Weeks after the Nigerian authorities discovered that telecom giant MTN had skipped paying $2 billion in tax relating to import duties, VAT and withholding taxes on foreign imports/payments, new tranches of transfer are yet discovered to have been made by MTN to companies in Dubai and Mauritius using sophisticated tax avoidance schemes.
MTN has consistently prided itself as the foremost telephone company that gets Nigerians talking the most. Now the South African company is about to set tongues wagging across networks with revelations that it has routinely been shipping billions of naira overseas to avoid paying its fair share of tax in Nigeria.
An 11-month- investigation by this reporter in collaboration with UK-based Finance Uncovered reveals that MTN has been running circles around Nigerian revenue authorities using a complex but noxious tax avoidance scheme called Transfer Pricing. For any economy, it is a slow death.
The red flag was raised the moment our investigations showed that MTN Nigeria has been making payments to two overseas companies – MTN Dubai and MTN International in Mauritius – both located in tax havens.
It was discovered that in 2013 for example, MTN set aside N11.398 billion from MTN Nigeria to pay to MTN Dubai. A similar transfer of N11.789 billion was made by MTN Ghana to the same MTN Dubai, making it a total of N23.187 billion that was shipped to the Dubai offshore account.
In a rare disclosure in 2013, MTN admitted it made unauthorized payments of N37.6 billion to MTN Dubai between 2010 and 2013. The transfers were then “on-paid” to Mauritius, a shell company with zero number of staff and which physical presence in the capital Port Louis is nothing more than a post office letter box.
The disclosure amounted to a confession given that MTN made the dodgy transfers without seeking approval from the National Office for Technology Acquisition and Promotion (NOTAP), the body mandated to oversight such transfers.
N90.2 billion transferred out of Nigeria
On the basis of an earlier management fees agreement that was technically quashed by NOTAP and on the basis of MTN’s reported revenues, it is estimated that N90.2 billion could have been transferred out of Nigeria in management fees alone since the company was founded in 2002.
A menace called Transfer Pricing
For corporate organizations determined to escape the taxman but still cleverly staying on the right side of the law, Transfer Pricing is the new cellar door constructed by the most ingenious of accountants. It is a new global disease to which Third World economies are the most vulnerable.
Multinationals employ Transfer Pricing to move their profits offshore, leaving behind a shrinking tax base in their host countries and inexorable cuts to public services.
In Africa, tax avoidance has been named as one of the factors holding the continent back by starving governments of the revenues it needs for development.
A report jointly commissioned by the United Nations and the African Union and drafted by a high-level panel led by former South African president Thabo Mbeki considered tax avoidance by multinationals to be an “illicit financial flow” and a significant drain on government resources across the continent.
In total, illicit financial flows -which included corruption and the proceeds of crime – were determined to be costing the continent $50billion a year.
Just last year, South Africa’s deputy president Cyril Ramaphosa had harsh words for tax dodgers. He said: “Tax evasion is not only a crime against the state; it’s also a crime against the people of our country, ordinary people.”
Curiously, the same Cyril Rhamaposa was non-executive chairman of the board of MTN between 2001 and 2013 before he became South Africa’s No.2 man. In effect, the same tax practices which the deputy president strongly condemned in his country as financial crime is vigorously being promoted in Nigeria.
MTN is the largest cell phone company in Africa with 227.5 million subscribers. The company, which operates in more than 20 countries across Africa and the Middle East, has Nigeria as its biggest operation.
Until now, tax justice investigations had focused on computer giants, corporations in the extractive industry, food and beverages; in fact, everywhere but the mobile phone sector despite the cell phone industry in Africa being one of the largest and most important industries for the continent.
Mobile phone has been a cheap and quick way of rolling out the vital communications infrastructure that has underpinned Africa’s growth story over the last decade. As a result, the industry has seen explosive growth. With 685million mobile phone users in Africa, the success story means that cell phone companies are now the largest contributor to government revenues in many African countries. That is if they pay their fair share of taxes.
Artificial operating costs
To pay little or no tax, companies determined to cheat begin by seeking ways to create artificial operating costs in the country where they operate. For example, a company is in Nigeria but has a parent or subsidiary company in another country. It makes huge profit but decides to declare a much lower profit-before-tax. To achieve this, it pays the parent and/ or subsidiary company for services not rendered and ships cash to them. Where services are rendered, the costs are inflated. Such services may include royalty for the use of brand name, procurement services, technical services and management services.
