Despite the unprecedented challenges faced in the year 2020, a lot of policy formulation were carried out by regulators in Nigeria. Material amendments were made to monetary and fiscal policies to address pressing issues which had plagued stakeholders to remedy the flaws in the system and keep the laws up to date with contemporary matters. Perhaps one might conclude that the events of this year created an enabling environment for these changes to be introduced. In this report, the policies which introduced these changes will be discussed and where applicable, a comparison will be drawn between the old and new laws.
Companies and Allied Matters Act (CAMA) 2020
The Act makes significant changes to the way companies are run in Nigeria which are a timely and appropriate response to the peculiar circumstances occasioned by the COVID-19 pandemic in Nigeria. These shall be discussed subsequently.
Perhaps the first and most pertinent change introduced by the Act is that it recognizes virtual annual general meetings and makes further provisions on how they may be conducted. Unlike the old Act, Section 240 of CAMA 2020 provides that only private companies may hold general meetings virtually insofar as there is compliance with the Articles of the company. Additionally, while it is provided under the former CAMA that all general meetings are mandated to be held within Nigeria, all small companies and companies with just one shareholder may hold their general meetings outside of the country. This amendment is highly welcome because it is in tune with not only current technological advancements but also the movement and assembly restrictions imposed in light of the pandemic. The exclusion of public companies from holding virtual general meetings is justifiable in consideration of the extremely large membership held by public companies most of the time which might prevent a virtual meeting from being possible. Under the umbrella of technological advancement is also as regards the recognition of electronic signature. Under the new Act, it is deemed to satisfy the requirements of authentication where needed. Section 176 of the Act provides that electronic instruments of transfer shall be deemed to be valid instruments of transfer.
An additional amendment made to the CAMA is as regards the qualifications of a small company as stated under Section 394. The amendment firstly recognizes that a small company may not always have a share capital. Hence under this law, one might conclude that a partnership may qualify as a small company if it meets the requisite qualifications. The annual turnover was also revised up, presumably to match current economic realities. Hence, while a company with an annual turnover of less than N 2 million would be classified as a small company under the old CAMA, the new Act increases that amount and provides that the turnover of the company must not be more than N 120 million. Additionally, while the value of the net assets of a small company is to be at least N 1 million, under the new Act, a small company's net assets value is to be at least N 60 million.
Thirdly, the Act amends the definition of a substantial shareholder. Under the new CAMA, a substantial shareholder is defined as a party who holds at least 5% of the unrestricted voting rights at general meetings through himself or his or her nominees.
Under the new Act, several amendments were also made to the various obligations which directors have under the Act. Firstly, the remuneration of managers is required to be disclosed to the members of the company at the annual general meeting. The Act also sheds more light on who an independent director is unlike the old law, and goes further to require that every public company shall have at least three independent directors. Additionally, while CAMA 1990 provided that there was no limit on multiple directorships, the new Act provides that a person may not be a director at more than five companies and if so, a director must also disclose multiple directorships where s/he holds such. The Act also makes it mandatory for any person who is a director at more than five public companies to resign as a director from all but five of the companies.
The new CAMA also provides for a procedure for major asset transactions which the old Act was silent upon. The new Act refers to a major asset transaction as a purchase which is beyond the usual course of business of the company, and which as at the day of the decision to conclude the transaction, amounts to 50% or more of the book value of the company's assets, based on the company's most recently compiled balance sheet.
A notable amendment to the Act also relates to the transfer of shareholding in a private company, especially in light of the pending suit between O & O Networks Ltd and Broad Communications Ltd. Under the old CAMA, private companies were obligated to restrict the transfer of shares under their Articles. However, the new law does not make such inclusion mandatory, hence private companies may choose to either incorporate that term into the Articles or not. The principle of pre-emption rights is also codified; thus, shareholders are obliged to offer their shares to an existing shareholder before selling them to a non-shareholder. Additionally, a member or a group of members acting together may not sell their portion of shareholding when they hold a value of more than 50% of their shareholding unless the existing shareholder offers to buy the one belonging to an existing shareholder.
The new law also introduces the concept of limited liability partnership which was not provided formerly and only accommodated under the Partnership Law of Lagos State. However, partnerships may now have limited liability by virtue of the provisions of CAMA 2020.
