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The new income tax act amendment: what are the implications?

TUMELO RANNAU  

On the 12th of December 2018, Parliament passed some Income Tax Act amendments that are aimed at maximising domestic revenue collection in the country.  The main change to the law is the introduction of what are known as Transfer Pricing (“TP”) provisions. TP concerns itself with ensuring that transactions that happen between and among related entities are not affected by their relationship i.e. are arm’s length. In general, related companies tend to have relaxed dealings such as interest-free loans, provision of goods at reduced prices or at no cost etc. This eventually affects the revenue that the Botswana Unified Revenue (“BURS”) collects, hence the introduction of the TP rules.

Section 36 on tax avoidance has been amended by deleting section 36 (2) and by removing the phrase “or is entered into or carried out otherwise than as a transaction between independent persons dealing at arm's length” in subsection one. The two will be replaced with section 36A that introduces Transfer Pricing (TP) regulations that detail conditions that are consistent with the arm’s length transactions.

The new subsection will focus on avoidance of tax and leave the arm’s length principle to TP regulations. The Income Tax Act (The Act) states that such rules on arm’s length transactions will be prescribed by the Minister of Finance and Economic Development (“The Minister”). The Arm’s length principle states that transactions between parties should be on a commercial basis with the involved parties being independent from each other and cannot control or influence over the other party.

It is expected that the Minister will provide taxpayers with options of either using the United Nations (“UN”) or the Organisation of Economic Cooperation and Development (“OECD”) models in preparing their TP documentation. It should be noted that the regulations will apply to related parties (persons who have control or influence over each other) regardless of whether the other entities are resident or non-resident for tax purposes. The Act also introduces a provision for Advance Pricing Agreement (“APA”) where taxpayers will be able to get into fixed price agreements with BURS. These are normally put in place to avoid TP disputes between taxpayers and revenue authorities during TP audits.

Though the Act does not prescribe how long the APA will be valid, however the international best practice is normally 5 years. The Minister is expected to issue eligibility criteria for application for an APA. Further, the deductibility of interest for tax purposes will now be capped at 30% of Earnings before Interest, Tax, Depreciation and Amortization across all sectors save for banking and insurance companies. This provision will also apply to mining operations and the 3:1 ratio for mining entities will no longer be applicable.

Non-compliance with the transfer pricing regulations comes with some penalties that will hit hard on both multi-nationals and local group companies. Penalties for failure to produce TP documentation will range between P250, 000 and P500, 000. Additionally where an entity had failed to comply with ensuring that they transact at market rates as if dealing with third parties, they will be liable a to 200% penalty on the tax that was lost due to a tax avoidance scheme or transaction. The legislation will not only be useful to BURS but to taxpayers as they will be able to do their tax planning using the recommended procedures. The legislation will come into effect after Presidential assent.

Other amendments are in relation to International Financial Service Centre Companies (“IFSCs”). This is in response to worries by the Forum on Harmful Tax Practices (“FHTP”) that the country’s IFSC regime has potentially harmful features.  “Intellectual property exploitation” and “development and supply of computer software for use in the provision of other approved financial operations” will no longer be considered as approved financial operations.

Therefore any entities that were exclusively offering such services will no longer be considered IFSC companies and will now be taxed at 22% instead of the 15% that is currently applicable. Furthermore an IFSC company is now defined as “a company incorporated in Botswana to provide any of the approved financial operations under section 138(7) to its associated or related parties”. Initially there was no clear definition of IFSC Company but there was a list of the approved financial operations mainly tailored towards dealing exclusively with non-residents and other IFSC companies.   

Tumelo Rannau  is a practicing Tax Consultant, writes on his own capacity.

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Business

NAMDEB extends life of mine for land operations by up to 20 years

19th October 2021

Joint venture between De Beers and Government of Republic of Namibia announces new plan, supporting economic, commercial, employment and community benefit, following receipt of royalty relief Namdeb Diamond Corporation (Proprietary) Limited (‘Namdeb’), a 50:50 joint venture between De Beers Group and the Government of the Republic of Namibia, today announced the approval of a new long-term business plan that will extend the current life of mine for Namibia’s land-based operations as far as 2042.

Under the previous business plan, the land-based Namdeb operations would have come to the end of their life at the end of 2022 due to unsustainable economics. However, a series of positive engagements between the Namdeb management team and the Government of the Republic of Namibia has enabled the creation of a mutually beneficial new business plan that extends the life of mine by up to 20 years, delivering positive outcomes for the Namibian economy, the Namdeb business, employees, community partners and the wider diamond industry.

As part of the plan, the Government of the Republic of Namibia has offered Namdeb royalty relief from 2021 to 2025, with the royalty rate during this period reducing from 10% to 5%. This royalty relief has in turn underpinned an economically sustainable future for Namdeb via a life of mine extension that, through the additional taxes, dividends and royalties from the extended life of mine, is forecast to generate an additional fiscal contribution for Namibia of approximately N$40 billion. Meanwhile, the life of mine extension will also deliver ongoing employment for Namdeb’s existing employees, the creation of 600 additional jobs, ongoing benefits for community partners and approximately eight million carats of additional high value production.

Bruce Cleaver, CEO, De Beers Group, said: “Namdeb, a shining example of partnership, has a proud and unique place in Namibia’s economic history. This new business plan, forged by Namdeb management and enabled by the willingness of Government to find a solution in the best interest of Namibia, means that Namdeb’s future is now secure and the company is positioned to continue making a significant contribution to the Namibian economy, the socio-economic development of the Oranjemund community and the lives of Namdeb employees.” Hon. Tom Alweendo, Minister of Mines and Energy for the Government of the Republic of Namibia, said: “Mining remains the backbone of our economy and is one of the largest employment sectors within our country.

Government understood the fundamental impact of what the Namdeb mine closure at the end of 2022 would have had on Namibia. Therefore, it was imperative to safeguard this operation for the benefit of sustaining the life of mine for both the national economy as well as preserving employment for our people and the livelihoods of families that depend on it.”

Riaan Burger, CEO, Namdeb Diamond Corporation, said: “After more than a century of production, these operations were approaching the end of their life, but the creation of this new business plan means we can continue to deliver for Namibia for many years into the future. This is great news for the hardworking women and men of Namdeb, as well as for all our community partners who we are proud to have worked with over the years. We now look forward to starting a new chapter in Namdeb’s proud history.”

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Business

Botswana records first trade surplus since January

7th October 2021
Botswana-records-first-trade-surplus-

Botswana has recorded its first trade surplus for 2021 since the only one for the year in January.

The country’s exports for the month of July surpassed the value of imports, Statistics Botswana’s July International Merchandise Trade data reveals.

Released last Friday, the monthly trade digest reports a positive jump in the trade balance graph against the backdrop of a series of trade deficits in the preceding months since January this year.

According to the country’s significant data body, imports for the month were valued at P7.232 billion, reflecting a decline of 6.6 percent from the revised June 2021 value of P7.739 billion.

Total exports during the same month amounted to P7.605 billion, showing an increase of 6.1 percent over the revised June 2021 value of P7.170 billion.

A trade surplus of P373.2 million was recorded in July 2021. This follows a revised trade deficit of P568.7 million for June 2021.

For the total exports value of P7.605 billion, the Diamonds group accounted for 91.2 percent (P6.936 billion), followed by Machinery & Electrical Equipment and Salt & Soda Ash with 2.2 percent (P169.7 million) and 1.3 percent (P100.9 million) respectively.

Asia was the leading destination for Botswana exports, receiving 65.2 percent (P4.96 billion) of total exports during July 2021.

These exports mostly went to the UAE and India, having received 26.3 percent (P1. 99 billion) and 18.7 percent (P1.422 billion) of total exports, respectively. The top most exported commodity to the regional block was Diamonds.

Exports destined to the European Union amounted to P1.64 billion, accounting for 21.6 percent of total exports.

Belgium received almost all exports destined to the regional union, acquiring 21.5 percent (P1.6337 billion) of total exports during the reporting period.

The Diamonds group was the leading commodity group exported to the EU. The SACU region received exports valued at P790.7 million, representing 10.4 percent of total exports.

Diamonds and Salt & Soda Ash commodity groups accounted for 37.8 percent (P298.6 million) and 6.2 percent (P48.7 million) of total exports to the customs union.

South Africa received 9.8 percent (P745.0 million) of total exports during the month under review. The Diamonds group contributed 39.9 percent (P297.4 million) to all goods destined for the country.

 

In terms of imports, the SACU region contributed 62.7 percent (P4.534 billion) to total imports during July.

The topmost imported commodity groups from the SACU region were Fuel; Food, Beverages & Tobacco, and Machinery & Electrical Equipment with contributions of 33.3 percent (P1.510 billion), 17.4 percent (P789.4 million) and 12.7 percent (P576.7 million) to total imports from the region, respectively.

South Africa contributed 60.1 percent (P4.3497 billion) to total imports during July 2021.

Fuel accounted for 32.1 percent (P1.394 billion) of imports from that country. Food, Beverages & Tobacco contributed 17.7 percent (P772.0 million) to imports from South Africa.

Namibia contributed 2.0 percent (P141.1 million) to the overall imports during the period under review. Fuel was the main commodity imported from that country at 82.1 percent (P115.8 million).

During the months, imports representing 63.5 percent (P4.5904 billion) were transported into the country by Road.

Transportation of imports by Rail and Air accounted for 22.7 percent (P1.645 billion) and 13.8 percent (P996.2 million), respectively.

During the month, goods exported by Air amounted to P6, 999.2 million, accounting for 92.0 percent of total exports, while those leaving the country by Road were valued at P594.2 million (7.8 percent).

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Business

The 2021/2022 Stanford Seed Transformation Program Begins

7th October 2021

Founders from twenty companies have been accepted into the program from Botswana, Namibia, and South Africa

The 4th Cohort of the Stanford Seed Transformation Program – Southern Africa (STP), a collaboration between Stanford Graduate School of Business and De Beers Group commenced classes on 20 September 2021. According to Otsile Mabeo, Vice President Corporate Affairs, De Beers Global Sightholder Sales: “We are excited to confirm that 20 companies have been accepted into the 4th Seed Transformation Programme from Botswana, Namibia, and South Africa. The STP is an important part of the De Beers Group Building Forever sustainability strategy and demonstrates our commitment to the ‘Partnering for Thriving Communities’ pillar that aims at enhancing enterprise development in countries where we operate in the Southern African region”. Jeffrey Prickett, Global Director of Stanford Seed: “Business owners and their key management team members undertake a 12-month intensive leadership program that includes sessions on strategy and finance, business ethics, and design thinking, all taught by world-renowned Stanford faculty and local business practitioners. The program is exclusively for business owners and teams of for-profit companies or for-profit social enterprises with annual company revenues of US$300,000 – US$15million.” The programme will be delivered fully virtually to comply with COVID 19 protocols. Out of the 20 companies, 6 are from Botswana, 1 Namibia, and 13 South Africa. Since the partnership’s inception, De Beers Group and Stanford Seed have supported 74 companies, 89 founders/CEOs, and approximately 750 senior-level managers to undertake the program in Southern Africa.

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