Typically, the recipient company is located in an offshore territory under a different financial jurisdiction. MTN has a substantial network of subsidiaries in offshore tax havens, including the British Virgin Islands, Dubai and Mauritius.
Because of the growing concerns that multinationals are using intra-company trading to shift profits around the world by overcharging for services delivered or in more extreme cases by creating artificial transactions where no services were rendered at all, respective countries have a maximum percentage of profits it can allow companies to pay out as management fees.
For example, in Senegal, accounts from the company Sonatel show that the company has a ‘cooperation agreement’ with parent company France Telecom that is capped at 1.43% of revenue.
Until 2010 MTN Nigeria had an agreement with MTN Dubai to pay 1.75% of revenues to the company for management, and royalties for the use of the MTN trademark. Nigeria requires that management fees paid by multinationals are approved by the National Office for Technology Acquisition and Promotion (NOTAP). The fee payments had been reversed following a failure to come to a new agreement on management fees with Nigerian regulators.
MTN’s previous agreement with NOTAP expired in 2010.
Notwithstanding, MTN has continued to make payments overseas. When these journalists sent questions to MTN over these unauthorized payments, the company told us that this was because they expected NOTAP to approve a new deal and backdate it to the date of the expiry of the previous deal.
MTN’s financial activities are now being questioned by more than one tax authorizes in Africa.
In Ghana the MTN subsidiary, Scancom, has been paying vast management fees to companies located offshore. Our investigations reveal that Scancom paid 758m GHS in management and technical fees to MTN Dubai between 2008 and 2013. This was 9.64% of the company’s revenue. Normally the maximum fee level allowed in Ghana is 6%.
We can reveal that the high levels of fees attracted the attention of Ghana’s intelligence services, which launched an investigation into “economic fraud” between 2012 and 2013.
MTN’s management fees need approval from the Ghana Investment Promotion Centre (GIPC). The Ghanaian “National Security Taskforce” has called for a “review of all technology transfer and management service agreements currently held by GIPC to remove sections which are inapplicable and wrongly provided for” and upgrading and training of state systems and staff.
In response to this, MTN in Ghana told us: “The technical and management services agreements between Scancom and Investcom were duly approved by the GIPC.”
The current head of the GIPC is Mrs. Mawuena Trebarh, who between 2007 and 2012 was responsible for government relations at MTN Ghana. This reporting team asked Mrs Trebarh to comment on whether her previous role could be perceived a conflict of interest. She did not respond to our requests.
In response to our enquiries MTN confirmed that the company paid 12 billion West African Francs in 2012 and 14 billion West African Francs in 2013 in management fees to MTN International. The figure for 2013 is equivalent to 5% of the revenue made by MTN in Cote d’Ivoire.
Dubai is one of the places MTN ships huge profits to. Meanwhile, MTN does not operate any mobile phones in Dubai, yet it has significant operations in the small city state.
MTN told us that it employs around 115 people in Dubai who provides services to the MTN group such as group procurement, group finance, legal services, human resources and other corporate functions.
One tool that campaigners have said will be helpful is to look at company reporting on a country by country basis. If a company is making huge revenues in a country where it has few employees but there is a low tax rate, which would suggest that there may be some profit shifting taking place.
In Uganda, a dispute between the Uganda Revenue Authority and MTN has revealed that the company is paying 3% of its turnover in management fees to MTN International.
The fees have been challenged by the Uganda Revenue Authority (URA) who issued MTN with a “notice of assessment” in 2011. This was for a number of tax issues between 2003 and 2009, but a large portion was to do with a dispute over management fees, most of which had been paid to Mauritius.
Correspondence between the URA and MTN seen by us show that the URA questioned the legitimacy of these fees, and pointed out that MTNI, the company providing “management services” to MTN Uganda had not spent any money in the years they had looked into. The URA said this could only mean two things: that management services provided to MTN Uganda had either already been paid for by MTN Uganda (and so MTN was in effect charging twice for the same thing) or they were never provided at all.
