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Acquisition of assets from Non-resident Connected Parties

Businesses now and then purchase assets from or through their related companies for various business purposes such as efficiency and maximising on the value chain. One of the amendments that started applying on the 1st of July 2019 was on limiting the cost of assets that are acquired from non-resident connected persons to P0 if there is no proof of purchase.

Connected persons “means at least two companies where either of the companies has control directly or indirectly, of the other, or if both companies are controlled, directly or indirectly, by the same person or persons”. It also means “any person (other than a company) if that person has control of a company or if the person or persons connected to that person together have control of the company”. The Act further states that control means where one has greater part of the share capital or voting rights in a company and is entitled to a greater part of the distributable income or assets of the company.

Assets used by the business in generating assessable income attract capital allowances in the range of 10% to 100%. For any business, the capital allowances claim ranges from 10% to 25% each tax year until the cost of the asset is fully exhausted, however mining and farming attract 100% deduction in the year of purchase for assets that are directly used in mining or farming. Capital allowances are an incentive provided by the Commissioner to taxpayers taking into consideration the wear and tear of assets used by the business. This is referred to as tax depreciation in other tax jurisdictions. Tax authorities worldwide are of the view that assets acquired from non-residents are among methods used to erode tax bases as money goes out of the country without any tax liability arising on the side of the purchasers of the assets.

Therefore to counter this, the cost of assets that are purchased from non-resident connected persons will be deemed to be P0 for tax purposes unless an invoice from an independent third party is produced. This means that the capital allowances claim that businesses that have bought assets from non-resident connected persons could have claimed will be lost, resulting in a higher taxable income. For e.g., where Mining Company A had bought a mining asset from its related party in South Africa at P1m and has Profit of P50m before capital allowances deductions, the taxable income will still remain at P50m where there is no invoice to show that the asset was first procured from a third party.



In a case where an invoice from an independent third party is produced, the taxable income shall be reduced by the cost of the asset and therefore become P49m. Assuming that the tax rate applicable will be 22%, this will result in a tax saving of P220, 000 and tax loss of the same amount if the purchaser does not provide invoice from an independent third party. This is part of efforts by the government to reduce transfer mispricing instances in the country. Taxpayers are encouraged to ensure that they have all the necessary documents to ensure their transactions are not reversed and they are left with huge tax bills in principal and interest.

Where acquisition of an asset directly from an independent third party is possible, taxpayers are encouraged to procure directly in order to mitigate any disputes or adjustments that may arise. The arm’s length rule will mostly likely still apply to assets even where an independent third party invoice is produced as the rule targets any transaction between connected persons. In the event that a margin is charged by the non-resident connected person after acquisition from a third party, all necessary documentation in relation to the margin added should be fully documented.

Justification of why the price charged by non-resident connected parties is at arm’s length should also be part of the documentation kept by the taxpayer.

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Moses vs Ramesses

28th July 2020

Moses returns to Egypt to reclaim the Pharaonic throne

When Moses was deposed as Pharaoh Akhenaten of Egypt in 1352 BC, General Atiku, he was not officially banished from Egypt: he was obliged to flee Egypt as he was not hundred percent sure of his safety.

Ideally, the place he should have headed to was Harran, in modern-day Turkey. Harran was apt in that not only was it the place of his ancestry but it was the major domicile of the Hykso-Hebrews. There, the Hykso-Hebrews abounded more than in any other place on the globe, including Canaan.

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Turn CEDA into a Commercial Bank

28th July 2020

The announcement by President Mokgweetsi Masisi that CEDA now was in position to loan sizeable and therefore worthwhile sums the nation as a matter of course greeted with enormous glee.

As much as I too was euphoric at the news, I could not at the same time help a feeling of censorious pique which dates back to the time I was CEDA chairman from 2006 to 2008.

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Parley July meeting: an executive affair

28th July 2020

Monday the 27th Parliament will resume its July meeting. What is specifically on the agenda of Parliament in this coming meeting? A lot! There will be government and Private Bills, policy proposals, questions, themes and motions.

The meeting is also likely to be punctuated by statements from ministers on a variety of issues. Some statements may come as preemptive strikes to prevent the opposition from either making speeches on the subjects ahead of the government or to simply forestall questions on same.  The House is expected to be active for five weeks nonstop. It is obviously a very short time considering the agenda.

Before its adjournment sine die in March, Parliament was supposed to discuss the National Development Plan 11 Midterm Review. This is what will become a priority of the government in its order of Business or scheduling. The government is expected to table an addendum to the already tabled review document.

The reason is simple, COVID-19 has not only gobbled funds from the fiscus, but has also resulted in a sharp decline in government revenue. The mainstay of the economy is mining, particularly diamonds revenue. These germs are mainly luxury commodities which are prone to international market changes.

Diamonds and other precious goods are seldom needed in large quantities during turbulent times such as these. Those countries that depend on them, such as Botswana, are always at high risk of external shocks. Southern African Customs Union revenue is also likely to decline because of slump in trade.

