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Columnists

Biden tax opportunity for Nigeria

Nigeria should create a fiscal “Delaware” where any foreign incorporated company can open an office and pay zero taxes on imported capital, no need to be present in Nigeria.

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Biden's election is a reminder that democracy is the best form of government - Buhari

America is a nation of 50 states? No. America is a State with 50 nations.

Each of those nations has its fiscal policies and rules. Forty-five states in America charge a Sales Tax. Colorado has the lowest State Sales Tax at 2.9%, California has the highest States Sales Tax at 7.25%. The State with the highest tax burden to the taxpayer is New York which charges a total tax of 12.79%. The lowest tax burden State is Alaska.

These tax rates that differ from state to state creates opportunities for legislation to be created by US State Houses of Assemblies to target and attract businesses to their state. Take Delaware, 66.8% of all Fortune 500 companies incorporate in Delarewe. Google and Coca-Cola are incorporated in Delaware, why? First, you don’t need to be resident in Delaware to incorporate a corporation in the State. Delaware will also not impose a state tax if you do not conduct business in the state.

READ: Nigerians won’t be paying too much even if VAT increases to 7.5%

Texas Vs California

The former Governor of Texas, Rick Perry conducted many “Business Recruitment Trips” to the State of California to lure jobs to Texas. Texas State ran radio ads in California to market Texas as a business destination. Chuck DeVore of the Texas Public Policy Foundation states, “job growth has been running 80% stronger in low tax states than in high tax states since the passage of the tax cuts Act of 2017. For California, the lost opportunity adds up to 153,000 positions since December 2017.” Elon Musk and Joe Rogan have all left California and moved to Texas. Apple, the largest company in America by capitalization is building a new campus in Austin Texas.

In 2020, For the first time, California has posted a population loss.

READ: FAAC: FG did not print N60 billion to augment FAAC – Finance Minister

What about nations?

The data is not so direct when looking at nations.

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Companies make decisions based on maximizing shareholder return on equity. If taxes are higher in one nation, then the cash will flow from that nation to another. When the US passed the tax cut legislation in 2017, it eliminated the tax obligation on repatriation of foreign profits. In response, more than $1 trillion flowed from foreign subsidiaries to their US HQ. These funds flowed from low-tax nations of Bermuda, Netherlands, and Ireland, according to the Wall Street Journal.

READ: China, US confirm global recovery, capital market stocks are nearing all-time high

Biden Tax Proposal

President Biden seeks to raise taxes on American taxpayers to pay for a $3 trillion infrastructure plan. In summary, the plan will raise the corporate income tax from 21% to 28%. With a 15% corporate global tax on companies posting incomes above $100 million.

President Biden knows that when taxes are hiked, American business will simply leave the profits earned outside the tax jurisdiction of the United States, e.g., Exxon Mobil will simply leave the cash it makes from the Nigerian Qua Iboe oil fields in banks in Ireland, rather than send them to banks in the US.

Hence the plan B for Biden is a global minimum tax that will tax all companies including US companies that do business globally. The Biden administration’s plan is simple, if the global tax equals or is less than what US companies pay in Ireland, then they will simply repatriate that cash back to the US and pay a lower tax.

However there is one problem, why will Indonesia or Ireland tax ExxonMobil and lose revenues like California? They will not, thus Ireland will become the new Texas, as more American firms will site “international operations” HQ in Ireland, book profits, and accumulate cash offshore.

READ: Nigerian economy to be boosted by $5 billion investment by Qatar

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What should Nigeria do?

Nigeria should create a fiscal “Delaware” where any foreign incorporated company can open an office and pay zero taxes on imported capital, no need to be present in Nigeria. Nigeria can create and offer special $Eurobonds targeting liquidity. ExxonMobil can invest her crude oil sales JV profits with NNPC in $ denominated bonds held by Nigerian banks, shielded and excluded from all taxes and mandates from the CBN.

There will be American firms seeking to set up a manufacturing base outside the American continent (GE is already in Calabar). How about making that State a Special Economic Zone for only US business, no taxes, no import duties, no levies? What about the Yaba IT cluster? Mack Zuckerberg of Facebook and Jack Dorsey were also in Yaba, can Nigeria create an IT economic zone for services? China is far away and, in conflict with America’s geopolitical interest, Vietnam and the other Asian tigers have seen their wages rise, they are becoming uncompetitive in wage terms.

READ: Oyo State IGR increased by over 26% without increasing tax burden – Gov Makinde

Nigeria still has low wages and an English-speaking young population. This is a good time to fiscally reform. It will not be easy, Nigeria must change many rules, it must be more open, more transparent, and protective of international property rights, but this is an opportunity.