Another key improvement upon the old state which was introduced by the new CAMA relates to the provisions centred on business rescue and recovery. In other words, under the old Act, administrators were only saddled with their regular responsibility and were not duty-bound to take steps toward the restructuring of the company. Under CAMA 2020 however, whenever administrators undertake their duty, they have a responsibility to rescue the company. When a company is also being wound up or under administration, the directors of said company may also propose a negotiation with the creditors so as to reach an arrangement that can assist them in satisfying the debt.
Section 27 of the Act also provides for minimum share capital and scraps the concept of authorized share capital.
Banks and Other Financial Institutions Act
The amendment of the Banks and other Financial Institutions Act after 29 years was lauded by many stakeholders in the financial sector. In the same vein, several provisions contained in the new law have faced criticism for a multiplicity of reasons. Under this section of the report, the new provisions under the law as well as the possible far-reaching implications which it might have shall be examined.
Firstly, Section 3 (5) proscribes any foreign bank or entity which is either unlicensed, without a physical presence in its country of incorporation, or unaffiliated to any financial services group under effective consolidated supervision from operating in Nigeria. Additionally, Nigerian banks are prohibited from establishing any relationship with such an institution. Presumably, this provision is geared at tackling instances of unsupervised foreign financial institutions, particularly those who lack a physical presence and operate online exclusively from providing banking services in Nigeria. On the other hand, Section 8 provides that the CBN may grant a license to a foreign bank or a bank registered in Nigeria to undertake an offshore or domestic bank within a designated free trade or special economic zone in Nigeria.
Section 5 (6) of the Act provides that bank directors, managers, or officers of a bank will be held personally liable where they fail to take reasonable steps to ensure that the bank complies with license requirements stipulated by the law. The Act also revises the penalties which are to be paid for several infractions to reflect current economic realities. Section 52 grants the Federal High Court exclusive jurisdiction to try any offences created under the Act and impose the attendant penalties.
Section 12 (1) provides that this may be done if the Bank conducts its business in an unsound manner or the directors are involved in unsafe practices, the bank is involved in any situation which constitutes a threat to financial stability, is in the opinion of the Bank critically undercapitalized with a capital adequacy ratio below the prudential minimum or any other ratio as may be prescribed by the Bank. However, an issue may arise in the event that the term 'unsafe practices' is to be construed due to the nebulousness of the term. Furthermore, the revocation of the banking license seems like a heavy-handed penalty.
Under the Act, the CBN may suspend the payment or delivery obligations arising out of a contract to which a bank is a party if such bank is adjudged to have failed. The license of the said bank may be revoked if all interventions to rescue it are futile. Section 19 also prevents banks from granting N 3,000,000 in uncollaterized loans to customers without the approval of the Central Bank.
Section 33 of BOFIA 1991 was also removed from the new Act to the extent that the Governor of the CBN no longer has the powers to appoint an officer of the Bank as an examiner. Section 45 which also granted the CBN Governor the power to proscribe a trade union has also been expunged from the recently passed law. The new provision under the same Section instead protects banks and other financial institutions from any liability which may arise from closure of office as a result of a strike or pandemic. Section 71 grants the CBN the power to regulate the activities of agents via set guidelines. Under the Act, the apex bank also has the authority to regulate cybersecurity issues related to the financial sector through appropriate regulations and guidelines.
Section 74 establishes the Banking Sector Resolution Fund without prejudice to the Asset Management Corporation of Nigeria. Contributions of N10 billion and N4 billion to the Fund are to be made by the Central Bank and the Nigeria Deposit Insurance Corporation respectively on the first business day in each calendar year. However, the Board of the CBN may also determine the amount which is to be paid by both bodies into the Fund. The money in the Fund is tax-exempt, and so are all amounts accruing to and all transactions relating to it. The purpose of the Fund's establishment is outlined under Section 78 and they are to be employed exclusively toward efforts geared toward resolution, for the purposes of providing a loan or overdraft facility to a bank, specialized bank, or financial institution under resolution, payment of the operating costs of a bridge bank, among others.
Section 77 also imposes on all banks, specialized banks, and financial institutions a special annual levy which will be an amount equivalent to 10 basis points of its total assets (or any other base points as may be determined by the CBN) as at the date of its audited financial statements for the immediately preceding financial year. This amount is payable on the commencement date or before the 30th of April in the subsequent year.
