7. Taxing gains on transfer of interest
- Michael Keen, and Victor Thuronyi
- Published Date:
- September 2016
In the last decade, there have been a number of transactions involving the transfer2 of an interest in a mining or petroleum right3 (see Box 7.1). Many reported transfers have involved purchasers paying substantial consideration for such rights. This has brought into focus the income tax treatment of gains arising from such transfers.4 The tax treatment of a transfer of mining or petroleum right is complex, and recent transactions have highlighted the inadequacy of the income tax laws of many countries (particularly developing countries) to tax gains arising on the transfer of such rights.5
In broad terms, there are two ways that a mining or petroleum right can be transferred, each with differing tax consequences. First, the entity holding the right6 can transfer its interest in the right (referred to as a “direct transfer”), or, second, the owner of the entity holding the right can transfer its interest in the entity that holds the right (referred to as an “indirect transfer”). Moreover, these transfers may be structured in different ways. The income tax treatment of a direct or indirect transfer can be complex, involving issues relating to: (i) the structure of the transaction and character of the interest transferred (revenue or capital); (ii) the valuation of the consideration for the transfer; (iii) the timing of the transfer; and (iv) the geographic location of the gain derived. The taxing rules may apply specifically to mining and petroleum rights or, more likely, to immovable property (which usually includes a mining or petroleum right either under general law or through a specific tax law definition). The international norm is that the source country (referred to as the “host country”) has full taxing rights in relation to income derived from the exploitation, or gains derived from the transfer, of immovable property located in the host country.7 Even if the host country that has issued the mining or petroleum right has jurisdiction to tax a gain arising from a direct or indirect transfer of the right under domestic law, the application of domestic law to the gain may be restricted under a tax treaty.8 Indeed, the transaction effecting the transfer may be structured so as to obtain treaty protection from host country taxation.
The purpose of this chapter is to outline the income tax issues relevant to the taxation of any gain arising on a direct or indirect transfer of a mining or petroleum right for both the transferor and transferee. The chapter begins by summarising the different conceptual options and issues that may arise for taxation of transfers of mining or petroleum rights. The main body of the chapter discusses the tax treatment of a direct transfer of interest, followed by a discussion of the tax treatment of an indirect transfer through the sale of an interest in an entity that derives its value principally, directly or indirectly, from a mining or petroleum right or rights. There is then discussion of the tax treatment of transfers of interest under overriding royalty and farm-out agreements. The last section considers the treatment of a transfer of interest when additional profits tax is payable or under a production sharing agreement.
2 Conceptual approach to taxation of the transfer of mining or petroleum rights
Transfers of mining or petroleum rights are quite common in the industry and may take many forms (see a few examples in Box 7.1). Indeed, a mining or petroleum right granted by the host country may be transferred a number of times during its life cycle. Even when a mining or petroleum right is originally granted to a single corporate entity, the right may be wholly or partly transferred, directly or indirectly, several times during its validity. There may be various reasons for such transfers, including spreading the risk associated with a potentially unsuccessful exploration or prospecting project or to raise funds to carry out further mining or petroleum operations. It may also be the case that the business activities of some entities are limited to exploration or prospecting, with these entities making their income from the transfer of rights relating to successful exploration or prospecting operations.
Box 7.1Examples of structuring direct and indirect transfers of mining or petroleum rights
Transfer during exploration and appraisal:
Ireland (2013): acquisition of a 75 percent interest in an exploration licence in exchange for carrying the full cost of a 3D seismic program and reimbursement of a portion of previously- incurred costs.
Guinea (2012): sale by one entity of a part of its interest in a production sharing agreement in exchange for reimbursement to the farmor of $27 million of past costs and carrying farmor’s future costs associated with an exploratory well and optional appraisal well up to a cost cap per well.
Mongolia (2002): a Canadian company acquired a mining licence in Mongolia for cash consideration plus 2 percent of the gross revenue realised from any commercial discovery. In 2004, a Canadian company agreed to pay $37 million to acquire the royalty interest.
Purchase of an exploration company
Norway (2012): acquisition of an exploration company holding interest in 28 exploration licences in the country for a purchase price of $372 million, plus a bonus payment up to $300 million depending on future discoveries. The transaction is subject to the approval of ministries for energy and finance.
Total transfer of interest in petroleum agreements
Uganda (2010): acquisition of the entire 50 percent interest held by a company in two blocks covered by production sharing contracts where major discoveries were made and appraised, for a total cash consideration of $1.45 billion. A dispute on capital gains tax (CGT) and stamp duty liability with the seller and the purchaser involving the Ugandan courts and international arbitration was resolved in 2015 confirming the tax payment.
Partial transfer of interest in petroleum agreements
Uganda (2012): two sales and purchases agreements on one third interest in three blocks (including the above two blocks), each one with a company, for a total cash consideration of $2.9 billion. The resolution of the related tax disputes between the seller and the tax authorities settled in 2015 upon agreement of the tax payable by the transferor of $250 million.
Indirect transfer by sale of a foreign-listed company holding interests in several countries
Mozambique (2012): sale for $1.9 billion of all the shares of the listed company indirectly holding interests in several countries, mostly in Mozambique (8.5 percent in a deep offshore block where giant gas discoveries were made and 10 percent in an onshore block). In order not to postpone the sale, the selling company “seeked clarity on a possible tax charge” and announced that the company is “subject to Mozambique corporate income tax on the imputed capital gains arising on its Mozambique assets as a result of the transaction”, with the tax return to be submitted within 30 days of completion of the transaction.
Indirect transfer of a minority interest in a foreign company holding host-company mining rights
Mozambique (2013): sale for $4.2 billion of 28.5 percent in a foreign company holding 70 percent of the mining right in a block with major gas discoveries subject to the approval of the authorities. After negotiation with the state, the seller accepted that tax was payable on the transaction.
Issuance of new shares
Mongolia (2006): one of the world’s largest mining companies acquired new shares (and a controlling interest) in a Canadian mining company in return for a payment of $1.5 billion. The value of the Canadian company’s shares derived primarily from a mining licence in Mongolia.
Transfer during production:
Sale of the equity in a mining company
Ghana (2011): indirect sale and purchase of 18.9 percent equity in two domestic mining companies by acquiring the shares in nonresident companies. For a total cash consideration of $661 million.
When a mining or petroleum right is held by more than one entity as a joint venture, the whole or partial transfer by one of the entities of its interest in the right will concern only the entity making the transfer and not the joint venture.9 The decision to transfer an interest in a mining or petroleum right, therefore, is an individual decision and not part of the joint operations and accounts, and the accounting and tax consequences concern only the transferor and its transferee, not the other holders of the right.
The tax treatment of a transfer of interest depends on a number of factors including (i) the type of mining or petroleum right (an exploration or prospecting right, a mining lease or development licence, or a contractual-based right); (ii) the form of the consideration for the transfer (a single cash consideration or other types of consideration [such as combining work obligations, overriding royalty, production payments, or contingent cash payments depending on future events]); and (iii) the way the transfer is structured (such as a direct transfer of the mining or petroleum right, an indirect transfer of shares or other equity interests in the holder of the right, or through a corporate reorganisation, including merger or spinoff10 arrangements). Direct transfers are generally taxable whatever the level of interest transferred,11 while often indirect transfers of an interest may be taxable only if there is a change in control or, more commonly, a lower percentage threshold defined in the law as a “substantial change”.12
Under a pure tax-royalty arrangement, the tax liability of the transferor of a mining or petroleum right depends on the host country’s tax laws. The initial policy issue is whether the host country is going to tax the gain. The economic impact of imposing tax on a gain arising on transfer of interest is explained in Box 7.2. Assessing the impact of the transfer on the future tax payments to the host country, with or without the transfer occurring, is paramount when deciding tax policy, as illustrated in Box 7.3.
Box 7.2Economic effects of taxing gains on transfers of interest
The market for rights is not perfectly competitive. There are few buyers and sellers, and information regarding future mineral or petroleum prices and production costs is limited.
Transfers of an interest in a mining or petroleum right will only take place if there is a willing buyer and a willing seller.
The agreed price for the transfer must fall between the reservation price of the seller (the lowest price the seller is willing to take) and the reservation price of the buyer (the highest price the buyer is willing to pay).
If gains on transfers of interest are taxed, the reservation price of the seller will be higher (as the seller has the liability to pay the tax) and the reservation price of the buyer will also be lower (as the buyer may be a future seller). The tax on the gain could discourage some transactions, particularly when the buyer of an interest plans to flip it. The impact is likely to be much smaller if the buyer is making a long-term investment.
The legal liability and the incidence of the tax may differ.
