Nigeria Fiscal Guide 2020

Saturday November 21, 2020 / 02:30 PM / by KPMG Nigeria / Header Image Credit:  NCR

Income Tax

Companies (other than those engaged in petroleum operations) are subject to companies' income tax (CIT) on their taxable profits. There are three (3) CIT rates applicable to companies depending on their turnover. Companies resident in Nigeria are assessed to tax on their worldwide income, whilst non-resident companies are subject to tax only on profits accrued in or derived from Nigeria, to the extent that the profits are not attributable to operations outside Nigeria. Further, non-resident companies whose activities constitute a Significant Economic Presence (SEP) in Nigeria are subject to income tax on profit attributable to such activities in Nigeria.

Individuals are subject to tax under the Personal Income Tax Act (as amended). Resident individuals are subject to tax on all personal income, including income derived from outside Nigeria (except those specifically exempted from tax). Generally, the tax is collected by the government of the State in which the individual resides, except for certain categories of individuals whose taxes are payable to the Federal Government.

Non-resident individuals are liable to tax on Nigerian-sourced income. The income of a non-resident from an employment, profession, vocation or business in Nigeria is generally taxed in the same manner as that of a resident, irrespective of where the income is paid. However, investment income derived from Nigeria by a person resident outside the country is only liable to withholding tax.

Rates

1. For a company in its first five years of petroleum operations, the applicable rate is 65.75%. The petroleum profits tax rate for companies operating in the deep offshore and inland basin areas under Production Sharing Contracts with the Nigerian National Petroleum Corporation is 50% flat for the contract area. There are plans to vary the tax rates through the Petroleum Industry Bill, 2020 that is currently being reviewed by the National Assembly. However, for the Bill to become law, it must be passed by the National Assembly and assented to by the President.

2. This relates to withholding tax (WHT) deducted at source.Dividend received after deduction of WHT is regarded as franked investment income and is not liable to further income tax.

3. WHT deducted at source is the final income tax due on the income.

4. The current PIT table for individuals and joint venturers or partners in unincorporated entities is shown below:

The Federal Inland Revenue Service (FIRS) has the discretion to assess non-resident companies (NRCs) to CIT at the higher of actual profit basis (determined based on audited accounts) and deemed profit basis (currently 20% of revenue). Until 2015, it was the practice of the FIRS to 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 by NRCs 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 of the audited financial statements and income tax computations, showing the taxable income, tax-deductible expenses and capital allowances of the NRC.

The notice issued by the FIRS specifies the commencement date as 2015 year of assessment, covering the basis period of an accounting period ending in 2014.

Transfer Pricing (TP) and Thin Capitalisation Rules

The new FIRS' Income Tax (Transfer Pricing) Regulations, 2018("the new Regulations"), which repealed the Income Tax (Transfer Pricing) Regulations, 2012 commenced on 12 March 2018 and is applicable to basis periods of taxpayers beginning after that date. The Regulations require that transactions between related parties be conducted at arm's length.

To satisfy this requirement, taxpayers are required to provide documentation sufficient to verify that the pricing of controlled transactions is consistent with the arm's length principle. In addition, taxpayers are obligated to complete and file TP declaration and disclosure forms with the FIRS in respect of their related-party transactions, at the time of filing their tax returns. TP policies and contemporaneous documentation are to be submitted to the FIRS when requested.

Though the new Regulations retained the scope of the defunct 2012 Regulations, it introduced some major changes such as significant administrative penalties for non-compliance, procurement arrangements, safe harbour, connected persons, capital-rich-low-function companies, intragroup services and intangibles, transfer pricing documentation.

Nigeria has no specific thin capitalisation rules. Thus, generally speaking, there are no ratios which may limit the amount of debt that may be applied to fund a company. However, the Finance Act, 2019 introduced a new deductibility rule limiting the deductible interest expense incurred by a Nigerian company in any tax year on debts issued by a foreign connected person to 30% of Earnings Before Interest, Tax, Depreciation and Amortization.

Further, companies that intend to engage in the banking or insurance industry are required to have specified minimum paid-up capital, capital adequacy ratios and/or solvency margins. Resident companies that intend to employ expatriates are also required by the Federal Ministry of Interior (FMI) to have a minimum authorised share capital of N10 million (about US$26,281.21 at US$1: N379.5) which must be issued and fully paid up.

