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Monday, May
25, 2020 / 01:50 PM / FIRS / Header Image Credit: Eagle Online
This circular is issued for the information and
guidance of the general public, taxpayers and tax practitioners in line with
the provisions of the relevant tax laws. This instant circular amends, updates
or replaces contents of any circular, notice or other publication previously
issued by the Service that is inconsistent with its contents to the extent of
such inconsistency.
1.0 Introduction
The Finance Act 2019 amended various provisions of the
tax laws. While the Federal Inland Revenue Service has issued circulars on some
specific amendments, this circular provides clarification on other amendments
introduced by the Finance Act.
2.0 Section 19 of CITA
Section 19 of Companies Income Tax Act (CITA) Cap C21
LFN 2004(as amended) was amended by inserting a new subsection (2), which
excludes the following classes of dividend from the application of Section
19(1):
i. Dividends paid out of
retained earnings of a company, provided that the dividends are paid out of
profits that have been subjected to tax under Companies Income Tax Act,
Petroleum Profit Tax Act (PPTA) or the Capital Gains Tax Act (CGTA);
ii. Dividend paid out of all
tax-exempt incomes pursuant to the CGTA, PPTA & Industrial Development
(Income Tax Relief) Act or any other legislation;
iii. All franked
investment income under CITA; and
iv. Distributions
made by a Real Estate Investment Company to its shareholders from rental or
dividend income received on behalf of those shareholders;
The
exemption, provided in this section, is applicable even where the profits that
generated such dividend accrued in a year other than the year in which the
dividend was paid.
Note:
Taxpayers
are required to maintain, and include in their annual tax returns, a schedule
to track the sources of dividend paid in relation to items listed in (i) to
(iv) above and the evidence of tax paid, where applicable.
2.1
Determination
of Dividends Paid out of Retained Earnings
In
determining whether a dividend has been paid out of retained earnings for the
purposes of Section 19(1), profits of the current year disclosed in the
financial statements shall be considered first. For instance, where the profits
reported for an accounting period are sufficient to cover the dividend declared
for that year, such dividend will not be treated as having been paid from
retained earnings.
Illustration 1
An
extract from the financial statements of Dividends Limited for 2019 shows the
following:
Accounting
Loss for the Year
(500,000)
Retained
Earnings brought forward
1,000,000
Dividend
declared for 2019 (paid in 2020)
500,000
From
the above illustration, N500,000 dividend paid will be exempt from the
application of Section 19(1), because it is reasonably clear that the dividend
was paid out of the company's retained earnings for previous years.
Illustration 2
An
extract from the financial statements of MKL1 Nigeria Limited for 2019 shows
the following:
Profit
for the Year
1,000,000
Retained
Earnings brought forward
2,000,000
Dividend
declared for 2019 (paid in 2020)
1,500,000
From
the above, dividend of N500,000 from the N1,500,000 paid can be said to be paid
from the retained earnings of previous years, hence the amount to be subject to
the application of section 19(1) shall be restricted to N1,000,000 i.e.
dividend declared and paid from profit reported for the year 2019.
Illustration 3
An
extract from the financial statements of MKL2 Nigeria Limited for 2019 shows
the following:
Accounting
Profit for the Year
5,000,000
Retained
Earnings brought forward
10,000,000
Dividend
declared for 2019 (paid in 2020)
4,000,000
The
dividend of N4,000,000 declared and paid for 2019 will not be exempt from the
application of section 19(1), since the accounting profit of N5,000,000 in 2019
is greater than the dividend paid for the year.
3.0 Section 23 of CITA
3.1 Exemption of Small Companies from Income Tax
Section
23(1)(o) of CITA, as amended, exempts "the profits of a "small company" in
a relevant year of assessment" from companies income tax.
The
exemption is applicable only to companies with a gross turnover of N25 million
and below. The amendment provides that such company must have registered for
tax purpose, filed its tax returns on or before the due date and complied with
all other provisions and obligations stipulated under CITA, including
provisions relating to penalties for breach of statutory duties.
In view
of the conditions attached to the tax exemption, a company that defaults in
meeting those conditions shall, in addition to the penalty prescribed under the
Act, forfeit the exemption. The Service shall appropriately assess the company
to tax including, but not limited to, administrative or best of judgement
assessment based on the information available to it.
