SaturdayNovember 21, 2020 / 02:30 PM / by KPMG Nigeria / Header ImageCredit: NCR
Income Tax
Companies (other than thoseengaged in petroleum operations) are subject to companies' income tax (CIT) ontheir taxable profits. There are three (3) CIT rates applicable to companiesdepending on their turnover. Companies resident in Nigeria are assessed to taxon their worldwide income, whilst non-resident companies are subject to taxonly on profits accrued in or derived from Nigeria, to the extent that theprofits are not attributable to operations outside Nigeria. Further,non-resident companies whose activities constitute a Significant EconomicPresence (SEP) in Nigeria are subject to income tax on profit attributable tosuch activities in Nigeria.
Individuals are subject totax under the Personal Income Tax Act (as amended). Resident individuals aresubject to tax on all personal income, including income derived from outsideNigeria (except those specifically exempted from tax). Generally, the tax iscollected by the government of the State in which the individual resides,except for certain categories of individuals whose taxes are payable to theFederal Government.
Non-resident individualsare liable to tax on Nigerian-sourced income. The income of a non-resident froman employment, profession, vocation or business in Nigeria is generally taxedin the same manner as that of a resident, irrespective of where the income ispaid. However, investment income derived from Nigeria by a person residentoutside the country is only liable to withholding tax.
Rates
1. For a company in its first five years of petroleumoperations, the applicable rate is 65.75%. The petroleum profits tax rate forcompanies operating in the deep offshore and inland basin areas underProduction Sharing Contracts with the Nigerian National Petroleum Corporationis 50% flat for the contract area. There are plans to vary the tax ratesthrough the Petroleum Industry Bill, 2020 that is currently being reviewed bythe National Assembly. However, for the Bill to become law, it must be passedby the National Assembly and assented to by the President.
2. This relates to withholding tax (WHT) deducted at source.Dividendreceived after deduction of WHT is regarded as franked investment income and isnot liable to further income tax.
3. WHT deducted at source is the final income tax dueon the income.
4. The current PIT table for individuals and joint venturersor partners in unincorporated entities is shown below:
The Federal Inland Revenue Service (FIRS) has thediscretion to assess non-resident companies (NRCs) to CIT at the higher ofactual profit basis (determined based on audited accounts) and deemed profitbasis (currently 20% of revenue). Until 2015, it was the practice of the FIRSto assess non-resident companies to CIT on deemed profit basis only. However,the FIRS in that year issued a public notice on the filing of Tax Returns byNRCs under the CIT Act, Cap C21, Laws of the Federation of Nigeria (LFN) 2004(as amended) requiring NRCs to file their tax returns on actual profit basis,in compliance with Section 55 of the CIT Act. The tax returns would comprise ofthe audited financial statements and income tax computations, showing thetaxable income, tax-deductible expenses and capital allowances of the NRC.
The notice issued by the FIRS specifies thecommencement date as 2015 year of assessment, covering the basis period of anaccounting period ending in 2014.
TransferPricing (TP) and Thin Capitalisation Rules
The new FIRS' Income Tax (Transfer Pricing) Regulations, 2018("the new Regulations"), whichrepealed the Income Tax (Transfer Pricing) Regulations, 2012 commenced on 12March 2018 and is applicable to basis periods of taxpayers beginning after thatdate. The Regulations require that transactions between related parties beconducted at arm's length.
To satisfythis requirement, taxpayers are required to provide documentation sufficient toverify that the pricing of controlled transactions is consistent with the arm'slength principle. In addition, taxpayers are obligated to complete and file TPdeclaration and disclosure forms with the FIRS in respect of theirrelated-party transactions, at the time of filing their tax returns. TPpolicies and contemporaneous documentation are to be submitted to the FIRS whenrequested.
Though thenew Regulations retained the scope of the defunct 2012 Regulations, itintroduced some major changes such as significant administrative penalties fornon-compliance, procurement arrangements, safe harbour, connected persons,capital-rich-low-function companies, intragroup services and intangibles,transfer pricing documentation.