Country-By-Country Reporting Regulations

The FIRS published the Income Tax [Country-by-Country (CbC) Reporting (CbCR)] Regulations, 2018 ("CbCR Regulations") on 19 June 2018, with the commencement date 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 FIRS annually.

Nigerian resident members of MNE Groups, headquartered outside Nigeria, are required to notify the FIRS of the identity and tax jurisdiction of the entity that will be responsible for filing the CbC report, where the Group has a consolidated revenue of EUR750 million or near equivalent in the domestic currency of the jurisdiction of the Ultimate Parent Entity (UPE) or surrogate parent entity. However, where the CbCR Regulations have not been implemented in the jurisdiction where the UPE is tax resident, the Nigerian entity is required to file the CbC Report.

The due date for filing the CbC report is not later than one year after the end of the accounting period to which the report relates. The CbCR Regulations also impose stiff penalties for non-compliance.

Income Tax (Common Reporting Standard) Regulations

The FIRS issued the Income Tax [Common Reporting Standard (CRS)] Regulations, 2019 ("the CRS Regulations"), which commenced on 1 July 2019. The FIRS further published the Income Tax (Common Reporting Standard) Implementation and Compliance Guidelines, 2019 ("the CRS Guidelines") to supplement the CRS Regulations.

The CRS Regulations gives effect to the:

• Multilateral Convention on Mutual Administrative Assistance in Tax Matters and the Multilateral Competent Authority Agreement (MCAA) on Automatic Exchange of Financial Information (AEOI) signed by the Federal Republic of Nigeria on 17 August 2017; and

• Common Reporting Standards (CRS) and its Commentaries contained in the Standard for AEOI in Tax Matters approved by the Organization for Economic Cooperation and Development (OECD) on 15 July 2014.

The CRS Regulations aims to improve international tax transparency and reduce tax evasion among taxable Nigeria residents with income from other jurisdictions. In accordance with the CRS Regulations, Nigerian Financial Institutions are required to submit certain information on reportable accounts to the FIRS annually.

The due date for filing the CRS returns is 31 May of the year following the calendar year to which the returns relate. The CRS Regulations also impose stiff penalties for noncompliance. Transaction Taxes These include value added tax, capital gains tax, withholding tax and stamp duties.

Value Added Tax (VAT)

VAT is a consumption tax levied on the supply of all goods and services supplied in or imported into Nigeria, except those specifically exempted from the tax by the VAT Act and Executive Orders. The Finance Act, 2019 defined goods as "any intangible product, asset or property over which a person has ownership or rights, or from which he derives benefits, and which can be transferred from one person to another, excluding interest in land", and services as "anything other than goods, money or securities which is supplied excluding services provided under a contract of employment". The Finance Act, 2019 also introduced other significant amendments to the provisions of the VAT Act. The current VAT rate is 7.5% effective from 1 February 2020.

VAT on goods and services payable to the following persons is required to be deducted at source by the recipient and remitted to the FIRS:

i.                 Non-resident companies

ii.               Persons supplying goods and services to companies operating in the oil and gas industry

iii.             Persons supplying goods and services to government ministries and parastatals

Capital Gains Tax (CGT)

CGT is imposed at a rate of 10% on capital gains accruing from the disposal of any asset, corporeal or not, irrespective of where it is situated, and whether it is owned by an individual or corporate entity.

Transactions that are subject to income tax are usually excluded from the scope of CGT, as are gains of exempt organisations and institutions. Where assets located outside Nigeria (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 into or received in Nigeria.

Generally, gains on transfer of stocks, shares and Nigerian Government securities are exempt from CGT.

Withholding Tax (WHT)

Generally, WHT is an advance payment of income tax, deducted at source on qualifying transactions. It may also represent the final tax liability on certain passive and franked investment incomes.

Where WHT is deemed to be an advance payment of income tax, it can be utilised as a credit against the beneficiary's income tax liability for the relevant year(s) of assessment.

Below is a table of the WHT rates applicable to various transactions:

Stamp Duty

The Stamp Duties Act (SDA), Cap S8, LFN, 2004, as amended by the Finance Act, 2019 is the legal basis for the imposition of stamp duties in Nigeria. The SDA provides that dutiable instruments specified in the schedule to the SDA be stamped at the 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's authorised share capital and any increase thereon. Instruments on which duty would be payable by the government are exempt from duty.

Documents relating to the transfer of stocks and shares are also exempt from stamp duties. However, for transactions executed through brokers or agents, an ad-valorem stamp duty applies on the contract note.