The Ugandan authority told the company: “We have repeatedly asked for evidence of specific work performed by MTN Group for MTN Uganda for each of the tax years 2003 to 2009. We have only been provided with very little information relating to 2009 and the latter years. This information is very far from justifying a payment of 3 per cent of MTN Uganda’s turnover as management fees.”
NOTAP keeps mum
Asked to confirm the amount of fees paid out to MTN Dubai and Mauritius based on the company’s reported revenue between 2002 and today, MTN said: “There is no disclosure obligation for this information in South Africa or Nigeria.”
Asked to explain the possible justification for MTN Nigeria to pay fees for management and technical services to a company with no employees, MTN said: “It is the contracting party’s prerogative as to how it elects to discharge its contractual obligations.”
Meaning is that MTN Mauritius can perform its task without a single staff member.
This reporter made sustained efforts to get NOTAP and the Federal Inland Revenue Service (FIRS) to comment on the MTN practices in Nigeria.
The Director in charge of Technology Transfer and Agreement, Ephraim Okejiri, initially pleaded that he was in a meeting, and that the reporter should wait. But after over four hours of waiting, he sent a secretary to say he would not be able to give any information on MTN.
Similarly, at Nigeria’s tax agency, the Federal Inland Revenue Service, the Director of Public Communications, Emmanuel Obeta, who had earlier promised on three occasion to make information available on the matter suddenly had a change of mind. He claimed relevant officials who should provide him with the information sought were all not available.
Emmanuel Mayah first published this investigation in October 2015
Shipping fraud: 17 companies import Rolls Royce, 553 bullet-proof vehicles into Nigeria using only one Form M
Large scale fraud in the Nigeria Customs Service has taken a turn for the worse as a total of 17 companies are discovered to have imported millions of dollars’ worth of luxury vehicles, many of them armoured, into the country using just one Form M.
SATELLITE TIMES has been following the paper trail of high flier importers since last year when the Senate’s Joint Committee on Customs, Excise and Tariff raised the alarm on the activities of people it described as “Port Cabal” which it said had “swindled Nigeria of over 30 trillion naira in recent years”.
Documents gathered by SATELLITE TIMES show that between 2017 and May 2018, a total of 554 luxury vehicles were imported by the 17 companies using the same Form M No: MF 20170010026. The luxury cars included one Rolls Royce, 84 Toyota Landcruiser, 41 Toyota Fortuner, 123 Toyota Prado, 46 Lexus 570/460, 140 Toyota Hilux, 32 Toyota Camry, 21 Toyota Coaster, 43 Toyota Hiace, 21 Mitsbushi Pajero and 2 Range Rover. The vehicles, targeted at high-end market, are 2017 and 2018 models; most of them armoured.
In looking into the activities of the Customs, financial leakages and malpractices in the nation’s ports and revenue system, the Senate Joint Committee had in 2017 said: “a group of unpatriotic persons brazenly constitute themselves into a cabal to inflict infractions at the nation’s sea ports.”
The Committee had added that the infractions had become daily occurrence just as it accused commercial banks, shipping companies, terminal owners and operators of colluding with officials of Nigeria Customs Service and Nigerian Ports Authority (NPA) to defraud the country in trillions of naira and inversely constitute a clear and present security threat to our nation.”
Investigations revealed that infractions at the seaports and airport cargo terminals come in various forms including Form M racketeering, the abuse and violation of foreign exchange issued by the Central Bank of Nigeria (CBN), incorrect classification and under valuation of consignments coming into the country.
What is Form M?
Form M is the most important item in the documentation process put in place by the Federal Government of Nigeria through the Central Bank of Nigeria (CBN) and the Nigeria Customs Service (NCS), to monitor goods imported into the country as well as to enable collection of import duties where applicable.
Any person intending to import physical goods into Nigeria must initiate the importation by processing a Form M through an authorised dealer (licensed bank). Alongside the Form M, a host of other documentation will be presented to the bank. Where approved, the Form M serves as authority to the bank to open letters of credit for foreign exchange transactions on behalf of the importer.
This form has a unique number which must be quoted/written on all the shipping documents; although there are exemptions such as Diplomatic cargos (of reasonable quantity), personal effects, goods shipped in by government agencies or goods shipped into Free Trade Zones in Nigeria such as the Calabar Free Trade Zone (CFTZ).
