The Mopani saga and Zambia’s windfall tax: an alternative reading

In 2010, Zambian NGOs obtained a leaked copy of an audit report conducted for the Zambia Revenue Authority into Mopani Copper Mine, a subsidiary of the Swiss behemoth Glencore. I was working at ActionAid at the time, where we took an active interest in the case. The particular allegation concerning systematic transfer pricing abuse contained in the report was consistent with the experience of many tax authorities, so much so that many Latin American countries have a specific transfer pricing rule to combat it. And with the Grant Thornton imprimatur, it seemed like the perfect story. The company denied it, but then of course they would.

A group of NGOs filed a complaint with Swiss National Contact Point for the OECD Guidelines for Multinational Enterprises (not to be confused with the OECD Transfer Pricing Guidelines), triggering an investigation, but with the parties disputing the facts, there was no concrete outcome. The European Investment Bank, which had lent money to Mopani, conducted an investigation, but so far the findings have not been published. The whole thing feels frustratingly inconclusive.

So while I was in Zambia recently I thought I would look into the story. I have pieced together the account below from interviews with current and former government officials, and with tax advisers from the private sector. It is no doubt only one interpretation of the facts, given to me by stakeholders with their own interests to defend. But it is certainly an interesting one.

In the mid 2000s, as copper prices rose dramatically, the lack of tax revenue from copper mines started to become an issue in Zambia. So in 2008, the government decided to break the fiscal stability clauses in its agreements with mining companies, and enact new taxes.

Historical Copper Prices - Copper Price History Chart

There were two: the windfall tax was based on the value of copper extracted, and the variable profits tax was levied when profitability exceeded a certain amount. There’s an excellent paper by David Manley [pdf], who was in the Zambian finance ministry at the time, explaining all of this. The idea, so I was told, was to begin with a moderate tax on sales, and meanwhile to build capacity in the Zambia Revenue Authority to administer a variable profits tax.

Officials were frustrated, however, that the original proposal to levy the withholding tax at between five and 15 percent (depending on the price of the copper sold) was rejected by politicians, who instead set it at between 25 and 75 percent. This was politically unsustainable in a country where the mining industry is willing and able to lay off hundreds or thousands of unskilled workers in a standoff with the government, as it is doing now in a dispute over VAT refunds, and (so I was told by one researcher) powerful enough to manipulate the exchange rate.

“At the time the mines were in the development stage, and it would have killed them to tax on sales,” a former official told me. According to a tax adviser, “It was pushing the mines into a loss.” Manley is more understated:

The mining companies were upset by the unilateral revocation of the Development Agreements and some refused to pay the new taxes. The announcement was followed shortly after by the onset of the global financial crisis. Copper prices fell sharply and marginal mines started laying off workers.

In 2009, the government backed down, and the windfall tax was repealed. It is here that the Mopani audit comes into play. The ZRA, with support from Norwegian technical assistants, began to conduct (or rather commission) audits of all the mining companies. The purpose was to start enforcing the variable profits tax with a clear idea of the mines’ cost bases. This targeted approach would work well with limited tax authority capacity and only a few very large mines. As the Mopani audit report makes clear, the company wasn’t very cooperative with the audit. Here I paraphrase what a former official told me:

“It was a tactic.” It’s what you do in an audit if they are not supplying the information. There was a lot of missing information and so the report was written with the intention of giving it to the company and saying ‘either you provide the information, or we will tax you on this basis.’ So of course you take an aggressive position in the audit report to create an incentive for them to supply the information. Then it was leaked and it all exploded internationally. Over time, some information came and we settled with them. Of course it was lower than the amount in the audit.

According to this official’s version of events, the audit tells a tale of a company doing its best to frustrate a tax authority by obfuscating, but for that same reason it can’t be read as a final word on Mopani’s tax affairs.

As for taxing mining profits, it now seems that Zambia’s new government has given up on this altogether, opting instead for a much higher royalty rate – effectively a return to the windfall tax. The industry is unhappy. Worse still, “as audit firms we’ve been rendered useless,” a tax adviser said to me.

But one way to interpret this in the light of the Mopani audit is that, if firms make it difficult for developing countries to administer taxes on their net income, they risk being taxed on gross instead. Zambia has, after all, already raised withholding taxes on management and consultancy fees to 20 percent.

 

Five people who were missing from the Global Tax 50

We’re invited to comment on International Tax Review’s Global Tax 50. It says a lot about these annual trade press lists that four years before I appeared in the International Tax Review list I had featured in its equivalent in Drapers, which covers the fashion industry! Still, it’s a fun game, so let’s play it. Here’s who I think they missed out.

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