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    Columnists

    What FGN Free Meter Program means for the power sector

    Without effective penalties for erring DisCos and consumers, progress may still remain very slow.

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    Electricity, Buhari moves against Discos and agents that collect money for prepaid meters

    According to news reports, the Minister of Power, Mamman Saleh on Wednesday said the distribution of the four million free electricity prepaid meters pledged by the Central Bank of Nigeria would soon begin across the country.

    According to him, the government is wrapping up the distribution of its initial one million meters, which he labelled phase zero, and would soon begin the distribution of the four million sponsored by CBN, which he tagged phase two. He also noted that the Federal Executive Council approved N3bn for the execution of six major electricity projects in the country to upgrade Nigeria’s electricity facilities and improve power supply across the country.

    Ineffective metering remains a major drawback to the success of power sector reforms in Nigeria. While some consumers avoid paying for power consumed through meter bypass, some other consumers are made to pay for what they have not consumed through estimated billing by DisCos.

    DisCos have been largely unsuccessful with metering their customers.

    As far as inadequate metering is concerned, DisCos over time, have used this situation to their advantage via estimated billings. It appears that fully metering customers are currently being viewed as a disincentive, given that estimated bills can easily be manipulated.

    According to a report by the Nigerian Electricity Regulatory Commission (NERC), only 4,234,759 (40.27%) of the total customer population of 10,516,090 were metered as of 30 June 2020. Clearly, this validates the widely held view that there are a wide number of customers on estimated billing which gives room for illegal connection to the networks and in turn corrupt practices. NERC further revealed that only three out of 11 Electricity Distribution Companies in the country had metered more than 50% of electricity customers under their coverage areas as of June 2020.

    Effective metering in our view is one step ahead in solving the myriad of problems embattling the Nigerian power sector. Though supposed to be unpaid for, many customers in a bid to avoid the bureaucracy associated with getting meters have paid to get their own meters. We believe the provision of meters to all end-use customers will go a long way in ameliorating the liquidity squeeze in the power sector whilst also providing cashflow to the DisCos for investment in equipment needed to evacuate unused electricity to consumers nationwide.

    We laud the FG’s efforts at distributing meters freely to end-users, but we note that without effective penalties for erring DisCos and consumers, progress may still remain very slow.

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    CSL Stockbrokers Limited, Lagos (CSLS) is a wholly owned subsidiary of FCMB Group Plc and is regulated by the Securities and Exchange Commission, Nigeria. CSLS is a member of the Nigerian Stock Exchange.

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    Columnists

    Tasks before the AfCFTA dispute settlement body

    The success of the AfCFTA will depend largely on the willingness of the member states to adhere to the agreement.

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    The Dispute Settlement Body (DSB) of the African Continental Free Trade Area (AfCFTA) held its inaugural meeting on 26 April 2021 at the AfCFTA Secretariat in Accra Ghana. The DSB is composed of the representatives of the State Parties and shall have the power to establish Dispute Settlement Panels and an Appellate Body responsible for settlement of disputes between the member States.

    The mandate of the DSB also extends to adopting the reports of the Panels and Appeal Body as well as monitoring and ensuring the implementation of the ensuing decisions. In carrying out its mandates, the DSB will work with the AfCFTA Secretariat while maintaining its independence in the area of dispute settlement.

    The inaugural meeting signals the readiness of the AfCFTA dispute settlement infrastructure to take up any disputes that may arise in the course of trading amongst the member States. Disputes are inevitable in any free trade area and when any such disputes arise under the AfCFTA, the resolution is to be in line with the Protocol on Rules and Procedures on the Settlement of Disputes which forms part of Phase I Negotiation.

    Recognizing its importance to the success of the trade deal itself, the Protocol proclaims that “the dispute settlement mechanism of the AfCFTA is a central element in providing security and predictability of the system” and “shall preserve the rights and obligations of State Parties under the Agreement and clarify the existing provisions of the Agreement in accordance with customary rules of interpretation of public international law.”

    Though inspired by the World Trade Organization (WTO)’s dispute settlement architecture, the AfCFTA framework is meant to address some of the lapses in the WTO. In an exclusive opinion piece for “The Africa Report”, Mr Wamkele Mene, Secretary-General of the AfCFTA, explained how the AfCFTA will work in order to avoid the pitfalls of other trading blocs. As noted in the report:

    The WTO’s tribunal of final instance for global trade disputes, the Appellate Body, has been reduced to irrelevance over disagreements on its composition. The paralysis of both the WTO’s negotiating and dispute settlement arms means that trade disputes between China and the United States, two of the WTO’s largest members, have flared into open hostility.”

