Mining law could hurt industry

A gold miner working underground at a gold mine in Boksburg. Picture: Lori Waselchuk/AP

A gold miner working underground at a gold mine in Boksburg. Picture: Lori Waselchuk/AP

Published Mar 20, 2017

Share

Pretoria

- The interpretation of the Mineral and Petroleum Resources Royalty Act on

expenses incurred by mining companies may have dire consequences for the

embattled industry.

The

interpretation by the South African Revenue Service (SARS) could result in

costs, passed on by mining companies to customers in terms of transport,

insurance and handling of minerals, to be excluded when determining gross

sales.

The

gross sales price will then be artificially inflated by these costs. As gross

sales forms the basis for the royalty calculation, mining companies face a

fundamental increase in royalty tax.

The

mining tax committee of the South African Institute of Tax Professionals (SAIT)

says there is a “significant” concern that, if a reasonable and practical

interpretation is not found, companies will have to approach the courts.

One

company, United Manganese of Kalahari, has already approached the courts for a

declaratory order on the interpretation set out in the draft binding general

ruling published by SARS. The case is set to be heard in May.

SAIT has

requested that the finalisation of the ruling be postponed until the case has

been heard in the high court.

Timeline

The

principle of not penalising beneficiation was one of the issues addressed

during the initial negotiations on the “resource rent” (royalty fee on

minerals) as far back as 2004.

It was

also agreed that transport, insurance and handling costs would be excluded to

determine what the price of the mineral will be at the “first saleable point”.

The

principle that must be applied, and which had been agreed upon in the early

discussions around the resource rent, is that the royalty cannot be imposed on

the transport, insurance or handling costs. It must be charged on the value of

mineral.

According

to SAIT, the answer to this latest issue, is the draft explanatory memorandum that

was never published in a final version.

The draft

memorandum stated that the calculation of gross sales disregards the transport,

insurance and handling expenditure that is incurred to effect the disposal of a

mineral resource.

Read also:  Brikor discloses 'reportable irregularities' in results

In terms

of the binding general ruling it now seems that SARS will not allow the

exclusion of the costs if the taxpayer cannot offer documentary proof of the

expenditure passed on to the customer.

Keith

Engel, CEO of SAIT, says the seller must show that the transport costs are

specifically reflected in the gross sales price agreed to by the

purchaser. 

“Showing

costs incurred is easy - showing that costs are specifically included in the

price is often next to impossible, given the way that companies price and

negotiate agreements with buyers of their minerals,” says Engel.

These

sales agreements are negotiated based on delivery terms used in international

trade such as free on board, cost insurance freight, and ex-works.

“Based

on mining royalty queries and audits, we are concerned that some SARS officials

do not seem to understand how these terms work.”

Not doable

SAIT

says in its submission to SARS that it is “wholly uncommercial” for mining

companies to split their prices in agreements and on their invoices to show the

details of the delivery terms. It can impact on their international

competitiveness.

In other

words, SARS now expect of taxpayers to work out the cost of transport,

insurance and handling for each and every transfer or sale. This is not in line

with the way these costs are negotiated with either Transnet (which brings

their product to port) or large buyers such as Eskom.

The

treatment by mining companies of “expenditure beyond the specified point” has

always been in line with the legislation and the draft explanatory memorandum.

“We

submit that the approach followed by SARS in recent times is misguided and

misplaced . . . We are concerned that SARS is trying to amend the legislation

by way of interpretation,” says SAIT.

Ruaan

van Eeden, head of tax at Geneva Management Group, says one of the aspects so

often overlooked in issuing binding general rulings, is the consideration of

commercial realities in a specific sector of the economy.

Mining,

and the taxes imposed on that sector, are inherently complex. SARS appears to

be taking a very narrow view of the undefined phrase, “without having regard

to” in relation to the transport, insurance and handling costs.

This

seems to be in contradiction with the original policy intent which did not to

unintentionally penalise extractors. It also seems to be in contradiction to the

typical contractual arrangements that are put in place between the extractor of

a mineral resource and the ultimate buyer.

“A more

pragmatic approach should be considered by SARS in issuing the final version of

the ruling, given that supply contracts, in most cases, go beyond the mere

recovery of the mineral resource and would inextricably link, the transport,

insurance and handling components both before and after extraction,” says Van

Eeden.

A

possible reason for the narrow interpretation of the wording in the act is the

pressure on SARS to collect revenue.

The true

effect of the latest interpretation by SARS on transport, insurance and

handling costs is that beneficiation is discouraged, and a royalty is being

levied on these costs and not on the value of the mineral.

BUSINESS REPORT ONLINE

 

Related Topics: