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22 February 2022 Nigeria | Highlights of Finance Act 2021 Nigeria’s President Muhammadu Buhari, on 31 December 2021, signed the Finance Bill 2021 (the Finance Act or the Act) into law with an effective date of 1 January 2022. The Finance Act introduced over 40 amendments to the existing tax and regulatory legislation in Nigeria, including the Capital Gains Tax Act, Companies Income Tax Act, Personal Income Tax Act, and Value Added Tax Act, among others. The amendments were primarily aimed at addressing ambiguities and providing clarity to certain provisions in the existing laws, as applicable to business activities in Nigeria. This Alert summarizes the key amendments to the tax laws and regulatory legislation (including sector specific considerations) as provided in the Act, and the impact of such changes. Specifically, CGT at 10% will now apply on gains from the disposal of shares where the proceeds are NGN100 million or above in any 12 consecutive months. However, CGT will not apply where:
Also, gains on the disposal of Nigerian Government securities (as defined by the Act) should not be subject to CGT. In light of this amendment, clarification should also be provided as to the basis of calculation of such gains on which CGT should be applied on, specifically as it relates to the determination of the cost of such shares. This remains unclear as the provisions of Sections 11 to 14 of the CGT Act, which provides for the computation of capital gains, is not sufficient to address the peculiar nature of shares. In addition to the above, clarification should also be required as to whether the application of CGT should extend to the indirect disposal of shares. Also, the FIRS may need to provide guidance on the administration of CGT compliance, particularly as to the filing of CGT returns and eligibility for CGT exemptions, i.e., the NGN100 million threshold and 12 months window allowed for reinvestment of proceeds from disposal. This is important considering that CGT returns are to be filed at a six-month interval (i.e.,30 June and 31 December, depending on the period when a disposal is made). Furthermore, with respect to the disposal of Nigerian Government securities, an income tax exemption was previously granted for bonds and securities under the provisions of the Companies Income Tax (Exemption of Bonds and Short-term Government Securities) Order 2011. Specifically, the Order provided that short-term securities (i.e., disposed within a year) and long-term securities (i.e., disposed after one year), with the exception of Federal government bonds, which was granted an indefinite exemption, should be exempt from tax. However, such exemptions have lapsed effective 1 January 2022. Thus, based on the expiration of the order, short-term government securities should now be subject to Company Income Tax (CIT), while long-term government securities should continue to be exempt from CGT. Section 16 of the CITA, which provides for the taxation of insurance businesses has been amended to clarify (among other provisions) that: Minimum tax provision under Section 33 of CITA shall now apply to insurance business provided that “gross turnover” shall mean “gross premium and other income” for non-life insurance business, and “gross income” for life insurance business. “Other Income” for the purpose of non-life insurance business is defined as, all income of the non-life insurance business other than gross premium (excluding franked investment income). Copy of the actuary certificate for revaluation of unexpired risks or any other revaluation should be submitted to the FIRS not more than three months after an actuarial revaluation. These amendments have provided alignment and clarity (to an extent) to the noted provisions as it relates to the taxation of insurance companies, given the specialized nature of such businesses. Section 23 (1) (c) was amended by deleting educational institutions from the income tax exemption list. Prior to this amendment, the profits of companies engaged in educational activities of a public character were exempt from income tax if such profits were not derived from a trade or business carried on by such companies. Thus, with this deletion, profits earned by these institutions will no longer enjoy a tax exemption and will be liable to CIT at 20% or 30% (depending on their turnover). With respect to the applicability of Tertiary Education Tax (TET) on profits earned by educational institutions, although the TET Act was not expressly amended to reflect such treatment, it appears that such profits should also be subject to TET as the TET rules state that the determination of assessable profits on which TET should be applicable is to be determined/reflective of such amount as computed per the CITA provisions. Section 23 (q) which provides for the exemption of export profits was amended to clearly exclude companies engaged in the upstream, midstream, and downstream petroleum operations from such exemption. This amendment is to ensure alignment with the industry specific legislation as applicable in the oil and gas sector. Specifically, the Petroleum Industry Act (PIA) 2021 introduced certain changes to the fiscal terms for companies operating in the oil and gas industry. One of such is the introduction of CIT for companies involved in Upstream petroleum operations, as clarified in the PIA. Accordingly, such companies involved in such upstream petroleum operations, previously subject to tax under the Petroleum Profit Tax Act and Deep Offshore and Inland Basin Act, are now taxable under