    Drawing from the WTO experience, the African States in negotiating the free trade treaty cherry-picked the aspects of the WTO’s dispute settlement system that have worked and jettisoned the problematic parts.

    At the Virtual Press Conference held on 04 May 2021 to update the public on the status of the implementation of the AfCFTA and the progress made so far, the AfCFTA Secretary-General re-echoed the importance of the dispute settlement mechanism to the success of the AfCFTA while answering questions from journalists across Africa. Commenting on the milestone achievement recorded with the inaugural meeting of the DSB, he noted that:

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    “The dispute settlement is really the mechanism and is at the heart of the African Continental Free Trade Area. And it is at the heart of what we mean by a rule-based trading system. And at the heart of what we mean by market certainty and predictability. For the first time on the African continent, there is a dispute settlement body that will have oversight over all the disputes that arise under the agreement whether there are investments related, trade in goods, trade in services, market access related disputes. This body will have oversight over all of that.”

    All eyes are now on the AfCFTA DSB as it shoulders the task of ensuring that disputes between member States are resolved in an efficient, transparent, fair and impartial manner. The starting point is to ensure that persons appointed to be members of the Dispute Settlement Panels and Appellate Body have the expertise and experience in the subject matter of the dispute and are chosen strictly on the basis of objectivity.

    There is an even more important corresponding duty on the State Parties when nominating persons to be included on the indicative list or roster of individuals to serve as Panelists to ensure that nomination is based on merit and proven expertise on the subject matter. The member States should eschew any nepotistic or tribal considerations in nominating State representatives. The Nigerian government should resist the temptation to premise its nominations on Federal Character or other ethnic or religious considerations as we’ve seen in recent appointments.

    Recent events such as the reported discriminatory measures against Nigerian traders in Ghana, the closure of the Nigerian border with Benin Republic, the Xenophobic attacks in South Africa on African businesses and the retaliatory attack on South African-owned businesses present examples of the kind of disputes that may come up before the AfCFTA DSB assuming that similar issues arise in the future. Others may include disputes over conflicting public policies, tariffs and non-tariff barriers, rules of origin, dumping, regulatory excessiveness, standardization, trans-shipment, taxation, market access, and consumer protection etc.

    The AfCFTA dispute settlement mechanism is restricted to State-to-State disputes. The treaty is silent on the mechanism for the resolution of disputes between private individuals. Notwithstanding this limitation, the private sector participants such as the SMEs and other business entities will be able to petition their governments to implement the rights and obligations set out in the agreement establishing the AfCFTA. That way, the rights of the private sector can be enforced using the State instrument.

    For instance, in a situation where citizens of a member State are being subjected to discriminatory measures in another AfCFTA member country, the affected country may decide to refer the case to the DSB on behalf of its citizens, after exhausting the amicable settlement options such as Good Offices, Consultations, Conciliation and Mediation. It is not yet clear what yardstick will guide such referrals or to what extent such anti-free-trade measures will impact on the citizens of the member state before it decides to challenge the infractions at the DSB. Whatever the case, where a member state fails to protect the rights of its citizens, the affected traders may seek other legal remedies available under the national laws or within any bilateral and multilateral instruments applicable to the disputes.

    In relation to investment disputes, the ongoing negotiation of the AfCFTA Protocol on Investment is meant to clarify the uncertainty around the framework for resolving investor-state disputes. The member states in choosing to resolve their disputes within the AfCFTA framework should be aware of the fork-in-road provision under article 3(4) of the Protocol, which precludes a State Party who has invoked the dispute settlement procedure under the Protocol with regards to a specific matter from invoking another forum for dispute settlement on the same matter.  Another area of interest is the enforcement of decisions reached under the AfCFTA dispute settlement process.

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    The effectiveness of a dispute resolution mechanism is often measured with the 3 E’s which are efficiency, expertise, and enforceability. Challenges will likely arise in relation to compliance with decisions under the AfCFTA as we have seen under the WTO and other regional trade treaties.  It is hoped that the desire to enhance investors’ confidence and the spirit of amity will spur the AfCFTA members to comply with decisions made by the dispute settlement bodies. In the end, the success of the AfCFTA will depend largely on the willingness of the member states to adhere to the agreement and to eschew any form of self-help when they perceive any breach of the trade deal.

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