The contractual arrangement between the buyer and the seller may specify a price net of any tax due on the transfer, with one party agreeing to compensate the other for the amount of taxes due.
Buyers and sellers will structure transactions to minimize taxes payable.
Box 7.3Possible impact of transfer on host country future tax revenues
The two following simplified examples illustrate the possible negative impact of certain tax rules on the future revenues of the host country when integrating the one-time tax payment on the transaction, if any, made by the transferor and the future tax liabilities of the transferee.
Case 1 of a direct transfer: Assumptions: (1) Transferor’s gain subject to CGT (at a lower rate than the corporate tax [CT] rate). (2) The transferee can deduct the full purchase price (and not only the written-down value of the asset at the time of transfer) from its taxable base subject to CT. Such tax rules if adopted would indeed reduce the host country’s revenues versus a “no-transfer scenario” by an amount equivalent to the difference between (i) the present value of the tax savings on the increased cost recovery deductions allowed to the transferee and (ii) the CGT paid on the gain by the transferor.
Case 2 of an indirect transfer: Assumptions: (1) Purchase by a host country’s producer (P) of all the shares in a foreign company (S) holding several exploration and production rights in the host country. (2) The law does not explicitly deal with the taxation of the gain made by the shareholders of S, and they do not pay tax in relation to the transaction. (3) P takes advantage of uncertainties in the tax law of the host country and structures the transaction so as to deduct from its CT base in the host country the entire purchase price. This case, if accepted, would reduce the host country revenues versus a no-transfer scenario by an amount equal to the gain multiplied by the CT rate.
Today, the tax legislation of most countries ensures that the foreign transferor’s shareholders are liable for tax and the cost of acquiring the shares is not deducted outright or amortised.
It is recommended to carry out this kind of dual analysis, looking at the integrated impact of the transfer on the transferor’s and transferee’s tax liabilities, when designing the tax policy and rules applicable by a host country to direct and indirect transfers or when approving a specific transfer.
For a host country that has decided to tax the gain on transfer of a mining or petroleum right, there are three possible bases of taxation depending on the tax system. First, the gain (being the consideration received reduced by the written- down value13 of the right at the time of transfer) may be assessable as income14 subject to the ordinary corporate tax rate or to the specific corporate tax rate applicable to mining or petroleum activities when so provided. Second, the gain may be assessable as a capital gain under the capital gains tax (CGT), when a CGT exists and applies to mining or petroleum operations in the host country. Third, that part of the gain representing the recapture of depreciation or other deductions in relation to the cost of the right may be taxed under the ordinary corporate tax, and that part of the gain representing the excess of consideration received over the undepreciated cost of the right may be taxed under the CGT. Each of these possibilities is explained in sections 3.1 and 3.2.
Effective taxation of gains on a transfer of interest requires that the tax law is explicit in relation to the determination of the value of the transaction, the character of the gain as income or capital, and the tax treatment, liability, and payment related to transfers and their tax accounting – in particular for indirect transfers resulting from change in control in the entity holding an interest, a growing solution used for transfers – otherwise disputes may occur, with many recent cases of such disputes. Except when the tax law provides otherwise, the payment of the tax on the gain by the transferor may be deferred until the end of the tax year, although, ideally, the tax payment in respect of the transaction should take place earlier, as a condition for the country authorising the transfer.15
A few resource-rich countries have decided to exempt transfers from taxation, considering that such gains have been mostly re-invested in the country by the transferor and taking into account relatively high levels of taxation that may apply (such as Norway, where no step-up in depreciation is allowed to the purchaser to maintain tax neutrality), but such a treatment is exceptional.
If a country decides to exempt transfers, it is important to determine the scope of an exemption clause in the law or a mining or petroleum agreement as it applies to transfers, in particular, whether the tax exemption applies to the gain on transfer or only to the duties and fees (such as an exemption from registration or notary fees) related to the transfer. A number of mining or petroleum agreements contain a clause that may be interpreted as an exemption from transfer or stamp duties while remaining silent on the taxation of transfer gains. Taxation is the critical issue in relation to transfers, and such a clause should explicitly address whether the transfer is subject to tax.
When the tax-royalty agreement is subject to an additional profits tax (APT) or a surcharge tax supplementary to the corporate tax (as in the United Kingdom), the legislation has to determine whether the transfer gain, or capital gain, is also subject to the APT and the impact of the transaction on APT accounting. For example, is the consideration paid by the transferee deductible for its APT calculation in all cases or only if the value of the transaction has been subject to APT and the corresponding liability was paid by the transferor? One supplementary difficulty is that APT is often a joint liability borne by the joint venture involved in a mining project and not an individual liability of one entity constituting the joint venture, while the taxation on transfer is an individual liability for the seller. For the time being, many laws or agreements are still silent on this issue, while it should be explicitly provided for when defining the APT. This is discussed further in section 6.1.
The same determination has to be made under production sharing contracts (PSCs)16 or service contracts17 in the case of a transfer of an economic interest by one party constituting the contractor. Is the taxation on transfer under a PSC limited to corporate taxation of the gain or CGT (which appears to be the objective)? Or is the value of the transaction to be, in addition, recorded for the purposes of cost recovery and indirectly for profit oil sharing, which seems difficult to justify on the basis that a transfer is an individual decision and not a cost incurred by all the parties constituting the contractor. Checking PSCs, legislation, and agreements to determine the treatment of transfers and deciding on the tax policy in this respect is important.18 This is discussed further in section 6.2.
3 Direct transfer of a mining or petroleum right
The first scenario considered is a transfer by the holder of the whole or part of a mining or petroleum right. A mining or petroleum right is an intangible asset of the holder. The tax treatment of any gain arising on the transfer of a mining or petroleum right depends on the interplay among (i) the rules for taxing business income; (ii) deduction recapture rules; (iii) the CGT rules; and (iv) the application of any applicable tax treaty. The tax treatment will depend also on the structure of the transaction. The discussion in this section focuses on a simple transfer of a mining or petroleum right. The tax treatment of a transfer under an overriding royalty or farm-out agreement is briefly discussed in section 5.
3.1 Deduction recapture
The cost of acquiring a mining or petroleum right is likely to have been allowed as a deduction under either (i) the normal operation of the depreciation rules19 or (ii) a special deduction rule applicable to the capital costs of mining or petroleum operations.20 In either case, the cost may be deducted outright (as may occur in the case of an exploration or prospecting right) or deducted over the expected life of the mining or petroleum operations or a shorter period as specified in the tax law. In both cases, the timing of the deduction may be deferred until the commencement of commercial production.21
If the transferor has deducted the acquisition cost of a mining or petroleum right under the depreciation regime, the normal rules applicable to transfers of depreciated assets will apply to the transfer of the right. In particular, when the consideration for the transfer of the right is more than the written-down value of the right at the time of transfer, some or all of the depreciation deductions have been recaptured on transfer of the right. The depreciation rules will apply to include the recaptured deductions in income. If a special deduction rule applies to mining or petroleum expenditure, it is usual for an amount representing a recaptured deduction to be included in income. Consequently, the outcome is similar to that under a comprehensive depreciation regime.
If the transferor is a non-resident, the host country will have jurisdiction to tax the transferor only on domestic source income. While not always clearly stated in the income tax law, a recaptured deduction should be treated as domestic source income.
3.2 Gain on transfer of a mining or petroleum right
If the consideration for the transfer of a mining or petroleum right is more than the original acquisition cost of the right, the tax treatment of the excess will depend on the scope of the depreciation regime and its interaction with the normal income tax or CGT rules.
3.2.1 Application of depreciation regime
A depreciation regime may include both the recaptured depreciation deductions and the gain above cost in income. This means that a gain derived on the transfer of a mining or petroleum right is effectively treated as income and taxed under the normal operation of the corporate income tax. This has the advantage of ensuring that the taxation to the transferor of the recaptured deduction and the gain above cost and the deduction of cost by the transferee are all at the same tax rate.22
3.2.2 Characterisation of the gain as income or capital
If the depreciation regime taxes only recaptured depreciation deductions, then the gain above cost is dealt with separately. In this case, taxation of the gain will depend on whether the gain is characterised as income or a capital gain.
There are two possible bases upon which a gain above cost may be characterised as income. First, the income tax law may make no distinction between income and capital gains in relation to business assets with the gain on disposal of any business asset treated as income. This is common in civil-law countries where there is alignment of tax accounting with financial accounting.23 It will apply also in those common-law countries where the tax legislation defines business income to include gains on the transfer of all business assets.