Nigeria hasno specific thin capitalisation rules. Thus, generally speaking, there are noratios which may limit the amount of debt that may be applied to fund acompany. However, the Finance Act, 2019 introduced a new deductibility rulelimiting the deductible interest expense incurred by a Nigerian company in anytax year on debts issued by a foreign connected person to 30% of EarningsBefore Interest, Tax, Depreciation and Amortization.
Further,companies that intend to engage in the banking or insurance industry arerequired to have specified minimum paid-up capital, capital adequacy ratios and/orsolvency margins. Resident companies that intend to employ expatriates are alsorequired by the Federal Ministry of Interior (FMI) to have a minimum authorisedshare capital of N10 million (aboutUS$26,281.21 at US$1: N379.5) which must be issuedand fully paid up.
Country-By-CountryReporting Regulations
The FIRSpublished the Income Tax [Country-by-Country (CbC) Reporting (CbCR)]Regulations, 2018 ("CbCR Regulations") on 19 June 2018, with the commencementdate of 1 January 2018. The CbCR Regulations require Multinational Enterprises(MNE) Groups headquartered in Nigeria with a consolidated revenue of N160 billion or above to file CbCR with the FIRSannually.
Nigerianresident members of MNE Groups, headquartered outside Nigeria, are required tonotify the FIRS of the identity and tax jurisdiction of the entity that will beresponsible for filing the CbC report, where the Group has a consolidatedrevenue of EUR750 million or near equivalent in the domestic currency of thejurisdiction of the Ultimate Parent Entity (UPE) or surrogate parent entity.However, where the CbCR Regulations have not been implemented in thejurisdiction where the UPE is tax resident, the Nigerian entity is required tofile the CbC Report.
The due datefor filing the CbC report is not later than one year after the end of the accountingperiod to which the report relates. The CbCR Regulations also impose stiffpenalties for non-compliance.
Income Tax (CommonReporting Standard) Regulations
The FIRS issued the IncomeTax [Common Reporting Standard (CRS)] Regulations, 2019 ("the CRSRegulations"), which commenced on 1 July 2019. The FIRS further published theIncome Tax (Common Reporting Standard) Implementation and ComplianceGuidelines, 2019 ("the CRS Guidelines") to supplement the CRS Regulations.
The CRS Regulations giveseffect to the:
- Multilateral Conventionon Mutual Administrative Assistance in Tax Matters and the MultilateralCompetent Authority Agreement (MCAA) on Automatic Exchange of FinancialInformation (AEOI) signed by the Federal Republic of Nigeria on 17 August 2017;and
- Common ReportingStandards (CRS) and its Commentaries contained in the Standard for AEOI in TaxMatters approved by the Organization for Economic Cooperation and Development(OECD) on 15 July 2014.
The CRS Regulations aims toimprove international tax transparency and reduce tax evasion among taxableNigeria residents with income from other jurisdictions. In accordance with theCRS Regulations, Nigerian Financial Institutions are required to submit certaininformation on reportable accounts to the FIRS annually.
The due date for filing theCRS returns is 31 May of the year following the calendar year to which thereturns relate. The CRS Regulations also impose stiff penalties fornoncompliance. Transaction Taxes These include value added tax, capital gainstax, withholding tax and stamp duties.
Value AddedTax (VAT)
VAT is aconsumption tax levied on the supply of all goods and services supplied in orimported into Nigeria, except those specifically exempted from the tax by theVAT Act and Executive Orders. The Finance Act, 2019 defined goods as "anyintangible product, asset or property over which a person has ownership orrights, or from which he derives benefits, and which can be transferred fromone person to another, excluding interest in land", and services as "anythingother than goods, money or securities which is supplied excluding servicesprovided under a contract of employment". The Finance Act, 2019 also introducedother significant amendments to the provisions of the VAT Act. The current VATrate is 7.5% effective from 1 February 2020.
VAT on goodsand services payable to the following persons is required to be deducted atsource by the recipient and remitted to the FIRS:
i. Non-resident companies
ii. Persons supplying goods andservices to companies operating in the oil and gas industry
iii. Persons supplying goods andservices to government ministries and parastatals
Capital GainsTax (CGT)
CGT isimposed at a rate of 10% on capital gains accruing from the disposal of anyasset, corporeal or not, irrespective of where it is situated, and whether itis owned by an individual or corporate entity.