CITA. Given that the revenue generated from these activities are significantly tied to the export of crude oil products, the Finance Act amends the export exemption provision under CITA to exclude oil and gas companies engaged in these activities across the various value chains. Section 30 was amended by introducing a new sub section 1(b)(II)(a) to assess Nonresident Companies (NRCs) with a digital significant Economic Presence (SEP) in Nigeria to tax on a fair and reasonable percentage of their turnover attributable to the SEP, in the instance where there is no assessable profit, or the assessable profit is less than what is to be expected from that type of business or cannot be ascertained. Based on the current rules, NRCs with an SEP on digital services are to file their tax returns on the normal/actual profit basis i.e., in line with section 55 of the CITA. However, based on this amendment, such NRCs may be subject to income tax on a deemed profit basis at the discretion of the FIRS, to the extent that their actual profits cannot be readily and reflectively computed, i.e., the decision to opt for the deemed income basis of taxation by the NRCs should not be automatic. While this amendment should (to an extent) address the pending issue as to profit attribution for digital businesses in Nigeria, it is unclear, what percentage of turnover should be deemed as taxable profits for such companies. Thus, it can be implied that FIRS has the discretion to determine what such percentage of the profit should be (perhaps on a case-by-case basis), considering an open-ended structure of this provision. Also, since the FIRS had previously adopted the deemed profit rate of 20% with a tax rate of 30% resulting in an effective tax rate of 6% for the taxation of NRCs in the past, there is a possibility that the same provision may be applied in this instance, albeit on a case-by-case basis. A new Section 31 (1a-d) has been introduced to restrict the claim of capital allowances on a Qualifying Capital Expenditure (QCE) to the extent that such asset is employed in generating taxable profits. Also, for small and medium sized companies, any unabsorbed capital allowances at the end of a tax year are to be deemed fully absorbed in such year. Based on this amendment, capital allowances claimable on QCE utilized for generating taxable and non-taxable income shall be prorated such that only the portion relating to taxable income should be allowable as a tax relief. However, full relief should be granted where the proportion of non-taxable income does not exceed 20% of the company’s total income. Furthermore, small and medium sized companies can no longer carry forward and subsequently utilize unabsorbed capital allowances, except where such companies have the pioneer status relief as provided under the Industrial Development (Income Tax Relief) Act. Section 33 was amended to further extend the coverage of the reduced minimum tax rate of 0.25% by one year, i.e., to include financial year 2021. As such, a company can elect to apply the reduced minimum tax rate to any two consecutive years between 1 January 2019 to 31 December 2021. This provision will particularly be more beneficial to companies that had filed their 2019 financial year returns before the Finance Act 2020 was signed into law. Also, it should be noted that this exemption will only be granted where the relevant returns are filed on or before the filing due dates. Section 78 (4) was amended to consider the WHT deducted on interest paid to a Unit Trust recipient to be the final tax on such interest income. The amendment now clarifies the income tax treatment of interest earned by Unit Trust holders/recipients, in addition to the existing provisions and benefits noted in the CITA for Unit Trust Schemes/holders. Section 21 of the Customs, Excise, Tariffs, etc. (Consolidation) Act was amended to introduce an excise duty charge of NGN10 per liter on non-alcoholic, carbonated, and sweetened beverages produced and imported in Nigeria. Non-alcoholic, carbonated, and sweetened beverages are generally in high demand in Nigeria. As such, there are concerns that the introduction of excise duties on such products may result in declined sales and market growth, given the potential increase in cost per product which will ultimately be borne by the final customers. Section 25 of the FIRS (Establishment) Act has been amended to allow the use of third-party technology for tax administration purposes, upon providing a 30-day notice to the concerned taxpayer. Such 30-day notice, upon a written request by the taxpayer, may be extended or withdrawn by the FIRS provided the taxpayer has demonstrated a good cause. Failure to grant the FIRS relevant access after the notice period, will attract a penalty of NGN25,000 for each day the failure to grant access occurs. This is in line with international best practices and standards, and the FIRS’ intention to further reduce manual tax administrative processes. Also, this provision is intended to reduce non–compliance or unnecessary delays that may be caused by taxpayers in the process of deploying the technology. However, there are concerns on the compatibility of the solution of the FIRS to the electronic gadgets or software of all taxpayers. Similarly, direct data access to the information of companies poses risk of leakage of confidential information and trade secrets of taxpayers. In addition, many entities’ ERP system may be linked to the Group’s operations outside Nigeria. The risk therefore exists that other confidential information may be leaked through this application of