in Nigerian banks, a multifaceted approach is required. To begin, banks should prioritise proactive risk management practices, including thorough credit assessments and stringent monitoring mechanisms to detect potential defaults early on. This includes restructuring loans for distressed borrowers and implementing strong recovery strategies to effectively mitigate losses. Simultaneously, regulatory bodies such as the Central Bank of Nigeria (CBN) should strengthen supervision and enforcement of prudential regulations, ensuring that banks have sufficient capital to absorb potential losses and remain resilient in the face of economic volatility. Furthermore, improving credit information systems and encouraging economic diversification away from volatile sectors can reduce systemic risks and improve bank stability, resulting in a lower debt burden and a healthier banking sector. Most importantly, the CBN should require regular stress testing. It is recommended that impairment indicators be reported regularly.

    Do you think Heritage Bank’s licence revocation was timely? Some believe it could spark a run on other banks, causing panic.

    The timing of Heritage Bank’s licence revocation by the Central Bank of Nigeria (CBN) is a critical decision with far-reaching implications. While the CBN’s reasons for taking such action are likely to be specific, such as concerns about the bank’s financial stability or regulatory compliance, the timing must take into account the broader impact on the banking sector’s stability. The revocation of a bank’s licence can raise concerns among depositors and investors, potentially leading to a run on other banks and causing panic in the financial system. As a result, the CBN must carefully manage communication and ensure transparency to mitigate any spillover effects and restore trust in the banking sector. To avoid widespread panic and systemic disruptions, the CBN should continue to reassure affected depositors of its commitment to maintaining financial stability.

    The Central Bank of Nigeria (CBN) has dissolved the boards and management of Union Bank, Keystone Bank, and Polaris Bank. What distinguishes these banks’ cases from that of Heritage Bank?

    The CBN appointed new management teams to stabilise the banks and protect stakeholders’ interests. In contrast, Heritage Bank did not face a similar intervention from the CBN; instead, its licence was revoked. I suspect this is due to Heritage Bank’s poor financial health and governance, which may render it unsalvageable.

    The Naira has faced the most difficult challenges since it became legal tender in Nigeria four decades ago. The value has been completely eroded by the unprecedented drop in the foreign exchange market. Do you think the CBN has done enough to hedge the Naira against the dollar so far with its recovery strategy? And will these efforts be sustainable?

    The Central Bank of Nigeria (CBN) has implemented several measures to hedge the Naira against the dollar, including foreign exchange market interventions, monetary policy rate adjustments, and the implementation of various forex management policies. Despite these efforts, the Naira has continued to depreciate significantly, indicating that current strategies may be insufficient to address the underlying issues affecting the currency’s value. Structural economic challenges, such as reliance on oil exports, limited foreign reserves, and a large import bill, particularly the continued importation of petroleum products, continue to put pressure on the Naira.

    Stabilising the Naira will necessitate a multifaceted strategy that extends beyond short-term interventions. To reduce reliance on foreign exchange, the CBN must prioritise diversification of the economy, increased domestic production, and an improved business environment. In addition, policy consistency and open communication are critical for restoring investor and market confidence.

    Access to credit remains a major concern for businesses, particularly SMEs, due to the high-risk quotient. What can be done to reduce the burden on businesses so that they can easily access credit at low interest rates?

    The government and financial institutions must implement several strategies. First, the CBN can improve its existing credit intervention programmes, such as the Anchor Borrowers’ Programme and the Micro, Small, and Medium Enterprises Development Fund (MSMEDF), by increasing funding and streamlining application processes. These programmes can be expanded to include additional sectors and lower interest rates. Furthermore, financial institutions should be encouraged to create tailored financial products that meet the specific needs of SMEs, such as flexible repayment terms and lower collateral requirements.

    Furthermore, strengthening Nigeria’s credit infrastructure is critical. Establishing and maintaining a comprehensive credit registry system to track businesses’ credit history can help lenders reduce perceived risks. Strengthening credit guarantee schemes can also provide additional security to banks, encouraging them to lend more to SMEs. For example, I do not know of any credit insurance companies in Nigeria. On a broader scale, fostering a stable macroeconomic environment with low inflation and consistent policies will help to reduce the overall risk profile, allowing businesses to obtain credit at lower interest rates.

    Nigerian graduates often complain about a lack of opportunities and the need to know a highly-placed person to get a job. What can we do as a country to promote job growth among young people?

    To increase job opportunities for Nigerian youth, an enabling environment that encourages entrepreneurship and supports small and medium-sized businesses (SMEs) is required. We live in a society where we worship powerful men without considering their source of wealth. We define success as having a lot of cash in your bank account, regardless of whether it came from a criminal enterprise. As a result, many young people today are focused on making quick money. It is not so much about learning how to sell. As a result, we create a large number of unemployed individuals. People with the incorrect values.

    I remain convinced that there is always room for merit. For example, we are a top destination for the best-graduating students from most local universities, and you do not need to know anyone to work with us. You only need to be competent and have the right mindset, which is one of continuous learning, as well as the right values.

    The nearly 40% inflation rate has had a significant impact on people’s standard of living due to the excruciating cost of goods and services. What steps can be taken to mitigate this?