Transactionsthat are subject to income tax are usually excluded from the scope of CGT, asare gains of exempt organisations and institutions. Where assets located outsideNigeria (as defined in the CGT Act) are disposed of by a non-Nigerian company,CGT is only charged in respect of that part of the gain which is brought intoor received in Nigeria.
Generally,gains on transfer of stocks, shares and Nigerian Government securities areexempt from CGT.
WithholdingTax (WHT)
Generally,WHT is an advance payment of income tax, deducted at source on qualifyingtransactions. It may also represent the final tax liability on certain passiveand franked investment incomes.
Where WHT isdeemed to be an advance payment of income tax, it can be utilised as a creditagainst the beneficiary's income tax liability for the relevant year(s) ofassessment.
Below is atable of the WHT rates applicable to various transactions:
Stamp Duty
The StampDuties Act (SDA), Cap S8, LFN, 2004, as amended by the Finance Act, 2019 is thelegal basis for the imposition of stamp duties in Nigeria. The SDA providesthat dutiable instruments specified in the schedule to the SDA be stamped atthe applicable rate and the duty remitted to the relevant tax authorities.Dutiable instruments include most legal instruments such as agreements, awards,bonds, and leases. Stamp duty is payable at the rate of 0.75% on a company'sauthorised share capital and any increase thereon. Instruments on which dutywould be payable by the government are exempt from duty.
Documentsrelating to the transfer of stocks and shares are also exempt from stampduties. However, for transactions executed through brokers or agents, an ad-valoremstamp duty applies on the contract note.
The FinanceAct, 2019 amended the SDA by including electronic and digital transactions inthe definition of "stamp", "stamped" and "instrument" and legalizing theimposition of stamp duty of N50 on all electronicreceipts/ transfers from N10,000 and above for alltypes of account. The SDA, as amended by Section 53 of Finance Act, 2019,designates the FIRS and State Internal Revenue Service as the relevantcompetent authorities responsible for collecting stamp duty on behalf of theFederal Government and the State Governments, respectively.
Double TaxTreaties and Reduced Tax Rates
Investment Information
InvestmentRules
Investment inNigeria is regulated by the Nigeria Investment Promotion Commission (NIPC) Act1995, with limited restrictions on investors.
Foreignersand their Nigerian counterparts can invest and participate in any enterprise inNigeria, except for those on the following 'negative list':
i. production of arms andammunition
ii. production and dealing innarcotic drugs and psychotropic substances
iii. production of military andparliamentary wear and accoutrement.
A foreigninvestor is required to apply to the FMI for a Business Permit at the time ofapplying for expatriate quota , which they will require to employ expatriates.Foreign investors are required to bring in equity capital into the country onthe basis of which the receiving bank will issue a Certificate of CapitalImportation (CCI) in respect of equity investment in a Nigerian company. TheCCI is one of the documents required by the NIPC to register a foreignenterprise in Nigeria. It is also required for remittance of dividends andrepatriation of capital and accretion thereto in the event of divestment.
Generally,there are no restrictions on repatriation of profits by foreign investors aslong as the documentation requirements are met, and appropriate taxes are paid.
InvestmentIncentives - General
i. Income in the form ofinterest earned from Federal Government short-term securities is exempted fromCIT and PIT. Coupons paid on bonds issued by the Federal, State and Localgovernments, and corporate bodies are also exempted from the taxes.
ii. Proceeds from the disposalof the bonds and securities listed in (ii) above are exempted from VAT.
iii. Investment allowance of 10%on qualifying expenditure on plant, machinery and equipment.
iv. Rural investment allowanceof between 15% and 100% of the cost incurred in providingfacilities/infrastructure in rural areas.
v. Capital allowance of 95% inthe first year in respect of plant and machinery purchased to replace old ones.
vi. Tax exemption of between10% and 70% of the interest earned on foreign loans advanced to companies inany industry, where the terms and tenor of the loan satisfy the conditionsspecified in the law.