Second, a mining or petroleum right might be held on revenue account either as trading stock (or inventory) or an asset that is acquired with an expectation that it will be disposed of for a profit. It would be an unusual case in which a mining or petroleum right is held as trading stock (or inventory), but it is certainly possible that a mining or petroleum right (particularly an exploration or prospecting licence) is held with the intention or reasonable expectation that it will be transferred for a profit.
For those countries that maintain the distinction between revenue and capital, and apart from the cases mentioned in the previous paragraph, a mining or petroleum right is likely to be characterised as a “capital” or “structural” asset of the holder’s business and, therefore, a gain arising on the transfer of the right is a capital gain. Taxation of capital gains depends on whether the country has a CGT and, if it does, on the scope of capital gains taxation. While many countries have a comprehensive CGT applicable to a broad range of business and investment assets, CGT taxation in some common-law developing countries may apply only in relation to a few specific classes of asset. Importantly, even when there is only limited taxation of capital gains, it is likely to apply to capital gains on disposal of immovable property in the country (which should include a mining or petroleum right; see section 3.2.3).
If a gain arising on disposal of a mining or petroleum right is subject to CGT rather than the normal corporate income tax, the issue is whether any concessional tax treatment applies in relation to the gain (as compared to the normal income tax). While concessional treatment is common under a CGT,24 today it is likely to be limited to individuals and not apply to companies. Importantly, if the gain is treated as a capital gain and is either untaxed because the country does not have a CGT or concessionally taxed under the CGT, then there will be asymmetric tax treatment, as between the transferor and transferee as the transferee’s cost represented by the gain is likely to be deducted at the normal the corporate tax rate.
3.2.3 Jurisdiction to tax the gain
If the person holding a mining or petroleum right is a non-resident, then there is the additional issue of whether there is jurisdiction to tax the gain. For a gain that is taxed as income under the normal corporate tax, jurisdiction to tax will depend on whether the gain has a geographic source in the jurisdiction. Source may also be the basis for taxation under the CGT. Alternatively, the taxation of non-residents under the CGT may be limited to assets listed as taxable assets.25
The rules for determining the source of income or gains may be specified in the income tax law or, in the case of common-law countries, may be determined by reference to case law. For civil-law countries, jurisdiction to tax a gain on transfer of a mining or petroleum right is likely to depend on whether the gain is attributable to a permanent establishment of the transferor in the host country. This may be expressly framed as a source rule or simply as the basis for taxation of the business income of non-residents. The basic notion of a permanent establishment is a fixed place of business through which the business of an enterprise is carried on. Given that the holder of a mining or petroleum right will be obliged to undertake specified work commitments in the host country, the holder is likely to have a permanent establishment in the host country. The meaning of permanent establishment is discussed in section 3.2.4.
The concept of permanent establishment is a civil law concept that is used also in tax treaties. Traditionally, in common-law countries, the source of income has been determined through case law. However, a number of common-law countries now specify source rules in the income tax law, including using the permanent establishment concept so as to align domestic law with tax treaties. So for common-law countries that use the permanent establishment concept, the gain on transfer of a mining or petroleum right is likely to be sourced in the country.
For common-law countries that rely on case law, the determination of source is a practical hard matter of fact.26 The source of income is determined having regard to all the facts and circumstances relating to the derivation of the income. Under case law, income arising from immovable property is normally sourced where the immovable property is located.27 This applies to both rents and gains on transfer of the property. It is usually the case that mining and petroleum rights are treated as part of the immovable property to which they relate (see section 3.2.4). If this is not the case, then the determination of source is more problematic, as a court may be prepared to hold that a casual gain arising from the disposal of an intangible asset is sourced at the place of contract.28
If the jurisdiction to tax under CGT is based on a list of taxable assets, the list will normally include immovable property located in the jurisdiction. A similar issue arises as to the meaning of immovable property for this purpose (see section 3.2.4).
For those common-law countries that do not use the permanent establishment concept, the treatment of a mining or petroleum right as immovable property will ensure that the gain is taxable under either the normal income tax or CGT. If a mining or petroleum right is not considered immovable property, then there is the possibility that the gain may go untaxed, particularly if the transaction is between two non-residents with the place of contract outside the jurisdiction.
3.2.4 Application of tax treaties29
If a transferor30 of a mining or petroleum right is a non-resident, jurisdiction to tax a gain on transfer of the right under domestic law may be affected by a tax treaty between the host country and the transferor’s country of residence. The initial issue is whether Article 6, 7, or 13 applies to the gain. While the gain may be properly characterised as a business profit, Article 7 applies only if Articles 6 and 13 do not apply.31 The starting point, therefore, is to consider whether Article 6 or 13 applies. Article 6(1) provides that
Income derived by a resident of a Contracting State from immovable property . . . situated in the other Contracting State may be taxed in that other State.
This gives full taxing rights over the income to the country in which the immovable property is located. This is justified on the basis of the close economic connection between the income and the host country.32 This taxing right is not exclusive so that the residence country may also tax the income provided relief is given for the host country’s tax.33
In the present context, the issue is the meaning of “income derived . . . from immovable property” (emphasis added) in Article 6(1) . This is intended to cover income from the “exploitation” of immovable property (such as rent) but not gains from the alienation of immovable property even if the gain is ordinary business income.34 If Article 6 does not apply, then Article 13 may apply. Article 13(1) provides that:
Gains derived by a resident of a Contracting State from the alienation of immovable property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State.
As with Article 6, this gives full taxing rights over the gain to the country in which the immovable property is located.
The complication is that Article 13 is headed “Capital Gains” and, while the text of the Article refers to “gains”, there is an argument that Article 13 applies only to capital gains. This would seem to be the interpretation of Article 13 by Canada, as it has included a reservation in the Commentary to Article 6 stating that Canada will apply Article 6 to revenue gains on the alienation of immovable property.35 Other countries, such as the United States and Australia, do not limit Article 13 to capital gains but apply the article generally to gains on the alienation of property.36 For these countries, Article 6 applies to income from immovable property (such as rent), and Article 13 applies to income or capital gains from the alienation of immovable property.
Articles 6 and 13 apply in relation to “immovable property”. Article 6(2) defines “immovable property”, and this definition applies also for the purposes of Article 13(1). “Immovable property” is defined in Article 6(2) to have the meaning under the law of the contracting state in which the immovable property is located. The reference to “law” in Article 6(2) is not confined to the tax law of the contracting state where the property is located but is a reference to the entire law of that state.37 However, if there is a specific tax law definition of immovable property, this should have priority over the general law meaning.38 Mining and petroleum rights may be treated as part of the immovable property to which they relate under general law principles39 or through an extended tax law definition.40 The definition in Article 6(2) also includes “rights to which the provisions of general law with respect to landed property apply”, which should cover mining or petroleum rights. It may be, though, that a particular transaction is structured so that the value is not in the mining or petroleum right transferred but the transfer of information related to the right.41 The only way that Article 6 or 13 could apply in this case is if there is specific tax law definition of immovable property in the host country that includes mining or petroleum information that then applies for the purposes of the treaty through Article 6(2).
If, for whatever reason, Articles 6 and 13 do not apply,42 then Article 7 will apply as the transferor is carrying on business. Article 7 provides that the profits of an enterprise of a contracting state are taxable only in that state unless the profits are attributable to a permanent establishment of the enterprise in the other contracting state. The important difference between Articles 6 and 13 on the one hand and Article 7 on the other hand is that taxation is permitted under Article 7 only if the gain is attributable to a permanent establishment in the host country. The definition of “permanent establishment” is broadly stated in Article 5. The fundamental notion of a “permanent establishment” is stated in Article 5(1), namely a fixed place of business through which the business of an enterprise is carried on. The definition in Article 5(2)(f) expressly includes a “mine, an oil or gas well, a quarry or any other place of extraction of natural resources”, so the holder of a mining lease or development licence will have a permanent establishment. While the reference to “extraction” will not include exploration,43 it is expected that there would be a fixed place of business through which prospecting or exploration activities are conducted and, therefore, a permanent establishment within Article 5(1). Despite this, there may be a rare case when a person passively holding a prospecting or exploration right for, say, speculation purposes, disposes of the right without having a permanent establishment. For this reason, it is important that countries make clear in their treaty negotiations that either Article 6 or 13 applies to all types of gains on transfer of immovable property.
3.3 Rollover relief
An alternative to taxing the transfer of a mining or petroleum right is to “roll over” the transferor’s written down value of the mining or petroleum right at the time of transfer to the transferee. This means that no gain is recognised to the transferor, and the transferee continues to deduct the original cost of the mining or petroleum right until exhausted. If the cost has already been fully deducted by the transferor (such as for a prospecting or exploration right), then no further deductions are allowed to the transferee.