    A multifaceted strategy is required. Tighter monetary policies to control the excessive money supply have proven ineffective. Raising interest rates and increasing bank reserve requirements have also proven ineffective. I believe the government should focus on stabilising the exchange rate by increasing foreign reserves and decreasing reliance on imports. This is the time to strengthen the agricultural sector by providing subsidies and support programmes to improve local food production, allowing us to enjoy lower food prices.

    On the fiscal policy front, Nigeria’s government should improve public spending efficiency and reduce waste. Investing in infrastructure, particularly transport and energy, can reduce the cost of doing business as well as the prices of goods and services. Implementing social safety nets and targeted subsidies for essential goods can help to alleviate low-income households’ immediate financial burden. Encouraging competition in critical sectors such as telecommunications and energy can also reduce prices through market forces. Fostering an environment that encourages local manufacturing will result in more jobs and higher wages.

    Among the challenges confronting businesses in Nigeria is the proliferation of taxes and other levies across the subnational level, rendering the entire ideal and concept of ease of doing business a mirage. What concrete measures can be implemented to ease business operations and increase productivity and efficiency within the country’s business ecosystem?

    To address the issue of a plethora of taxes and levies that impede Nigerian businesses, comprehensive tax reform is required. The government should simplify the tax system by combining various taxes and levies into a single, simpler tax regime. This can be accomplished by implementing a unified tax policy at the federal, state, and local levels, which eliminates overlapping and redundant taxes. Establishing a centralised tax collection system would reduce administrative burdens for businesses, making compliance simpler and more efficient. Additionally, providing clear guidelines and ensuring transparency in tax policies can assist businesses in better understanding their tax obligations and planning accordingly.

    Furthermore, the government can improve the ease of doing business by streamlining regulatory frameworks and reducing bureaucratic red tape. Nigeria can boost productivity, attract investment, and, ultimately, drive economic growth by making its environment more business-friendly.

    Nigeria’s infrastructure is in shambles, and the country is constantly dealing with power outages and other intractable issues. How much money does the government need to invest in infrastructure to put the country on a path of progressive growth and socioeconomic development?

    The government must make substantial investments in infrastructure. According to estimates, Nigeria will need to invest around $3 trillion in infrastructure over the next 30 years to bridge existing gaps and support its growing population. Immediate priorities should include significant investments in the power sector to address the chronic power outages that stifle business operations and everyday life. Investment in renewable energy sources, national grid upgrades, and increased electricity access have the potential to transform the energy landscape, promoting industrial growth and improving people’s quality of life.

    In addition to power, the government should prioritise investments in transportation, healthcare, and education infrastructures. Modernising and expanding the road, rail, and port networks will improve connectivity, lower transportation costs, and increase trade efficiency. Similarly, improving healthcare facilities and educational institutions is critical to developing a healthy and skilled workforce. Public-private partnerships (PPPs) can help mobilise capital and ensure efficient project execution. By committing to comprehensive infrastructure development, Nigeria can create a more conducive environment for economic activity, attract foreign investment, and achieve long-term social progress.

    The administration led by President Bola Tinubu has been in place for one year. In your opinion, what has he done right or wrong, and what are the low-hanging fruits he can easily pick to make things right?

    President Bola Tinubu’s administration has taken some significant steps in his first year in office, including prioritising economic reforms. He needs to be more aggressive in tackling corruption. His efforts to increase foreign investment through better business policies have been met with cautious optimism. The administration’s emphasis on infrastructure projects, such as road construction and increased power generation, seeks to address critical issues affecting economic growth. However, there have been concerns about the speed of these initiatives and their immediate impact on the lives of ordinary Nigerians. The administration has also struggled to effectively manage the country’s security situation, as ongoing conflicts and insecurity persist in several regions.

    President Tinubu can concentrate on low-hanging fruit, such as improving the agricultural sector through targeted subsidies and support programmes to increase food production. They can also concentrate on simplifying the tax system to alleviate the burden on small and medium-sized businesses (SMEs). They can address power shortages with quick-win projects, such as deploying renewable energy solutions in underserved communities. By focusing on these attainable goals, President Tinubu can boost public trust and lay a solid foundation for long-term development.

    The organised labour in Nigeria recently called a strike and reduced their minimum wage demand to N250,000 per month, while the federal government offered N60,000. What do you think the minimum wage should be?

    Setting an appropriate minimum wage in Nigeria necessitates balancing workers’ needs with the economic realities of businesses and the government. Given the significant difference between the organised labour’s demand of N250,000 per month and the Federal Government’s offer of N60,000, a compromise must be found. A reasonable minimum wage should take into account current inflation rates, the cost of living, and the need to keep businesses running without causing undue financial strain. A new minimum wage is ineffective unless it is accompanied by policies that promote economic growth and productivity, which can support higher wages in the long run. Implementing inflation-reducing measures, such as stabilising the exchange rate and increasing domestic production, can help to sustain wage increases. Improving social services such as healthcare and education can also help to reduce workers’ overall financial burden. Nigeria can create a more equitable and sustainable economic environment for its workforce by implementing a comprehensive approach that includes a fair minimum wage and supportive economic policies.