Incentivesfor 'Pioneer Companies'
Under certaincircumstances, pioneer status may be granted to companies (includingforeign-owned companies registered in Nigeria) involved in designatedindustries. The fiscal incentives available to pioneer companies include:
i. Exemption from income taxfor three years with a possible extension for another two years.
ii. Capital expenditure onqualifying assets incurred during the tax relief period is treated as havingbeen incurred on the first day following the tax relief period. Pioneercompanies are therefore able to fully claim capital allowances on such assetsafter the pioneer period.
iii. Tax-free dividends duringthe holiday period.
iv. Losses in the relief periodmay be set off against profits after the end of the period.
Incentivesfor the Agricultural Sector
i. Companies engaged inagricultural trade or business are not liable to minimum tax.
ii. Exemption from restrictionof capital allowance claimable by the companies to 662 /3% of assessableprofit.
iii. Tax exemption of theinterest earned from agricultural loans, provided the moratorium is not lessthan 18 months and the rate of interest is not more than the base lending rateat the time of the loan.
iv. Exemption from income taxfor an initial of five years with a possible extension of three years based onsatisfactory performance of agricultural production.
Export andMining Enterprises Incentives
i. A wholly-export-orientedcompany established outside an export processing zone (EPZ) is exempt from CITfor its first three tax years, provided the export proceeds constitute at least75% of its turnover and it repatriates at least 75% of the export earnings toNigeria.
ii. Plant, machinery, equipmentand accessories imported exclusively for mining operations in Nigeria areexempted from customs duties.
iii. A new company engaged inthe mining of solid minerals will enjoy a tax holiday of three years whilewholly-export companies with turnover of less than N1 million are subjected to CIT at 20% in the firstfive years. However, such companies will now be eligible for income taxexemption applicable to companies with less than N25 millionturnover introduced by Finance Act, 2019
iv. Free trade zones and EPZsare designated from time to time and enterprises operating in such designatedzones enjoy tax exemption and liberalized exchange control measures.
Incentivesfor the Power Sector
i. A three (3) year income taxholiday, with possible renewal for additional two (2) years.
ii. Accelerated capitalallowances after the tax- free period in the form of a 90% annual allowancewith 10% retention for investment in plant and machinery.
iii. An additional investmentallowance (uplift on the cost of the asset) of 15 per cent which does notreduce the value of the asset.
iv. Tax-free dividends duringthe tax-free period where the investment for the business was made in foreigncurrency.
v. Plant, machinery andequipment purchased for utilisation of gas in downstream petroleum operationsare VAT-exempt.
vi. The Customs, Excise Tariff,etc. (Consolidated) Act exempts from custom duties, “any machinery, equipmentor spare part imported into Nigeria by an industrial establishment engaged inthe exploration, processing or power generation through the utilization ofNigerian gas, for its operation.
vii. Zero duty on theimportation of equipment and machinery
viii. The List of PioneerIndustries and Products includes electricity power generation, transmission anddistribution as a pioneer industry. However, companies enjoying gas utilizationincentives in respect of their qualifying capital expenditure are ineligiblefor any other tax incentive, including the Pioneer Status Incentive on the sameinvestment.
ix. WHT on power plantconstruction contracts is reduced from 5 per cent to 2.5 per cent
Incentivesfor Real Estate Investment Companies
The FinanceAct, 2019 introduced specialized rules for the taxation of real estateinvestment companies (REICs) in Nigeria. Prior to the Finance Act, real estateinvestment schemes were exposed to multiple levels of taxation, arising fromreceipt and subsequent redistribution of dividends and rent to investors,making them less attractive to investors. To manage the double tax exposure,the Finance Act, 2019 introduced the following incentives for REICs:
i. Granting pass-throughstatus to REICs.
ii. Exemption of dividend andrental income received by REICs on behalf of their shareholders from CIT,provided that a minimum of 75% of the dividend or rental income earned isdistributed within 12 months of the end of the financial year in which theincome was earned. Any income earned by a REIC other than those collected onbehalf of investors is liable to income tax.
iii. Exemption of rental anddividend income distributed by a REIC to its shareholders from excess dividendtax.
iv. Dividends or mandatorypayments made by a REIC to its shareholders, and are duly approved by theSecurities and Exchange are deductible for income tax purposes.
v. Exemption of dividendsreceived by a REIC from WHT.
