A case which congregated interest from the banking fraternity, tax pundits, corporate lawyers and the whole business community in its entirety, a first of its kind in Botswana judicial chambers, set a critical precedence when it overruled Botswana Unified Revenue Services (BURS) claim for Value Added Tax (VAT) on finance leases from Bank of Gaborone.
What aroused this court case emanated from a banking norm which has been a practice for years in Botswana. In some of the banking customs which can be seen even in Botswana jurisdiction, a bank would buy a car from a car dealer and sell it to a customer or client upon request without mark-up. In this case the tittle for the car is reserved by the bank until full payment is made. But VAT is charged on the buyer by the bank after it paid VAT when purchasing the car for the individual. This facility or transaction is categorized under asset financing or finance leases.
In 2014, Bank Gaborone was entangled in a legal fracas in which its operation of finance leases was being put on the spotlight by the taxman; the bank could have been defaulting on paying VAT as per the BURS case. After BURS did audit on Bank Gaborone VAT matters in 2014 it concluded that the bank has a tax bill of P3.9 million from a vehicle sale facility.
The Bank Gaborone versus BURS case was regarded as a first of its kind and anticipation was on the case because it was dealing with the never-been- challenged issue in Botswana of dealing with VAT on asset financing (finance leases). As Bank of Gaborone’s modus operandi, the financial institution would receive request for financing from clients and it would in turn purchase vehicles chosen by the clients from car dealers then claim VAT that it is charged.
Bank of Gaborone then sells the vehicles to the clients at the same price, charging VAT and adding loan arrangement fees plus interest. But the bank would not put a mark-up on the price of the vehicles, which makes the VAT incurred similar to the VAT it charges on the vehicles. In this practice, the bank makes these sales under what it refers to as installment sale agreements.
Between 2011 and 2012 BURS assessed Bank Gaborone and demanded P3 890 964.49 as VAT withheld by the bank. The amount of P3.9 was perceived to be unpaid VAT as a result of mistreatment of the vehicle finance leases. In the BURS Commissioner’s opinion in 2014, he stated that for purposes of VAT, the bank supplies both taxable and exempt supplies. The Commissioner concluded that what Bank of Gaborone was doing was provision of loans which it earned interest and it therefore miscalculated its VAT apportionment ratio by including the financed vehicle sales as subject to VAT.
Bank Gaborone was aggrieved by the taxman’s assessment saying that even though it grants loans, which are an exempt supply, it also grants vehicle finance by way of installment sale agreements of which the acquisition cost of the vehicle and its sale are a taxable supply for VAT purposes. Bank Gaborone took its grievances to Board of Adjudicators, a tax court set-up by the Ministry of Finance and Economic Development to expedite the resolution of tax disputes.
The Board of Adjudicators decided that the bank’s vehicle sale arrangements were not ‘finance leases’ subject to VAT, upholding BURS’s judgment that Bank of Gaborone underpaid VAT. The Board of Adjudicators also looked into the Banking Act questioning the practice of banks dealing in vehicles. As if that was enough, the bank’s appeal to the High Court was also rebuffed as BURS and the Board of Adjudicators’ findings were upheld leading to Bank of Gaborone parting with P3.9 million which was destined to the taxman’s coffers as unpaid VAT.
The highest court in the land, Court of Appeal, last week quashed both the Board of Adjudicators and High Court concluding that the two were wrong in their judgment. Court of Appeal said the two misdirected themselves by considering whether the vehicle sales qualified as ‘finance lease’ sales for VAT instead of considering whether the bank’s standard installment agreement was ‘a taxable supply’ or an ‘exempt supply.’
Emphasizing its landmark ruling, much to the delight of bankers, Court of Appeal said the High Court was wrong to opine that since the bank did not add value to the price of vehicles, the arrangement could not be held to be subject to VAT, a tax which requires that value be added.
When delivering another blow to the taxman, the Supreme Court found fault on BURS for contending that since the vehicles were immediately sold to the bank’s clients on purchase, the bank at no time owned the assets and therefore it did not make sales but merely provided finance. Bank Gaborone’s appeal was upheld by the higher court with costs as the Commissioner’s assessment was annulled while the taxman was ordered to refund the bank its P3.9 million.
The significance of the landmark judgment to banking sector and tax fraternity
This judgment will remain significant in the tax history with regard to the banking sector. All in all the judgment clear air over the treatment of installment sale agreements, a well-established practice among banks, which has in practice, always been subjected to VAT. “It makes it certain that banks can include asset sales in the determination of their VAT apportionment ratio. This brings clarity as to what affects the said ratio, which is so critical in accounting for the VAT for banks, considering the magnitude of the amounts involved in such transactions,” said one tax expert interviewed by this publication.
According to this tax observer, whilst the Court of Appeal held that the bank’s installment sale agreements were correctly subject to VAT on the basis that they are ‘hire purchase agreements,’ it would appear that the bank’s installment arrangements were in fact ‘finance leases.’ It has always been the issue in the case, a headache also for Board of Adjudicators and High Court, whether the sales were in fact finance leases.