    Nigeria’s economy, which was said to be Africa’s largest in 2022, is expected to fall to fourth place in 2024. What caused this, and how can it be reversed?

    A variety of factors can contribute to the slip. Persistent issues like political instability, insecurity, and corruption have hampered economic growth. High inflation, a depreciating currency, and inadequate infrastructure have all contributed to a difficult business climate. These factors, combined with the slow implementation of economic reforms, have harmed investor confidence and stifled growth across a variety of industries.

    To reverse this trend, Nigeria’s economy must diversify away from oil dependency by investing in key sectors such as agriculture, technology, and manufacturing. Implementing policies that promote economic stability, reduce corruption, and improve governance is critical. Improving the business environment through infrastructure, particularly in power and transportation, will attract both domestic and foreign investment. Improving education and vocational training can result in a more skilled workforce, which promotes innovation and productivity. By focusing on these areas, Nigeria can create a more resilient economy capable of sustaining growth and regaining its position as Africa’s largest economy.

    Source: Independent Newspaper

  • Tax Incentive and Private Equity Growth: The Nigerian Outlook

    Tax Incentive and Private Equity Growth: The Nigerian Outlook

    Private equity is ownership or interest in entities that aren’t publicly listed or traded. A source of investment capital, private equity comes from firms that buy stakes in private companies or take control of public companies with plans to take them private and delist them from stock exchanges.

    The definition of Private Equity (PE) on a well-explained background is based on two aspects, each related to the two-man characteristics of the PE fundamentals:

    •    PE is a source of financing, It is an alternative to other sources of liquidity, (such as a loan or an initial public offering (IPO)) for the company receiving the financing.
    •    PE is an investment made by a financial institution; Private Equity Investor (PEI) in the equity of a non-listed company (i.e. not a public company).

    Venture Capital is a very specific case of PE. It is the investment in the very early stages of a company’s life.

    Tax Incentive and Private Equity Growth

    The expansion of private equity is fueled by economic policies that include tax incentives. It is critical to comprehend the effects of tax incentives in Nigeria, where private equity firms are fast emerging as significant economic actors. In sequence, the Nigeria Startup Act, 2022 was passed by the National Assembly and signed into law by the president on October 19, 2022. The legislation establishes the institutional and legal foundation for the growth and operation of startups and private businesses in Nigeria.

    Furthermore, the aforementioned legislation included particular clauses designed to address recognized legal, regulatory, tax, and administrative bottlenecks that have impeded the functioning of venture-backed companies (VBC) in Nigeria. The law also provides certain tax incentives which include:

    • Pioneer Status Incentive

    Labelled Startups operating in eligible industries under the Pioneer Status Incentives (‘PSI’) Scheme may apply through the Secretariat to the Nigerian Investment Promotion Commission (‘NIPC’) for grant of tax reliefs and incentives under the PSI. If granted, this would entitle the Labelled Startup to a tax holiday for an initial period of three years, which may be extended for an additional two years.

    The effective date for the PSI reliefs will be the date of issuance of the startup label.

    A labelled startup shall enjoy full deduction of any expenses on research and development which are wholly incurred in Nigeria and the restrictions placed by the Companies Income Tax Act (CITA) shall not apply to a labelled startup.

     

    Download our Doing Business in Nigeria Guide

     

    • Exemption from Contribution to ITF

    Section 25(5) of the act exempts a labelled startup from contributions to ITF in respect of in-house training provided to its employees for the duration of the startup label.

    •    Other Stakeholder-related Incentives

    Angel investors, Private Equity funds, accelerators, and venture capitalists are entitled to an investment tax credit equivalent to 30% of their investment in a labelled startup. The credit ‘shall’ be applied on any gains on investment, which are subject to tax. Interestingly, the Act specifically amends only the Companies Income Tax Act in this regard, leading to a presumption that angel investors who invest without using a company may not be eligible to enjoy this incentive.

    The Act also exempts angel investors, venture capitalists, private equity funds, accelerators or incubators from capital gains tax when they dispose of their investment in a Labelled Startup provided that the assets have been held in Nigeria for a minimum of 24 months.

    Since this is a specific and a later-in-time provision, the ₦100m threshold imposed by the Finance Act, 2021 will not apply. However, where the investment is sold within 2 years, the capital gains tax payable shall be reduced by the amount of the investment tax credit.

     

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    Incentives for Venture Capital Companies

    The fiscal incentives as outlined under the Capital Gains Tax Act, the Industrial Development (Income Tax Relief) Act and the Companies Income Tax Act as amended improve on those earlier prescribed by the Venture Capital (Incentives) Act, which targets venture companies and venture projects.

    Venture companies that invest in venture projects must be recognized by the Federal Inland Revenue Service (FIRS) as venture companies or venture projects, and must invest a minimum of 25% of the total equity required for the venture project to be eligible for the following:

    • Accelerated capital allowance for equity investment by a venture company in a venture project, with the following deductions: first year – 30%; second year – 30%; third year – 20%; fourth year – 10%; and fifth year – 10%.
    • Reduction of withholding tax on dividends declared by venture projects to venture companies for the first five years, from 10% to 5%.
    • Export incentives such as export expansion grants, if the venture project exports its products.
    • Gains realized by venture companies from a disposal of its equity interest in the venture project will enjoy capital gains tax exemption of 25-100% where the disposal recurs between 5-15 years of the investment.
    • Exemption from company income tax for three years, which can be extended for an additional final period of two years.

