By Kathleen Brophy, Oxfam America, and Eneya Maseko Oxfam in Zambia
This post originally appeared on politicsofpoverty.oxfamamerica.org on September 29, 2017
How detecting and deterring “transfer mispricing” in Zambia’s billion dollar mining sector can boost government coffers in a time of fiscal crisis.
Corporate tax dodging is not a victimless act. When corporations employ aggressive means to avoid paying tax in developing countries, citizens inevitably foot the bill. Corporate tax avoidance deprives governments of desperately needed tax income for the provision of public goods and services forcing governments to choose between cutting public services or collecting additional tax from citizens. So, while companies report eight and nine figure profits, citizens face eroding hospitals and schools and struggle to pay higher prices for basic goods. However, when companies do this while in the process of extracting a high value, exhaustible commodity from beneath citizens’ feet, the offense is all the more egregious.
According to the Mbeki High Level Panel on Illicit Financial Flows, multinational tax avoidance in the oil and mining sectors across Africa is rampant. In countries like Zambia, where extractive industries contribute a significant portion of the country’s overall revenues, preventing aggressive tax avoidance is all the more critical for reducing inequality. This is especially true now in the context of Zambia’s fiscal crisis as the country turns to the IMF and capital markets for fiscal support.
According to a report by the Natural Resource Governance Institute, the mining sector in Zambia accounts for nearly 80 percent of all exports, contributes 12 percent of the country’s GDP and 30 percent of its tax revenue. Despite such positive statistics, ample evidence suggests that the Zambian government also loses a significant amount of mining sector revenue due to tax avoidance by multinational companies operating there as well as lax government regulations and enforcement. It doesn’t have to be this way. Governments are not powerless and can enact strong regulations to help prevent corporate tax avoidance. The situation in Zambia shows how relatively concrete actions taken by government could make a big difference.
Reforms necessary to address avoidance
One central tax avoidance tactic used in the Zambian context is transfer mispricing. Transfer mispricing involves the manipulation of prices used in a sale between two associated companies that serves to artificially shift profits out of a given country to reduce taxes owed. For instance, a subsidiary of a multinational mining company operating in Zambia could sell copper to an affiliated company in Switzerland at an artificially low price in order to minimize its income tax liability in Zambia and transfer the income to Switzerland, thus misrepresenting the true value of the minerals sold and depriving the Zambian government of tax revenue due.
The central challenge for regulators, tax authorities, and oversight institutions is to determine whether transfer mispricing has, in fact, occurred. The example above illustrates one basic challenge for regulators: to determine whether the price at which the mineral or another good was sold or a service rendered between related corporate entities was done at a fair market price.
In order to do this, tax authorities must be able to assess the validity of the transactions by comparing a transaction between two associated entities with other similar market transactions. For tax authority officials in Zambia to undertake this type of comparable analysis, tax authorities and oversight bodies must have the necessary information regarding all controlled transactions between Zambian-based mining companies and their associated entities. Without this basic information, the Zambia Revenue Authority is unable to monitor risky transactions and identify potential transfer mispricing.
Governments around the world commonly require transfer pricing documentation from companies so they must maintain, if not regularly submit, timely and accurate information about their related party transactions. However, there is currently no legal requirement in Zambia for the maintenance of transfer pricing documentation. This oversight is a significant obstacle to tackling transfer mispricing since government officials do not have the basic information they need to monitor and evaluate related party transactions.
Furthermore, Zambia’s Income Tax Act, which could be used to regulate transfer pricing losses, currently mandates that mineral prices used in transactions between related entities be based on a reference price from an international exchange market. Unfortunately, the law also allows companies to make adjustments to the price used in transactions to account for specific details that may affect the price downward, such as ore quality. While this is a reasonable allowance, it does pose risk for abuse. This allowance increases the regulatory burden for the government, as it must also be able to evaluate the complex mineral valuation formulas used by companies to underpin the prices used in transactions.
In order to verify the valuation used by companies, the Government of Zambia must independently assess mineral quality. Mineral valuation responsibilities, including the monitoring of mineral exports, are shared between the Ministry of Mines and the Zambia Revenue Authority, along with other agencies all part of an initiative called the Mineral Value Chain Monitoring Project. While agencies are coordinating their work through the initiative, the protocol for mineral valuation procedures between agencies and the agency with ultimate jurisdiction over the matter is still unclear.
Progress made while key gaps remain
Recognizing these challenges and the need to increase revenue collection from the mining sector, the Government of Zambia has recently expanded efforts to improve mining oversight and prevent transfer mispricing. For instance, the government revised the Income Tax Act, strengthening Section 97 which sets out general transfer pricing guidelines and establishes the use of the arms-length standard as the basis for pricing all transactions between associated entities.
Such efforts are in line with ongoing efforts by Oxfam Zambia and partners including the Zambia Tax Platform to strengthen revenue generation, tax policy and payment transparency in the country’s mining industry.