Rollover relief recognises the potentially tax-neutral position on transfer of a mining or petroleum right when account is taken of the fact that the transferee will be entitled to a deduction for the cost of acquiring the right. If, for example, the right is a prospecting or exploration right the cost of which is deductible outright, then the tax on the gain to the transferor will be offset by the tax value of the deduction to the transferee for the cost of acquiring the right. For this reason, some countries may prefer to roll over the transferor’s written-down value of the mining or petroleum right to the transferee rather than tax the transfer. The reality, though, is that the deduction for the cost of the mining or petroleum right may simply create a loss carried forward for the transferee that may take some years to be fully realised. For this reason, as well as for equity between investors,44 governments have preferred to tax the gain knowing that the impact of the deduction to the transferee for the cost of the mining or petroleum right will be deferred. This has been particularly the case given the large amounts paid for mining or petroleum rights in recent years.
It is noted that rollover relief may apply when a mining or petroleum right is transferred between related companies as part of a corporate reorganisation. This is justified on the basis that there is no change in economic ownership of the assets (including a mining or petroleum right) that are the subject of a reorganisation.
4 Indirect transfer of a mining or petroleum right
As indicated, the shares or other equity rights in an entity derive their value from the assets held by the entity. Thus, for example, if the principal asset of a company is a mining or petroleum right, the value of the shares in the company will equate to the value of the right. This means that, instead of the company selling its interest in the mining or petroleum right, an equivalent gain could be made by the owners of the company selling their shares in the company. Indeed, it is a common form of tax planning for non-residents to invest through a multi-tier non-resident company structure so as to facilitate possible tax-free exit from the investment. This is illustrated by Figure 7.1.
Figure 7.1Indirect transfer of interest
In this example, there are two options for realising the mining right held by the mining company (MC). First, MC could sell the right. As explained, any gain on disposal of the right is likely to be taxable in the host country. Second, the non-resident company (NRC) could sell the shares in MC. The gain on disposal of the shares may or may not be taxable in the host country depending on the tax law in that country and the impact of any applicable tax treaty. Even if there is jurisdiction to tax, there is an issue as to how the tax is collected when the transaction takes place outside the host country between two non-residents. These issues are discussed in what follows.
4.1 Should indirect transfers be taxed?
The initial issue is whether indirect transfers should be taxed. There are two main arguments in favour of taxing indirect transfers. First, taxing indirect transfers protects the integrity of the host country’s taxation of direct transfers. If there is no indirect transfer taxation rule, then it would be expected that foreign investors will use indirect transfers to avoid host country taxation of direct transfers. Second, host country taxation of indirect transfers is consistent with international norms as articulated in Article 13(4) of the OECD Model.
The main argument against taxing indirect transfers is that the taxing rule may be difficult to comply with and enforce, as the transaction is between two non-residents taking place outside the host country. The enforcement difficulties may be particularly acute for developing countries. Compliance and enforcement difficulties can be reduced through the use of thresholds that limit the scope of the taxing rule. However, in this regard, it is acknowledged that foreign investors may plan around these thresholds. Further, the taxing rule can be supported by information exchange and mechanisms to facilitate collection of the tax.
On balance, the integrity argument is a strong argument supporting the indirect transfer taxing rule.
4.2 Taxation of gains on transfer of an interest in an entity holding a mining or petroleum right
As with gains arising on direct transfers, there are several possible characterisations of the gain arising on an indirect transfer of a mining or petroleum right. The shares or other interest disposed of will be a business asset and, therefore, for those countries that do not make a distinction between revenue and capital gains in the business context, the gain will be ordinary business income. For those countries, particularly common-law countries, that do make the revenue/capital distinction, the gain may be either ordinary business income or a capital gain. It will be ordinary business income if the interest in the entity is held as trading stock or inventory or the interest was acquired with the reasonable expectation that it will be sold for a profit. The latter case is a more likely scenario, as the chain of companies may be specifically established to facilitate the making of an indirect transfer.
If the gain is ordinary business income of a non-resident, the critical issue is whether the host country has jurisdiction to tax the gain. If jurisdiction to tax is based on the gain being attributable to a permanent establishment in the host country, then it is unlikely that the gain will be taxed in the host country. For common-law countries that do not use the permanent establishment concept, the case law indicates that the source of a gain on a simple disposal of financial asset is likely to be the place of contract of sale.45 In the example cited, the contract for the sale of the shares in MC by NRC is likely to be concluded outside the host country to ensure that the gain is foreign sourced.
For those common-law countries that treat the gain on an indirect transfer as a capital gain, taxation of the gain will depend, first, on whether the country has a CGT and, if it does, on the jurisdictional limits of the CGT in its application to non-residents. As discussed, this may be based on the source of the gain or on a specified list of taxable assets. While immovable property located in the jurisdiction will be on the list, shares in a company (particularly a non-resident company) may not be included.
In either case, taxation as ordinary business income or a capital gain will require a special rule giving the host country jurisdiction to tax. For common- law countries where the gain may be taxed either as ordinary business income or as a capital gain depending on the circumstances, the jurisdictional rule needs to be included in both the income tax source rules and CGT rules.
4.3 Designing the jurisdictional rule
Several issues must be considered in designing the jurisdictional rule. First, the jurisdictional rule is based on an interest in an entity that derives its value from immovable property in the host country. As with direct transfers of interest, the meaning of “immovable property” is critical to the operation of the rule. If the general law meaning of immovable property does not cover mining and petroleum rights, then a special tax law definition should include such rights.
As discussed, the definition of “immovable property” could be extended to counter-planning that allocates value to the mining or petroleum information associated with a mining or petroleum right rather than the right itself.
Second, a rule that applies up only one tier as in Figure 7.1 will be susceptible to tax planning that involves making the gain on the transfer of an interest in an entity higher up the chain of entities. This is illustrated by Figure 7.2.
Figure 7.2Multi-tiered indirect transfer of interest
The jurisdictional rule is commonly stated to apply to gains derived on the disposal of interests in entities the value of which derives, wholly or principally, directly or indirectly, from immovable property in the host country. The value is derived directly from immovable property if the interest disposed of is NR2’s shares in MC. The value is derived indirectly from immovable property if the interest disposed of is NR1’s shares in NR2. The value of the shares held by NR1 in NR2 is derived directly from the value of the shares held by NR2 in MC. As the value of the shares held by NR2 in MC is derived directly from the value of the immovable property of MC, the value of the shares held by NR1 in NR2 is derived indirectly from the immovable property of the MC. The reference to the value being derived indirectly should apply down an unlimited number of tiers of non-resident entities. This does involve the use of tracing rules, although a minimum threshold at each tier (such as 10%) may apply to limit complexity.
Third, the jurisdictional rule should not be limited to gains on the disposal of shares in a company but should extend to interests in any entity. If the rule is limited to shares in companies, then the rule may be avoided by the interposition of a non-corporate entity, such as a unit trust or limited partnership, and the gain made on disposal of the interest in the non-corporate entity. This is illustrated by Figure 7.3.
Figure 7.3Indirect transfer of interest involving non-corporate intermediary
In this example, if the taxing rule is confined to the transfer of an interest in a company, then the rule will not apply to the gain that NR1 makes on the transfer of its interest in NRT.
Fourth, there should be a threshold-limiting taxation to cases when the non-resident has a substantial interest, directly or indirectly, in the entity holding the mining or petroleum right. In particular, it is not appropriate or feasible to apply the taxing rule to small investors in large public companies. The issue is determining the threshold for a “substantial interest”. Given that 10 percent is the standard threshold for distinguishing a direct investment from a portfolio investment, a 10 percent or more interest would be an appropriate threshold for a substantial interest in an entity holding a mining or petroleum right. This could be supported by a back-up threshold based on the value of the interest in the entity holding a mining or petroleum right. Thus, the taxing rule could apply if the non-resident disposing the interest in the entity holding a mining or petroleum right has, directly or indirectly, either (i) a 10 percent or greater interest in the entity holding the right or (ii) an interest to the value of, say, $10 million or more in the entity holding the right.
