In a dramatic turn of events, even before the court begins hearing on the substantive case Vodafone Ghana has brought against the Ghana Revenue Authority (GRA) in the transfer pricing tax assessment dispute, Vodafone has amended the original writ before the court.
Vodafone Ghana 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, according to the writ obtained by ghanabusinessnews.com. The GRA has asked Vodafone to pay 30 per cent of the stated assessment while negotiations continue, which is what the law says, but Vodafone says it won’t pay and has requested a waiver from the Commissioner-General. The Commissioner-General has refused to grant the waiver, but Vodafone in its amended writ is contesting the Commissioner-General’s decision among others.
Vodafone is arguing that in July 2017, the Transfer Pricing Unit of the GRA conducted a Transfer Pricing audit of the company 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, the court document shows.
During exchanges, the GRA counteracted 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. That was done through its consultants, KPMG, the document states.
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. Vodafone however, objected to the demand.
In an affidavit to the court in response to Vodafone’s writ, the GRA among others pointed out that between 2012 and 2016, Vodafone Ghana has remitted GH¢2.1 billion to its parent company outside Ghana. The amount, the tax authorities say is about 30 per cent of the telecoms provider’s turnover, adding that the company has not paid corporate income tax for six years. A fact that Vodafone officials have admitted arguing that it is because the company hasn’t made any profit since it took over Ghana Telecoms in 2009.
The amended writ filed by Vodafone states: “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.
The GRA has however responded in an affidavit to the court asking the court to dismiss the application with costs for reasons including that the applicant’s request in terms of paragraph 1 of its Motion paper offends and is prohibited by the rules governing amendments.
The case has been adjourned to February 6, 2018.
By Emmanuel K. Dogbevi & Solomon Otu Mensah
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