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June, 2003

Management

Lawful Tax Planning

Tax planning is different from tax management in the sense that the letter means efficient, systematic ad timely handling of tax matters to save time and talent and to avoid worry, tension, stringent penalty and prosecutions. Tax management covers maintenance of records and documents, filing of tax returns in time and preparing other tax related matters. It is an administrative work.

Businesspersons use tax planning because first, it helps in saving tax of a business that in turn enhances the profitability. In other words, it is the process of increasing the net worth of a business organization. Second, tax planning helps in avoiding unnecessary worries, tension and administrative hassles. Third, it helps in proper use of government facilities.

HMG/Nepal is not positive as regards tax planning though it is not an illegal and immoral activity. Income Tax Act, 2002 has clearly stated that tax planning should be controlled as far as possible. The tax officials say, there are provisions Income Tax Act, 2002 to avoid the transfer of cost by multinational companies from a country of low tax rate to a country of high tax rate. They also advocate that the Act has made provisions for avoidance of income splitting between different tax-payers. The law does not have a provision of allowing to reduce dividend income. The Nepali tax authorities believe that the Act’s provision granting tax office an unrestricted access to the information related to the taxpayer further guarantees that there will be no tax planning. But in reality there are plenty of avenues under this Act for tax planning as explained below:

Tax Planning Avenues

Businessperson perform two types of activities related to investment. One affects for the long time and other affects for the short time only. The first type is related to strategic planning and the second one to operational planning. Both of these activities have implications on tax related matters. Some of the provisions of the Income Tax Act 2002 which can be considered as the avenues of tax planning in both the long run and short run planning are as follows:

I.          Tax Planning under Strategic Expenditure

a.            Selection of Business

As per the Act, the rate of corporate income tax for manufacturing sector is 20 percent, for financial sector 30 percent and for other sectors 25 percent. This means, there are differences in tax rates applicable to different  sectors of the economy. The differences are created to promote the manufacturing sector of the economy and thus to create employment to the people. But equally important is the fact that this difference induces tax planning. Other things remaining the same, an investor selects manufacturing sector because the tax rate applicable to this sector is low. In the same way, as per the Sec. 11 of the Act, the agriculture business conducted individually is out of the tax net. Also the incomes of agriculture related cooperatives and saving and lending cooperatives situated in rural areas are tax-free. Even the dividend distributed by such organizations is out of the scope of taxation.

That means, an investor can save money by investing in above stated agriculture sector or cooperative business. Such saving  of tax is neither illegal nor unethical. It was found from one survey that 90 percent of the business firms consider tax factor while selecting the line of business (Corporate Tax Planning in Nepal, Karna B. Paudyal, 1998). As per the Section 15 of the Industrial Enterprise Act 2049, there is a provision to return to the taxpayer the value added tax paid by the units that export their products or sell them to export promotion houses, by the units that produce intermediate goods to be used in producing exportable goods or by units earning foreign exchange. Logically, these types of enterprises are selected by investors.

b. Selection of Product

As per the Income Tax Act, certain products are preferentially treated as regards to income tax rates. For example, firms related to hydropower, road, bridge, tunnel, rope way, flying bridge, trolley bus should pay 20 percent tax where as firms in petroleum industry and financial business should pay 30 percent tax. There are differences also in loss recovery period. It covers seven years for build, operate and transfer (BOT) projects and four years for others. Furthermore, carry back facility is also given to banking and insurance business. Thus, from the point of view of tax rates and loss recovery periods, certain types of products are given special facility giving the inducement for tax planning.

c. Selection of  organizational form

Proprietorship firms get exemption facility of Rs. 65,000 if the owner is an individual and Rs. 85,000 if the owner has a family. But a company or a partnership organisation does not get this exemption. Progressive tax rate is applicable to proprietorship firm but a fixed tax rate is applicable to a company. A company’s, profits are taxed twice (i.e. once from the profit of the company and then from the dividend received by the individual shareholder) whereas a proprietorship does not have to pay such double taxation. In addition, individual owners of vehicles that are for the hire have to pay a nominal income tax (Rs. 1500 for truck/bus, Rs. 1200 for car/jeep etc per year) which is full and final irrespective of the actual income. All these discriminations encourage selection of proprietorship form of business organization.