Fifth, the threshold for applying the rule needs to be determined. The usual threshold is that the value of the assets of the entity comprises “principally” immovable property (including mining or petroleum rights). The threshold is based on the market value of the assets at the time of transfer and not the original cost of the assets. The “principally” threshold implies that the value of immovable property is more than 50 percent of the value of the total assets of the holder of the right. When this threshold is satisfied, the host country has jurisdiction to tax the whole of the gain even if the level of the interest is less than 100 percent. The “principally” threshold can be avoided by having an entity in the chain, directly or indirectly, holding interests in mining or petroleum companies in more than one country so that the “principally” threshold is not satisfied in relation to any country. This can be countered by lowering the threshold to, say, one third or twenty-five per cent, but this will only add complexity to the calculation, because the gain taxed in the jurisdiction would need to be prorated by reference to the value of immovable property in the jurisdiction.46
Finally, an issue arises as to whether the taxing rule applies whenever a person satisfying the thresholds specified (the holding and value of asset thresholds) disposes of any part of its interest (say 1 percent) or whether it is limited to the disposal of minimum level of interest (say 10 percent). In other words, is there also an alienation threshold? An alienation threshold will relieve some of the compliance burdens of the taxing rule but is subject to avoidance through staggered sell-down arrangements (i.e., selling the interest through several transactions, each of which is below the alienation threshold).
4.4 Impact of tax treaties
If a country has jurisdiction to tax under domestic law and a tax treaty applies, the treatment under the tax treaty needs to be considered. Article 13(1) will not apply in this case, as the interest in an entity (such as shares in a company) is not immovable property. Article 13(4) provides that
Gains derived by a resident of a Contracting State from the alienation of shares deriving more than 50 per cent of their value directly or indirectly from immovable property situated in the other Contracting State may be taxed in that other State.
There are some issues with the application of Article 13(4). 47 First, unlike Article 13(1), there is no cross-reference to the definition of “immovable property” in Article 6. As the definition of immovable property in Article 6(2) is not expressly limited to the application of Article 6, there is some strength to the argument that the definition applies generally for the purposes of the treaty.48 If this argument is not accepted, then the issue of whether immovable property in Article 13(4) includes mining or petroleum rights or mining information may depend on the application of Article 3(2) (dealing with undefined terms in the treaty). The meaning of “immovable property” in Article 13(4) can be clarified in treaty negotiations.
Second, Article 13(4) applies only to the alienation of shares in a company and not to interests in other entities, such as units in a unit trust. Consequently, if, for example, the gain is made on the disposal of units in a unit trust, Article 13(4) will not apply, and host country taxation is excluded by virtue of Article 13(5). This can be compared to Article 13(4) of the UN Model, which refers to “shares of the capital stock of a company, or of an interest in a partnership, trust or estate”.
Finally, Article 13(4) is only a relatively recent addition to the OECD Model,49 although an equivalent rule has been in the UN Model since it was first published in 1980.50 It is possible that some of a host country’s older tax treaties do not include Article 13(4) and, therefore, under these older tax treaties, there may be residence country–only taxation of a gain arising on disposal of shares deriving more than 50 percent of their value directly or indirectly from immovable property in the contracting state.
If a country has older tax treaties that do not include the equivalent of Article 13(4), this may encourage treaty-shopping practices. It may be necessary to put an anti–treaty shopping rule in domestic law to protect against such practices (see section 5.1).
4.5 Collection of tax
Even if a host country has jurisdiction to tax, as the transaction giving rise to the gain is likely to take place outside the jurisdiction between two non-residents, there is a further issue as to enforcement of the tax. This really has two aspects: (i) the tax administration discovering that the transaction has occurred and (ii) collection of the tax. It is becoming common practice for the sector legislation to require an entity holding a mining or petroleum right to notify the sector ministry and obtain prior approval for a substantial change51 in the underlying ownership of the entity.52 Such a provision is important, as it ensures that a country knows the beneficial owner of interests in the country’s natural resources. It is necessary then to provide either in the sector legislation or income tax law that the sector ministry has an obligation to advise the revenue authority of the change so that the revenue authority can pursue any tax liability resulting from the change during the approval process. This addresses the information problem.
Once the revenue authority is aware of the transaction, there are a few ways in which the tax payable may be collected by the revenue authority.53 First, the sector legislation could provide for withdrawal of the mining or petroleum right if tax is not paid in respect of a transfer of a substantial interest, directly or indirectly, in the company holding the right.
Second, the income tax law could provide that the holder of a mining or petroleum right is treated as agent of the non-resident person liable for the tax.54 If the non-resident person liable for the tax does not pay the tax, the holder of the right is treated as personally liable for the tax. This would allow the revenue authority to collect any unpaid tax from the holder of the right using the normal debt-recovery rules applicable to unpaid tax.
Third, if there has been an indirect transfer of a mining or petroleum right, the income tax law could provide that the holder of the right is deemed to have made a transfer of the right on a proportionate basis by reference to the indirect transfer rule described earlier. The extent of the transfer depends on the level of change in the underlying ownership of the holder of the right. For example, if a company holding a 100 percent interest in the holder of a mining or petroleum right transfers 50 percent of that interest to another company, then the holder of the mining or petroleum right is deemed to have transferred 50 percent of its interest in the right. This goes further than simply treating the holder of the right as an agent of the non-resident taxpayer; rather, it shifts the primary liability to the holder.
As the primary liability is with the holder of the right and not the non-resident who actually derived the gain, it may be argued that this overcomes any treaty limitation on taxation of the gain if there is no equivalent of Article 13(4) in any relevant treaty. Care must be taken with this argument as, in substance, the relevant taxation in this case is source-country taxation, which is the subject matter of tax treaties. There is also the possibility of double taxation, as the home country of the person disposing of the shares or other interest is likely to tax the person on the gain, but no double tax relief may be allowed, as that person has no tax liability in the host country. This can be compared with the agency option under which the person disposing of the shares or other interest should still be entitled to double tax relief, as they have the primary liability for the tax.
4.6 Issuing of new shares55
As an alternative to a disposal of shares in a company holding a mining or petroleum right, the company, or another company higher up the corporate chain, could issue new shares to a third person in return for a cash contribution. This can effect a change in control of the mining or petroleum right if a sufficient number of new shares are issued.
The issuing of new shares may be done in conjunction with the passing of a resolution by the company to alter the rights attached to the existing shares so that they have little or no value in return for consideration. This will result in the value previously attached to those shares being effectively shifted to the newly issued shares.
Both the issue of new shares and the alteration of the rights attaching to the existing shares may not involve a disposal of an asset and, therefore, there may be potentially no tax consequences arising from the change in ownership. While sophisticated capital gains systems may include deemed capital gain rules in the case of value-shifting arrangements, this is unlikely to be the case in developing countries. Such arrangements may be countered through the deeming rule referred to earlier under which the holder of the right is to treated as having disposed of a proportionate interest in the licence if there is a substantial change in the underlying ownership of the holder.
It is noted that the same planning could be undertaken through the use of unit trusts.
5 Transfers of interest under an overriding royalty or farm-out agreement
The discussion in section 3 outlined the tax position in the case of a simple transfer of a mining or petroleum right. This section considers the tax position when an interest in a mining or petroleum right is transferred (i) under an overriding royalty agreement or (ii) under farm-out agreement.
5.1 Overriding royalties
The holder of a prospecting or exploration right may want to transfer the right before any commercial discovery is made. In this case, it is difficult to put a value on the right at the time of transfer. If, ultimately, no commercial discovery is made, the right has little or no value. On the other hand, if, ultimately, a commercial discovery is made, the right may be very valuable. For this reason, a person holding a prospecting or exploration right may dispose of the right for a nominal cash consideration and a periodic amount (referred to as an “overriding royalty”) based on the gross revenues realised by the transferee from any commercial discovery in relation to the right. For example, a prospecting or exploration right might be transferred for $100 plus 5 percent of the gross revenue realised from any commercial discovery. Thus, the transferor retains a contingent interest, namely, a right to future income if a commercial discovery is made.
The transaction may be characterised for tax purposes as the disposal of an asset in return for an income stream (namely, the overriding royalty). Even if the prospecting or exploration right is a capital asset, the overriding royalties will be properly characterised as income. Thus, the payment of the overriding royalty will be deductible to the payer and taxable to the recipient.56 However, in the absence of special rules, if the recipient is a non-resident, the overriding royalty may be untaxed. In this case, the payment may be deductible to the payer57 but non-taxable to the recipient. The tax treatment to the non-resident recipient will depend on the character and source of the overriding royalty and the application of any relevant tax treaty.