The Finance Act, 2019 amended the SDA by including electronic and digital transactions in the definition of "stamp", "stamped" and "instrument" and legalizing the imposition of stamp duty of N50 on all electronic receipts/ transfers from N10,000 and above for all types of account. The SDA, as amended by Section 53 of Finance Act, 2019, designates the FIRS and State Internal Revenue Service as the relevant competent authorities responsible for collecting stamp duty on behalf of the Federal Government and the State Governments, respectively.

Double Tax Treaties and Reduced Tax Rates

Investment Information

Investment Rules

Investment in Nigeria is regulated by the Nigeria Investment Promotion Commission (NIPC) Act 1995, with limited restrictions on investors.

Foreigners and their Nigerian counterparts can invest and participate in any enterprise in Nigeria, except for those on the following 'negative list':

i.                 production of arms and ammunition

ii.               production and dealing in narcotic drugs and psychotropic substances

iii.             production of military and parliamentary wear and accoutrement.

A foreign investor is required to apply to the FMI for a Business Permit at the time of applying for expatriate quota , which they will require to employ expatriates. Foreign investors are required to bring in equity capital into the country on the basis of which the receiving bank will issue a Certificate of Capital Importation (CCI) in respect of equity investment in a Nigerian company. The CCI is one of the documents required by the NIPC to register a foreign enterprise in Nigeria. It is also required for remittance of dividends and repatriation of capital and accretion thereto in the event of divestment.

Generally, there are no restrictions on repatriation of profits by foreign investors as long as the documentation requirements are met, and appropriate taxes are paid.

Investment Incentives - General

i.                 Income in the form of interest earned from Federal Government short-term securities is exempted from CIT and PIT. Coupons paid on bonds issued by the Federal, State and Local governments, and corporate bodies are also exempted from the taxes.

ii.               Proceeds from the disposal of 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 allowance of between 15% and 100% of the cost incurred in providing facilities/infrastructure in rural areas.

v.               Capital allowance of 95% in the first year in respect of plant and machinery purchased to replace old ones.

vi.             Tax exemption of between 10% and 70% of the interest earned on foreign loans advanced to companies in any industry, where the terms and tenor of the loan satisfy the conditions specified in the law.

Incentives for 'Pioneer Companies'

Under certain circumstances, pioneer status may be granted to companies (including foreign-owned companies registered in Nigeria) involved in designated industries. The fiscal incentives available to pioneer companies include:

i.                 Exemption from income tax for three years with a possible extension for another two years.

ii.               Capital expenditure on qualifying assets incurred during the tax relief period is treated as having been incurred on the first day following the tax relief period. Pioneer companies are therefore able to fully claim capital allowances on such assets after the pioneer period.

iii.             Tax-free dividends during the holiday period.

iv.             Losses in the relief period may be set off against profits after the end of the period.

Incentives for the Agricultural Sector

i.                 Companies engaged in agricultural trade or business are not liable to minimum tax.

ii.               Exemption from restriction of capital allowance claimable by the companies to 662 /3% of assessable profit.

iii.             Tax exemption of the interest earned from agricultural loans, provided the moratorium is not less than 18 months and the rate of interest is not more than the base lending rate at the time of the loan.

iv.             Exemption from income tax for an initial of five years with a possible extension of three years based on satisfactory performance of agricultural production.

Export and Mining Enterprises Incentives

i.                 A wholly-export-oriented company established outside an export processing zone (EPZ) is exempt from CIT for its first three tax years, provided the export proceeds constitute at least 75% of its turnover and it repatriates at least 75% of the export earnings to Nigeria.

ii.               Plant, machinery, equipment and accessories imported exclusively for mining operations in Nigeria are exempted from customs duties.

iii.             A new company engaged in the mining of solid minerals will enjoy a tax holiday of three years while wholly-export companies with turnover of less than N1 million are subjected to CIT at 20% in the first five years. However, such companies will now be eligible for income tax exemption applicable to companies with less than N25 million turnover introduced by Finance Act, 2019

iv.             Free trade zones and EPZs are designated from time to time and enterprises operating in such designated zones enjoy tax exemption and liberalized exchange control measures.