RoadInfrastructure Development and Refurbishment Investment Tax Credit Scheme
The FederalGovernment on 25 January 2019 established a ten-year Road InfrastructureDevelopment and Refurbishment Investment Tax Credit Scheme ("the Scheme"). TheScheme was set-up as a public-private intervention that enables the FederalGovernment to leverage private sector capital and efficiency for theconstruction, refurbishment and maintenance of critical road infrastructure inkey economic areas in Nigeria.
Participantsunder the Scheme will be entitled to utilize the project cost incurred in theconstruction or refurbishment of an eligible road as a tax credit against theirincome tax liability, until full cost recovery is achieved.
The Schemegrants additional incentive of a single nontaxable uplift on project cost, toparticipants. The uplift, which is a percentage (monetary policy rate (MPR)+2%)of the project cost, will be included in the total tax credit available to eachparticipant.
Exchange Controls
Exchangecontrols are regulated by the Foreign Exchange (Monitoring and MiscellaneousProvisions) Act, 1995. The Act creates an autonomous market in whichtransactions may be conducted in any convertible currency through authoriseddealers. Investments may be made in foreign currency or imported capital andthe investor will be issued a CCI by the authorized dealer within 24 hours ofreceipt of the capital and appropriate returns must be filed by the dealer withthe Central Bank of Nigeria (CBN).
In 2014 and2015, the CBN, in an attempt to ensure efficient utilization of foreignexchange in the light of dwindling foreign reserves issued several circulars,to the effect that certain services, which hitherto qualified for foreignexchange, are no longer eligible transactions. However, on 15 June 2016, theCBN released revised guidelines on the operations of the Nigerian InterbankForeign Exchange Market (IFEM) which superseded its circular of October 28,2014 and all other prior circulars and guidelines on the subject matter. Thesummary of the guidelines for the operation of the new foreign exchange regimeare detailed below:
- The foreignexchange (FX) market will operate as a single market through the IFEM.Participants in the IFEM will include authorised dealers, authorised buyers,oil companies, oil service companies, exporters, endusers and any other entitythe CBN may designate from time to time
- Authoriseddealers are permitted to buy and sell FX among themselves on a two-way quotebasis via the FMDQ, Thomson Reuters foreign exchange trading systems (TRFXT-Conversional Dealing), or any system approved by the CBN
- Exchangerates will be determined by market forces
- There willno longer be spread restrictions
- Theapplicable exchange rate for import duty payments shall be the daily IFEMforeign exchange closing rate as published by the CBN
- Proceeds offoreign investment inflows and international monetary transfers shall bepurchased by authorised dealers at the IFEM
- The CBNwill participate in the IFEM through periodic direct interventions or dynamic"Secondary Market Intervention Mechanisms"
- Primarydealers who meet stated requirements are to be registered to deal directly withthe CBN for large deal sizes on a two-way quote basis. These dealers willoperate with other authorised dealers.
- The 41items listed as "Not Valid for Foreign Exchange" in the CBN Circular of 23 June2015, remain ineligible for foreign exchange on the IFEM. (The list was updatedto include fertilizer by the CBN Circular of 10 December 2018).
- The CBN mayoffer long-tenor foreign exchange forwards to authorised dealers
- Sale offoreign exchange forwards must now be tradebacked, and with no pre-determinedspread
- Over-the-counterFX futures will be introduced. Such futures may be bespoke and of non-standardvolume
- Authoriseddealers are no longer permitted to open Form M in favour of procurementcompanies. Form M for letters of credit, Bills for collection and any otherform of payment can only be opened for the ultimate suppliers of goods orservices.
Non-oilexporters are allowed unfettered access to their FX proceeds, which shall besold on the IFEM.
Any personmay open, maintain and operate a foreign currency account with an authoriseddealer (bank).
