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.
In the coming months prices will go up and inflation will shoot sharply above the target of 3 percent to 6 percent towards the third quarter of 2021, the Bank of Botswana on the other hand will continue to withhold its knife on the Bank Rate. This is according to a forecast made by Kgori Capital in its recent Market Watch Segment.
Statistics from Statistics Botswana show that the recent 1.8 percent increase in the September inflation, from 1 percent in August, was a reflection of the upward adjustment in public transport fares (Transport (from -6.9 to -3.9 percent) in September 2020, which is estimated to have increased inflation by approximately 0.64 percentage points.
Local anti-trust body, Competition and Consumer Authority (CCA), this month received back to back acquisition proposals from South African clothing retailers to wipe out their former rivals, Edcon, from Botswana malls.
Last week BusinessPost was in possession of Merger Notice No 23 of 2020 whereby a South African clothing retailer owner, Retailability Proprietary Limited, through Oclin Proprietary Limited, proposed to acquire parts of the Edgars business conducted by Edcon in Botswana (through Edcon Botswana), as a going concern, consisting of certain assets and identified liabilities.
South African government’s Business Rescue Practitioners earlier this year announced that Retailability will buy Edgars, after the latter filed for a business rescue plan in April after it failed to pay suppliers. This move will see Retailability add Edgars to its portfolio consisting of brands such as; Legit, Beaver Canoe and Style.
Retailability landed on Botswana shores 18 years ago with its flamboyant urban fashion Style which had 17 stores. Style, having almost the same target market as Edgars as it offers men’s and ladies’ contemporary and formal fashion, gave the 91 year old legendary clothing retailer a run for its money, and has won the battle as its parent company has taken over Edgars.
Retailability brands are synonymous with Botswana shopping centres and there are currently five (5) Beaver Canoe stores, 10 Style stores and seven (7) Legit stores across this country. The Beaver Canoe stores sell clothing apparel for men and boys only. The Legit stores have a fashion store format which focuses on the retailing of clothing, footwear, accessories, colour cosmetics and cellular products.
Retailability operates in over 460 stores across South Africa, Namibia, Botswana, Lesotho, and Eswatini. Many observers suggest that because of the deal with Retailability to swallow Edcon, most Edgars stores in Botswana will change their name and be branded Style. A sad tale for religious consumers of the Edgars trademark who got used to love their favourite brand for years.
According to CCA’s Merger Notice No 23 of 2020, Retailability is controlled by Clifford Raymond Lines (through a company which functions solely as a holding company of his interests in Retailability) and Metier Investment and Advisory Services Proprietary Limited (“Metier”). Metier is a private equity enterprise with investments in a number of industries spanning from healthcare, hospitality, FMCGs and telecommunications.
Retailability directors are mostly South Africans; Clifford Raymond Lines, Mark Richard Friday and Norman Victor Drieselmann. Only Nasreen Essack, who was appointed February this year, is a Motswana. He comes after Brian Thuto Tsima left on the same date. Retailability 100 percent owns Oclin Proprietary Limited, the company it is acquiring Edgars with, by a capacity of 3000 shares.
The target business, Edgars, offer textiles, cosmetics and cellular products. Edcon has a Motswana director, Charles Mzwandile Vikisi, a South African, Shane Van Niekerk and Zimbabwean Jethro Kamutsi.
“The Target Business comprises of two (2) Edgars franchise brands and private label stores across Botswana. These stores target middle to upper income customers and are home to a range of private label brands such as Free2BU, Charter Club and Stone Harbour, and a wide range of market label brands (such as Levi’s and Guess) for clothing, footwear and cosmetics.
In addition, the Target Business operates iconic Edgars Home and Edgars Beauty stores as store-in-store formats rounding out the department store offering in Botswana,” said CCA. Foshini also lines up to take Jet Botswana from Edcon.
The Foschini Group (TFG) released a statement confirming its latest intentions to acquire Edcon assets or Jet for a cash purchase consideration of R480 million. This was after the business rescue practitioners offered TFG to buy Jet by that amount.
CCA is currently mulling on a proposed merger by TFG to take over Jet operations in Botswana. Merger Notice No 21 of 2020 from TFG came a few days before the Retailability proposal. In this merger TFG, acting through Foschini Botswana, want to take over “parts” of the Jet business conducted by Edcon through Jet Supermarkets Botswana.
