Tax avoidance arrangement in Agyapa deal is shameful for Ghana as a country

Tue, 15 Sep 2020 Source: Anthony King

The benefit of revenue generation through taxation for development of a country cannot be over emphasized. There are two forms of tax resistance namely; tax evasion and tax avoidance. Tax avoidance is defined by Prof. Quitcroft as “the act of dodging tax without breaking the law.” Tax evasion however involves breaking the law in an attempt to reduce one’s tax liability.

Traditionally tax avoidance was deemed acceptable but contemporary approach now seeks introduction and implementation of anti-tax avoidance legislations in most jurisdictions. A breach of any provision of such anti- tax avoidance legislation now amounts to illegal conduct.

Section 34 of the Income Tax Act, 2015 (Act 896) defines tax avoidance schemes or tax avoidance to include an arrangement to avoid or reduce ones tax liability.

The Income Tax Act, 2015 (Act 896) also has anti-tax avoidance provisions and specifically under section 34 of Act 896, enables the Commissioner-General to re-characterize or disregard an arrangement entered into as part of a tax avoidance scheme where the transaction or arrangement is either fictitious or does not have a substantial economic effect, or the form of which does not reflect its substance.

Over the years, Ghanaian Courts have also adopted a doctrine of form and substance to make sure that any transactional or business arrangement whose purpose is to avoid paying tax is not tolerated.

This was affirmed in the case of Eaton Towers Ghana Ltd v The Commissioner General when Ghana Revenue Authority re-characterized / adjusted Eaton Towers tax assessment as a tax avoidance scheme, for which they had to pay additional tax. This clearly shows that at present, modern tax administration system in Ghana abhors tax avoidance arrangements or schemes in terms of delineating differences in tax avoidance and tax evasion,so that as a country Ghana maximizes revenue generation for national development.

Therefore, was it not shameful, that as a country we decided to incorporate Agyapa Company in Jersey, a tax haven, to avoid tax with respect to tax on profits and dividend payment?

How dishonorable can we be as a country, when Ghana’s tax laws abhor tax avoidance as not in the spirit of the law?

If Agyapa wants to avoid paying tax, then who else should set up a company in Ghana to pay tax for our national development?

Indeed, our Company and Tax laws with respect to corporate governance principles are more stringent, requires transparency and accountability than that of Jersey.

Through the years the Courts in Ghana have adopted a number of approaches to addressing tax avoidance schemes such as the Agyapa deal. We have a lot of profit making state owned institutions in Ghana that are paying tax. How different would Agyapa be if it was to pay tax?

No patriotic Ghanaian should take pride in the crafting of this deal that only points to benefiting a few undisclosed beneficial owners, who would not pay tax on dividend income to be earned.

The Agyapa transaction does not amount to financial engineering, but is rather sheer wickedness, fraudulent and illegal conduct by a few on the good people of Ghana.

No wonder Hon. Isaac Adongo (MP for Bolgatanga Central) thinks the Agyapa deal is for the benefit of a particular group of “Akyem Sakawa Boys” who are the ultimate beneficial owners.

Columnist: Anthony King