d. Selection of Location

The provisions under the Income Tax Act, 2002 and Industrial Enterprise Act, 1992 as regards to location of business help in tax planning. For example, in remote area, an individual can avail of remote area allowance of up to Rs. 30,000. Business established in remote, undeveloped and under developed area should pay only 70 percent, 75 percent and 80 percent of the normally applicable tax rate. The scope of tax planning is enhanced due to provision of applying different amounts of taxes to firms situated in different types of cities also. Business having up to Rs. 1 million as annual transaction or Rs. 100,000 as income should pay only Rs. 2 thousand as tax if situated in a metropolitan city. Business of the some nature in sub-metropolitan city should pay Rs. 1,500 and in a municipality only Rs. 1000 (Annex 1 to the Act).

e. Merger

There are certain techniques that help in minimizing the tax by way of merger of a firm with another. Due to the scope of tax planning through merger, the businesspersons consider status of the firm before merging. One of the techniques is merging of a non-manufacturing unit into a manufacturing (e.g. a firm related to trading) unit. According to Income Tax Act, 2002, a trading business has the liability of paying 25 percent as corporate tax whereas a manufacturing firm should pay only 20 percent. Thus, by integrating non-industrial and industrial units, a firm can save some furthermore, merging of loss-making unit into a profit-making unit is also beneficial from the point of tax saving since the profit of profit-making unit can be adjusted to the loss of loss-making unit. The provision of loss recovery period given by the new Income Tax Act can be helpful in minimizing the tax liability of such firm.

f. Selection of the  sources of capital

We know, there are three sources of capital, viz. share capital, debenture or loan and retained earnings. The rewards for share capital, debenture or loan and retained earnings are dividend, interest and capital gain respectively. In Nepal, the tax rates applicable to return on each of these sources of capital are different. Interest is taxed at 6 percent but divided is taxed at 5 percent. In case of capital gain, the tax rate is 10 percent for gain on the sale of non-business chargeable assets whereas the profit from the sale of other assets is taxed at normal rate i.e., 20 percent, 30 percent and 25 percent for manufacturing firms, financial firms and others respectively. This means, tax rates on the return on new capital and loan are lower than the tax rate on retention. Accordingly, interest to a business organization is a deductible expense (Sec.14) but dividend and capital gain are not. Naturally, this means more favorable treatment to debenture or loan than to the new capital and retained earnings. This obviously, creates the scope of tax planning employing more loan than new share capital and retained earnings. Since Income Tax Act, 2002, also has favored debt, making interest a tax deductible expense, the firm can plan tax by utilising more debenture or loan than other forms of capital. In Nepali context, it was found that 76 percent of the executives preferred increase in debt in the capital structure with every increase in the tax rate (Poudyal, 1998), though from another survey conducted by the author of this article, it is found that the average debt equity ratio in Nepali businesses is only 40:60.

Normally the discount provided while issuing debenture is tax deductible expense, but discount provided while issuing share capital is capital expenditure and it can be written off only as depreciation. This also induces firms to resort to loan or debenture route to save on the tax.

g. Selection of the method of  production (Sec. 11 sub-Sec. 3)

Other things remaining the same, also the selection of the method of production has impact on the amount of tax to be paid. If a unit is labor intensive and employs more than 600 persons, it should pay only 80 percent of tax that should be paid by unit not having 600 employees. That means the firm can plan to save tax by employing more than 600 employees in its factory.

II. Tax Planning under Medium and Short Term

a. Make or buy decision

There are two methods of acquiring fixed assets of a firm: leasing and buying. If assets are purchased, the firm gets depreciation facility as per the Income Tax Act as it is taken as capital expenditure. If the asset is leased, the rent is taken as revenue expenditure and is allowed to deducted as expense. If fixed asset is purchased through borrowing, the interest on capital can be deducted as expenditure.

While 100 percent of the rent on the leased asset is allowed in each year as expenditure, this is not so in case of the outlay made for the procurement of a machine, in which case only depreciation is allowed. Therefore, leasing is beneficial than buying machine. But in case of building, buying is more advantageous than the construction if depreciation is allowed for the combined cost (i.e. both for land and building). In construction, depreciation is allowed only on building not on land. Accordingly, between constructing a building and leasing it, the latter is more beneficial option because it will make the firm able to claim the entire rent of land and building as expenditure.