Similarly,
the dividends received by a small company from another small company in the
manufacturing sector in the paying company's first five years of operation is
exempt from tax under Section 23(1)(o) (ii) of CITA.
3.1.1 Withholding Tax Obligations
The
exemption of the profits of a company from tax would not remove the obligation
of companies (doing business with the tax-exempt company) to withhold tax from
relevant payments due to the company and remit same to FIRS. Where a company
has fulfilled the condition for the exemption of its profit from tax under
section 23(1)(o) of CITA, such company may request for the refund of the
withholding tax suffered. Similarly, a company whose profits are exempt from
tax shall continue to deduct and remit withholding tax from relevant payments
due from it to other companies.
3.1.2 Small Companies and Tertiary Education Tax (TET)
Section
1(2) of the Tertiary Education Trust Fund Act 2011 provides that the TET be
charged at 2% of the assessable profit of a company registered in Nigeria. A
small company whose profit is exempt from tax under Section 23(1)(o) of CITA
will not have assessable profit. Accordingly, companies, whose profits are
exempt under CITA, will not pay tertiary education tax with respect to those
exempt profits.
3.1.3 Treatment of Capital Allowances for Small Companies
Capital
allowances are claimable on qualifying capital expenditure (QCE) used in
generating taxable income. Where the profits of a small company is exempt from
tax under section 23(1)(o), capital allowances on QCE employed in generating
such tax-exempt profits is deemed fully utilised for and in those years of
assessment in which the profits of the company were exempt from tax.
As
such, capital allowances relating to those years of assessment are not
available for carry forward to future year(s) of assessment in which the
company becomes taxable under the Act. This is in line with Sections 24 and
27(1)(h) of CITA (as amended).
Where a
small company incurred qualifying capital expenditure prior to crossing the
threshold to medium or large. All allowances (initial and annual) for the
period it was a small company are deemed utilised. Only annual allowance
pertaining to the assessment years it operated as a medium or large company can
be claimed. For qualifying capital expenditure incurred after crossing the
threshold to medium or large, all capital allowances shall be available in line
with the law.
Illustration
ABC
limited incurred QCE on Furniture and fittings of N1,000,000 in 2020 year of
assessment when the company has a gross turnover of N20,000,000; the relevant
profits were exempt under Section 23(1)(o) of CITA. The company crossed the
threshold into a medium company in the fifth year of assessment after the QCE
was incurred. What will be the capital allowance claimable on the QCE in that
fifth year of assessment (i.e. 2024 YOA). Initial allowance is claimable for
the year of assessment in which the QCE was first put into use, i.e. 2020 YOA.
The initial allowance (deemed fully utilised) in that 1st YOA is N250,000 (i.e.
0.25 X N1,000,000), while the annual allowances claimable yearly is N150,000
(0.2 X N750,000).
At the
end of the fourth year (2023 YOA), a total capital allowance of N850,000 would
be deemed utilised (i.e. initial allowance of N250,000 plus annual allowance of
N600,000 for four years). The tax written down value of the QCE carried forward
to the fifth year of assessment will be N150,000. As such, the capital
allowance claimable in the fifth year of assessment (i.e. 2024) is N150,000
less the retention.
3.1.4 Anti-abuse
Section
22 of CITA empowers the Service to discountenance any disposition, arrangement
or structure made for the purposes of reduction of tax liability. As such,
where:
i.
transactions or business dealings being carried on by a company prior to the
commencement of the Finance Act 2019 is subsequently split between one or more
entities, for the purposes of enjoying the benefit provided for small companies
under CITA, the Service shall discountenance such splitting, aggregate such
transactions or business dealings and attribute all to the company originally
doing the business, for the purpose of application or otherwise of this
provision.
ii. A
person, after the commencement of the Finance Act 2019, incorporates, or uses,
two or more companies to carry on a contract or business that could have been
otherwise carried out by one company and the Service is convinced that the
arrangement by which the business or contract is split is targeted at obtaining
the benefit available to small companies under CITA, the value of such contract
or business shall be aggregated and taxed as appropriate in the hand of one of
the companies.
iii. A
company that conceals its turnover for the purposes of obtaining tax benefit
available to small companies under CITA shall be prosecuted along with its
directors and relevant principal officers in accordance with section 42 of the
FIRS Act. In addition, taxes due shall be recovered with penalties and
interest.