However the tax expert told this publication that the critical issue is that the installment sale agreements by banks have always been subject to VAT, which was confirmed by the Court of Appeal.“The issue of whether they are hire purchase agreements or finance leases does not change the VAT treatment of such sale agreements. The Court of Appeal ruling comes with so much relief to the banking sector which was under scrutiny by the taxman,” said a tax expert.
The partnership between Debswana and Botswana Oil Limited (BOL) which was announced a fortnight ago will create under 100 direct jobs, and scores of job opportunities for citizens in the value chain activities.
In a major milestone, Debswana and BOL jointly announced that the fuel supply to Debswana, which was in the past serviced by foreign companies, will now be reserved for citizen companies. The total value of the project is P8 billion, spanning a period of five years.
“About 88 direct jobs will be created through the partnership. These include some jobs which will be transferred from the current supplier to the new partnership,” Matida Mmipi, Head of Stakeholder Relations at Botswana Oil, told BusinessPost.
“We believe this partnership will become a blueprint for other citizen initiatives, even in other sectors of the economy. Furthermore, this partnership has succeeded in unlocking opportunities that never existed for ordinary citizens who aspire to grow and do business with big companies like Debswana.”
Mmipi said through this partnership, BOL and Debswana intend to impact citizen owned companies in the fuel supply value chain that include transportation, supply, facilities maintenance, engineering, customs clearance, trucks stops and its support activities such as workshop / maintenance, tyre services, truck wash bays among others.
“The number of companies to be on-boarded will be determined by the economics at the time of engagement,” she said. BOL will play a facilitatory role of handholding and assisting emerging citizen-owned fuel supply and fuel transportation companies to supply Debswana’s Jwaneng and Orapa Letlhakane Damtshaa (OLDM) mines with diesel and petrol for their operations.
“BOL expects to increase citizen companies’ market share in the fuel supply and transportation industries, which have over the years been dominated by foreign-owned suppliers. Consequently, the agreement will also ensure security of supply for Debswana operations, which are a mainstay of the Botswana economy,” Mmipi said.
“Furthermore, BOL will, under this agreement, transfer skills to citizen suppliers and transporters during the contract period and ensure delivery of competent and skilled citizen suppliers and transport companies upon completion of the agreement.”
Mmipi said the capacitating by BOL is limited to providing citizen companies oil industry technical capability and capacity to deliver on the requirements of the contract, when asked on helping citizen companies to access funding.
“BOL’s mandate does not include financing citizen empowerment initiatives. Securing funding will remain the responsibility of the beneficiaries. This could be through government financing entities including CEDA or through commercial banks. Further to this, there are financial institutions that have already signed up to support the Debswana Citizen Economic Empowerment Programme (CEEP),” Mmipi indicated.
While BOL is established by government as company limited by guarantee, it will not benefit financially from the partnership with Debswana, as citizen empowerment in the petroleum value chain is core to BOL’s mandate.
“BOL does not pursue citizen facilitation for financial benefit, but rather we engage in citizen facilitation as a social aspect of our mandate. Citizen facilitation comes at a cost, but it is the right thing to do for the country to develop the oil and gas industry,” she said.
Mmipi said supplying fuel to Debswana comes with commercial benefits such as supply margins. These have traditionally been made outside the country when supply was done by multi-nationals for a period spanning over 50 years. With BOL anchoring supply for Debswana, this benefit will accrue locally, and BOL will be able to pay taxes and dividends to the shareholders in Botswana.
PwC Africa has presented the eighth edition of the VAT in Africa Guide – Africa re-emerging. This backdrop of renewal informs on the re-emergence of African economies and societies which have been affected by the COVID-19 pandemic.
In this edition, which has been compiled by PwC Africa’s indirect tax experts, covers a total of 41 African countries. It is geared towards sharing insight with our clients based on the constantly changing tax environments that can have a significant impact on business operations.
Within Africa, governments continue to focus on expanding the tax net by improving revenue collection through efficient compliance systems and procedures. PwC Africa has observed that revenue authorities also continue to take a keen interest in indirect taxes as part of revenue mobilisation initiatives.
Maturing VAT system and upskilling SARS
“In South Africa, VAT is becoming more relevant as a revenue source for the government,” says Matthew Besanko, PwC South Africa’s Indirect Tax Leader. “Strides have been made to upskill South African Revenue Service (SARS) staff and identify VAT revenue leakages, particularly in respect of foreign suppliers of electronic services to people and businesses in South Africa.”
Broadening the tax base and digital economy
In the past year, South Africa, Mozambique and Zimbabwe saw updates to their VAT legislation, or introduced specific legislation targeting electronically supplied services (ESS), which is in line with the global trend of attempting to tax the digital economy. “The expectation is that Botswana will also introduce VAT legislation in due course, while the National Treasury in South Africa has also made mention of revising the rules to account for further developments in the digital economy,” Besanko says.
