Recovering tax from Teliasonera & Axiata deal- Steps forward

When I first wrote a blog on Ncell tax case last year, Nepal Government had just started discussing on if tax should be levied and what amount of tax should be collected from the deal. This blog analyses the position with respect to further and recent developments.

  • 8 May 2016- Ncell paid Rs. 9.96 billion as capital gain tax.  It was also reported that Ncell declared and paid tax under Sec. 57, Change in Control provisions of the law. Information relating to further assessment by tax office is not yet public and is expected to be in process.
  • 8 March 2017- The cabinet meeting decided that the capital gain tax is payable by Teliasonera (the seller) and not the buyer. . The finance minister reinforced this in his response to public accounts committee.
  • 14 March, 2017- The Office of Auditor General is said to have directed the Government to collect additional tax of Rs. 26 billion from NCell.

As I noted in my earlier posts, and  interview in Artha Sarokar TV program, our current legal provisions do not bring indirect tax into ambit of tax law, but the tax office have the right to disregard treaty benefit or corporate structures in case of sham entities, provided they are able to prove it using General Anti Avoidance Rules.

But after Ncell deposited Rs. 9.96 billion as Tax Deduction at Source, tax department is now relieved of the difficult task of establishing a sham entity, at least for 15% WHT. In other words, Ncell accepted that they have a withholding tax responsibility as per Sec. 95Ka of the Act with WHT rate being 15%. This in fact is suicidal for Ncell, and a decision taken on haste, without considering the legal consequences of accepting the liability, if the tax department moves further with WHT assessment.

So, for the WHT portion of 15% it is now irrelevant to discuss whether the transaction is taxable in Nepal or not.

What should the tax department do now?

As noted above, Ncell has accepted that they had a Withholding tax liability (WHT) as per the law. This means the tax department should take the following course:

  • To verify how selling price and cost price regarding the transaction have been calculated and whether the gain amount is correct as per Sec. 36 of the Act.
  • To check whether the cost price calculation can be substantiated with appropriate documentary evidences. The cost price can include:
  1. The cost of purchase of shares
  2. The cost of holding shares
  3. The cost of disposal of shares.
  • In case of Teliasonera, some or many of these expenses could have been expended out of Nepal, and documentary evidences might not be available with Ncell. As Ncell accepted the WHT responsibility, it is now for Ncell to provide the evidences to tax office.
  • In case of failure to provide adequate supporting, tax office can assess further WHT liability at the rate of 15% on each unsubstantiated expenses, plus interest on such WHT assessed.

What is the tax rate and who is liable to pay tax?

There is much debate around the tax rate for this gain and who is liable to pay it.

Ncell by its act of paying WHT has accepted the liability of 15% WHT on gain. We may consider the normal tax rate of 25%, but if tax office assesses tax additional to WHT (+10%), it will be a herculean task to really make Teliasonera to pay it. Teliasonera has repetitively denied any tax liability in Nepal, and acceptance of WHT by Ncell does not in any way make Telia liable for additional 10%. There is no legal base to assess NCell for the additional 10% liability, as instructed by Office of Auditor General. There are two issues to consider:

  • First tax office should be able to raise an assessment order to Teliasonera for this additional tax. There is a standard legal process for that to be followed. In addition, proving a sham entity, refuting the treaty benefit and making Teliasonera liable demands an extensive exercise.
  • Whether the existing legal provisions would be sufficient to bring a company with no existing set-up in Nepal can be dragged to Nepalese court is another issue to consider.

Teliasonera required approval of Nepalese government authority for sale of shares. That was the time when our authorities should have been proactive to discuss these tax aspects. Back in April 2016, within the IRD there was an internal report saying Teliasonera is liable to pay tax in Nepal. But we did not take action in time, and even today instead of tax authorities moving forward with re-assessment of WHT, the issue is being discussed in the cabinet and Public Accounts Committee.

On 16th March I had tweeted, “Supreme authority to interpret tax law is the court. Both Ncell & Government took a wrong path in Capital Gain Tax case & we are left with confusion & a mess”. Indeed. A tax practitioner like me would always wish that we levy tax within the purview of legal provisions, and the best authority to decide whether Teliasonera is liable to tax in Nepal would have been the Supreme Court. Lets hope we could see that someday.

At this hour, tax department should at least begin WHT assessment of Ncell by recalculating gain as per Sec. 36 because Ncell has already exposed itself to 15% WHT liability without any doubt.