3.2 Profits on Goods Exported (Section 23(1q))
Section
23(1)(q) as amended exempt the profits of a Nigerian company, in respect of
goods exported from Nigeria, if the proceeds of such exports are used for the
purchase of raw materials, plant, equipment and spare parts. Where such
proceeds were not so fully utilised, the profits to be exempt from tax shall be
limited to the proportion of the proceeds utilised.
Consequently,
the profits relating to the portion of export proceeds not utilised in the
purchase of raw materials, plant, equipment and spare parts shall be subject to
tax proportionately.
In
order to ascertain the portion of export proceeds to be exempted from tax, a
company engaged in export of goods shall maintain a schedule and evidence of
utilisation of its export proceeds for the purchase of raw materials, plant,
equipment or spare parts.
NOTE:
In
accordance with the provisions of Section 27(1)(h) of CITA, any expense
incurred in deriving the profits relating to the export proceeds, whose profits
are exempt from tax, is not deductible for tax purposes.
4.0 Section 24 - Deductions Allowed
Section
24 of CITA was amended by inserting after the word “profits" in line 5,
the words "chargeable to tax". By this amendment, deductions will be
allowed only for expenses incurred wholly, exclusively, necessarily and
reasonably in the production of profits chargeable to tax. As such, expenses
incurred in generating profits not chargeable to tax (such as exempt income,
franked investment, etc.) will not be allowed as deduction against profits
chargeable to tax.
4.1
Interest
Deductibility
Section
24(a) introduced a restriction on deductibility of interest for a Nigerian
company or a fixed base of a foreign company in Nigeria that has incurred any
interest or deduction of similar nature where loans or debts are obtained from
a foreign connected person. Where a Nigerian company or a fixed base of a
foreign company in Nigeria has incurred such interest or deduction of similar
nature, the deduction allowed under Section 24(a) of CITA shall be restricted
to only 30% of the company's earnings before interest, tax, depreciation
and amortisation (EBITDA).
NOTE:
1. The interest
deductibility rule in the Seventh Schedule to CITA complements and does not
replace the transfer pricing rule. As such, taxpayers are to ensure that
interest expenses comply with the Income Tax (Transfer Pricing) Regulations
2018 before applying the interest deductibility rule.
2. In computing the 30% of EBITDA allowed under
section 24(a) of CITA for such companies, total interest paid or payable
(including interest payment to third parties) shall be considered. However,
such interest must be those directly incurred in respect of loan or debt
obtained wholly, exclusively, necessarily and reasonably for the production of
profits chargeable to tax. Where the loan or debt was not utilised for the
production of the profits chargeable to tax, no portion of the interest is
allowable deduction.
3. Interest and deductions of similar nature means the
cost of borrowing money or other financial charges. It includes interest,
discounts, fees, premium, share of profit, finance cost element of finance
lease or foreign exchange losses that are paid or payable in relation to a loan
or a debt, or any other payment in relation to derivatives used in hedging a
loan or debt.
4. EBITDA shall be computed based on assessable
profits i.e. assessable profits before the deduction of interest expense (or
similar charges).
5. Any taxpayer that fails to apply the restriction on
interest deductibility as provided by this rule will be liable to specific
penalties and interest under paragraph 5 of the Seventh Schedule in addition to
other relevant penalties or interest imposed by other relevant provisions of
the tax laws.
Where any amount of interest or deduction of similar
nature has been disallowed by virtue of the limitation imposed, such amount may
be carried forward for a period of not more than 5 years from the year for
which the excessive interest expenditure was first computed. The amount so
carried forward shall constitute interest for the purposes of computing the
restriction for succeeding years. For this purpose, the deduction of interest
shall be on first-in, first-out basis.
The
restriction provided in section 24(a) and the Seventh Schedule of CITA does not
apply to a Nigerian subsidiary of a foreign company engaged in banking or
insurance business. However, the rule shall be applicable to Nigerian banking
or insurance companies that are parents to foreign companies, where the
Nigerian Company paid interest to that foreign subsidiary.