Form M is the first official document needed to initiate shipment to Nigeria. The life span of a Form M is 6 months (for general merchandise) and one year (for plant and machinery), after which an extension of 6 months (for general merchandise) and one year (for plant and machinery).
A Form M is usually issued for a particular supply contract (between the oversea manufacturer and the Nigerian importer) and allows for part shipments within the validity period. For large project such as stadium construction, a Bulk Form M can be issued, which allows continuous part shipments throughout the validity of the Form M.
Form M is a form of licence. Approval of a Form M depends, among other things, on the forex okayed for the importer by the CBN for a particular import. To obtain Form M, the importer must present his Tax Identification Number (TIN). In fact, the TIN is nowkey-username to log into the electronic platform to process this all-important document. Form M is not transferable from one importer to another. And a Form M approved for the import of a particular item cannot be used even by the same importer to bring in a different item.
The 17 companies
The 17 companies that managed to beat the system, cloning and utilizing Form M No: MF 20170010026 to bring in their different consignments, instead of obtaining 17 different Form M with 17 different tax identification numbers are:
1.Sengenmenge Nig. Ltd
2. Marko Nig. Ltd
3. Brasslet Nig. Ltd
4. Offor & Son Nig. Ltd
5. Lext Vin Nig. Ltd
6. Modul Oil & Gas Limited.
7. Supulus Nig. Limited
8. Zeb Holdings Limited
9. Amaju & Son Limited
10. Vintage Nig. Limited
11. Joneble Holding & Sons Limited
12. Kaslak Nig. Limited
13. Handhoast Limited
14. Ruffo Nig. Limited
15. Auto Creation E-Hub Limited
16. Sonnex Nig. Limited
17. Emy Cargo and Shipping Services.
Speaking on the issue of the Form M, Mr. Ojerinde Solomon, an importer at PTML container terminal said he had serious doubt if a Form M is transferable to another importer or consignments “because each consigned goods has its own Form M.”
Anti-corruption campaigner, Olalekan Akande, expressed his shock to SATELLITE TIMES that the systems of the Nigeria Customs Service did not detect the cloned Form M.
“There are many things involved here. Is it that the 16 companies do not have tax identification numbers to process their own Form M or is it that they were unable to get forex allocations locally to import and then resorted to using their funds in overseas to bring in goods but do not know how to explain their sources of the forex to CBN to get approval for Form M? We might be dealing with a case of money laundering here,” Akande intoned.
Under the Forex Restriction Guidelines, any importer that intends to finance imports using funds from overseas is required to submit a written confirmation from the authorised dealer on the source of funds, and evidence of the source of funds, before a Form M can be issued. This is to check money laundering and terrorism financing.
(to be continued)
EXCLUSIVE: South African President, UK and UAE lobbyists fought hard to stop MTN’s $8 billion sanction
– MTN’s dealings was tagged a national security issue
– Department of State Security (DSS) requested to step in
Weeks before the CBN sledgehammer finally hit the South African telecom company MTN over fraudulent repatriation of $14 billion from the Nigerian economy, several ultra-powerful lobbyists were recruited from within and outside Nigeria and from a few foreign governments, including those of South Africa, UK and the United Arab Emirates (UAE) to roll back the tide that threatened to sink the biggest South African company in sub-Saharan Africa.
In a statement released last Wednesday, Nigeria’s apex bank ordered MTN to refund the sum of $8 billion to the coffers of the Central Bank. The refund was the penalty for MTN’s exportation of $14 billion using fraudulent Certificate of Capital Imports (CCIs). For their roles in the illicit transfer, MTN’s bankers were sanctioned by CBN with Standard Chartered attracting a fine of N2.4 billion, Stanbic IBTC N1.8 billion, Citibank N1.2 billion and Diamond Bank N250 million respectively.
In February 2018, SATELLITE TIMES brought to public attention secret documents of MTN’s financial dealings found so outrageous it was tagged a national security issue, forcing the Office of the Attorney General of the Federation (AGF) to request the Department of Security Services (DSS) to step in.
In an exclusive report, SATELLITE TIMES published details of a secret forensic audit ordered by the office of the Attorney General of the Federation (AGF) which revealed some of the most repugnant demonstrations of impunity by a multinational company and how MTN illegally exported $14 billion out of Nigeria using fraudulent Certificate of Capital Imports (CCIs). The report titled “Investigations: Secret memos and documents from MTN’s $14 billion offshore transfers” also brought to public attention the role in the CCI saga of MTN’s four bankers namely Standard Chartered Bank, Stanbic IBTC, Citibank and Diamond Bank.