     

    Read More:The Future of Nigeria’s Technology Industry: A Look at the Nigeria Startups Act

     

    Benefits of these incentives on Private Equity in Nigeria

    Developing countries such as Nigeria deserve special attention because the circumstances in which investment takes place in developing countries are typically strenuous when compared to developed countries.

    In contrast to the US and other developed economies, where leveraged buyouts are the primary PE deal type, management buyouts and restructuring—which include launching green or brownfield investments—are the most common PE transaction types in Nigeria. A major participant in the majority of private equity transactions in Nigeria, Actis, is most known for its US$134 million investment in Diamond Bank Nigeria Plc

    Private equity funds may benefit from the aforementioned tax credits and incentives by ways and means of;

    • Investment Tax Credits:

    For Angel Investors, Private Equity Funds, and Venture Capitalists: These investors are entitled to a tax credit equivalent to 30% of their investment in a labelled startup, which can be applied against gains on investment subject to tax. This incentive encourages more investments into startups by reducing the effective tax rate on gains, making investments more attractive and potentially increasing the available capital for startups.

    • Enhanced Investment Returns

    Venture companies investing in venture projects benefit from accelerated capital allowances, which provide substantial deductions in the initial years (30% in the first and second years, tapering down over five years). This accelerates the recovery of investment costs, improving cash flow and investment returns.

    • Encouragement for Innovation and Growth

    Private equity investments can help small and medium-sized enterprises (SMEs) grow, leading to increased employment and economic activity. Encouraging the establishment and growth of new businesses and startups can further stimulate innovation.

    Conclusion

    In summary, the strategic application of tax incentives is crucial for fostering the growth of private equity in Nigeria. The Nigerian government has introduced several legislative measures, such as the Nigeria Startup Act, to create a conducive environment for private equity investments. These measures include tax holidays, exemptions from certain statutory contributions, investment tax credits, and incentives specific to venture capital companies. Such incentives are designed to encourage investment, promote economic development, and support the growth of startups and private companies.

    Private equity firms and investors should leverage these opportunities to maximize returns. At Stransact, we specialize in enhancing every transaction. Let us help you navigate the tax landscape and drive your business growth. Contact us to learn how we can solve your tax challenges and propel your business forward.

  • Accounting for VAT in Manufacturing Industry: Cashflow and Compliance Challenges

    Accounting for VAT in Manufacturing Industry: Cashflow and Compliance Challenges

    The manufacturing industry is a vital part of the Nigerian economy. Based on the sectoral distribution of Value Added Tax (VAT) released by the National Bureau of Statistics (NBS) for Q4 2023 published in March 2024, the VAT derived from the manufacturing sector was about ₦158.9 billion.

    This represents 13.24% of the total VAT collection, making it the highest contributor to the country’s VAT revenue, despite the numerous challenges facing the sector. Because of the strong contribution of the sector to revenue generation, one would expect that any challenge facing the sector will receive utmost attention, to improve the ease of tax compliance for its players.

    This article discusses some of the industry challenges as it relates to accounting for VAT.

    What Basis, Cash or Accrual Basis?

    Per the provisions of the Value Added Tax (VAT) Act, businesses falling under the category of taxable persons are mandated to submit their VAT returns every month, covering all taxable transactions conducted in the preceding month. However, it is crucial to note that the amount remitted during this process pertains specifically to the net Output VAT. This refers to the VAT sum charged and received by the taxable entity, after deducting any applicable Input VAT from the Output VAT.

    In cases where the Input VAT surpasses the Output VAT, the taxpayer is eligible for a refund. This delineates the fundamental principle of remitting Output VAT based on the interplay of VAT collected from customers and VAT paid on purchases, commonly known as the cash basis approach. Consequently, any outstanding amounts yet to be collected are not considered part of the remittance, and adjustments should be made accordingly from the total supplies.

    Another perspective posits that the requirement to submit monthly returns for all VATable supplies implies that all Output VAT must be remitted upon rendering the returns, regardless of whether it has been fully collected or not. This approach is commonly known as the accrual basis. In practical terms, businesses have the flexibility to choose between these methods based on the nature of their operations. The accrual method is typically favored in scenarios where invoices are settled at the point of sale or within a brief timeframe, whereas the cash basis is deemed more suitable for businesses with extended credit periods.

    Prior to the Finance Act 2019 (which took effect in 2020), the Federal Inland Revenue Service (FIRS) typically insisted that taxpayers remit VAT on accrual basis since this guaranteed a higher VAT revenue for the government. However, this was not a good fit for companies with significant credit sales – a situation that is not new to manufacturing industry. The principle behind the VAT system is that the taxpayer as an agent of the FIRS is to charge, collect and remit the VAT. It was usually onerous for companies (especially manufacturing companies) to remit VAT before they even had to collect it from customers. The accrual basis created cashflow challenges as the companies would use their working capital to finance or fund VAT payments. That is not all; when bad debts (from obsolete goods or sales write-offs) arise, the taxpayers would also lose VAT already paid to the FIRS, and recovery of excess VAT payment is almost a practical impossibility.

