Can government of Ghana implement proposed mining taxes?
Ghana’s 2012 national budget statement and economic policy proposes to reintroduce the following fiscal initiatives into the mining sector: increase corporate tax rate from 25% to 35%; install a windfall tax of 10%; and implement a uniform regime for capital allowance of 20% for five years.
The budget also seeks to review the principle of ring-fencing to prevent companies from tax evasion. Civil Society Organizations such as the National Coalition on Mining and the Ghana Mineworkers Union commended the government for the initiatives and called for additional measures to improve the contribution of the sector to the economy of Ghana.
Many Ghanaians, at home and abroad, have also expressed appreciation to the authorities for these measures which are long overdue and called on them to ensure their successful implementation.
Their relevance for socio-economic development is obvious. However, as a country, we have an experience in making laws that are never implemented and the mining sector is a typical case in point where laws made to regulate the sector are not applied (take for example the Additional Profit Tax Law, 1985 (PNDC Law 122) that was never applied until 2006 when it was repelled).
The successful implementation of the taxes and reforms depends on a number of factors. Among these factors are; a) the oversight responsibility by parliament, b) the quality of implementing institutions, and c) political will on the part of the executive to roll back pressures and threats from mining companies.
Oversight Responsibility by Parliament
The implementation of these taxes starts with the development of regulations by the relevant government ministry. These regulations provide the legal framework for collection of the new taxes.
Unless regulations are developed, the taxes can never be implemented. While the budget was approved a little over a month after it was presented to parliament, draft regulations are yet to be tabled before parliament for passage into legal instruments backing implementation of the new taxes.
It is understood that the approval of such regulations does not guarantee successful implementation of the new taxes. As part of its oversight responsibility, parliament should be raising questions about the delay in presenting draft regulations for the new taxes.
The apparent silence of parliament does not show commitment towards the timely and actual implementation of the new taxes. There is reason for concern of the long silence of parliament.
The oversight responsibility of parliament includes the ratification of all mining contracts and mining leases. Government awarded 21 mining leases to various mining companies operating in Ghana between 1994 and 2007. It was not until 2008 that Parliament did a retroactive ratification.
Quality of Implementing Institutions
Also, institutional quality is an important determinant of the optimum collection of the new taxes. The regulations may be passed by parliament but it takes efficient, effective and disciplined revenue collection agencies to block leakages and optimize collection of the new taxes.
In Ghana, Customs, Exercise and Preventive Service (CEPS) and the Large Taxpayers Unit (LTU) of the Internal Revenue Service are critical in the optimal collection of the new taxes. However, experience of the performance of these critical agencies leave serious doubt about the optimum collection of the new taxes.
A research report published by the World Bank (Ayee et al., 2011) revealed substantial weaknesses and prevalence of corruption at CEPS and LTU that undermine verification of volumes of gold and collection of accurate taxes. According to the report, CEPS officials who were assigned to the bullion room of some mining companies to verify production and shipment figures chose to stay outside of the rooms, instead of being inside.
This allowed the mining companies a field day to handle figures to their advantage, resulting in possible under declaration and payment of tax revenue to government. The report also cited some CEPS officers who had stayed at particular mines for over nine years.
With respect to LTU, the report argued that it lacks the capacity to authenticate market prices, operating costs of mining companies, and cash flows, which forms the basis for the assessment of profits tax.
Consequently, the unit is unable to correctly assess the tax liability of mining companies leading to the acceptance of figures provided by the company without any critical examination. These major institutional weakness and prevalence of corruption are most likely to derail the optimum collection of the new taxes.
Lack of Political Will
The executive, as per Ghana’s governance structure, has a direct control over the ministries responsible for developing the regulations and collection of taxes. The fact that regulations have not been tabled in parliament is signal to inadequate commitment on the part of the executive to push through the new taxes at times they are needed most.
The mining industry is already putting pressure to roll back these new taxes. The Chamber of Mines reported that the new taxes would hurt mining companies and AngloGold Ashanti followed up with a threat to stop production of some mines due to increased overhead cost resulting from the new taxes.
The attitude of government gives reasons to believe that it will yield to such pressures from the industry. In 2010, similar proposals were made but were not implemented.
The Minerals Commission is also noted for not doing enough in ensuring that mining companies conduct themselves well and pay optimum taxes. The commission promotes and regulates mining companies including ensuring compliance with safety and environmental standards.
However, the commissions promotional role appears to overshadow its regulatory functions. This is illustrated by its rapid defence to mining companies over allegations of bad conducts. Few months ago, the Centre for Environmental Impact Analysis, a member of the National Coalition on Mining (NCOM), published a health assessment report that indicated that residents in mining communities in Western Region had traces of cancer in their blood and were likely to be hit by cancer in their lifetime.
Rather than investigating claims of the report, the Minerals Commission was the first to publicly refute findings of the report. Clearly, this rapid response was in defence of mining companies. Accordingly, the Commission is unlikely to ensure compliance with the new taxes since they will hurt the mining companies.
Conclusion
On the basis of the forgoing and the need to improve upon the benefits of mining to the national economy, citizens, civil society and the media are called upon to be vigilant and demand for implementation of the new taxes and the proposed reforms.
The country is preparing for elections come December 2012 and it is imperative to bring these important developmental issues to the fore. We must hold these agencies to account to citizens in order to effect a change away from the current poor balance sheet of mining towards more developmental mining regimes.
The Africa Mining Vision adopted by the African Union and the reform initiatives at the Regional Economic Communities (RECs) provide concrete foundations for national level processes towards more developmental mining regimes.
By Alhassan Atta-Quayson
Source: NCOM Newsletter Volume 1.2