The first issue is the character of an overriding royalty. While commercially the amount is usually referred to as a “royalty”, it is not a royalty in a legal sense. The ordinary meaning of a royalty is:
it is inherent in the conception expressed by the word [royalties] that the payments should be made in respect of the particular exercise of the right to take the substance and therefore should be calculated either in respect of the quantity or value taken or the occasions upon which the right is exercised.58
As the recipient of an overriding royalty has no right in the extracted resource, the payment does not qualify as a “royalty” within the ordinary meaning. The payment simply has its foundation in the contract providing for its payment and, therefore, in absence of a special tax rule, will be characterised as ordinary business income. There are two possible tax characterisations to avoid this outcome. First, an overriding royalty may be included in an expanded tax law definition of “royalty”, in which case it will be characterised as a royalty for tax purposes. Second, the tax law may provide that an overriding royalty will be its own class of income. For example, an overriding royalty may be referred to as a “natural resource amount” and defined as
an amount calculated in whole or part by reference to the quantity or value of minerals or a living or non-living resource taken from land or sea.59
The second issue is the geographic source of an overriding royalty. This will depend on how the overriding royalty is characterised for tax purposes. If an overriding royalty is simply characterised as ordinary business income, then it may not have a source in the host country. It is unlikely that the recipient of an overriding royalty will have a permanent establishment in the host country. For common-law countries that do not use the permanent establishment concept, the source of an overriding royalty will depend on all the facts and circumstances. If a court is prepared to look at the economic substance of the arrangement, the court may conclude that what gives value to the overriding royalty is the resource in the ground in the host country and, therefore, the overriding royalty is sourced in the host country. It is possible, though, that a court may conclude that, as there is no underlying property supporting the payment and the overriding royalty has its basis in a contract, the source of the overriding royalty may simply be the place of contract. The transaction can be easily structured so that the place of contract is outside the host country, particularly if the overriding royalty agreement is between two non-residents.
If an overriding royalty is characterised as a royalty or has its own characterisation, then it is more likely that it will have a source in the host country. Royalties are commonly sourced based on the residence of the payer. If the overriding royalty is its own class of income (such as a natural resource amount), the tax law may provide that it is sourced at the place where the natural resource is located.60
If there is jurisdiction to tax an overriding royalty, it is usual to apply the same non-resident withholding tax rule as applies to standard royalties. Consequently, it is likely that the amount will be deductible at the normal corporate tax rate but taxed at the non-resident royalty withholding tax rate (which may be lower than the corporate tax rate), thereby resulting in a reduction in the overall host country revenues when such an arrangement is adopted.
Jurisdiction to tax an overriding royalty under domestic law is likely to be excluded by a tax treaty. Article 6 will not apply, as an overriding royalty is not an amount derived by the recipient from immovable property; rather, as explained, it is simply a contractual-based amount. Article 12 will not apply, as an overriding royalty is not within the definition of “royalty” in Article 12(2). While, as explained, an overriding royalty may be ordinary business income (i.e., business profits), Article 7 will exclude host-country taxation if, as is likely to be the case, the recipient does not have a permanent establishment in the host country.
Even if there is no tax treaty between the host country and the country where the recipient of the overriding royalty is resident, the recipient may establish a conduit company in a third country that does have a tax treaty with the host country to obtain treaty protection for the payment of overriding royalties. This sort of international tax planning is referred to as “treaty shopping”. Some countries have included an anti–treaty shopping rule in domestic law to protect against such practices.61
5.2 Farm outs
A farm-out agreement62 may be entered into when a holder of a mining or petroleum right wants to bring in a “partner” to secure additional capital and mitigate risks of exploring or developing the project on its own. The new partner may also bring special expertise to the project. When a commercial discovery has been made, the new partner will have to pay a premium over costs already incurred. Joint ventures are common in the petroleum sector and are becoming more common in the mining sector.63
Under a “farm-out” agreement, the holder of a mining or petroleum right (“farmor”) may transfer a percentage interest in the right to another person (“farmee”) in exchange for value that may comprise a cash amount and the farmee agreeing to meet some or all of the farmor’s future work commitments under the right (the “earning obligations”). The farm-out agreement may relate to specified work commitments or work commitments up to a specified amount. The transfer of the interest in the right may be immediate on signing of the agreement (an “immediate transfer farm-out agreement”) or deferred to a later point in time, usually when the farmee has fulfilled its work commitments under the agreement (“deferred transfer farm-out agreement” often referred to as an “earn-in agreement”). From a tax perspective for the farmor and farmee, a farm-out agreement raises characterisation, timing, and valuation issues. Importantly, though, the tax treatment of a farm-out agreement will depend on the terms of the agreement and the tax law of the host country. For this reason, only a few generalised comments are made in what follows about the tax treatment of transfers of interest under a farm-out agreement.64
In broad terms, a farm-out agreement may be characterised as a transfer of interest in return for the farmee meeting the costs of the farmor’s future work commitments. A farm-out agreement may also oblige the farmee to pay a cash amount, usually on signing the agreement. In this case, an important issue is the tax treatment of the cash amount. The amount may be characterised as a pro-rata reimbursement by the farmee of the past costs incurred by the farmor that relate to the interest in the mining or petroleum right transferred to the farmee. As these costs are likely to have been deducted by the farmor, the cash reimbursement may be properly characterised as reimbursed tax deductions and includible in income. In turn, the farmee should be allowed a deduction under the normal rules for deduction of mining or petroleum expenditure to the extent that the cash amount paid by the farmee is includible in the farmor’s income as a reimbursement of the farmor’s costs.
If the cash amount paid by the farmee exceeds that amount reasonably characterised as a reimbursement of the farmor’s past costs, the excess should be included in income as a gain on the transfer of the interest in the mining or petroleum right to the farmee under the rules discussed in section 3.
While the future work commitments undertaken by the farmee that relate to the interest in the mining or petroleum right retained by the farmor may be characterised as either in-kind income of the farmor or consideration for the transfer of the interest to the farmee, some countries may, as an incentive to encourage exploration or development, expressly exclude the value of work commitments from being included in income or treated as consideration for the transfer of the interest in a mining or petroleum right.65 This means that only the cash amount is taxed under the principles outlined earlier.
The deduction for costs of the farmor carried by the farmee under a farm- out agreement should be deductible only to the farmee.
6 Treatment of transfer of interest under APT and PSC arrangements
The previous sections of the chapter essentially deal with the taxation of gains arising from direct or indirect transfers of mining or petroleum rights under the normal operation of the income tax or CGT. There are, however, other fiscal issues to be addressed regarding the treatment of transfer of interest transactions and resulting gains when the holder of the right is liable to APT or has obtained the right under a PSC or a risk service contract. In particular, does a transfer of a mining or petroleum right have an impact on the APT liability or on production sharing? Is the related gain of the transferor also liable to APT? How does the gain impact cost recovery and profit petroleum sharing between the parties to a PSC?
Globally, the most frequent structure used for exploration and exploitation ventures, especially regarding the holding of petroleum rights, is that the holder of a licence or an interest in a PSC is an unincorporated consortium constituted by more than one legal entity (often a company), with each entity being jointly and severally liable to the state under that licence or PSC, except for income tax purposes under which their liability is individual. Therefore, in reality, a transfer of interest should only concern the transferor and transferee involved in the transaction and not the licensee or the holder of the PSC in its entirety.66 APT tax laws and petroleum contracts are still often silent on this basic reality in the industry considering the licensee or holder as a person, not referring explicitly to the frequent situation of a consortium formed by several persons.
6.1 Application of APT to transfers of interest
There are two main design options for the application of the APT to transfers of interest. Which option applies depends on who is the taxpayer under the APT.
Under the first option, the APT is a separate tax liability of each entity constituting the licensee and not a joint liability of the licensee. This is the simplest case and applies, for example, in the UK (to the 10 percent supplementary charge payable in addition to the corporate tax) or in Australia (to the 40 percent petroleum resource rent tax or PRRT levied on an individual petroleum project in addition to the corporate tax). However, the fiscal treatment of gains arising from a transfer of interest differs between these two countries. In the UK, since December 2011, chargeable gains have been included in the profits subject to the supplementary charge, except when the transfer is a swap of licenses or is reinvested in the sector. Having chargeable gains liable to both corporate tax and APT is relatively rare. On the contrary, in Australia, the transfer of an interest does not trigger PRRT consequences. Since the enactment of the PRRT in 1987 several amendments to the law and rulings were necessary to progressively clarify the PRRT treatment of a transfer for the transferor and the transferee with the objective of being neutral in terms of PRRT liability. Thus, the consideration received by the transferor is not subject to PRRT and is not deductible by the transferee for PRRT purposes. However, the transferee is entitled to make deductions for the cost transferred from the transferor in proportion to its acquired entitlement for corporate tax.
Under the second option, the APT is a joint tax liability of the licensee and not an individual liability of each entity constituting the licensee. This is the case under most resource rent tax schemes based on the effective profitability achieved by a petroleum project. Only some of those schemes today clarify in detail the treatment of transfer of interest for APT purposes either in the law enacting the APT or in the petroleum agreement. Generally, the principle developed by Australia for the PRRT liability of a company, intended to remain neutral regarding the APT consequence of a transfer of interest, is followed but at the difference of Australia applied jointly to all the entities constituting the licensee, not individually.