     

    Read More: Effects of Multiple Taxation on Business Survival in Nigeria

     

    Tax officials often, in the events of tax reviews or audits, expect the Output VAT to correspond to the VAT per the revenue in the audited account for the period covered. According to IFRS 15, revenue should be recognized when the entity satisfies a performance obligation by transferring a promised good or service to a customer, which occurs when the customer obtains control of that good or service. Revenue is measured based on the consideration to which the entity expects to be entitled in exchange for those goods or services. The revenue per Audited Financial Statements does not necessarily represent cash collected for the period and so should not be basis for the remittance of Output VAT.

    The Finance Act 2019 amended section 15 of the VAT Act 2007 to provide clarification that VAT should be accounted for on cash basis. Only VAT that has been collected should therefore be remitted to FIRS. This amendment helps businesses manage cashflow and reduces the risk that a business ultimately bears VAT burden for its customers, particularly in cases of bad debts.

    Claiming Input VAT on Inventory

    The Nigerian VAT Act limits deductible Input VAT to that ‘incurred on purchase of raw materials used to manufacture products on which Output VAT is charged’ and ‘VAT on goods purchased for resale’. The clear suggestion of this is that the Input VAT incurred on raw material, A, can only be claimed when the corresponding finished good, B, have been sold and Output VAT charged to the customer.

    This corresponds with the basic accounting equation in which the “Closing inventory” is typically deducted from the sum of “Opening inventory” and “Purchases for the period” to arrive at the “Cost of goods sold during the period”. The concern here is that most manufacturing companies practically recognize Input VAT as a debit to the VAT payable account once the cost of the raw material is recognized and not necessary when the Output VAT has been charged on the corresponding finished products. Most of these companies use accounting software that have been configured in this manner, and hence it is difficult to track the raw materials whose corresponding finished goods have been sold before Input VAT is claimed.

    Good accounting demands that Input VAT incurred on raw material whose finished goods were not eventually sold due to obsolescence, physical damage or pilferage should be written off from the debit side of the VAT payable account and therefore not available for claim against the output VAT resulting from the sales of other goods. It is worth noting that in Nigeria, taxpayers can only claim Input VAT when the VAT paid to a government-registered collecting agent (i.e., a tax-registered vendor or an appointed collecting agent) has been remitted to the FIRS account using the taxpayer’s TIN. The taxpayer’s account on TaxPro Max will be credited with the Input VAT only after the vendor or appointed agent has made the remittance to the FIRS.

    Recovery of Input VAT where Output VAT is not Collected

    Government agencies, Statutory bodies, companies in the oil and gas sector, Deposit Money Banks and some major telcos in Nigeria have been mandated to deduct any VAT charged to them at source and remit directly to the FIRS. Manufacturing companies who sell goods to the above-mentioned entities will not have the opportunity to recover their input VAT. This will constantly put them in a position to receive VAT refunds. This, no doubt, can affect their working capital. Certain goods are classified as VAT exempt and others are classified as zero-rated. Zero-rated goods are taxed at 0%. Companies whose final goods are VAT exempt are not required to claim Input VAT as no Output VAT is charged on their goods. Companies with zero-rated goods can claim Input VAT since Output VAT was charged but at 0%. This will lead to the accumulation of Input VAT and put the company in a steady state of VAT refund.

    However, affected companies are allowed to apply to the FIRS for a refund which would typically be subject to a rigorous tax audit exercise. Such audits by FIRS often come with significant administrative costs for the taxpayer as they are protracted, and FIRS would usually raise several other compliance issues to erode the taxpayers’ refund claims. In the light of this, a more efficient way would be for the government to allow affected companies to recover excess tax amounts from any other tax type that is due to the FIRS from the same taxpayer. This will allow companies better manage their cashflow pending a comprehensive review during the periodic tax audits by FIRS. 

     

    Download Our Doing Business in Nigeria Guide

     

    Conclusion

    The huge cost that comes with compliance in Nigeria affects the manufacturing industry negatively. In developed economies, like the UK, there is no restriction to the claim of Input VAT (as claims can be stretched to include the VAT components of cost of services and capital purchases) and the Tax refund processes are quite simple. One major impact of restricting input VAT claims is that the portion of the VAT expensed through the Profit or Loss Statement only enjoys income tax deduction that is limited to the applicable income tax rate. A good tax system should promote fairness and equity. The FIRS must encourage the taxpayers in this industry by addressing these issues as examined in this article, to improve the overall ease of voluntary compliance and doing business in Nigeria.

  • Understanding Employee Share Based Compensation Taxes for Employers & Employees in Nigeria

    Understanding Employee Share Based Compensation Taxes for Employers & Employees in Nigeria

    As competition tightens, businesses across industries constantly innovate to attract and retain the best and brightest minds. One strategy gaining significant traction is Employee Share-Based Compensation (ESBC).

