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Part C: Fiscal Terms - 36. Fiscal Terms | 36.4 Exemption from Certain Taxes

There may be cases in which certain exemptions from generally-applicable taxes may help a government provide useful incentives to attract mining-company investment, particularly during the risky exploration phase. Exemptions from certain taxes may also be appropriate based on the nature of the activities conducted by mining companies, as discussed in the sections on customs duties and VAT in this Guiding Template. However, where possible, the government should first seek to strike the proper balance between investor need and national benefit in the generally-applicable tax rules, before seeking to create specific exemptions for mining or for individual mining projects. See the discussion below on tax holidays and the caution that should be exercised. The same concerns apply to exemptions.

Where a government deems them necessary, it is advisable for exemptions to be narrowly tailored, and for all of the costs and benefits to be rigorously analysed before the legislation is finalized. Rules that provide for exemptions that are overly discretionary or too broad should be avoided. It is also advisable, where exemptions are granted to extend them to the mining sector generally, rather than allowing for exemptions to be negotiated on a project-by-project basis. A more uniform approach facilitates tax administration, provides transparency and predictability for prospective investors, provides transparency to the public and oversight bodies and also narrows opportunity for corruption or for bad deals for the government to be struck during negotiations.

36.4. Example 1:

Article [_]

The period during which the holder may benefit from exemptions on imports may not exceed the deadline provided for in the decree allocating the operating licence, for carrying out the work relating to the initial investments, and two (2) years for investments relating to the expansion of production capacity. These time limits may be extended in accordance with the terms laid down by decree.

Article [_]

Save in respect of Community levies, the expatriate staff of the operating licence holder, and direct subcontractors authorised by the [regulating authority] shall, with regard to personal effects, benefit from an exemption from duties and taxes for a period of one year from the date on which they first settle in [Country].

Article [_]

An operating licence holder shall be exempt from VAT on their foreign services and imports, on the purchase of goods and services in [Country] and on sales related to mining operations, until the date of the first commercial production.

Annotation

Drawn from Cote d’Ivoire’s mining code (2014), these provisions are designed to create certain incentives during periods where heavy investment by companies is required, especially before production begins.

Note that the exemptions are generally applicable to the mining sector and the law generally limits the duration of the exemptions.

36.4. Example 2:

Article [_]

(1) The holder of a mining right may be granted the following:

(a) exemption from payment of customs import duty in respect of plant, machinery, equipment and accessories imported specifically and exclusively for the mineral operations;

(b) exemption of staff from the payment of income tax on furnished accommodation at the mine site;

(c) immigration quota in respect of the approval number of expatriate personnel; and

(d) personal remittance quota for expatriate personnel free from tax imposed by an enactment regulating the transfer of money out of the country.

Annotation

Drawn from Ghana’s mining act (2006), this provision is an example of a provision that (without limiting regulations) could allow for discretionary grant of exemptions on a case by case basis within general parameters.

The customs exemption is drafted particularly broadly as it does not include limitations for which imports will be granted a customs exemptions (based on an agreed mining list), does not exclude imports of machinery and equipment that are available in Ghana and does not set a timeframe during which the customs duties exemption applies. See the discussion on customs duties in this Guiding Template, which provides examples of more limiting language on grants of customs duties exemptions.