If a road or hospital is to be constructed by a company, it would be better to donate the fund to central or local government and make them construct the road or hospital since this entire amount can be written off as expenditure under donation head itself in the year of donation remaining within the limit of donation. If the firm itself constructs the road, it can be deducted by way of depreciation  which writes off only one part of the expenditure in a year. It means, the expenditure can be recovered only in a distant future. Future recovery means decrease in the present value.

b. Repair (Sec. 16)

There are two types of expenditures, i.e., capital expenditure and revenue expenditure. Capital expenditure is taken as fixed assets creation and is authorized to have depreciation claim only in future. The expenditure that increases the longevity, capacity or price of the asset is included within capital expenditure. On the other hand, revenue expenditure is treated as current expenditure and is allowed to be debited in profit and loss account in the current year. Contrary to this universally accepted principle, Income Tax Act, 2002 has treated all the repair expenditure (whether capital or revenue) uniformly. As per the Act, if the repair expenditure is not more than five percent of the depreciation base of the concerned pool of assets, it is allowed as expenditure in the year of occurrence. If the amount spent on repair is more than 5 percent of the depreciation base, the excess amount is taken as capital expenditure and is added to the depreciation base of the concerned pool of assets. Considering this provision given in the Act, the taxpayer can plan his expenditure on repair and maintenance.

c. Loss recovery

# Loss from foreign source investment can be recovered from gain from foreign source investment.

# Loss related to nontaxable source can be recovered from income from nontaxable source.

# Loss from foreign source business can be recovered from foreign gain from investment and business.

# Loss from investment in Nepal can be recovered from gain on investment in Nepal and foreign country.

# Loss from business in Nepal can be recovered from gain on business and investment in Nepal and foreign source.

# Loss can be recovered from the profit of the next four years but it is 7 years for infrastructure project. Carry back to insurance and banking business up to 5 years is also the provision of the prevailing tax act. All these mean that the investor can plan to recover the losses by minimizing the tax liability as far as possible.

d. Pollution control (Sec. 17)

Pollution control expenditure is another area where management can legally save tax. Here, it should be noted that as per the Income Tax Act, 2002 up to fifty percent of the taxable income before deducting pollution control device expense, research and development expenses and donation expenses can be claimed as expenditure. That means, pollution control expense in excess of 50 percent of the taxable income can be capitalized and written off as depreciation in future.

e. R & D (Sec. 18)

Research is very important to a firm to sustain in the market. That is why tax law treats research and development expenses as allowable expenditure. Income Tax Act, 2002 too has made this provision but in somewhat miserly way. Only up to 50 percent of the taxable income can be taken as regular expenditure on R&D of the investment year. The remaining amount should be carried forward and written off in future as depreciation related to research and development expenditure.

f. Depreciation (Sec. 19  and Annex 2 of the Act)

Previously, the basis of depreciation was either the diminishing balance method or straight-line method. The Current Income Tax Act has however prescribed pool basis for depreciation. According to the Act, there are five groups of assets containing ‘a’, ‘b’, ‘c’, ‘d’ and ‘e’. The rate of depreciation is 5% on ‘a’ group, 25% on ‘b’ group, 20% on ‘c’ group, 15%  on ‘d’ group and cost/life to ‘e’ group. The amount of depreciation is calculated by multiplying depreciation base and depreciation rate. If the remaining amount is less than Rs. 2000 in any group the whole amount is written off in the same year. In this context, it would be appropriate also to state that industries and infrastructure projects like road, bridge, tunnel, rope way, flying bridge, trolley bus, train, infrastructure projects under BOT to be transferred to HMG and power house construction, electricity production and transmission etc. get one third of the original rate of depreciation as additional facility (Sub-sec, 3 and 4 of Annex 2 and sub-sec. 2 of the Act). In contrast, the assets of other businesses do not get such facility.