Illustration
XYZ Nigeria Limited is a subsidiary of XYZ (UK)
Limited. The following information was extracted from the financial statement
of the Nigerian company for 2020 year of assessment:
Assessable Profit
400,000
In arriving at the assessable profits, the following
amounts of interest had been deducted:
Interest on debts: paid to XYZ UK Limited
400,000
paid to other creditors
200,000
N100,000 out of the amount paid to third parties was
in respect of loan obtained in generating tax-exempt profits.
The restriction provided under section 24(a) and Seventh
Schedule of CITA will apply to XYZ Nigeria Limited because the company has made
interest payment to a foreign connected person.
Consequently, the amount of interest allowable for tax
purposes in 2020 year of assessment shall be restricted to 30% of its EBITDA,
as computed thus:
EBITDA
= Assessable Profit before Interest
Deduction
Assessable Profit =
N400,000
Interest Deducted =
N600,000
EBITDA
= N400,000 + N600,000 = N1,000,000
Total interest deductible (before restriction):
N
Int. on Loan from XYZ UK
400,000
Int. on Loan from Others
200,000
Total Interest Exp.
600,000
Less: Int. for Tax Exempt
Profit
100,000
Interest Qualifying for
Deduction
500,000
30% of EBITDA (30% of N1,000,000)
= N300,000
Amount of interest deductible in 2020 YOA is N300,000
which is the lower of:
i. 30% of EBITDA (N1,000,000)
N300,000 and
ii.
Total interest on qualifying
debts N500,000
The excess interest of N200,000 (i.e. N500,000 -
N300,000) will be carried forward to 2021 YOA and added to the interest expense
for that year for the purposes of computing the restriction for that year. The
excess interest of N200,000 may only be carried forward for a period not
exceeding 5 years, i.e. to 2025 YOA, using, for each of the year, the same rule
with which the excessive interest expenditure was first computed.
Any amount (out of the N200,000 carried forward in
2020) not deducted after 2025 YOA shall no longer be deductible.
5.0 Section 27(1)(h) - Expenses Incurred in Earning Exempt Income
Section 27(1)(h) disallows any expense incurred in
deriving tax exempt income, losses of a capital nature and any expense
allowable as a deduction under the Capital Gains Act for the purposes of
determining chargeable gains. As such, any expense directly incurred in
generating income that is exempt from tax shall not be allowed in computing the
company's assessable profits.
Where a deductible expense is incurred for the
purposes of generating both exempt and non-exempt income, the portion of the
expense that relates to income assessable to tax shall be determined on
pro-rata basis and allowed for deduction. The remainder i.e. portion that
relates to the tax-exempt income shall not be allowed as a deduction.
Illustration 1
Banking Bank Plc secured a pool of fund which was
wholly invested in generating an income of N1billion which is exempt from tax.
The bank incurred the sum of N100million by way of interest, administrative and
other operating costs pertaining to the investment. The company incurred
another N200million by way of interest, administrative and other operating
costs in its other banking business to generate N2billion which is wholly
assessable to tax.
Only N2billion is assessable to tax. The sum of N100million
being cost incurred for the purposes of generating tax-exempt income of
N1billion cannot be charged to the N2billion income; only the N200million can
be deducted from the taxable income.
Illustration 2
Company XYZ incurred N200,000 deductible expenses in generating business
profits of N1million in the year ended 31st December 2019. Only the sum of
N700,000 of the total business profits is assessable to tax while the remaining
N300,000 is tax-exempt. How much of the expense would be allowed for deduction?
In
order to determine the portion of the expense to be allowed, the following
formula is applied:
Accordingly, N140,000 will be allowed for deduction
against the income of N700,000 while N60,000 (i.e. N200,000 - N140,000) will
not be allowed.
5.1 Section 27(1)(l): Tax or Penalty
Borne on Behalf of Another Person
By the introduction of subsection 27(1)(l), any tax or
penalty borne by a company on behalf of another person is not an allowable
deduction for tax. As such, where a contract is issued net of taxes, any
withholding tax (WHT) or any other taxes borne by the payer on behalf of the
vendor will not be deductible.
