Vodafone Ghana has amended its writ before the Accra High Court in the matter it sued the Ghana Revenue Authority (GRA) over a contentious transfer pricing tax assessment.
The company in September filed a motion at the High Court of Justice, Commercial Division in Accra, against the GRA disputing tax assessments of over GH¢160 million.
GRA, per its regulations, asked Vodafone to pay 30 percent of the stated assessment while negotiations continued, but Vodafone refused to pay, requesting a waiver from the Commissioner-General, who promptly refused to use his discretionary powers granted by the law.
This action seems to have angered Vodafone which amended its writ, contesting the Commissioner-General’s decision among other things.
According to the amended writ, “Take Notice that this Honourable Court will be moved by counsel for the Applicant/Applicant (“Applicant”) herein for an order granting leave to: vary/modify the reliefs sought in this suit to read as follows: An order of certiorari, bringing up and quashing the decision of the Respondent dated 4th October 2017 refusing the Applicant’s request for a waiver of the payment of the 30 per cent of the disputed assessment pending the objection determination, on the grounds that the decision resulted from an improper exercise of the discretion vested in the Respondent by section 42 (6) of the Revenue Administration Act, 2016 (Act 915) and in contravention of article 296(a) and 9b) of the Constitution, 1992.”
Background
The Transfer Pricing Unit of the GRA conducted a Transfer Pricing audit of Vodafone Ghana for the 2012 – 2016 years of assessment.
But Vodafone disagreed with the GRA’s use of the Technology Transfer Regulations, 1992 (L.I. 1547) instead of the Transfer Pricing Regulations, 2012 (L.I. 2188,) in the audit exercise.
During exchanges, the GRA opposed Vodafone’s assertions by arguing that after subjecting the company’s transactions to the Technology Transfer Regulation 1992, (L.I. 1547), it established that the transactions do not meet the Arm’s Length Test.
Following several meetings to resolve the matter, the GRA asked Vodafone to submit its grievances in writing which was done through its consultants, KPMG.
But according to Vodafone, while it was waiting for a response from the GRA, it instead received an audit report with a tax assessment of GH¢162,468,361.90 from the Transfer Pricing Unit of the GRA, which demanded that the stated assessment should be paid within 14 days, something Vodafone objected to.
GH¢2.1 billion transfer
In an affidavit to the court in response to Vodafone’s writ, the GRA, among other things, pointed out that between 2012 and 2016, Vodafone Ghana remitted GH¢2.1 billion to its parent company outside Ghana.
According to the GRA, the amount is about 30 percent of the telecoms provider’s turnover, adding that the company has not paid corporate income tax for six years.
Vodafone officials however insist that they have been paying corporate income taxes in the last six years because the company hasn’t made any profit since it took over Ghana Telecoms in 2009.