g. Stock Valuation

The commonly used methods of stock valuation are FIFO and weighted average. FIFO method means issuing that stock at first which is purchased at first. Weighted average method on the other hand takes into account the average price of the stock balance on the date of issue. For the purpose of tax saving, FIFO method is less beneficial. Since the materials purchased at first is issued at first, the closing stock shows higher value (assuming a period of inflation) of closing stock creating high taxable profit to the business. Investor can save tax by adopting weighted average method in place of FIFO method of stock valuation.

h. Donation (Sec. 12)

A taxpayer can deduct the donation made to tax-exempt organization in any income year. The limit of such donation is actual amount donated or Rs. 100,000 or 5 percent of the net income before deducting such donation, pollution control expenditure and research and development expenditure. This is also on of the avenues of tax planning.

i. Retention or  Distribution

"Retention" means not distributing the profit currently whereas "distribution" means payment of tax right now at the rate of 5 percent since there is a provision of deducting tax at source if dividend is distributed. Retention means capital gain also. In case of capital gain, the tax rate is 10 percent. In the same way, in case of capital gain  the tax payment is delayed until the date of the sale of the share. If there is distribution, the tax should be paid in the year of payment of dividend. This means, the firm can at least gain from the present value of the amount of tax that should be paid to the government if it retains the profit. Accordingly, if the dividend is paid to a company that holds more than 25% of the shares in the distributing company, the dividend tax should not to be paid (sec. 54 sub. sec. 3). That is, by selling more than 25 percent of the total shares to a company, a firm can save tax.

j. Others

Besides those stated above, there are other provisions in the tax law which also help in minimizing tax liability of a person. For example, in case of individual, there are provisions of remote area allowance, meal and tiffin expenses, contribution to retirement fund in case of approved retirement fund, medical tax credit, perquisites like residence facility and vehicle facility etc. which can be managed to reduce the tax liability.

(Dr. Kandel is a practising auditor and he also teaches in Tribhuvan University. This article is adapted from his paper printed in Vol. 1 No.4 of the Nepal Accountant, a journal of the Institute of Chartered Accountants of Nepal)


What is tax planning?

Basically, there are four ways of minimizing the tax liability, viz tax evasion, tax avoidance, tax delinquency and tax planning. Tax evasion means evasion of tax through illegal means. It is done through nonreporting of income, underreporting of income, making fraudulent changes in account books, maintaining multiple sets of accounts, operating bank account under different names, doing business in dummy names, overreporting of expenses, fragmenting of income, transfer pricing etc. As these are clearly unethical activities, tax evasion is unethical and illegal activity. Tax avoidance, in contrast, is saving taxes without breaking the law. It is using the loopholes of the tax law to tax-payers benefit. Thus it is not illegal, it is though unethical. From the point of view of a lawyer, tax evasion and tax avoidance are different because tax evasion is breaking the law but tax avoidance is reducing tax liability by using loopholes of the tax law. But from the viewpoint of an economist, they are the same, since they both mean reduction of tax amount and awareness of one induces one to follow the other. In a developed country, where there are large organizations, educated tax payers, strict tax discipline and so on, there is prevalence of avoidance, elsewhere, evasion dominates the scene.

Another way of reducing tax liability is tax delinquency. The meaning of tax delinquency is delaying in paying the taxes.

Tax evasion, tax avoidance and tax delinquency are not legitimate methods of reducing the tax liability. That is why, a business organization should not follow these paths. Unlike these terms, tax planning is however a legal activity intended to save tax. It is the scientific planning of a company’s operations using various incentives, concessions, allowances, rebates etc. provided by the government under the law. Tax planning is related to future activity of a business organization. The objectives of tax planning are reduction of tax liability, minimization of litigation, making productive investment, promoting healthy growth of economy and economic stability in a country. Tax planning entails changing structures of a business, project planning and planning day to day activities of a business organization.

Features of tax planning are:

# It is the genuine use of facilities provided by a government,

# It enhances economic environment of a country,

# The objective of tax planning is to reduce tax liability,

# It is the use of expertise to exploit consciously provided facility, and

# It is related to future activities of a business organization


What They Can’t Teach  You at 
The Harvard Business School 

I am a big fan of my friend Rajaram. Armed with an MBA from the Harvard and a stint at McKinsey & Company’s New York office, Rajaram is a living, breathing example of a young Nepali nationalist’s coming back to this country to use his capitalist training to fly the socialist “Afno Nepal Aafai Banau” program to the Himalayan heights.