The Act also establishes the Special Tribunal for the Enforcement and Recovery of Eligible Loans which will have jurisdiction in matters pertaining to the enforcement and recovery of eligible loans, security, guarantee, and attachment of assets made by a bank, specialized bank, or financial institution in Nigeria to its customers. Section 115 (2) provides however that the functioning of the Tribunal is without prejudice to the jurisdiction of the High Courts, except where cases instituted before them fail to be timeously adjudged.
Under the Act, the CBN has the power to prescribe a lower or higher capital adequacy ratio in addition to maintaining the minimum capital ratio. It may also require that banks with holding companies, subsidiaries, or both should calculate and maintain minimum capital ratios on a consolidated basis. A provision is also created as regards the display of information to foster transparency in the banking industry. Banks are mandated now to display information such as lending rates, foreign exchange rates, certified true copies of their certificate of incorporation, and abridged last approved statements of audited accounts at their offices as well as websites. (See Illustration 40).
Illustration 40: Notable Amendments Made by Banking and other Financial Institutions Act 2020
Fiscal Policies: Finance Act 2019
The Act makes substantial amendments to a multiple legislation viz the: Companies Income Tax Act, Personal Income Tax Act, Value Added Tax Act, Petroleum Profits Tax Act, Capital Gains Tax Act, Customs and Excise Tariff (Consolidation) Act, and the Stamp Duties Act. The new Act aims to achieve among other things, an increase in the tax base, provision of incentives for small businesses by a reduction in their tax burdens, the taxation of significant players in the digital economy, elimination of double taxation, and improving local production via the mechanism of excise duties.
The Act introduces a fundamental provision relating to the taxation of non-resident companies. Companies which provide digital services are regarded as having a 'significant economic presence' in Nigeria and will be subject to companies' income tax. The Significant Economic Presence Order issued by the Minister of Finance provides clarification on what a 'significant economic presence' constitutes, some of which include that the company offers its goods or services through a digital platform in naira, has a domain name ending in '.ng', has a gross turnover equal to or surpassing N25 million derived from the activities listed in the Order, etc. Once enforced, companies such as Facebook, Twitter, Amazon, Airbnb will be liable to pay tax in Nigeria. Although no enforcement mechanism is provided, it is expected that the Federal Inland Revenue Service (FIRS) will lay down a set of principles or guidelines in that regard. Additionally, 10% final withholding tax is to be charged on any payments to foreign companies providing technical, management, consultancy, or professional services.
While small businesses are exempt from companies' income tax, middle-sized businesses are charged at a rate of 20%. It is expected that easing the tax burdens of small businesses will foster their growth. Companies participating in agribusiness are to enjoy a tax holiday of five years, and real estate investment companies will be exempt from withholding tax on dividend and rental income received by it inasmuch as 75% of that amount is distributed within 12 months after the end of the financial year. Compensating payments which qualify as dividend or interest received by an approved agent from a borrower or lender in a Regulated Security Lending Transaction and compensating payments which qualify as dividends under Section 9 of the Finance Act.
To encourage the prompt payment of taxes, middle-sized and large businesses which remit CIT 90 days before the due date are also granted 1% and 2% of the tax paid as credit against future taxes. The Act additionally makes further provisions under which CIT will not be paid on excess dividends and they include those paid out of retained earnings that have been taxed under the CITA, PITA, PPTA, and CGTA, paid out of tax-exempt and franked investment income by a real estate investment company from its rental or dividend incomes. Section 43 of the Companies Income Tax Act which imposed taxes on interim dividends was repealed.
The Petroleum Profits Tax Act also was amended to the extent that profits that have been subject to petroleum profits tax will be subject to 10% withholding tax. However, shareholders who reside in a country that has signed a double tax treaty with Nigeria will be taxed at a reduced rate of 7.5%.
Amendments were also made to the Personal Income Tax Act. Under the Finance Act, a Tax Identification Number is required to open or maintain a bank account. The Act also repeals references to the reliefs for dependants and children. Taxpayers are also permitted to deliver a notice of objection as a response to a notice of assessment.