Note to the readers: 

  1. The Income Tax Act does not use the word Capital Gain Tax, and so this term is used for general understanding only. As per law, the tax paid is income tax, but collected as deduction from source.
  2. It makes no difference whether we call WHT or Advance tax to refer to tax deposited by Ncell. It would still be regarded as advance income tax of Teliasonera.

टेलियासोनेरा एनसेल शेयर बिक्रि प्रकरण- दफा ५७ र दफा ३५ के हुन् ?

टेलियासोनेराको एनसेल शेयर बिक्रि सम्बन्धमा मेरो विचार तल अन्त्यमा भएको अन्तर्वार्तामा  हेर्नु होला एवं अन्य व्यवस्थाहरुको विवेचना दुइ अन्य ब्लग पोस्टहरु मा समेत छ ।

यो पोस्टमा म दफा ५७ को बारे कानुनी व्यवस्था प्रकाश पार्ने प्रयास गर्नेछु । एनसेलको कर प्रकरणमा दफा ५७ प्रयोग गरेर कर उठाउन मिल्ने कुरो पटक पटक आइरहेको छ । तर के हो त दफा ५७?

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Nepal Income Tax Law- The need for improvement

Our tax law was promulgated in 2002 and was termed as modern compared to the earlier tax law we had and the last decade was a learning experience for the practitioners, the tax payers and the tax officers. Our current practice and issues faced show that the law is inadequate in several aspects, and perhaps its time for us to think on reforms needed for better tax practices.

Non-resident taxation- Individual

How many of the expats working in Nepal pay their employment tax here, especially when they are paid in their home country? How does tax office track the consulting income of expats who are paid abroad but give consulting services on tourist visa in Nepal?

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The TeliaSonera Deal- How Nepal can charge tax on indirect transfers?

Nepal Government has started discussing on how TeliaSonera can be charged to tax in Nepal for its deal with Axiata. Bizmandu reports that the government would proceed with collection of tax once official notification is received from NCell. We have seen in the first article how the proposed transaction does not fall within the ambit of current #Nepaltax provisions. So, is collection of tax so straightforward for the government? Questions that arise are:

  1. Is tax on indirect transfer of shares an international practice and will it be a possibility for Nepal Government to tax the transaction with or without amendment in the current law?
  2. Is there any provision in DTAT between Nepal and Norway that affects the outcome of this transaction?

This article discusses impact of Double Tax Avoidance Treaty between Nepal and Norway with reference to the fact that Reynolds Holdings Ltd. is owned by a company based in Norway. We will also look into recent development and international practices regarding indirect transfer of share.

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The TeliaSonera Deal- Does it result in Tax Evasion in Nepal?

Once the news of TeliaSonera selling its stake in NCell floated in media, concerns have been raised on taxability of the proposed transactions as per Nepalese Tax Law.  TeliaSonera in its official press release stated that “TeliaSonera has agreed to sell its 60.4 percent ownership in the Nepalese operator Ncell to Axiata, one of Asia’s largest telecommunication groups, for USD 1,030 million on a cash and debt free basis. At the same time, TeliaSonera will dissolve its economic interests in the 20 percent local ownership and receives approximately USD 48 million”.

This is one of the biggest deals in Nepalese corporate history, and analysts predict that a deal of such quantum is not expected at least in the next 10 years. With such a huge value in stake, it is obvious that questions are being raised on whether the deal being structured outside Nepal is an attempt to avoid tax on Nepal and if Nepalese tax authority can use existing provisions to bring the transaction into Nepalese tax bracket. Bizmandu, in its article details out the structure of holding of TeliaSonera, but gives an impression that this is “Tax Evasion” and the Nepalese tax authority can impose tax on the transaction, the way Vodafone case was dealt with in India.

This article analyzes the taxability of proposed transaction in Nepal, the similarity and differences with Rs. 20,000 crores Vodafone case of India and current loopholes in the Nepal tax law that should be addressed.

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Service PE or Branch? Removing inconsistencies in law

Foreign companies seeking to execute service contracts face the dilemma between registering a Permanent Establishment or a branch. status for FPEs- some are registered as branch as per Company Law and some are simply registered as PE in local tax office. This blog looks at the differences between Permanent Establishment (as per tax law) and branch (as per Company Law) and practical issues faced by corporates.
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Understanding Permanent Establishment

I had written this article on Permanent Establishment, for Reflections, the Baker Tilly Nepal Newsletter in 2008. It is reproduced here, especially for the benefits of taxation students. Though PE concept was introduced back in 2002, the understanding of PE concept and its practical implementation in Nepal is not so clear. This article explains what FPE means, concept underlying it and its responsibilities under the IT law.

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