Nigeria: Inside Tax : Issue 31 - Basic Tax & Non-Tax Considerations For Merging Entities In Nigeria

Last Updated: 24 February 2014
Article by Yomi Olugbenro
Most Read Contributor in Nigeria, July 2017

There are different stages in the life cycle of a business. At a certain stage, the Management of businesses may seek to change ways the businesses are organised. Drivers for such change may be internal or external. Internal would be where Management is purely seeking better alignment of functions and operations of the business or to streamline the number of entities in the group for greater efficiency.

In other instances, drivers for change are external to businesses such as the need to: address new markets, react to changes in demand, meet regulatory requirements, keep up with new technologies or products from competitors or even consequences of re-organisation by competitors. For instance, in 2005, the financial service industry witnessed a number of mergers/acquisitions as a result of reforms by the Central Bank of Nigeria.

Whatever the driver, one main reason for restructuring or re-organising a business is to enable it to achieve its objectives. Notable vehicles for achieving business re-organisation  or restructuring therefore include merger and acquisition (M&A). Today, there are many specialists in this area. Federal Inland Revenue Service (FIRS), in its information circular (the Circular) of 2006, defines merger as ''any  amalgamation of the undertakings or any part of the undertakings or interest of two or more companies or the undertakings or part of the undertakings of one or more companies and one or more bodies corporate".

We are aware of many offshoot M&A cases in Nigeria, that is, those involving separate subsidiaries of multinationals who have merged their businesses outside Nigeria as well as homegrown M&A cases. Recently, there has also been increase in the number of business re-organisation involving mergers in the consumer foreign companies have also leveraged M&A of local entities to penetrate the Nigerian market.

Generally, M&A involve series of legal, accounting and financial activities. These include:

  • Performance of accounting, regulatory/legal and tax due diligence
  • Drawing up of relevant agreements
  • Business valuation
  • Filing of papers/ documents with, and notification of regulators
  • Court processes
  • Post-merger compliance actions

As beneficial as M&A can be, a company can experience unwarranted costs and possible exposures when it fails to adequately evaluate the effects and implications of its merger plans- one of which is tax.

The first step in managing tax risks in an M&A transaction is to understand what the risks are and this is done by carrying out a tax due diligence exercise. This exercise is useful in identifying present and future tax exposures that the post-merger entity may have to contend with. A proper business valuation for merger purposes would not be complete without proper valuation of the tax assets and liabilities, amongst other balance sheet items, of the merging entities Section 25(12) of the Companies Income Tax Act (CITA) specifies that "no merger, take over, transfer or restructuring of the trade or business carried on by a company shall take place without having obtained the Board's direction with respect to trade or business sold or transferred under subsection 9...)". This provision requires the companies Management to notify FIRS of their merger plans in advance or as soon as possible before completion. FIRS would typically approve the merger so long as due approvals have been obtained from the relevant regulatory bodies and it is able to recover all taxes due from the merging entities.

Section 25 (9) of CITA provides certain incentives in cases of business restructuring or re-organisation where the applicable conditions are met. Furthermore, any gains arising from such "reorganisation" where no cash payment is made for share or asset exchange are exempted from the application of capital gains tax. Would there be exposure to value added tax (VAT)? There is no specific exemption in this regard. However, the applicability or not of VAT may depend on the structure of the transaction.

Other non-tax issues to be considered in a merger include:

  • Competitors' use of the merging entities' former brands and the associated goodwill
  • Where a new company is formed, registration of business with the relevant authorities
  • Employee redundancy, sometimes leading to reputational damage for the companies
  • Culture shocks and clashes
  • Workforce conflicts and other office politics issues

In effect, business restructuring or reorganisation poses different kinds of risks. The company carrying out such an activity is therefore advised to engage competent advisers for the various aspects of the transaction for a holistic optimal package. Thus, proper planning and thorough analysis of associated issues would be expedient for any company considering merger and acquisition as a strategy to achieving economies of scale.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Yomi Olugbenro
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.