GH¢19 million back tax on MTN upheld by the court

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The Commercial Division of the High Court in Accra has ruled in favour of the Ghana Revenue Authority in a GH¢19 million back tax case MTN Ghana filed against the tax collector. 

MTN Ghana had dragged GRA to court insisting that the authority erred in law and acted arbitrarily when it imposed the tax liability order on the company for the period January 2014 to December 2017.

In 2020, the Ghana Revenue Authority commenced a comprehensive tax audit on MTN Ghana, spanning the period January 2014 to December 2018.

The said audit focused on all aspects of MTN’s business including Input Value Added Tax claims related to goods and services procured by MTN Ghana, Value Added Tax on services imported by the company and Input Value Added Tax claims related to office premises constructed by the telecom giant.

Unhappy with the tax liability, MTN Ghana which believes it has honoured all its tax obligations went to court to have the GRA order reversed.

The firm thus sought the following reliefs:

a. An order reversing the Respondent’s decision to impose additional Value Added Tax of GHS8,793,598.00 and penalty and interest of GHS10,933,119 on imported services utilized by Appellant for its telecommunication business.

b. An order reversing the Respondent’s decision to impose additional Ghana Education Trust Fund Levy and National Health Insurance Levy of GHC6,379,483.00 and penalty and interest of GHC2,566,124.00 on imported services utilized by the Appellant for its business.

c. An order quashing the parts of the Current Tax Assessment relating to the heads “Disputed Assessment”, and overturning the Objection Decision by Respondent as it relates to those parts.

d. Any other order(s) that the justice of the case requires.

Judgement 

In its ruling, the court presided over by Her Ladyship Justice Afi Agbanu Kudomor on November 9, 2023, said GRA did not err in imposing the tax liability on MTN Ghana.

Below are excerpts of the judgement:

By virtue of the combined effect of the said provision of the Value Added Tax Act, 2013 (Act 870) for imported services, Value Added Tax will not apply only if the imported services were applied in making Taxable supplies (telecommunication business). Value Added Tax will however apply if the imported services were applied in making Exempt supplies (mobile money business).

Respondent was therefore right in applying the definition in section 65 of the Value Added Tax Act, 2013 (Act 870) to the transactions concerned in determining the total cost of imported services and apportioned between the Exempt and Taxable supplies with respect to their contribution to total revenue.

Respondent therefore did not err in law and did not act arbitrarily by imposing Value Added Tax liability on the Appellant for Imported Services for the period January 2014 to December 2017 because of Appellant’s status a Partial Exempt Trader for the period of the assessment.

On the second ground of appeal, it is clear from the provisions of the two statutes as amended that the National Health Insurance (Amendment) Act, 2018 (Act 971) and the Ghana Education Trust Fund Act, 2018 (Act 972) are separate from the Value Added Tax Act 2018 (Act 870).

That, the two laws impose tax on import of service which is not subject to input tax deduction.

The two laws impose tax or levy on import of service which is not subject to input tax deduction irrespective of what the imported service was going to be used for during the period under review.

For the relevant periods in 2018 (August 2018 to December 2018), the Value Added Tax rate of 12.5% was inapplicable on Appellant but the Ghana Educational Trust Fund Levy and National Health Insurance Levy each of 2.5% were applicable on the imported services by Appellant irrespective of whether these imported services were used to produce Taxable or Exempt supplies.

Respondent therefore did not err in law when it imposed National Health Insurance Levy and Ghana Education Trust Fund Levy (together with interest and penalties) on the Appellant on their Imported Services from August 2018 to December 2018 irrespective of whether they were applied to Taxable or Exempt services. It is for these reasons that the instant Tax Appeal fails. There will be no order as to costs. Each party is to bear its own costs.

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