Incentives for the Power Sector

i.                 A three (3) year income tax holiday, with possible renewal for additional two (2) years.

ii.               Accelerated capital allowances after the tax- free period in the form of a 90% annual allowance with 10% retention for investment in plant and machinery.

iii.             An additional investment allowance (uplift on the cost of the asset) of 15 per cent which does not reduce the value of the asset.

iv.             Tax-free dividends during the tax-free period where the investment for the business was made in foreign currency.

v.               Plant, machinery and equipment purchased for utilisation of gas in downstream petroleum operations are VAT-exempt.

vi.             The Customs, Excise Tariff, etc. (Consolidated) Act exempts from custom duties, “any machinery, equipment or spare part imported into Nigeria by an industrial establishment engaged in the exploration, processing or power generation through the utilization of Nigerian gas, for its operation.

vii.           Zero duty on the importation of equipment and machinery

viii.         The List of Pioneer Industries and Products includes electricity power generation, transmission and distribution as a pioneer industry. However, companies enjoying gas utilization incentives in respect of their qualifying capital expenditure are ineligible for any other tax incentive, including the Pioneer Status Incentive on the same investment.

ix.             WHT on power plant construction contracts is reduced from 5 per cent to 2.5 per cent

Incentives for Real Estate Investment Companies

The Finance Act, 2019 introduced specialized rules for the taxation of real estate investment companies (REICs) in Nigeria. Prior to the Finance Act, real estate investment schemes were exposed to multiple levels of taxation, arising from receipt 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-through status to REICs.

ii.               Exemption of dividend and rental income received by REICs on behalf of their shareholders from CIT, provided that a minimum of 75% of the dividend or rental income earned is distributed within 12 months of the end of the financial year in which the income was earned. Any income earned by a REIC other than those collected on behalf of investors is liable to income tax.

iii.             Exemption of rental and dividend income distributed by a REIC to its shareholders from excess dividend tax.

iv.             Dividends or mandatory payments made by a REIC to its shareholders, and are duly approved by the Securities and Exchange are deductible for income tax purposes.

v.               Exemption of dividends received by a REIC from WHT.

Road Infrastructure Development and Refurbishment Investment Tax Credit Scheme

The Federal Government on 25 January 2019 established a ten-year Road Infrastructure Development and Refurbishment Investment Tax Credit Scheme ("the Scheme"). The Scheme was set-up as a public-private intervention that enables the Federal Government to leverage private sector capital and efficiency for the construction, refurbishment and maintenance of critical road infrastructure in key economic areas in Nigeria.

Participants under the Scheme will be entitled to utilize the project cost incurred in the construction or refurbishment of an eligible road as a tax credit against their income tax liability, until full cost recovery is achieved.

The Scheme grants additional incentive of a single nontaxable uplift on project cost, to participants. 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 each participant.

Exchange Controls

Exchange controls are regulated by the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, 1995. The Act creates an autonomous market in which transactions may be conducted in any convertible currency through authorised dealers. Investments may be made in foreign currency or imported capital and the investor will be issued a CCI by the authorized dealer within 24 hours of receipt of the capital and appropriate returns must be filed by the dealer with the Central Bank of Nigeria (CBN).

In 2014 and 2015, the CBN, in an attempt to ensure efficient utilization of foreign exchange in the light of dwindling foreign reserves issued several circulars, to the effect that certain services, which hitherto qualified for foreign exchange, are no longer eligible transactions. However, on 15 June 2016, the CBN released revised guidelines on the operations of the Nigerian Interbank Foreign Exchange Market (IFEM) which superseded its circular of October 28, 2014 and all other prior circulars and guidelines on the subject matter. The summary of the guidelines for the operation of the new foreign exchange regime are detailed below:

• The foreign exchange (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 entity the CBN may designate from time to time

• Authorised dealers are permitted to buy and sell FX among themselves on a two-way quote basis via the FMDQ, Thomson Reuters foreign exchange trading systems (TRFXT- Conversional Dealing), or any system approved by the CBN

• Exchange rates will be determined by market forces

• There will no longer be spread restrictions

• The applicable exchange rate for import duty payments shall be the daily IFEM foreign exchange closing rate as published by the CBN

• Proceeds of foreign investment inflows and international monetary transfers shall be purchased by authorised dealers at the IFEM

• The CBN will participate in the IFEM through periodic direct interventions or dynamic "Secondary Market Intervention Mechanisms"

• Primary dealers who meet stated requirements are to be registered to deal directly with the CBN for large deal sizes on a two-way quote basis. These dealers will operate with other authorised dealers.