“I am going to open up a business school,” Rajaram informed me over chicken chilly and chilled Tuborg. “Not just any business school. But the business school of the South Asia ... the one with the best all-around curriculum to train the best and the brightest Nepalis to make as much money as they can.”

Well, well, well. How could you possibly disarm such charm? No way, right? So, wide-eyed, I kept on chewing and nibbling on the boneless chicken chunks.

“You see, I have two problems with top American MBA programs,” Rajaram continued. “First, they are only good at cranking out graduates to take charge of IBM, Microsoft, Goldman Sachs and other big-name companies. What this means is that our own Gorkhali students in the US never get to practice how to run and profit from Nepal-compatible businesses that can bloom only in our kind of economy. And the other problem is that so widely has the generic American MBA model been copied, even at Nepali universities, that there isn’t much room to teach and learn native skills that are more necessary to profit from a business... any business... in Nepal.”

From a Hahvahd grad throwing me a free dinner at Nanglo Restaurant, all this sounded impressive indeed. But exactly what kind of skills was Rajaram talking about? And how would his business school teach them?

“Well, let me not bore you with abstract ideas,” smiled Rajaram. “Here, why don’t you look at something concrete?”

With that, Rajaram clicked open his briefcase on the table, and took out a blue folder. He pulled out a few sheets of paper and pushed them forward. I had no choice now but to put down my fork and pick up the neat, fresh-off-the-press pages.

“To earn an MBA at the Rajaram Business School (RBS), you must give an up-front donation of Rs. ten Lakh (1,000,000), exclusive of tuition and other fees, to the institution,” read the first page.

On page two was: “The faculty and the staff of the RBS FORCEFULLY recommend that all RBS MBA candidates take all of the following courses, each of which has been carefully designed to teach only the necessary professional skills that they are most likely to make use of in the big, wide world of Nepali finance, commerce and business. Case-studies have shown that the lessons learnt in these courses can also be applied in Bihar and Uttar Pradesh for equally lucrative results.”

So far so good. Now on to the names, numbers and the descriptions of the “challenging courses at the Rajaram Business School.”

FINANCE 420 — An Introduction to Black Marketing

Just as fish need water, Nepali businessmen dreaming of profits need black markets. Finance 420 will sharpen your skills to evade the formal market to buy and sell dollars, movie-tickets, sugar and all kinds of commodities. Learn ways to smuggle gold and export ancient and neglected idols. Master 101 ways to hobnob with the politicians, charm the police and seduce the customs officers to bend the laws and the rules in your favor.

MANAGEMENT 530 — Fundamentals of Cartels and Monopolies

Competition is bad for your business. In Management 530, learn how to get together with your alleged competitors to form a cushy all-Nepal association of your business. This makes it easier for you to fix prices and devise ways to deter newcomers from entering your industry. See how you can pass on your costs to the consumers by driving up the prices and thereby capturing huge producers’ surplus. Discover ways of killing anti-competition bills, and learn to protect your expanding millions and comfortable monopolies.

SCIENCE 150 — Physics and Chemistry for Business

Science 150 will teach you to mishandle the weights, the measurements and the “taraju” to your ultimate profit. Get paid for one kg of rice when you sell only 950 grams; collect money for one liter of kerosene when you give out only 900 milliliters. Also, get a solid grip on the 101 ways to throw in all kinds of impurities in various kinds of food and sell them all as “taja, taja suddha” stuff.

SOCIOLOGY 290 — Creating the “Afno Manchhe” Network

In Nepal, nothing gets done without an “Afno Manchhe.” That sums up the best-selling insight from anthropologist Dor Bahadur Bista. Sociology 290 will train you to apply Bista’s theory by teaching you ways to cultivate the afno-manchhe network by personal visits, flattery, gifts, favors, bribes, extortions, threats and “chakari”. Learn how to win friends and influence people in all the right places — from the political parties to golf clubs, from the HMG bureaucracies to the airport. After all, the more afno manche you have, the more insider information you will have. And the more insider information you have, the more rapidly your business
will grow.