Tax collection has gone down due to many obvious reasons. Tourism has been shattered. Non-mining sector has also been negatively affected. Therefore, the estimated revenue has declined, necessitating a serious review of the development plan.

Which Bills are likely to be debated in this coming meeting? Two Botswana Defence Force Amendment Bills have been Gazetted; one is Private and the other a government proposal.

The private Bill is proposing to rectify the injustice of not fully paying soldiers who are on indictments or suspensions. The government Bill is a minor amendment relating to the BDF Court Marshall Judge Advocate General position.

Other government Bills include Income Tax Amendment, BURS Amendment, Citizenship Amendment, Legal Practitioners Bill, Environment Assessment Amendment, Financial Reporting Amendment, Accountants Amendment, Citizen Economic Empowerment Bill and a controversial one on Floor Crossing.

More interest will be on the anti-defection Bill and perhaps the citizen economic empowerment proposal. Other Private Bills to be tabled include Police and Prisons Amendment and the Media Practitioners Repeal Bill. Parliament will also debate the following policies; Climate Change, Tourism, National Energy and Minerals.

Whilst there is nothing on COVID-19, MPs are likely to ask questions on the pandemic. So many things come to mind as possibilities of issues likely to be raised. MPs are likely to ask the Ministry of Health, Office of the President and the Ministry of Finance and Economic Development about the whole pandemic fighting strategy.

There may be questions on the capacity and reliability of COVID-19 testing. Questions may be asked on positive cases that quickly become negative and or false alarms cases etcetera.

More focus may be on the budget and procurement. Some controversial tenders are likely to be questioned by MPs. It is expected that given the chance, MPs will likely lament the stoppage of food rations distribution by the Ministry of Local Government and Rural Development.

MPs will raise other miscellaneous issues on corona virus related policy decisions. These include the terms of engagement of the COVID Task Force and enlisting of the public relations private persons team from outside the government to help.

There may be questions by MPs on the business dealings of the President and his intention to acquire a government ranch, Banyana Farm. Clarity may be vehemently sought on these issues. Corruption related issues may be on the agenda of Private Business. So many issues have been reported; direct appointment of the 100KM NSC water pipe tender and other controversies may crop up.

There may be clarification required from the ministry responsible for international relations on the implications of the engagement of an Advocate working for Afri-Forum white supremacist organisation. The consequent and seeming tension between South Africa and Botswana will probably be on the agenda of MPs.

Recently the country has experienced serious fuel shortages. It is likely that parliament will raise issues on this matter and get the Minister to explain further.

Whilst this issue has been all over the media with clarifications offered by the Minister and the Permanent Secretary, parliament is likely to engage on the matter to get assurances into the record.

Answers will be demanded on the exact cause of the shortage, policy failures to predict the crisis and to avert it as well as the way forward.

Power issues have also irked MPs, particularly the recent tariff increases and recent threats to increase them even. All is definitely not well at Botswana Power Corporation, so MPs are probably going to probe these matters further.  It is clear that there is a lot that Parliament will deal with.

The disheartening fact to note is that most of the Government Business will be expected, by the executive, to pass through parliament rather than be passed by it. There is condescension for free and adequate debate as well as ostensible intolerance of alternative views from the backbench and the opposition by the frontbench.

The ruling party caucus will discuss all these matters and once explained fully by technocrats, the expectation will be for MPs to swiftly rubberstamp executive ideas without raising controversial issues or simply reasoning on the floor.

There will be no time to reason! There is likely to be limited time allocation, in terms of minutes allocated to individual MPs per debate, on all these matters aforementioned. The Speakership, which traditionally is the gatekeeper of the executive, is likely to fully cooperate and not protect the MPs against the executive wrath.

The executive will reason that five weeks is too short and that all business must be dispensed with before time elapses. Whilst the backbench will be unhappy with these decisions, there’s nothing it will do, it is numerically weak in the caucus.

The opposition will face the whole ruling party bench and be defeated in their protest for adequate debate time. That’s just how things work in Botswana parliament. The legislature is a governing tool of the executive; it is used to pass through policies, laws and budgets for the ruling party’s own political ends.

It is not an independent institution which can hold the executive accountable effectively. If Bills or policies are not completed and there’s about week remaining, everything could be squeezed into that one last week. It has happened before; the House can pass many Bills in one sitting, even if it means staying up until late night or wee hours of the morning.

There are private motions which if not withdrawn and replaced with new ones, may not address topical issues that arose as a result of or during COVID-19. These are motions which may seek accountability of the government on corona virus related policies.

One of the likely motions is the motion touted by one of the opposition parties; motion of no confidence on the government. If this motion comes on urgency, it may die on arrival.

The ruling party MPs will be under strict instructions to kill it the moment a question is put on whether the agenda should be changed to allow a debate on it.

The only way it can be debated is if it comes in through the normal process. Even that way there is no guarantee; the ruling party MPs may stay outside to kill the quorum like they do with motions they don’t want debated.

They may also debate it and unleash their ‘attack dogs’ and put their views across before defeating it. Other motions which may be tabled include COVID-19 related motions. Expectations of the general public should be managed; the next meeting may be the usual ruling party show to do as they please.

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