South Africa’s National Treasury has also drafted legislation with the intention to introduce a reverse charge on gold, which is expected to come into effect later in 2022. While in Zimbabwe, revenue authorities have introduced a tax on the export of raw medicinal cannabis ranging between 10% and 20%, which came into effect on 1 January 2021.
ESG and carbon tax
Key strides have also been made within the Environmental, Social and Governance (ESG) space. “ESG leadership, strategising and reporting is essential now for organisations that wish to flourish and remain relevant,” Kabochi says. He adds that companies need to consider how ESG and tax intersect, since tax is a significant value driver when businesses need to deliver on their ESG goals.
In South Africa, a carbon tax regime, which is being implemented in three phases, has been adopted. The second phase was scheduled to start in January 2023, however phase one was extended by three years until 31 December 2025.
Until then, taxpayers will enjoy substantial tax-free allowances which reduce their carbon tax liability. At the beginning of 2022, the South African government increased the carbon tax rate to R144 (about US$9), which is expected to increase annually to enable South Africa to uphold its COP26 commitments.
With effect from 1 January 2023, carbon tax payers in South Africa will also be required to submit carbon budgets and adhere to the provisions of the carbon budgeting system which will be governed by the Climate Change Bill. Where set carbon budgets are exceeded, the government plans to impose penalties. “At PwC, we are continuously focused on our renewed global strategy, ” The New Equation,” Kabochi says. “Through this strategy, a key focus area for PwC Africa is to support clients in adding value to their ESG ambitions and building trust through sustained outcomes.”
The New Equation is also an acknowledgement of the fundamental changes in the business environment in which PwC’s clients and other stakeholders operate. PwC continues to reinvent and adapt to these changes as a community of problem solvers, combining knowledge and human-led technology to deliver quality services and value.
Local and international economists have lowered their projections on Botswana’s economic growth for 2022 and 2023, saying the country is highly likely to fail to maintain high growth rate recorded in 2021 hence will not reach initial forecasts.
Economists this week lowered 2022 forecasts for Botswana’s economic growth rate, from the initial 5.3% to 4.8% and added that in 2023 growth could further decline to 4.0%. The lower projections come on the backdrop of an annual economic growth that recovered sharply in 2021 with figures showing that year-on-year real Gross Domestic Product (GDP) growth increased to 11.4%, up from a contraction of 8.7% in 2020.
Economists from the local research entity, E-consult, this week stated that the 2021 double digit growth that exceeded projections made at the time of the 2022 budget may be short lived due to other developments taking place in the global economy. E-consult Economist Sethunya Kegakgametse stated that the war in Ukraine has worsened supply problems in the global economy and added that before the war, macroeconomic indicators were seen as improving and returning to pre-COVID levels.
According to the economist the global economy was projected to improve in 2022 and 2023. Recent figures show that global growth projections have been revised downwards from the initial forecast of 4.9% in 2022 with the World Bank’s new estimate for global growth in 2022 at 3.2%.
The statistics also shows that International Monetary Fund revised their growth projections for 2022 and 2023 down by 0.8% and 0.2% respectively, falling to 3.6% for both years. “The outbreak of war has severely dampened the global recovery that was under way following the COVID-19 pandemic,” said the economist.
She stated that despite Botswana being geographically removed from the conflict, the country has not and will not be exempt from the disruptions in the global economy. “The disruptions to global supply chains resulting from the war will have a negative effect on both Botswana’s growth and trade activities.
The economic sanctions against diamonds from Russia will add uncertainty to the market which will have knock on effects to Botswana’s growth, exports, and government revenues,” said the economists who added that the disruptions are driving prices up and result with very high inflation in the local economy.
Kegakgametse projected that in an attempt to limit inflation Bank of Botswana will be forced to raise interest rate “Should the sharp increase in both global and local inflation persist, Bank of Botswana much like other central banks around the world will be forced to raise interest rates in a bid to control rising prices. This would mean an end to the expansionary monetary policy stance that had been adopted post COVID-19 to aid economic growth,” she said.
In the latest projections, the UK based economic research entity Fitch Solutions lowered 2022 real GDP growth forecast for Botswana from 5.3% to 4.8% “In 2023, we see economic growth rate decelerating to 4.0%,” said Fitch Solutions economists who also noted that the 2022 and 2023 economic growth projections may come out lower than the current forecasts, as it is possible that new vaccine-resistant virus variants may be identified, which could result in the re-implementation of restrictions. “In such circumstances, we cannot rule out that Botswana’s economy may post weaker growth than our baseline scenario currently assumes,” said the economists.
According to the projections, Fitch Solution stated that there is limited scope for Botswana government to increase diamond production and exports, following the economic sanctions imposed on Russian diamond mining companies operating in Botswana. The research entity added that De Beers is unlikely to scale up diamond output from Botswana in order to prop up diamond prices.