MARKETING 101 — Giving Hell to the Customers

Remember, the customer is there in Nepal to serve you; you are not there to serve the customer. As such, figure out ways to prey on that vulnerable, believing-everything and never protesting idiot called the Nepali customer. Find out how to sell foodstuff such as biscuits that carry no date of manufacture, no date of expiry, and no mention of ingredients and other mis- and missing information. Learn how to hoard scarce commodities now to sell later for huge profits. Also, practice the fine art of humiliating Nepali customers by loudly shouting at them, “Janoos, janoos, you don’t have the money to buy this.” For foreign-looking patrons, however, learn to bend over backward to provide special service.

ECONOMICS 230 — Policy-making for profit

Learn to fight against copy-right and patent bills. Imitate and steal other people’s products, goods, ideas and styles without paying them any fees. Learn to say “no” to quality, customer service and reliability. Get the inside tips on how to produce quality goods only for export, while dumping shoddier products on the general Nepali public. Master ways to manipulate the inside info on various shares. And be well-versed in ways you can influence the government, of any political party, to help you get away with the least of taxes, that is, if you must pay any at all.

POLITICAL SCIENCE 350 — Entrepreneurship in Infant Democracy

Not many people know that Nepal’s democracy has opened up lots of opportunities for business. Learn, for example, how to run the highly profitable “julus for hire” business. Find out how the lazy days of Nepal Bandh can be turned into busy days of business by hand-delivering video cassettes,  cards for Marriage game, beer and “sekuwa” to Kathmandu’s newly-rich. Discover ways to win the contract to supply “paan” to Kishunji for life; and beer, whisky, cigarettes and luscious babes to other political leaders who spend all their waking hours thinking of ways to make Nepal as developed as Singapore. 

ECONOMICS 345— The Subtleties of Maoist Thought

The karya-kartas of CPN-Maoist have gently threatened to burn down our school if we don’t offer this advanced course. This will teach you the guerilla tactics that you need to survive in corporate jungle. Learn how to call up company-wide “bandhs” and “hartaal” when you don’t get what you want. Learn to call your bosses “you, reactionary dogs” every time they worry about markets and profits. Yes, free market in this course really means free market, as everything is available for free.

ANTHROPOLOGY 201 — The Mystery Called Marwari

Why are Nepali businessmen so jealous of the Marwaris? What makes the Marwaris allegedly so successful? Explore these concerns in depth by studying the history, family networks, religious rituals, immigration patterns, language, love life and the business practices of the Marwaris, Nepal’s most prosperous minority. Do not just sit back and criticize them; you too can learn all their clever tactics to beat them at their own game. By the end of Anthro 201, you will be able to sell Banarasi saris even to the Marwaris.

RELIGION 103 — Desperately Seeking Protection

Learn to run away from competition against better and stronger foreign or domestic companies that can give quality goods at lower prices to customers. Whip up the sentiments of nationalism, patriotism, “unfair competition”, socialism and “Naulo Janabad” to raise tariffs on imports. The idea behind seeking protection is that when you block competition from outside yet are free to create internal monopolies, you are all set to make millions from idiotic Nepalis who have no choice but to buy your products at prices you dictate.

ETHICS 175 — The Brighter Side of Child Labor

For the purpose of sponsoring NGO conferences once in a while, Ethics 175 will teach you to be against child labor in theory. But come on, who are we kidding (pun intended!)? Children, after all, are too tempting a source of unused labor: They eat less, take up little space, are easy to train, don’t need pension and health benefits, can be yelled at, and don’t hit back when slapped and beaten. All these make their services cheaper and easily replaceable. In this course, you will learn to justify child labor as a self-less act of social service: Think, for example, if you don’t hire the child, what will his parents eat?

Well, talking about eating, the chicken chunks on my plate were already cold by the time I finished going through Rajaram’s catalog. And what could I say, except to be lost in the thought that with management gurus like Rajaram, our beloved Nepal is well on its way to be the Banana Republic of South Asia. After all, it’s only through the efforts of visionaries like Rajaram who act global yet think local that a few Nepalis can get super-rich at the expense of million others.

Long live, I say, such management principles. 

(This article was originally published in 1995) 


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