• The 41 items listed as "Not Valid for Foreign Exchange" in the CBN Circular of 23 June 2015, remain ineligible for foreign exchange on the IFEM. (The list was updated to include fertilizer by the CBN Circular of 10 December 2018).

• The CBN may offer long-tenor foreign exchange forwards to authorised dealers

• Sale of foreign exchange forwards must now be tradebacked, and with no pre-determined spread

• Over-the-counter FX futures will be introduced. Such futures may be bespoke and of non-standard volume

• Authorised dealers are no longer permitted to open Form M in favour of procurement companies. Form M for letters of credit, Bills for collection and any other form of payment can only be opened for the ultimate suppliers of goods or services.

Non-oil exporters are allowed unfettered access to their FX proceeds, which shall be sold on the IFEM.

Any person may open, maintain and operate a foreign currency account with an authorised dealer (bank).

Investors and Exporters FX Window

In April 2017, the CBN established the Investors and Exporters FX Window ("the I&E Window") to boost liquidity in the FX market and ensure timely execution and settlement of eligible transactions.

Transactions eligible to access the I&E Window include:

1. Invisible transactions (excluding international airline ticket sales remittance) such as loan repayments, capital repatriation, management services fees, consultancy fees, software subscription fees, technology transfer agreements, personal home remittances and "Miscellaneous Payments" listed under Memorandum 14 of the CBN FX Manual, March 2018.

2. Bills for collection.

3. Any other trade-related obligations (at the instance of the customers).

The I&E Window authorizes importers, exporters, endusers, and CBN-licenced authorised dealers to trade FX at exchange rates determined by the prevailing market circumstances determined by the FMDQ.

Residence and Work Permits

All foreigners are required to obtain work permits, which are generally granted on the basis of expatriate quota for long term employment approved for their employers, if it can be demonstrated that a Nigerian citizen does not have the required expertise to perform the job. A foreigner that intends to work in Nigeria on short-term basis needs to obtain a Temporary Work Permit (TWP) Visa. The maximum duration for any TWP is less than three (3) months. However, where there are compelling reasons for the continued stay of a foreigner on TWP, perhaps due to extension of the project being executed, the TWP visa will be extended accordingly.

Annual Budget Announcement

The President presents the annual budget for the fiscal year commencing on 1 January to the joint session of the National Assembly. Thereafter, the Minister of Finance, Budget and National Planning will provide a detailed breakdown of the budget.

Trade and Bilateral Agreements

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).

Investment treaties are in force with France, Netherlands, Germany, Switzerland, Romania, Spain and the UK. Nigeria has signed the 1965 Convention on the Settlement of Investment Disputes.

Economic Statistics

Economic Statistics (2020)

Nigeria's Gross Domestic Product (GDP) decreased by -6.10% (year-on-year) in real terms in the second quarter of 2020, ending the 3-year trend of low but positive real growth rates recorded since the 2016/17 recession. The decline was largely attributable to significantly lower levels of both domestic and international economic activities during the quarter, which resulted from nationwide lockdown; aimed at containing the COVID-19 pandemic.

Contribution from the oil sector fell from 9.50% in Q1 to 8.93% in Q2 2020, while non-oil contribution rose from 90.5% in Q1 to 91.07% in Q2, 2020. Some activities with positive growth contributions are financial services (28.41%), telecommunications and information services (18.10%), information and communication (15.09%), coal mining (10.53%), motor vehicles and assembly (6.95%) fishing (5.68%) and chemical, pharmaceutical products (3.79%), amongst others.

Despite the current economic realities, Nigeria's economy has remained the largest in Africa, with its 2019 GDP of US$448.12 billion.

Travel Information

Currency

The Nigerian currency is the Naira (N or NGN). It is divided into 100 kobo.

Languages

English is the official language. Hausa, Igbo and Yoruba are the main languages of the North, South- East and SouthWest, respectively.

Official Holidays (2020)

• New Year's Day (1 January)
• Good Friday (10 April)
• Easter Monday (13 April)
• Worker's Day (1 May)
• Democracy Day** (12 June)
• Id-el-Fitri (24-26 May)
• Id-el-Kabir* (30-31 July)
• National Day (1 October)
• Id-el-Malud* (28-29 October)
• Christmas Day (25 December)
• 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 Act replaced 29 May with 12 June as the new official Democracy Day. However, 29 May will remain a public holiday to celebrate transition to a new national government following general elections every four years.

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