Illustration
Company A agreed the hire of a facility from Company B
for N1million per annum net of all taxes. Company A paid N1million to Company B
and in addition remitted N100,000 WHT to FIRS.
In ascertaining the assessable profits, Company A may
deduct the hire charge of N1million but the sum of N100,000 WHT remitted on
account of the hire charge is not deductible.
6.0 Section 29 of CITA - 2020 YOA
Returns
2020
YOA tax returns that were due for submission before the coming into effect of
the 2019 Finance Act shall be prepared and submitted on the basis of the extant
provisions on the respective due dates. Such tax returns should not be adjusted
for the new provisions introduced by the 2019 Finance Act. The tax returns for
subsequent years of assessment shall be in line with the changes introduced by
the 2019 Finance Act.
7.0 Section 33 of CITA - Minimum Tax
Section 33 of CITA relating to minimum tax was
amended. Minimum tax is computed at a fixed rate of 0.5% of Gross Turnover.
Gross turnover, for the purposes of computing minimum tax, shall not include franked
investment income.
In computing minimum tax, franked investment income is
first deducted from the gross turnover (where franked investment income had
been included in gross turnover) and the amount derived is multiplied by 0.5%.
Franked investment income is defined under Section
80(3) of the Act as dividend received by one company from another after
deduction of withholding tax as specified in that Section.
Any dividend that has not suffered WHT is not a
franked investment income and shall not be deducted from gross turnover for the
purposes of minimum tax. As such, provision of evidence of WHT suffered is a
condition to be met before treating dividend income as Franked Investment
Income. Also, the franked investment income is only deductible where it has
been included in the gross turnover.
"Gross turnover" is the
gross inflow of economic benefits (cash, revenues, receivables, other
assets, etc.) arising from the operating activities of a company such as sale
of goods, supply of services, lending of money, letting of assets, granting of
rights, investment activities, etc.
Gross turnover, for the purposes of minimum tax,
includes all operating incomes or revenues anywhere embedded.
Illustration
The following information was extracted from the
Statement of Profit or Loss of ABC Limited:
Turnover (main business activities)
20,000,000
Profit from Discontinued operations
305,000
Profit from other non-core operating activities
500,000
Rent received (Gross)
1,000,000
Dividend received from XYZ Limited (Gross)
2,000,000
Notes to the accounts further disclosed the following
information:
Revenue from Discontinued operations
3,000,000
Less: Expenses on Discontinued operations
(2,695,000)
Profit from Discontinued operations 305,000
Revenue from other non-core operating activities 5,000,000
Less: Expenses (4,500,000)
Profit from other non-core operating activities 500,000
Compute the minimum tax of the company.
The gross turnover of the company is computed thus:
Turnover from main business activities
20,000,000
Revenue from Discontinued operations
3,000,000
Revenue from other non-core operating activities
5,000,000
Dividend received from XYZ Limited (Gross)
2,000,000
Rent received (Gross)
1,000,000
Total Turnover
31,000,000
Less: Dividend from XYZ (Franked Investment
Income)
2,000,000
Gross Turnover (for minimum tax)
29,000,000
The minimum tax = 0.5% X N29,000,000
= N145,000
6.1 Scope of the Minimum Tax Provision
The new minimum tax rule is applicable to all
companies, except those specifically exempt by the Act, namely:
i. Companies with
less than N25million gross turnover.
ii. Companies
carrying on agricultural trade or business as defined in section 11(4) of CITA.
iii. Any company in its first four calendar years of
business operations.
NOTE:
1. A company with
at least 25% imported equity capital is no longer exempt from payment of
minimum tax.
2. Computation of minimum tax for insurance companies
is not covered in this Section because it has been specifically provided for
under Section 16 of CITA.
7.0 Section 39 - Gas Utilisation
(Downstream Operations)
Section 39(1)(e), which allows for the deduction of interest payable on any loan obtained with the prior approval of the Minister for a gas project has been deleted. Accordingly, such interest on loan shall only be deducted if:
a. the relevant income or profit is not exempt from
tax;
b. the interest satisfies the wholly, reasonable, exclusive and necessary (WREN) principle; and
c. the interest satisfies the interest deductibility
rules introduced by section 24(a) and the Seventh Schedule of CITA.