With the increased prevalence of transfers of interest, it is important that APT regimes clearly set out the treatment of transfers of interest.
6.2 PSCs and transfers of interest
PSCs were introduced more than 40 years ago and are now widely used globally. While PSCs generally provide for the approval of a transfer of interest, the accounting consequences on cost recovery and the tax obligations arising from such a transfer have been only recently clarified in more and more PSCs. The following rules are becoming commonly applied when the legislation or the PSC deals with transfer of interest issues.
(1) A transfer of interest is generally not considered as part of the petroleum operations jointly performed under the PSC but is an activity incidental to petroleum operations because the decision to enter into a transfer of interest agreement is made by only one entity constituting the contractor and not all of them collectively. The immediate consequence under this approach is that the transaction has no impact on cost recovery and profit petroleum sharing in order to maintain neutrality among the various PSC holders. Therefore, the consideration paid by the transferee is not considered as a recoverable cost under the PSC, and the consideration received by the transferor is not assimilated to revenue, reducing its balance of unrecovered costs. The transferee inherits the unrecovered cost incurred by the transferor in proportion to the acquired interest in the PSC. However, any gain derived by the transferor is subject to tax under the income tax or CGT as explained previously.67
The stated rules apply, for example, in Angola, where the Law N°10/04 of November 12, 2004, provides that capital gains arising from transfer under PSCs are profits subject to the 50 percent petroleum income tax. A new law in Mozambique68 provides for the taxation of gains related to direct and indirect transfers under PSCs at the corporate tax rate of 32 percent. Transactions prior to this law have been liable to tax under specific negotiated deals using as a basis the general law (see detailed examples in Box 7.1). In Indonesia, government regulation N° GR97 of 2010 clarified that the transferor income arising from a transfer of interest is immediately liable to a final income tax equal either to 5 percent (during the exploration period) or 7 percent (during the exploitation period) of the consideration gross amount.69
(2) A few countries using PSCs have developed a transfer clause providing that a transfer of interest has an impact on cost recovery. Thus, in Gabon, the consideration received by the transferor is considered revenue reducing the balance of its recoverable costs, while gains are liable to the corporate income tax. This approach is relatively exceptional.
It is recommended that any tax law and PSC should address in detail such provisions to prevent difficulties in case of transfers.
It is important that host countries have adequate rules to ensure effective income taxation of direct and indirect transfers of an interest in a mining or petroleum right. Developing these rules requires consideration of the fundamental features of the income tax, namely (i) characterisation (revenue or capital); (ii) timing of the taxable event; (iii) valuation of the consideration received; and (iv) the source of income (domestic or foreign). Explicit rules may need to be included to ensure effective taxation of overriding royalties, farm outs, or indirect transfers through the disposal of an interest in an upper-tier entity. Further, the application of the domestic law rules needs to take account of the application of any applicable tax treaty. Importantly, host countries need to ensure that the negotiation of any future tax treaties preserve the country’s right to tax gains on the transfer of interest no matter what form the gain takes. Moreover, the consequences of a transfer in case of payment of an additional profits tax or of a PSC have also to be explicitly addressed in the law or the agreement, in coordination with the income tax or CGT treatment of the gains.
BirchC. (2002) “Choosing the Right Joint Venture Structure for a Farmin or Farmout” Journal of Australian Taxation5(1) 60–113.
BurnsL. and R.Krever. (2000) “Taxation of Income from Business and Investment” in V.Thuronyi (ed.) Tax Law Design and Drafting (The Hague: Kluwer law International) pp. 597–681.
International Monetary Fund. (2012) Fiscal Regimes for Extractive Industries: Design and Implementation August 15 2012 Available at http://www.imf.org [Accessed August 15 2015].
MurrayI. (2013) “The Tax Treatment of Farmouts: Do Rulings MT 2012/1 and MT 2012/2 Chart a Path to Revenue Nirvana or Hades?” Australian Tax Review42 (1) 5–32.
VannR. (2000) “International Aspects of Income Tax” in V.Thuronyi (ed.) Tax Law Design and Drafting (The Hague: Kluwer law International) pp. 718–810.
VogelK.M.EngelschalkM.GörlA.HemmelrathM.LehnerR.PöllathR.ProkischM.RodiF.Stockmann and W.Tischbirek. (2005) Klaus Vogel on Double Taxation Conventions: A Commentary to the OECD UN and US Model Conventions for the Avoidance of Double Taxation on Income and Capital with Particular Reference to German Treaty Practice3rd edition (London and Boston: Kluwer Law International).
Research assistance was provided by Ms Nikki Teo, PhD student, University of Sydney. The authors wish to thank Richard Krever, Joseph Guttentag, Stephen Shay, Philip Daniel, Artur Świstak, Michael Keen, and Victor Thuronyi for their comments on the chapter. However, all errors and omissions are the sole responsibility of the authors.
The reference to “transfer” in this chapter is a reference to any form of transfer or alienation of ownership of a mining or petroleum right or an interest in an entity, directly or indirectly, holding such a right, including a sale or assignment.
A reference in this chapter to a “mining or petroleum right” includes an exploration or prospecting licence or permit, a mining lease, development licence, or an interest in a petroleum agreement (which may be a production-sharing agreement or a risk service contract).
While the transfer of an interest in a mining or petroleum right may involve value-added tax (VAT) or goods and services tax (GST) issues, this chapter focuses on the income tax treatment of gains arising on such transfers.
See, generally, IMF (2012) at paragraph 74 and Appendix III.
A reference in this chapter to the holder of a mining or petroleum right is a reference to the holder of an exploration or prospecting licence or permit, a mining lease or development licence, or a party to a petroleum agreement (contractor).
See Vann (2000) at p. 743.
A tax treaty is an international agreement between two or more countries (referred to as “Contracting States”) providing for the avoidance of double taxation and the prevention of fiscal evasion. Tax treaties are usually bilateral. In broad terms, a tax treaty allocates taxing rights between the Contracting States in relation to income or gains arising from economic activity between the States. The general pattern of a tax treaty is to limit or exclude the taxing rights of a Contracting State as host country. Generally, a Contracting State as residence country (referred to as the “home country”) has full taxing rights but with an obligation to provide double tax relief in relation to host country taxation. Tax treaties generally follow the OECD Model Double Tax Convention on Income and Capital (referred to as the “OECD Model”). The United Nations has also prepared a model tax treaty entitled Model Taxation Convention Between Developing and Developed Countries (referred to as the “UN Model”). The UN Model is largely based on the OECD Model but includes broader source-country taxing rights in relation to some classes of income. Unless indicated otherwise, the article references in this chapter are to those in the most recent version of the OECD Model (released in August 2014).
This assumes that the joint venture is not a partnership. Classification of a joint venture as a partnership is usually avoided by the joint venturers sharing output rather than profits.
In broad terms, a “spin-off” is a form of corporate reorganisation under which a division or part of a company (“parent company”) is separated (or “spun off”) into a new company, with the parent company distributing the shares in the new company to its shareholders on a pro rata basis. The outcome is that the parent company has divested itself of ownership of the division or part that has been spun off into the new company but in a way that its shareholders retain their interest in that division or part through their shareholding in the new company. One reason for a mining or petroleum company to enter into a spin off arrangement is to separate assets having different risk profiles.
The income tax could provide for tax-free transfers, with the transferee taking over the transferor’s cost of the mining or petroleum right (including a nil cost). This may apply generally or only when the transfer is made under a farm-out agreement when the only consideration is work commitments (see sections 3.3 and 5.2).
A change in control is usually designated as a change, directly or indirectly, of more than 50 percent of the membership interests in the entity holding the right. The threshold for a “substantial change” may be as low as 10 percent.
The written-down value of a mining or petroleum right is the cost of the right reduced by any depreciation or other deductions allowed in respect of the cost of the right.
If the cost of acquiring a mining or petroleum right is depreciated for tax purposes, then taxation of the transfer of the right may be, wholly or partly, under the depreciation rules (see sections 3.1 and 3.2.1).
This is discussed further in section 4.5.
Under a PSC, the contractor bears all costs of exploration and development in return for a share of any resulting production. The PSC will usually specify a portion of total production that can be retained by the contractor to recover costs (“cost oil”). The remaining production (including any surplus of cost production over the amount needed for cost recovery) is termed “profit oil” and is divided between the government and contractor based on a formula set out in the PSC. “Cost oil” and “profit oil” may be termed “cost gas” and “profit gas” or “cost petroleum” and “profit petroleum” – depending on the circumstances.