The Value Added Tax Act was additionally amended. The VAT rate was increased from 5% to 7.5% and the category of goods and services subject to it was expanded under the recently passed law. Goods are liable to VAT if they are supplied in Nigeria and physically present at the time of supply, imported, installed, or assembled in Nigeria, and where the beneficial owner of the rights in or over the goods is in Nigeria. It is also applicable where the rights in relation to said goods are either exercisable, situate, or registered in Nigeria. Exported services which refer to those rendered by a resident of Nigeria to a person who is outside Nigeria will not be subject to VAT. Taxable persons (which includes businesses) are also required to register for VAT on the first day of business commencement, except small businesses that have a turnover of less than N25 million.
The Act also expands the range of goods subject to excise duties to spur local production and eliminate overdependence on imports. (See Illustration 41)
Illustration 41: Notable Amendments Made by The Finance Act 2019
Finance Act 2020
The Act which commenced on the 1st of January 2021 makes amendments to the Capital Gains Tax Act, Companies Income Tax Act, Personal Income Tax Act, Tertiary Education Trust Fund (Establishment) Act, Customs and Excise Tariff, etc. (Consolidated) Act, Value Added Tax Act, Federal Inland Revenue Service Act, Fiscal Service Act, and Public Procurement Act.
It commences by exempting companies that engage in primary agricultural production from paying companies income tax on any interest payable on a foreign loan. The scope of activities amounting to 'primary agricultural production' is delineated by the Act and encompasses primary crop, livestock, fishing, and forestry production. This redefinition is also recognized in the amendment of the Industrial Development (Income Tax Relief) Act.
In light of the economic challenges occasioned by the COVID-19 pandemic, the Act also introduces a reduction in the minimum tax rate from 0.5% to 0.25% for tax returns which were prepared and filed as regards financial years ending on any day between 1st January 2020 and 30 December 2021. Similarly, Section 7 provides that donations made by corporations to the COVID-19 Crisis Intervention Fund or any agency affiliated with the federal government for the purpose of assisting with the hardships created by the COVID-19 will be tax-deductible. This also applies to donations that aim to assist a Fund or initiative established for the purpose of offering aid during pandemics, natural disasters, and other exigencies. If the donations were in kind, the value of such goods and the costs required in manufacturing and purchasing them will be tax-deductible.
Section 10 also amends the Companies Income Tax Act to the extent that foreign companies which are taxable in Nigeria are liable to submit a return for the year of assessment. The law also requires that the returns include duly completed Companies Income Tax Assessment Form and the audited financial statement of the company and that of its Nigerian operations. Tax computations based on the profits to which the operations of the Nigerian company may be attributed must also be included.
The Personal Income Tax Act also was amended to the extent that where an individual, executor, or trustee outside Nigeria is involved in any business that includes rendering technical, consultancy, professional or management services to a party resident in Nigeria, the profits of said business shall be considered to be derived from Nigeria and subject to tax insofar as the company has significant economic presence within Nigeria.
Section 24 also amends the Tertiary Education Trust Fund Act and provides that the annual tertiary education tax will be paid except by a small company. Section 46 also amends the Value Added Tax Act to include animal feed as a basic food item.
Section 34 further provides that the Federal Inland Revenue Service may appoint a digital platform, an operator of same, or a payment processing company as an agent for the purpose of collecting and remitting taxes due on transactions by non-resident companies which provide digital services to and from a person in Nigeria where said transactions are carried out through remote, digital, or electronic platform. Presumably, this provision is ancillary to that contained in the 2020 Finance Act which allows for the taxation of non-resident digital companies with significant economic presence in Nigeria as a way of enforcing same.
The Act also provides for a COVID-19 fiscal stimulus response by creating a Crisis Intervention Fund. The sum of N500 billion or any other sums stated by the National Assembly shall be funnelled into it from the Intervention Consolidated Revenue Fund and utilized for the purpose of meeting any exigencies which may arise because of the COVID-19 pandemic. An Unclaimed Dividends Trust Fund was also created as a sub-fund and will hold funds sourced from dividends of a public limited liability company which have remained unclaimed for a period exceeding three years from the date on which such dividends were declared. This provision is equally applicable to dividends which have already been transferred to the company reserves as a result of having been unclaimed for more than 12 years before the commencement of the Act. These will be deemed transferred into the Fund. The Act further provides that the monies will be absorbed into federal revenue and transferred into the Federation Account. However, if claims to any part of the unclaimed dividend is established prior to its transfer into the Federation Account, such will be recognized and the dividend will be paid (See Illustration 42)
Illustration 42: Notable Amendments Made by the Finance Act 2020
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