    ESBC programs offer employees a stake in the company’s success. They receive shares or stock options, essentially becoming mini-owners alongside shareholders. This incentivizes them to perform well and contribute to the company’s growth, as their financial well-being becomes directly tied to the company’s performance. It becomes a win-win situation: the company thrives with a motivated workforce, and employees share in the rewards of their hard work.

    However, a crucial gap exists in employee knowledge. Many individuals participating in ESBC programs may be unaware of the potential tax implications. This lack of understanding can lead to unexpected tax burdens and ultimately diminish the program’s intended benefits.  Imagine the disappointment of an employee who receives shares, only to discover later they owe a significant amount in taxes they were not prepared for.

    This article aims to bridge this gap by providing a comprehensive review of the tax implications of ESBC in Nigeria, empowering both employees and employers to make informed decisions and unlock the full potential of share-based compensation.

    Understanding Employee Share-Based Compensation (ESBC)

    Employee share-based compensation (ESBC) offers employees a stake in a company’s growth and aligns their interests with shareholders.

    These programs come in various forms, including:

    • Stock Options: Employees receive the right to buy company shares at a predetermined price (exercise price) within a specific timeframe.
    • Restricted Stock Units (RSUs): Employees are granted shares that vest over time, typically after meeting certain performance conditions.
    • Employee Stock Purchase Plans (ESPPs): Employees can purchase company shares at a discount through payroll deductions.
    • Stock Appreciation Rights (SARs): Employees receive cash compensation based on the increase in the share price from the grant date.

    While ESBC incentivizes employees and promotes long-term commitment, it also carries tax implications for both employers and employees.

     

    Read More: Taxing Times: A Q&A with Stransact’s Victor Athe on Nigeria’s Tax Landscape

     

    Tax Implications for Employees in Nigeria

    The tax treatment of ESBC for Nigerian employees varies depending on the type of award and the timing of certain events. Here is a breakdown of key considerations:

    However, the Finance Act 2021, exempts disposal of shares from CGT charge, if:

    • The disposal proceeds are reinvested in Nigerian Companies.
    • Disposal proceeds are less than N100 million in any 12 consecutive months and adequate returns are made to the Tax Authority.
    • The shares are transferred between an approved borrower and lender in regulated securities lending transactions per CITA.

    It’s important to note that tax laws can be complex and subject to change. Consulting with a qualified tax professional is recommended to determine the specific tax implications for your situation.

    Tax Implications for Employers in Nigeria

    Employers offering ESBC programs also have tax considerations:

    • Tax Deductions: Employers may be eligible for tax deductions on expenses related to employee stock options or other equity awards, subject to specific conditions outlined by Nigerian tax authorities.
    • Financial Reporting: As per the International Financial Reporting Standard (IFRS) 2, employers are required to report share-based compensation transactions on their financial statements.

     

    Read More: How Does Internal Audit Contribute to Good Corporate Governance?

     

    Conclusion: Navigating the ESBC Landscape with Confidence

    The tax consequences of Employee Share-Based Compensation (ESBC) encompass a range of considerations for both employees and employers within the Nigerian fiscal framework. While the legal framework continues to evolve, a clear understanding of current tax regulations and proactive planning are necessary for optimizing the benefits of these incentive programs.

    How Can We Help?

    At Stransact, we help businesses in Nigeria design and implement effective ESBC programs while navigating the associated tax complexities. Our team of experienced advisors can provide comprehensive guidance and ensure compliance with all relevant regulations.  

    Contact us today at [email protected] to learn more about our services.

  • Is Your Tax Bill Eating Away Your Profits? Explore Tax Incentives to Reduce Your Tax Liability

    Is Your Tax Bill Eating Away Your Profits? Explore Tax Incentives to Reduce Your Tax Liability

    Many Nigerian businesses struggle with the weight of corporate taxes, hindering their ability to invest in expansion and innovation. However, a strategic understanding of the Nigerian tax ecosystem can unlock a wealth of opportunities.

    The Nigerian government offers a robust framework of tax incentives designed to stimulate specific sectors and business types. By leveraging these benefits, companies can significantly reduce their tax liabilities and free up valuable resources for growth.

    This article provides a comprehensive overview of the key tax incentives available to Nigerian businesses. We will delve into programs for labeled startups, approved enterprises in free trade zones, pioneer companies in critical industries, and the advantages extended to small businesses.
    Ready to optimize your tax strategy and unlock significant financial advantages? Let’s explore the tools at your disposal.

    The Drivers Behind Nigeria’s Tax Incentive Programs

    The Nigerian government’s tax incentive framework is not accidental. Each incentive program is strategically designed to address specific economic goals. Some drivers of these initiatives include:

    • Fueling innovation and research
    • Unlocking export potential
    • Empowering domestic investment
    • Bridging regional disparities
    • Attracting foreign investment

    By understanding the rationale behind these incentives, businesses can strategically position themselves to benefit from these programs and contribute to the nation’s overall economic well-being.

    A Look at Nigeria’s Tax Incentives

    Labeled Startups

    Nigeria’s Startup Act recognizes the critical role of innovative startups in driving economic growth. To empower these young companies, the government offers a compelling package of tax incentives for “labeled startups” – those officially recognized by the Nigerian Startup Act.