Oxfam welcomes the efforts of the Zambian government to protect the mining tax base by improving its legal and regulatory capacity to address transfer mispricing in the mining sector. Additionally, the government of Zambia must build on its existing practice, and require transfer pricing documentation in the forthcoming regulations (“statutory instruments”) to the Income Tax Act. The regulations for the Income Tax Act should also include clear protocols for coordination between government agencies for the independent valuation of minerals.
While the regulations have stalled for some time, it is important that they are passed without further delay so as to provide a strong basis for regulating transfer pricing in Zambia’s mining sector.
With these changes, Zambia will have a better chance of capturing much needed tax revenue from corporate tax payers, preventing the need to make regressive policy choices that hurt Zambians.
This post was co-authored by Kathleen Brophy, Program Officer for Accountable Development Finance at Oxfam America, and Eneya Maseko, Program Coordinator for Extractive Industries for Oxfam in Zambia.
Tomorrow has arrived. Canadian-listed mining, oil and gas companies operate in more than 100 countries around the world – including some of Africa’s poorest countries. After years of calling on the Canadian government to require companies like these to disclose payments to foreign governments, ONE members and ONE partner organizations like Publish What You Pay Canada finally have what they have been asking for: data.
Thanks to a Canadian law that came into force in 2015, these companies are now required to report – for the first time ever – their contributions to governments. Data like this can empower citizens in some of the poorest countries to hold their governments accountable for how that money gets used and to help identify and curb corruption.
Payments to Libya, Zambia, Senegal & Nigeria
The data released so far shows large payments made to at least 18 African governments. Here are a few examples:
First Quantum Minerals, a Canadian metal mining company, reports that it paid $293 million to the Zambian government in 2016, an amount roughly equivalent to one-fifth of Zambia’s 2017 education budget. These payments were mostly royalties and taxes for the Kansanshi project, the largest copper mine in Africa.
In 2016, First Quantum Minerals’ Kansanshi project, the largest copper mine in Africa, generated $293 million, mostly in royalties and taxes, for the Zambian government. This amount is amount roughly equivalent to one-fifth of Zambia’s 2017 education budget.
Suncor Energy, a large Canadian energy company, paid $29 million in taxes and royalties to Libya’s National Oil Corporation in 2016 for the exploration of oil fields in Libya. $29 million is a sizeable sum for a country struggling to recover from a civil war and address an ongoing ISIS insurgency.
Teranga Gold Corporation is the Canadian gold mining company that owns and operates the only large-scale gold mine in Senegal. It reports that it paid $71 million to the Senegalese government in 2016, which is equal to nearly a fifth of the budget for Senegal’s Ministry of Health.
Canada’s Teranga Gold Corporation owns and operates the only large-scale gold mine in Senegal. Its 2016 payment to the Senegalese government is equal to nearly a fifth of the budget for Senegal’s Ministry of Health.
CNOOC Limited, the Chinese state-owned oil company, owners of the Canadian oil and gas company Nexen, paid $109 million in 2016 to the government of Nigeria. $109 million is almost half of Nigeria’s 2017 capital budget for the Federal Ministry of Education.
Follow the money
Data like this gives valuable clues to citizens of recipient countries and can help them to follow the money. For instance, the First Quantum Minerals data shows that the company paid $376,000 to benefit national parks, wildlife and schools in Zambia. Someone in Zambia can now dig deeper: Which national park agencies, wildlife groups and schools? What has the money been used for? Locals can hold decision makers to account for how the money was actually spent by getting answers to questions like these. The data also highlights the value of detailed, project-level payment information, which provides citizens with highly useful data for tracking revenue streams.
But this is just the beginning! If every country in the world followed Canada’s lead and required companies to publish this data, citizens would have a complete picture of how their country’s natural resources were being sold. Citizens of Zambia could demand that money from their country’s copper goes towards things like education, health, infrastructure and ending poverty, so that all citizens benefit from their country’s natural resource wealth. At ONE, we’re working with partners around the world to make that a reality.
By making this data public, the Canadian government has taken a critically important leadership role to help enable people to hold their governments to account. But the Canadian government could make the data easier to use by requiring companies to publish the information as “open data”. In data-speak, that means in an open, machine-readable format; for example, as a CSV file that can be opened in Excel instead of a PDF. Some governments like the U.K. already require that data be provided in machine-readable formats. Although PDF is a more common format, open data formats like CSV would allow people to more easily analyze and identify the payments that flowed to their government.
Luckily, a number of companies (i.e. Potash Corporation and Mosaic) have already gone above and beyond by voluntarily publishing their data in an open data format, demonstrating that doing so isn’t a heavy lift for companies.
Transparency is the backbone of a just and well-governed society. The disclosure of new data on payments to governments in the mining, oil and gas sectors will provide citizens with previously unthinkable opportunities to ask their governments important questions about how these payments get used.
You can explore the data at the Canadian Extractive Sector Transparency Measures Act website. All figures are converted to Canadian Dollars.
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