third-party technology. Section 28 of the FIRSEA has been amended to increase the penalty payable by a bank, up to NGN1,000,000 for each quarter, where the bank fails to provide information or provides incorrect information to the FIRS, pertaining to individual or corporate customers. The penalty is payable for each quarterly return not filed by the bank. The increase of the penalty payable by the bank is intended to ensure that banks are more diligent during the “know your client” (KYC) and information gathering process which in turn would ensure that the quality of data submitted by the banks to the tax authorities is correct and in the required format. The information provided is particularly important to the FIRS as the information in the bank returns may help to bring more individuals or corporate organizations into the tax net and track transactions that should be subject to tax. Section 33 of the PITA was amended to clarify that only premiums paid to an insurance company by an individual for his/her life or the life of his/her spouse during the year preceding the year of assessment will be allowed as a deduction. This amendment clarifies that as part of personal income tax relief, premiums paid to an insurance company in respect of a contract for a deferred annuity on the life of an individual or that of his spouse are not allowed as a tax deduction. The Finance Act gives the power to a Senior Manager or a Grade Level 14 equivalent, via the substituted (2) of Section 47, to request for information from persons for the purpose of obtaining full information regarding income or gain of a person as stated in Subsection (1c&d). This replaced subsection (3) of Section 47 which was revised to provide that any bank that contravenes the provisions of the referenced Section will be subject to a penalty of NGN1 million for each return or information not provided or incorrect information provided. A new subsection (3A) was provided for in the PITA and it states that the penalty in subsection (3) is payable in respect of every quarterly return not filed by the bank. This amendment limits the rank of the officers that may act in the cases stipulated in subsection (1c&d) from the Chief Inspector of Taxes to the Senior Manager or a Grade level 14 equivalent. This amendment changes the subject being charged with a penalty from “a person who engages in banking” to the bank itself, while also increasing the penalty from “NGN500,000 for a body corporate and NGN50,000 for an individual” to NGN1 million. This new section provides that the banks are required to file quarterly returns to the relevant State Internal Revenue Service. The returns relate to providing the names and addresses of new customers of the bank to the tax authority. Failure to file these quarterly returns will make them liable to a penalty of NGN1 million. Section 49, subsection (2) of the PITA was amended to instruct banks to file the referenced returns (i.e., submit names and addresses of new customers as stated in subsection 1) quarterly. Subsection (4) of the PITA was amended by increasing the penalty should a bank fail to file these returns to NGN1 million. The Finance Act emphasizes the importance of banks to file the referenced returns quarterly or risk paying a penalty of NGN1 million for returns not filed or incorrect returns provided. Section 94 of the PITA was amended to increase the fine for failure to comply with provisions of the PITA where no penalty was specifically provided, from NGN5,000 in the first instance and NGN100 per day of continuous default to NGN20,000 and NGN2,000, respectively. It emphasizes that where the offense is the failure to furnish a return, statement, or information or to keep records required, there will be a fine of NGN20,000. A further sum of NGN2,000 for every day during which the failure continues, will be applied. Where the taxpayer further default payment, such person will be liable to an imprisonment of six months, in addition to the liability so owed. Section 89A of the SDA was amended by introducing a new subsection (3) to clarify that the Minister of Finance, subject to the approval of the National Assembly is authorized to issue regulations relating to the auditing, accounting, allocation, and distribution of arrears of relevant stamp duties and Electronic Money Transfer Levies (EMTL) collected between the 2015 and 2019 fiscal years, within 30 days of the effective date of the Finance Act. The amendment further states that EMTL subsequently collected shall be distributed within 30 days following the month of collection. This provision has empowered the Minister of Finance with the management of stamp duties and EMTL regulations and administration with specific emphasis on the distribution of the duties and levies collected. However, this will be subject to the National Assembly’s approval. Section 1(2) of the TETFA was amended by increasing the rate of Tertiary Education Tax (TET) from 2% to 2.5% and it exempts small companies (as defined under the CITA), from TET. The exemption of small companies from TET, further affirms the Federal Government’s commitment to promote the growth of small businesses in Nigeria. However, the increase in the TET rate further increases the tax burden of medium and large companies in Nigeria. Section2(2) of the TETFA was amended to reduce the timeline for payment of TET from 60 days to 30 days after the FIRS has served the notice of assessment. The timeline for settling payment of TET is now 30 days from the date of assessment in a situation where a TET liability arises from a desk review, audit or tax