    Incentives available to Labelled Startup:

    • A labeled startup will get Pioneer status. i.e. Income tax relief for a period of 3 years and an additional 2 years if still within the period of a labeled startup from the date of issuance of the asset.
    • A labeled startup shall enjoy full deduction of any expenses on research and development which are wholly incurred in Nigeria.
    • A labeled startup shall be exempt from contributions to the Industrial Training Fund (ITF) where it provides in-house training to its employees for the period where it is designated as a labeled startup.
    • A labeled startup shall be entitled to an investment tax credit equivalent to 30% of the investment in the labeled startup.
    • Capital gains tax shall not be charged on gains that accrue from the disposal of assets in a labeled startup provided the assets have been held in Nigeria for a minimum period of 24 months.

    Approved Enterprises

    Nigeria’s network of Free Trade Zones (FTZs) offers a unique environment for businesses seeking to expand their global reach and optimize their tax profile. Companies operating within these designated zones, known as “Approved Enterprises,” enjoy a range of attractive incentives:

    Incentives available to Approved Enterprises within FTZs;

    • Exemption from all federal, state, and local government taxes, rates, and levies.
    • Duty-free importation of capital goods, machinery/components, spare parts, raw materials, and consumable items in the zones
    • Repatriation of foreign capital investment.
    • Full remittance of profits and dividends earned by foreign investors.
    • Import and export licenses shall not be required.
    • Rent-free land at the construction stage; thereafter rental payment shall be determined by the Authority.
    • Allows for up to 100% foreign ownership of investments.
    • Up to 25% of production may be sold outside the zone (custom territory) against a valid permit and on payment of appropriate duties.

    Pioneer Companies

    The Nigerian government recognizes the importance of fostering new industries and encouraging domestic production of essential goods. To achieve this, they offer a compelling set of tax breaks for “pioneer companies” – those venturing into industries deemed critical for national development.

    Incentives available to Pioneer Companies:

    • Pioneer companies are entitled to tax relief (i.e. exemption from income tax) for a period of three years and can be extended by an additional period of two years.
    • Withholding tax exemption on dividends paid by Pioneer companies to the shareholders.
    • Any losses incurred by Pioneer companies during the pioneer period can be offset against profit after the pioneer period.
    • The qualifying capital expenditure incurred during the pioneer period is deemed to be incurred on the first day of the post-pioneer period.

    Small Companies

    Prior to the Finance Act 2019, there was no segregation of companies, as all companies were liable to income tax at the rate of 30 % on their taxable profit. 

    However, the Finance Act 2019 now classifies companies into 3 categories namely; small companies, medium companies, and large companies based on their turnover level, and stipulates different income tax rates of 0%, 20%, and 30 % respectively.

    Recognizing the vital role of small businesses in driving economic growth, the Nigerian government offers a comprehensive package of tax breaks specifically designed for “small companies,” defined by the Companies Income Tax (CIT) Act as those “with a turnover of #25,000,000 (twenty-five million naira) or less” in a year.

    These incentives aim to ease the administrative burden and financial strain on small businesses, allowing them to focus on establishing a strong foundation and achieving sustainable growth

    Incentives available to Small Companies:
    •    Small companies are exempt from all forms of corporate income taxes i.e. CIT and Tertiary Education Taxes (TET). However, this does not exempt small companies from filing their income tax returns as and when due (i.e., typically six months after the end of its accounting year). The exemption of small companies from payment of income taxes implies income derived by them should be outrightly exempt from withholding tax (WHT) deductions since WHT is typically an advance CIT payment.
    •    Small companies are exempt from minimum taxes which is computed at the rate of 0.5% of a company’s gross turnover, where the company has no taxable profit, or when the income tax payable is lower than the minimum tax computation. This is to ensure that no form of income tax is paid by small companies.
    •    Small companies are exempt from compliance with the provisions of the Value Added Tax (VAT). That is, small companies are not legally required to register for VAT, issue tax invoices, remit and render monthly returns. They are also exempt from the penalties prescribed by the VAT Act for non-compliance with the administrative provisions.
    •    Small companies tend to have easy access to special funds or financing schemes established by the Government, providing them with easier access to credit (loans, guarantees, venture capital funds, subsidized interest rates) at favorable terms.
    •    Small companies participating in trade promotion programs, trade fairs, and exhibitions organized by the government can facilitate access to both domestic and international markets.

    Unlocking Your Full Potential with Stransact

    Navigating the complexities of Nigeria’s tax landscape can be a daunting task. However, with the right guidance, you can transform these incentives from potential benefits into tangible advantages that propel your business forward.

    At Stransact, our tax and strategy professionals go beyond just tax filing. We provide insightful analysis and strategic planning to help you optimize your tax profile, maximize the benefits of available incentives, and minimize your overall tax burden. Our expertise empowers you to make informed decisions that contribute to your long-term growth and success.

    Don’t miss out on the valuable opportunities presented by Nigeria’s tax incentive framework.

    Let us bring value to every transaction and empower you with the confidence to achieve your business goals.