The $8 billion penalty was long in coming. About six weeks ago, SATELLITE TIMES was tipped off by an authoritative source that CBN was ready to hit MTN with a sledge hammer. The press statement read out last Wednesday by CBN ‘s Director of Communications, Isaac Okorafor, was actually prepared in July. But extraneous factors including influences of powerful political figures badly hamstrung the apex bank from making the pronouncement on MTN.
On July 12, South African President Ramaphosa visited Nigeria and held a close-door meeting with President Mohammadu Buhari. The official reason for his visit was
“to thank the people of Nigeria and the leadership of Nigeria over many years for the support they gave to our (apartheid) struggle.”
The real reason for Ramaphosa’s visit was however different. Ramaphosa had dual interests in MTN. As President of South Africa, his intervention was needed to save one of South Africa’s biggest cash cows in foreign land. The other is that as a businessman, Ramaphosa has substantial interest in MTN.
Before he became Deputy President in 2014, serving under Jacob Zuma, Cyril Ramaphosa was a non-executive director and chairman of MTN Group with acquisition of minority stake in the group’s Nigerian interests. Ramaphosa was appointed to the MTN Board on 1 October 2001 and had been serving as chairman of the MTN Board since 2002. He had also been chairman of the nominations committee as well as a member of the remuneration and human resources committee at MTN.
The South African President was not only deeply involved with MTN, he was equally involved in others including a company called Shanduka Group. Shanduka was the President’s investment company, buying into MTN Nigeria in a $335 million deal.
The investment suffered massive loss in value due to the heavy fine imposed on MTN in October 2015 for violations of Nigerian subscriber registration rules. Another heavy penalty on MTN would provide multiple reasons for sleepless nights for the President that must be averted using every diplomatic instruments.
SATELLITE TIMES further gathered that beyond political and business stakeholders in South Africa, strings were also pulled on Nigeria by powerful lobbyists and investors in UK and UAE. MTN maintains over 1000 personnel in UAE but curiously does not have a one telephone line in that country.
One of the last-ditch efforts to save MTN came from a powerful lobbyist from Funtua in Katsina State, described as a childhood friend of President Muhammadu Buhari. CBN was therefore slow in acting because the governor of the apex bank was uncertain if the lobbyist was a messenger of the President or that the Funtua businessman was merely carrying out his own protection racket.
Accountant exposes how First Bank, three others, pinch millions from depositors’ accounts
-N98.4 Million missing from Nnamdi Azikiwe University Teaching Hospital account alone
Forensic auditors examining the bank accounts of the Nnamdi Azikiwe University Teaching Hospital Nnewi, in Anambra State, were stunned to discover that the health institution had been a victim of account manipulation by four different banks over a period of 16 years.
Between 2000 and 2016 the Teaching Hospital had been fleeced of a total N98,390, 184.05 through fraudulent manipulations of its corporate accounts by its bankers – First Bank, Eco Bank, Zenith Bank and United Bank for Africa (UBA).
Millions of unsuspecting bank account owners in Nigeria may never know how much have been stolen from them through unscrupulous manipulations by even their most favourite banks. Banks, cashing in on depositors’ lack of technical ability to scrutinize their accounts and detect possible infractions may have bilked billions of naira from customers over the years through fraudulent excess charges.
SATELLITE TIMES gathered that upon detection of the serial infractions, a consultant, Mr. Victor Inyiama, acting on behalf of the Teaching Hospital lodged a petition with the Consumer Protection Department of the Central Bank of Nigeria (CBN). The apex bank forwarded the claims of the complainants to the affected banks. However, dissatisfied with the outcomes of the CBN arbitration which let all the four accused banks off the hook, the complainant recourse to petitioning the House of Representatives.
Upon a Forensic audit conducted on the accounts of Nnamdi Azikiwe University Teaching Hospital with First Bank of Nigeria, the bank was found to have manipulated the client’s accounts between 2003 and 2016 with the application of excess charges amounting to N86, 250.942.71.