investigation. Section 10 was amended to include a conditional obligation for beneficiaries of taxable supplies made by NRCs in Nigeria. The amended section provides that the FIRS may appoint any other person aside from the beneficiary of the taxable supplies to act as a VAT collection agent for the Government. It further states that the amendment also provides that the FIRS may issue further guidelines to give effect to the provisions of section 10 of the VAT Act. As such, it is expected that the FIRS will issue an implementation guideline in this regard. Prior to the enactment of the Finance Act, the FIRS had issued a directive which attempted to appoint NRCs as collection agents so as to collect and remit VAT for supplies made via electronic or digital means, particularly for business to consumer transactions. This considered the practicality issues around VAT collection for such transactions and the potential tax revenue leakage. However, such attempt by the FIRS was faulted primarily on the premise that such requirement was not included in the VAT Act as part of the responsibilities of such NRCs. Thus, to address this omission, the VAT Act has now been updated to clearly state that the FIRS is empowered to appoint an agent for the collection of VAT on services supplied by an NRC to a local company, in which case, the local service recipient should no longer be required to self-account for such VAT, i.e., where an agent is appointed by the FIRS. The Finance Act also states that the FIRS may issue further guidelines to give effect to the provision. Although a guideline is yet to be issued by the FIRS in this regard, i.e., post enactment of the noted provision in the Finance Act, it appears that the intention of the FIRS (based on the provision of the first mentioned guideline) is to appoint such NRCs as the VAT collection agent. Thus, by implication, an NRC will not only have an obligation to register for VAT and file monthly VAT returns, but it will also have the additional obligation of remittance of VAT to the FIRS. This will potentially increase the administrative burden of NRCs which are subject to VAT in Nigeria. Nevertheless, it is unclear whether the first-mentioned guideline will be implemented as no additional update has been released by the FIRS in this regard; and there is a risk that the FIRS may maintain that the provisions of the guideline become effective from 1 January 2022. However, such application can be challenged on the basis that the circular was issued before the enactment of the Finance Act, as such, it should be null and void until another guideline is issued pursuant to the Finance Act. In conclusion, it is important to note that where such appointed VAT collection agent fails to collect the VAT on a taxable supply, the taxable person is expected to remit the VAT directly to FIRS. Section 14 of the Act was amended to empower the Service to appoint any person to withhold or collect VAT, and such person is obligated to remit the VAT withheld or collected to the FIRS within 21 days of the following month. This amendment seems to reiterate the powers of the FIRS to appoint any person to act as its collection agent for VAT purposes, and the obligation to remit the VAT collected within the statutory time. Section 15 of the Act was amended to exclude companies engaged in upstream petroleum operations from the exemption privileges enjoyed by companies below the VAT threshold. By implication, companies engaged in upstream petroleum operations must comply with the provision of the VAT Act irrespective of their turnover, even if their turnover is below the VAT threshold of NGN25 million. Sections 9 and 10(3) of the Insurance Act were amended by substituting for the words “paid-up capital,” with “Capital requirement” wherever it appears. The thresholds for various classes of business remain unchanged, however certain assets, liabilities and financial instruments as approved by the Commission can be included to form part of capital for insurance businesses. Furthermore, “Admissible Assets” was defined as share capital, share premium, retained earnings, contingency reserves, and any other admissible assets subject to the approval of the Commission. The change from paid-up capital to “capital requirement” provides clarity to what should form the capital base of insurance companies. Notwithstanding the broader scope of capital requirement provided in this section, some level of subjectivity still exists regarding assets and liabilities that must be approved by the Commission before they can be included as part of capital. Clarity should be provided on the conditions for approval of subordinated liabilities and other admissible assets stated in this section. Section 4 of the NPTFA was amended to include a new subsection 3, which now empowers the FIRS to administer, assess, collect, account, and enforce the payment of the Police Trust Fund (PTF) levy. Although, the NPTFA was signed into law in June 2019, there was no specification on how the provisions of the NPTFA would be administered, and how collection of the levy would be managed. The PTF levy is payable by all companies operating business in Nigeria at 0.005% of their annual net profit and is to be remitted as directed by the FIRS. Although, the law has specified the agency responsible for the collection of the levy, the FIRS may need to clarify if the levy will be paid retrospectively, i.e., from 2019 or will be on a going forward basis. In addition, the NPTFA did not define the term “net profit,” and this may result in varying opinions as to what the base for the levy payable should