Investors andExporters FX Window
In April2017, the CBN established the Investors and Exporters FX Window ("the I&EWindow") to boost liquidity in the FX market and ensure timely execution andsettlement of eligible transactions.
Transactionseligible to access the I&E Window include:
1. Invisibletransactions (excluding international airline ticket sales remittance) such asloan repayments, capital repatriation, management services fees, consultancyfees, software subscription fees, technology transfer agreements, personal homeremittances and "Miscellaneous Payments" listed under Memorandum 14 of the CBNFX Manual, March 2018.
2. Bills forcollection.
3. Any othertrade-related obligations (at the instance of the customers).
The I&EWindow authorizes importers, exporters, endusers, and CBN-licenced authoriseddealers to trade FX at exchange rates determined by the prevailing marketcircumstances determined by the FMDQ.
Residence and WorkPermits
All foreigners are required to obtain work permits,which are generally granted on the basis of expatriate quota for long termemployment approved for their employers, if it can be demonstrated that aNigerian citizen does not have the required expertise to perform the job. Aforeigner that intends to work in Nigeria on short-term basis needs to obtain aTemporary Work Permit (TWP) Visa. The maximum duration for any TWP is less thanthree (3) months. However, where there are compelling reasons for the continuedstay of a foreigner on TWP, perhaps due to extension of the project being executed,the TWP visa will be extended accordingly.
Annual BudgetAnnouncement
The President presents the annual budget for thefiscal year commencing on 1 January to the joint session of the NationalAssembly. Thereafter, the Minister of Finance, Budget and National Planningwill provide a detailed breakdown of the budget.
Trade and BilateralAgreements
Membership:Africa, Caribbean and Pacific (ACP), European Union (EU) Partnership Agreement,Organisation of Petroleum Exporting Companies (OPEC), World Trade Organisation(WTO), African Union (AU) and Economic Community of West African States(ECOWAS).
Investmenttreaties are in force with France, Netherlands, Germany, Switzerland, Romania,Spain and the UK. Nigeria has signed the 1965 Convention on the Settlement ofInvestment Disputes.
Economic Statistics
Economic Statistics (2020)
Nigeria'sGross Domestic Product (GDP) decreased by -6.10% (year-on-year) in real termsin the second quarter of 2020, ending the 3-year trend of low but positive realgrowth rates recorded since the 2016/17 recession. The decline was largelyattributable to significantly lower levels of both domestic and internationaleconomic activities during the quarter, which resulted from nationwidelockdown; aimed at containing the COVID-19 pandemic.
Contributionfrom the oil sector fell from 9.50% in Q1 to 8.93% in Q2 2020, while non-oilcontribution rose from 90.5% in Q1 to 91.07% in Q2, 2020. Some activities withpositive growth contributions are financial services (28.41%),telecommunications and information services (18.10%), information andcommunication (15.09%), coal mining (10.53%), motor vehicles and assembly(6.95%) fishing (5.68%) and chemical, pharmaceutical products (3.79%), amongstothers.
Despite thecurrent economic realities, Nigeria's economy has remained the largest inAfrica, with its 2019 GDP of US$448.12 billion.
Travel Information
Currency
The Nigerian currency isthe Naira (N or NGN). It is divided into 100 kobo.
Languages
English is the officiallanguage. Hausa, Igbo and Yoruba are the main languages of the North, South-East and SouthWest, respectively.
Official Holidays (2020)
- New Year's Day (1January)
- Good Friday (10 April)
- Easter Monday (13 April)
- Worker's Day (1 May)
- Democracy Day** (12June)
- Id-el-Fitri (24-26 May)
- Id-el-Kabir* (30-31July)
- National Day (1 October)
- Id-el-Malud* (28-29October)
- Christmas Day (25December)
- Boxing Day (26 December)
*Movable holidays,subject to ratification by the Federal Government
**The National Assembly,on 16 May 2019, passed the Public Holiday Act (Amendment) Bill. The Actreplaced 29 May with 12 June as the new official Democracy Day. However, 29 Maywill remain a public holiday to celebrate transition to a new nationalgovernment following general elections every four years.
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