In another documents trail, it was found that between January 2000 and December 2015, excess charges totalling N11, 619, 478.84 Naira were made on the accounts of the same customer: Nnamdi Azikiwe University Teaching Hospital (NAUTH) with Zenith Bank Plc.
Ecobank, also involved in the controversial excess charges on the Teaching Hospital’s accounts, was found to have taken out N347, 583.30 from one of the accounts between August 2010 and May 2017.
Documents obtained by SATELLITE TIMES show that excess charges resulting from Commission on Turn-over (COT), management fee, and internet banking also occurred on the Teaching Hospital’s accounts with UBA Plc between November 2004 and December 2009. Together with accrued interests, the amount was put at N172, 179.20 based on audit findings.
Evidence available show that the four banks did not absolutely refute the claims of excess charges when a formal complaint was lodged by the customer. Rather, they sought an escape route and believed to have found one in the Time Bar Policy of the Central Bank which stipulates that complaints about transactions must be lodged within 6 (Six) years of the date of infraction (the transaction date).
Fact-checks by SATELLITE TIMES revealed that the Time Bar Policy exempts all complaints related to fraud; complaints previously lodged with the CBN or financial institutions; and complaints related to international electronic payment transactions.
The rationale behind the Time Bar Policy is so as to align with the provisions of other statutes such as the Money Laundering (Prohibition) Act 2013; the CBN Anti-Money Laundering and Counter Financing of Terrorism (AML/CFT) regulation for banks and other financial institutions in Nigeria 2013; and the Statutes of Limitation – Record Retention.
Following the intervention of the House of Representatives, Ecobank, UBA and Zenith Bank made a U-turn acceding to pay back the excess charges to the Teaching Hospital. Consequently, the three banks credited the complainant’s accounts accordingly: Eco Bank, N347, 583. 30; UBA N172, 179.20 and Zenith Bank N11. 619, 478.84.
The three banks however insisted the refunds were strictly done “in recognition of existing cordial business relationship with the customer”.
First Bank which has the highest refund of N86.2 million to make is sticking to its gun and neither the CBN nor the House of Representatives appears capable of compelling it to pay.
The CBN says that while the actions of Ecobank, UBA and Zenith Bank in making refunds to the customer is commendable, “The CBN is constrained from requesting First Bank to make any refunds.”
A document from First Bank dated June 8, 2018 with the reference no: Internal Audit/CIM65188/A00, jointly signed by Peter Nzeragu and Ben Opiah both of the Internal Audit department, reads: “We held meetings with the management of the University Teaching Hospital who acknowledged satisfaction with the clarification. However, the issue has lingered because of the Consultant’s refusal to withdraw the claim but stated that the onus lied on the Consultant for further discussion on the matter.”
First Bank, insisting on time bar, explained that “our review then commenced from November 2010” not from 2003 when the controversial charges began on Management Fees, COT, and interests on overdrafts.
Countering First Bank, the Chartered Accountants, Vincent Inyiama & Co, who detected the excess charges classify the infractions as fraud and thus insist they cannot be said to be Statute Bar.
Almost all the banks argued that they had no case to answer on excess charges related to electronic banking services.
Section 10 of the CBN Guide to Bank Charges (2004) stipulates that all charges on electronic banking services were negotiable.
Eco Bank specifically citing the CBN Guide argued that the customer was not entitled to a refund resulting from electronic banking charges, “since the customer did not negotiate any rate with that bank.”
The bank however failed to highlight an important portion of the guideline which says:
“Where a charge is ‘negotiable’, banks and OFI, are required to draw the attention of customers to their rights to negotiate and the two parties are required to naturally agree on the applicable interest and/or charge via a verifiable means.”
In the case of the Teaching Hospital, the attention of the customer was not drawn to its right to negotiation thus exposing it to insidious financial harms caused by banks’ controversial nibbling at customers’ deposits.
Joyce Idiahi, a Customer Relations Officer with one of the affected four banks told SATELLITE TIMES her desk rarely receives complaints bothering on excess charges. Asked if that was not because customers are largely unaware of these excess charges, she added:
“My bank complies with the Central Bank directives that we send monthly statement of accounts to all our customers, be they individual or corporate account holders. But what you are saying is frightening because if just one customer is hit with almost N100 million in excess charges, the volume across the country can only best be imagined.”
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