Section 39 of CITA grants a tax-free period of three
(3) years in the first instance to a company engaged in gas utilisation
(downstream operations); the tax free period may be renewed for an additional
period of two (2) year subject to the satisfactory performance of the business.
By the insertion of a new subsection 3, the above
incentive will not be available to a company which had claimed or wishes to
claim the incentives under the Industrial Development (Income Tax Relief) Act
with respect to the same capital expenditure. Likewise, any company that has
claimed the incentives under this section shall not be entitled to claim the
incentives under the Industrial Development (Income Tax Relief) Act.
8.0 Section 40 - Rate of Tax
The
rate of tax under section 40 of CITA has been reviewed. Below is the summary of
the new tax rates.
Section 40 of CITA has further been amended by the
deletion of the provisions relating to Pre-operational levy, Investment Tax
Relief and excess profit tax. As such, companies yet to commence business will
no longer be required to pay Pre-operational levy (POL) before obtaining Tax
Clearance Certificate (TCC).
9.0 Section 77 of CITA
9.1 Section 77(1) - Removal of Provisional Tax
Section
77(1) of CITA has been deleted, therefore provisional tax is no longer
applicable.
9.2 Section 77(5) - Filing and Payment of Tax
By Section 77(5) of CITA as amended:
1. Payment of tax
is to be made on or before the due date of filing in one lump sum or
instalments.
2. Any taxpayer
that wishes to pay in instalments prior to the due date of filing may do so;
however, the final instalment must be paid on or before the due date of filing.
3. A company that
pays all of its tax liability 90 days before the due date shall be granted a
bonus of 2% of the tax in the case of a medium-sized company or 1% for any
other company.
4. A company
granted early payment bonus may set-off the bonus against its future taxes.
5. Any tax due and unpaid by the due date of filing
shall attract interest and penalties as provided in the extant tax laws.
Illustration
ABZ Limited makes up its accounts to 31st December
2019, in essence, its due date of filing is 30th June 2020. As such, the
company is expected to pay its tax due on or before the due date of 30th June
2020 in one lump sum or by instalment. Where it desires to pay by instalments,
the final instalment must be paid on or before 30th June 2020 (the due
date).
NOTE:
The due date of filing and due date of payment have
converged. Consequently, any additional tax arising as a result of incorrect
disclosure or reporting of profits shall attract interest and penalty from the
date the tax was first due for payment irrespective of when the incorrect
disclosure was discovered or the additional tax assessed.
10.0 Section 81 - WHT Rate for
Construction Contracts
Section 81(2) of CITA provides a Withholding Tax rate
of 2.5% for contract of construction of roads, bridges, buildings and power
plants.
NOTE:
1. The 2.5% rate is limited to contract for construction of roads, bridges, buildings and power plants. WHT rate on other forms of construction contracts are not affected; such other contracts shall continue to attract WHT at the rates specified in the relevant legislation;
2. WHT rate of 2.5%
is applicable to construction work only. However, any part of the construction
works (other than the actual construction work) subcontracted shall attract WHT
at the rate specified in the law. For example, subcontracts for supply of
materials, equipment, labour, etc. or services such as survey, architectural
design, soil test, environmental impact assessment, structural design etc.,
shall not qualify for 2.5% WHT rate, but shall attract WHT at the rate
specified for such supplies or services in the law.
3. Where construction work and other activities that
are preparatory, incidental or ancillary to that construction (e.g. survey,
architectural design, soil test, environmental impact assessment, structural
design, etc.) are embedded in a construction contract, the applicable WHT rate
on the entire contract sum shall be 2.5%. However, any subcontract thereof
shall attract WHT at the applicable rate in line with paragraph 2 above.
11.0 Relief for Foreign Loans
The Third
Schedule to CITA relating to relief for foreign loans was amended as follows:
NOTE:
Moratorium is a period during which the borrower is
not expected to make a repayment of principal or interest. Where principal or
interest repayments are made during the moratorium period, tax exemption shall
be in line with actual moratorium granted.
12.0 Amendment or Revision of the
Circular
The
Service may, at any time, withdraw or replace this Circular or publish an
amended or updated version.
13.0 Enquiries
Any
request for further information or clarifications on this Information Circular
should be directed to the FIRS
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