Under a services contract, the contractor is paid a fee for services performed (such as drilling services). The fee may depend on the success of the project.
It is possible that the tax provisions will be in a PSC. While it is considered best practice for tax provisions to be provided for in legislation, if they are in the PSC, the PSC must provide for direct and indirect transfers of interest.
The reference to “depreciation” in this chapter is a reference to any form of capital allowance in relation to capital expenditure, including amortisation (a term commonly used in relation to intangible assets and expenditure).
In civil-law countries, the close alignment of tax accounting with financial accounting means that the financial accounting depreciation rules applicable to the cost of a mining or petroleum right apply also for tax purposes subject to any acceleration in the rate of depreciation for tax purposes. There is usually greater separation of tax accounting from financial accounting in common-law countries. One reflection of this is that the income tax law in common law countries usually includes a comprehensive depreciation regime. Traditionally, the depreciation regime in common-law countries was confined to tangible assets (such as plant and equipment), leaving the deduction of the cost of acquiring intangible assets to general principles. Even if that is still the case in some common-law countries, it is common for a special deduction rule to apply to mining or petroleum expenditure. For a general discussion on the relationship between financial and tax accounting, see see Burns and Krever (2000) at pp. 599–602 and 673–678.
In this case, it is possible that no deduction may have been allowed for the cost of the right at the time of the transfer.
This is relevant when capital gains are either untaxed or taxed at a different (usually lower) rate to that applicable under the normal corporate income tax.
See Lee Burns & Richard Krever, supra note 20.
Examples of concessional treatment of capital gains include: (i) indexation of the cost of the asset for inflation; (ii) partial inclusion of the gain; or (iii) application of a lower tax rate than under the normal income tax.
See, for example, section 2(3)(c) and the definition of “taxable Canadian property” in section 248(1) of the Income Tax Act 1985 (Canada) and sections 855–10 and 855–15 of the Income Tax Assessment Act 1997 (Australia).
Nathan v FC of T (1918) CLR 183, at pp. 189–190.
Liquidator, Rhodesia Metals Ltd (in liquidation) v Commissioner of Taxes  AC 774.
Australian Machinery & Investment Co Limited v DCT (1946) 180 CLR 9.
It is important to emphasise that each tax treaty is the result of a negotiation between the Contracting States and will not necessarily exactly replicate the OECD Model (or UN Model), so regard must be had to the terms of the particular treaty in question. Further, many countries do not exactly follow the OECD’s interpretation of the articles of the OECD Model as set out in the Commentary to the OECD Model. Interpretational differences are set out in the reservations or observations in the Commentary to the OECD Model. Also, the OECD Model has been amended over time, and older tax treaties will be based on earlier iterations of the Model.
Often the contractor under a petroleum agreement is incorporated outside the host country and only registered as a branch in the host country.
Article 6(4) (Article 6 priority) and Article 7(4) (Article 13 priority).
Paragraph 1 of the Commentary to Article 6 of the OECD Model.
The residence country is obliged to give relief from double taxation under Article 23.
Paragraph 3 of the Commentary to Article 6 of the OECD Model.
Paragraph 8 of the Commentary to Article 6 of the OECD Model.
See paragraph 85 of the Technical Explanation to the United States Model Income Tax Convention of November 15, 2006. Generally, Article 13 of Australia’s tax treaties is headed “Alienation of Property” and refers to “gains” rather than capital gains.
Klaus Vogel et al., Klaus Vogel on Double Taxation Conventions: A commentary to the OECD, UN and US Model Conventions for the avoidance of double taxation on income and capital with particular reference to German treaty practice, London/Boston, Kluwer Law International, third edition, at p. 376.
Government of the Republic of South Africa v Oceana Development Investment Trust Plc  3 All SA 661.
See, for example, section 855–20 of the Income Tax Assessment Act 1997 (Australia).
See, for example, Resources Capital Fund LP v Commissioner of Taxation  FCAFC 37.
For example, the gain on disposal of immovable property is ordinary business income and, under a particular tax treaty, Article 6 does not apply to the alienation of immovable property, and Article 13 applies only to capital gains, or a mining or petroleum right is not immovable property, or the value is allocated to associated information rather than the right transferred.
Some countries may expressly include “exploration” in their tax treaty equivalent of Article 5(2)(f). See, for example, Article 5(2)(f) of the Australia–United Kingdom tax treaty (2003).
If the gain made by the transferor is not taxed, the transferor’s effective tax rate on its overall profits derived from the venture will become considerably lower than anticipated.
Australian Machinery & Investment Co. Ltd v DCT (1946) 180 CLR 9.
See, for example, section 83(1)(lc)(ii) and 143H of the Income Tax Act 1997 (Cook Islands).
See generally, Stefano Simontacchi, “Immovable Property Companies as Defined in Article 13(4) of the OECD Model”, (2006) Bulletin for International Taxation 29.
Id. at pp. 30–31. It is noted that the U.S. Model Tax Treaty deems an interest in a land- rich entity to be immovable property for the purposes of Article 13. See United States Model Tax Convention, November 15, 2006, Article 13(2)(b) reference to “United States real property interest”. The Technical Explanation to the US Model explains the term as defined in section 897(c) of the Internal Revenue Code to include “shares in a US corporation that owns sufficient US real property to satisfy an asset ratio test on certain testing dates”: Technical Explanation of the 2006 US Model Income Tax Convention, paragraph 216.
Article 13(4) was included in the OECD Model in 2003.
Article 13(4)(a) of the UN Model effectively limits the scope of Article 13(4) to property management companies. Consequently, the source country taxing rights are broader under the OECD Model. If two Contracting States are proposing negotiating a tax treaty based on the UN Model, it is important that paragraph (a) of Article 13(4) is deleted so that the taxing rights under the indirect transfer rule are broadly stated.
The definition of substantial change can vary between 10 percent and 25 percent.
In old mining and petroleum laws, the obligation to notify a transfer or assignment and obtain approval from the minister did not explicitly mention “indirect” transfers. Many such laws were amended to deal with the approval of direct and indirect transfers.
These suggestions are based on proposals currently under consideration in several countries.
See, for example, section 143H(4) of the Income Tax Act 1997 (Cook Islands).
An example is included in Box 7.1.
The recipient may have incurred prospecting or exploration expenditure that can be offset against the income received.
The host country may characterise the payments as recurrent outgoings of the transferee and, therefore, revenue in nature.
Stanton v Federal Commissioner of Taxation  HCA 56; (1955) 92 CLR 630, at p. 642.
See, for example, section 2(tt)(ii) of the Income Tax Act (Cap. 340) (Uganda).
See, for example, section 79(n) of the Income Tax Act (Cap. 340) (Uganda).
See, for, example, section 88(5) of the Income Tax Act (Cap. 340) (Uganda).
See, generally, Charles Birch. (2002), “Choosing the Right Joint Venture Structure for a Farmin or Farmout,” Journal of Australian Taxation, 5(1), 60.
For example, the Morobe mining joint ventures in Papua New Guinea, which are 50–50 joint ventures between Harmony Gold Mining of South Africa and Newcrest Mining of Australia.
The potential complexity of the tax treatment of a transfer of interest under a farm-out agreement is highlighted by the approach taken by the Australian Taxation Office to such transfers in two taxation rulings: Australian Taxation Office, Miscellaneous Taxation Ruling MT 2012/1 Application of Income Tax and GST Laws to Immediate Transfer Farm- out Arrangements (“MT 2012/1”) and Australian Taxation Office, Miscellaneous Taxation Ruling MT 2012/2, Application of Income Tax and GST Laws to Deferred Transfer Farm-out Arrangements (“MT 2012/2”); see Ian Murray. (2013), “The Tax Treatment of Farmouts: Do Rulings MT 2012/1 and MT 2012/2 Chart a Path to Revenue Nirvana or Hades?,” Australian Tax Review, 42, 5.
See, for example, section 143G of the Income Tax Act, 1997 (Cook Islands).
The only exception deals with the preemptive rights that may be exercised by the other entities.
When the PSC arrangement provides for an “after-tax profit petroleum sharing” as in a number of countries, the PSC should explicitly provide that the transferor is individually liable for taxation on gains, because the after-tax sharing only deals with taxation of joint petroleum operations, excluding individual tax liabilities derived from a transfer. Many PSCs are silent on this issue.
Law No. 27/2014 of September 23, 2014. See, in particular, Articles 18(d), 25 and 29.
This mechanism of taxation on the gross amount was decided to minimize the possible impact of double tax treaties on the taxation of transfers.