TFG will be willing to add Jet to its portfolio of 30 retail brands that trade in clothing, footwear, jewellery, sportswear, homeware, cell phones, and technology products from value to upper market segments throughout more than 4085 outlets in 32 countries on five continents. TFG will also get Jet’s distribution centre located in Durban and certain stores in Botswana, Lesotho, Namibia and Eswatini. Also part of this fat deal is that the company is looking to also acquire JET Club and all existing JET stock of no less than R800 million.
Johannesburg listed TGF owns Foschini Retail Group which owns the local operations called Foschini Botswana, the acquiring enterprise according to CCA merger notice. “TFG is not controlled by any enterprise/s and for completeness, the three largest shareholders of TFG holding shares greater than 5% as at 27th March 2020 are: Government Employees Pension Fund (16.2%) Public Investment Corporation (13.2%); Old Mutual Limited (6.7%); and Investec Asset Management (6.3%). The remaining issued share capital in TFG is widely held,” said the merger notice.
Only Abdool Rahim Khan is a Motswana in the Foschini Botswana directorship, the rest; Ganeswari Shani Naidoo, Anthony Edward Thunström and Gustav Jansen (alternate director) are South Africans.
According to the CCA merger, the Jet Business is Edcon’s discount department store division, selling clothing, footwear, homeware and some cosmetics as well as cellular products and targets lower-to-middle income consumers throughout Botswana. The Jet Business does not directly or indirectly control any enterprises, says the notice. CCA seeks any stakeholder views for or against the proposed merger, which may be sent within 10 days from date of this publication to the following address.
Botswana Communications Regulatory Authority BOCRA signed a memorandum of Agreement (MoA) with the Ministries of Transport and Communications (MTC), Basic Education (MoBE) as well as Local Government and Rural Development (MLGRD).
The MoA seeks to continue the collaboration that dates back to 2016 when the three parties first agreed to work together in a project aimed at computerizing and providing broadband Internet to primary schools in remote and underserved areas of Botswana.
The project benefitted 68 primary schools and 9 secondary schools through the construction of Local Area Network (LAN) in each primary school, provision of 5 Mbps dedicated broadband Internet to each Primary School and provision of Wi-Fi enabled tablets, laptops and related peripherals such as printers and copiers.
Further, the project will see the augmentation of computers in 9 Junior Secondary Schools with 30 laptops per identified school and employment of Information Technology (IT) officers at each primary school.
When speaking at the signing ceremony in Gaborone, Chief Executive of BOCRA and Chairperson of Universal Access and Service Fund (UASF) Board of Trustees Martin Mokgware said the project’s ultimate goal is to facilitate pupils in schools and host villages to be able to play a meaningful role in the digital economy.
Mokgware indicated that this necessitates upgrading of existing Telecommunications infrastructure to high capacity broadband that will support delivery of education, accessibility to the quality Internet and usage of ICTs.
The Fund began its inaugural programme by sponsoring the provision of WiFi hotspots in public areas around the country as its first project. Following the successful implementation of public WiFi hotspots, the Fund identified Kgalagadi, Ghanzi and Mabutsane areas for mobile network upgrades, schools computerization and internet provision.
Conscious that the project would not be possible without buy-in and support from MoBE, MTC and MLGRD, the Fund facilitated the signing of the first MoU between the three parties in 2016 for implementation of the project.
BOCRA Chief Executive said the signing of this agreement is aimed at benefitting the Kweneng District, adding that they have already assessed the area and have determined that they will be covering 62 underserved villages and 119 schools, 91 of which are primary schools.
“This is a project for which the partner Ministries need to re-commit for its success. Lessons from the previous schools’ computerization and internet connectivity project require that we increase our involvement and resources dedicated to the project for it to be successful. It is my belief as the project coordinator, that we will not do things the way we did them during the first project, for if we do, then we will not have learnt anything,” he said at the signing ceremony.
The purpose of learning is so that there can be continuous improvement to minimize the length of time and amount of resources utilized, he said expressing confidence that their partners will step up to the plate and ensure they play their part in the implementation of the project and that it will progress smoothly having already tread along a similar path.
UASF’s role lies mainly in funding and project management. According to Mokgware, once the project is completed, the work to integrate ICTs into the classroom begins in earnest. Therefore, he said, the project will not succeed without full cooperation and oversight of partners.
“MoBE will put in place the necessary content and ensure that the curriculum is available to all. MLGRD will provide, among others, the enabling environment by ensuring readiness of the school’s infrastructure and necessary security.”