    Contact Stransact today at [email protected]

  • Understanding the Tax Consequences of Remote Work

    Understanding the Tax Consequences of Remote Work

    The world of work has undergone a remarkable evolution, shaped by historical shifts and technological progress. In the pre-internet era, individuals honed their skills from home, working as isolated tradespeople. The Industrial Revolution introduced office spaces and daily commutes, laying the foundation for the infamous ‘rat race. ‘Then came the disruptive force of COVID-19, locking people indoors but not halting the need for work. Jack Niles’ telecommuting seeds from 1973 sprouted to life. Even skeptics among management had to adapt as it became key to business survival during the pandemic.

    Remote work surged, with a 200% increase in Nigeria from 2022 to 2023 alone. Remote work prompted a fundamental change, demanding a new work style and reshaping office culture, policies, and values. Some organizations made bold changes, closing offices and reevaluating roles. Enterprises revamped talent strategies to attract top-notch professionals through remote opportunities, leveraging technology to disperse employees globally while efficiently meeting customer needs.

    These shifts have not only transformed work but also disrupted established tax schemes worldwide. This article discusses the taxation of employment income in Nigeria and proposes solutions for appropriately taxing employment income in the era of remote work.

     

    Download Full Publication

     

    Personal Income Tax Act and Employment Income

    Section 3 of PITA (as amended), provides that tax shall be payable for each year of assessment on the aggregate amounts, each of which is the income of every taxable person, for the year, from a source inside or outside Nigeria. Further, Subsection 1b of the aforementioned section, provides that “any salary, wage, fee, allowance or other gain or profit from employment including compensations, bonuses, premiums, benefits or other perquisites allowed, given or granted by any person to any temporary or permanent employee other than so much of any sums as or expenses incurred by him in the performance of his duties, and from which it is not intended that the employee should make any profit or gain”. This hints that employment income should ordinarily comprise salary, wages, allowances, overtime pay, pension, annuity, directors’ fees, bonuses, management fees, gratuities, retirement allowances, extra salary, or any emolument of any other kind paid or payable concerning the taxpayer’s employment.

     

    Read more: Tax Incentives in Nigeria

     

    Pay components for most organizations in Nigeria include amongst other items, basic allowance, housing allowance, transport allowance, utilities, leave allowance, wardrobe allowance, and airtime allowance. These could also include other forms of Benefits-In-Kind (BIK), such as the provision of accommodation, vehicles, club membership subscriptions, and official drivers to employees. With the introduction of remote work, there have been changes in work requirements, for example, water, coffee, internet, and electricity that would be borne by organizations on a good day have been passed to employees. Many employers have swept in to cushion the effect of such changes thereby introducing pay components such as power support, generator allowance, internet subscription, etc.

    A question that calls for answers is whether such additional pay components (Such as power support, generator allowance, internet subscription, etc) should be subjected to tax and included in the computation of employee PAYE taxes for the month. Armed with the knowledge that reimbursements paid to an employee, arising from expenses incurred by him in the performance of his duties, will not be liable to tax, some organizations have argued that such components are reimbursement of costs borne by employees in the performance of their duties and should not be taxable, while others opine that these are employee benefits earned in the course of employment and should therefore be subject to tax.

    The tax man wants more revenue so it was not surprising to see tax authorities insist during tax audits (especially those relating to 2020) insisting that such payments be included as benefits enjoyed by employees and subjected to PIT.
    Section 3(1)(b) of PITA 2011 has made it clear that any expenses incurred by an employee in the performance of his duties, and from which it is not intended that the employee should make any profit or gain should be exempted from tax. Given the foregoing, organizations should maintain necessary supporting documents, in other to justify any “reimbursements” paid to their employees, in the case of an audit.

     

    Read more: Can Taxes Solve Nigeria’s Debt Crisis?

     

    PAYE Considerations in Remote Work

    The taxation of personal income in Nigeria and by extension, employment income is based on residency. The residency of an employee is determined to know the correct tax authority to receive the PAYE of the employee that has been deducted by the employer. In the past, one would be forgiven to think to assuming that the place of residence of an employee is the place the employer is based.
    In recent developments, employers that permit remote work could have employees work from places as distant as Adamawa State while the office of the organization is located in Osun State. The implication of this is that even though the economic value of the organization may be largely generated from Osun State, the PAYE taxes of such employees would be remitted to Adamawa State. The challenge now will be for the organizations to track the residence of their employees as employees could spend varied times in different tax authority jurisdictions.

    Conclusion

    The emergence of remote work has benefited the business world as it was present during the dreaded times of the infamous COVID-19. It did not stop there as it has become a new normal now and has been a part of developments like the digitalization of tax fillings.

    As the cost of operation continues to skyrocket, attention is drawing to remote work now more than ever. The tax administrators may need to take time to consider how remote work has changed the nexus between tax administration and taxpayers. This could create a host of challenges but no doubt there are opportunities lined up too. It is therefore advisable for policymakers to review the PITA to better capture the realities of the modern world as they relate to employment income emanating from remote work. 

    As business changes with the rise of remote work, our team at Stransact stands ready to provide expert guidance on compliance with taxation in this new era. Reach out to us for tailored solutions that align with the modern realities of employment income.