be. As such, it is expected that the FIRS will issue a guideline to provide further guidance on compliance obligation of taxpayers with respect to this Act and the timing for payment of the levy. Section 20 (a-b) of the NASENI Act was substituted with a new subsection 2 (a) and (b) which highlights the sources of funding of the agency as: 0.25% of profit before tax of companies and firms in the banking, mobile telecommunication, ICT, aviation, maritime, oil & gas sectors with annual turnover of NGN100 million and above. The increase in the turnover threshold from NGN4 million to NGN100 million, excludes small and medium companies from contribution to the NASENI levy. Although, the amendment specified that the levy will be collected by the FIRS, it did not specify the penalty for non-compliance or clarify if the provision of the NASENI Act will be applied retrospectively. In order to get relief for the levy, Section 22 of the NASENI provides that all contributions to the fund of the Agency shall be tax deductible. This will serve as a benefit to the taxpayer as they are able to recover 32.5% of the levy contributed. Furthermore, the NASENI levy will increase the tax burden of companies in the affected sector, as the levy can be likened to the NITDA levy. As such, these companies may be deemed to be double taxed for the purpose of generating revenue for agencies performing similar activities Prior to the Finance Act, oil & gas companies in upstream, midstream and downstream operations were eligible for exemption from income tax, where the proceeds from such export were repatriated to Nigeria and used exclusively for the purchase of raw materials, plant, equipment and spare parts. This amendment modified the provision, as such, profits of oil & gas companies from exportation of goods are now subject to tax. The incentive for gas utilization is now to be claimed once by an entity. Companies formed as a result of a reorganization, restructuring, buy-back or other similar operations that have previously enjoyed this incentive are no longer eligible to enjoy the waiver. Companies in the upstream sector are mandated to comply with VAT regardless of turnover amount, as the exemption provided in Section 15(2) of the VAT Act is no longer applicable to them. Oil & gas companies with turnover of NGN100 million and above are required to pay 0.25% of their profit before tax as NASENI levy. The Act replaces the word “paid-up share capital” with “capital requirement” while providing the definition of "capital requirement" under Section 102 of the Insurance Act. Banks with turnover of NGN100 million and above are now required to pay 0.25% of their profit before tax as NASENI levy. Banks are now required to file quarterly returns in relation to new customers as opposed to the previous monthly filing requirement. Failure to file the quarterly returns or information not provided as well as incorrect returns or information provided to the FIRS will attract a penalty of NGN1 million; as compared to the previous NGN500,000 and NGN50,000 penalty applied on corporate and individual customers. The Minister of Finance is now empowered to make regulations for the auditing, accounting, allocation, and distribution of stamp duties and EMT levies received between the 2015 and 2019 fiscal years, subject to National Assembly approval, and all stamp duties and EMT levies collected going forward. Capital allowance brought forward by an SME is now treated as having been claimed and consumed in each year of assessment and the residual carried forward into subsequent years. This would however not apply where the company has a pioneer status under the Industrial Development (Income Tax Relief) Act. The exemption from VAT registration and compliance obligation applicable to small companies with annual turnover less than NGN25 million excludes companies engaged in upstream petroleum operations regardless of turnover. The definition of a real estate investment company has been amended by the Act to mean a company duly approved by the Securities and Exchange Commission as a Real Estate Investment Regime in Nigeria. Mobile Telecommunication and ICT companies with over NGN100 million turnover are expected to make a payment of 0.25% levy on profit before tax as the NASENI levy. As summarized above, NRCs engaged in digital transactions can be charged to tax by the FIRS on a “fair & reasonable” percentage of their turnover subject to such company having a Significant Economic Presence in Nigeria. Nonresident persons who supply goods and services to Nigeria, or any other person appointed by the FIRS to collect VAT on its behalf is statutorily obligated to collect and remit the VAT on such supplies to the FIRS. Following the enactment of the Finance Act, all companies (including, nonresident companies providing digital services) should analyze the provisions of the Act to understand its impact on their businesses. Specifically, educational institutions should consider this amendment and be aware of their tax obligations as provided in the various tax laws going forward. Also, taxpayers (companies and individuals) should be aware of their existing, revised, and new tax obligations to avoid various increasing penalties for non-compliance. Akinbiyi Abudu | akinbiyi.abudu@ng.ey.com Audrey Obidike | audrey.obidike@ng.ey.com Adesope Okoh | adesope.ojo@ng.ey.com Chinwe Erobu | chinwe.erobu@ng.ey.com Bruno Messerschmitt | bruno.messerschmitt@ey-avocats.com Alexis Popov | alexis.popov@ey-avocats.com Kwasi Owiredu | kwasi.owiredu@uk.ey.com Byron Thomas | bthomas4@uk.ey.com
Document ID: 2022-5192 |
