Introduction

1. Relevant provisions that are needed to address the concern of the company are Section 7 and 101 (4) of the Income Tax Act (ITA) 896, Article 3(1)(H) and Article 8 of the Double Taxation between Ghana and South Africa and United Kingdom (UK) and Ghana.

ITA 896
General Rules

1. The rule in respect of resident entity is that an entity is resident in Ghana where the entity is incorporated under the company Act 992 or it has its affairs centrally managed in Ghana.
2. Provision in section 7 of the ITA 896 is relevant. Section 7 exempts the income of a non-resident person from business of operating ships, aircraft, where the Commissioner General is satisfied that equivalent exemption is granted by the country of residence of that person to a person resident in Ghana.
3. Considering that, there is DTA between Ghana and South Africa, the provisions in the DTA, prevail over the provision in the ITA. See section 98 of Revenue Administration Act 915.
   1 mark each

Changes to UN/OECD MTC article 8

1. Prior to 2017, the tie breaker rules for allocation of taxing right of state by resident status was changed from place of effective management (POEM) to a determination being made by mutual agreement and also to the manner in which profits arising from international shipping and air transport will be allocated from the State with the company’s place of effective management to the State of the enterprise.

The DTA and determination of the taxing right
The General rules in the DTA
2. There is a need to consider Articles 3 and 8 of the DTA between South Africa and Ghana and the UK and Ghana. The relevant provisions in DTA with UK and South Africa are the same.
3. Where the relevant activity falls within Articles 3 and 8, Articles 5 and 7 do not apply therefore Article 8 trumps Articles 5 and 7.
4. Article 8(1) of the DTA states that Profits of an enterprise of a Contracting “State from the operation of ships or aircraft in international traffic shall be taxable only in that State”. Para 2 of the commentary to the article 8 provides that states prefer to assign taxing right to the states of the enterprise.
5. Article 3(1)(h) of the DTA also defined international traffic to mean any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State.
6. On the basis of Article 8(1) and paragraph 2 of the Commentary to article 8, and on the basis of the fact in the case, there is no specific need to consider the location of Kazeebu’s place of effective management.
7. Rather where the relevant activities fall within Article 3 and Article 8 is where the taxing right will be located.
8. Most likely, South Africa has the right to tax all the relevant profits as it is the most likely state to be “Contracting State of the enterprise” based on the facts. Remember, the company is incorporated in South Africa. And exclusive use of place of effective management has changed to enterprise of the state. In fact, this is the position of Ghana/South Africa DTA.
9. Where the aircraft (as part of the same voyage) flies between a place in Ghana to South Africa (leg one) and then flies from the South Africa location to another location in South Africa (leg two), both legs of the journey will fall within the definition of “international traffic” so longer as the flight originate from South Africa.
10. According to Article 8, South Africa has the right to tax profits derived by Kazeebu from “international traffic”, air/ship traffic within its borders and also that occurring within third countries, the United Kingdom.
11. In this case South Africa will have the right to tax any profits derived by Kazeebu from sales made by the Ghanaian agent that are for travel wholly within South Africa under the Ghana/South Africa DTA (i.e. category (a) flights above) and may have the right to tax any profits arise from flight made to UK wholly within UK which flight originate from South Africa.
12. The relationship between the agents in Ghana and Kazeebu needs not be considered as has been the case in Article 5 (5) and Article 7(1).
13. Commentary on Article 8(1), para 4-4.3, the allocation rule in Article 8 applies not only to the profits directly obtained from ticket sales but also to profits obtained from activities that are not directly connected with these sales provided these other activities are ancillary to the operation of Kazeebu’s airline business. Where the activities are considered to be ancillary then profits from these activities will be taxable only in the state of the enterprise, i.e. Ghana.
14. Although the advertising fees may not be considered to be directly related to Kazeebu’s international traffic operations, these are derived from an activity that is ancillary to the operation of Kazeebu’s aircraft.
15. South Africa will have the right to tax the income derived from the advertisement.
One marks each for each relevant points