The recent news
Much attention has been directed towards the Ncell Case in Nepal. Originally, the term “Ncell Case” was associated with the tax and compliance issues stemming from the underlying share purchase transaction between the seller, Telia, and the new buyer, Axiata. However, the narrative did not conclude there. Presently, we find ourselves immersed in what we will refer to as the “Ncell Case – the Second One.”
The details of this development are still emerging, as the information is recent and the facts are gradually unfolding. So this analysis here represents my working hypothesis, providing insights into the ongoing situation and speculating on potential future developments. Our discussion will commence with the events from 1 December 2023, marked by Axiata’s press release announcing its disinvestment from Ncell in Nepal.
If you want to get a taste of the entire Ncell saga previous to this, do refer to my old posts here:
1. Capital Gains Tax in Nepal
2. Principles underpinning the Ncell Case
3. Harvesting of Tax Attributes: but mostly tax losses
4. Section 95Ka of ITA: all about it
5. What the bug is Section 57?
6. Issues that arises when applying Section 57
7. Section 57: Taxing Rule or Anti-Abuse Rule?
8. Section 57: But not the Ncell Case
The preceding posts collectively explains the narrative surrounding the transaction involving Telia and Axiata, delving into the intricacies of the provisions outlined in Section 57 and offering a comprehensive exposition of the tax avoidance scheme and its subsequent failure.
First Private Mobile Operators (2004-2008)
Ownership: Spice Nepal Private Limited (Mero Mobile) and Nepal Satellite Telecom (Hello Nepal) owned by Ajayaraj Sumargee, Raj Group Nepal, Spice Cell India, Key Events: Established in 2004. Mero Mobile introduced commercial services on 17 September 2005 in Kathmandu.
Formation of Ncell (2008-2010)
Ownership: Spice Nepal Private Limited and Nepal Satellite Telecom transformed into Ncell Private Limited. 80% of Ncell was acquired by Reynolds Holdings (owned by Swedish Company Telia Sonera) and 20% by Synergy Nepal (owned by Upendra Mahato which was later sold to Niraj Govinda Shrestha) Key Events: Rebranded as Ncell on 12 March 2010. TeliaSonera invested approximately 1 billion dollars in infrastructure and coverage. Achieved nationwide coverage by 2010 and launched 3G services.
Sold to Axiata and Sunivera: Transformation into Ncell Axiata (2015-2017)
Ownership: 80% by Reynolds Holdings (owned by Axiata Malaysia) and 20% by Sunivera Capital (owned by Bhawana Singh Acharya, Satish Lal Acharya’s wife) Key Events: Telia Sonera exited by selling its stake to Axiata on 21 December 2015. Initiated 4G/LTE services on 1 June 2017 in Kathmandu Valley. Expanded 4G/LTE coverage to 90% of the population. Became a public limited company on 3 August 2020, adopting the name Ncell Axiata Limited which introduced some other minority shareholders to reach the minimum 7 shareholders threshold of a public company. Seven Nepalis acquire 11 shares in Ncell Axiata
Sold to Specter Lite: Axiata Exits from Ncell (2023)
Ownership: 80% by Reynolds Holdings (owned by Spectre Lite UK, owned by Satish Lal Acharya) and 20% by Sunivera Capital (owned by Bhawana Singh Acharya) and other minority shareholders Key Events: Axiata, the parent company, exited in 2023 due to reported revenue downturn and unfavorable investment environment in Nepal.
What Axiata knew from the start
Axiata acquired an 80% stake in Ncell through Reynolds Holdings from Telia Sonera on 21 December 2015, concluding the transaction at USD 1.365 billion. At the time of this acquisition, Axiata demonstrated a comprehensive understanding of several pertinent considerations relating to this transaction.
Firstly, Axiata most certainly logically deduced that the Section 57 Ownership Change tax would be applicable to Ncell Private Limited in Nepal upon a significant transfer of ownership from Telia Sonera to Axiata. This understanding was derived from Paragraph (j) of the Nepal Tax Policy, as elucidated in the opinion provided by SR Pandey and Co., Chartered Accountants, during the Due Diligence process preceding the December 2015 transaction (refer to page 53/82 in the Ncell – Audit Report and Expert Opinions for the FY 16 July 2015).
Additionally, Axiata foresaw the eventual transfer of Ncell to the Government of Nepal in 2029, following the conclusion of its 25-year license period, initially issued on September 1, 2004. This foresight aligned with the provisions of Section 33 of the Telecommunications Act 1997, mandating telecom companies with over a 50% foreign stake to surrender all assets to the government post-license expiration. A fresh license could only be obtained by Ncell if it paid the appraised value of the assets transferred to the government (Refer to Telecommunication Act 2053 and Telecommunication Rules 2054).
Furthermore, Axiata’s certainty, at the time of the 21 December 2015 transaction, regarding the pursuit of GSM Network operations in Nepal for the next 13 years was substantiated by a comprehensive evaluation. The Fairness of the Purchase Consideration was assessed by Delta Partners Corporate Finance Limited, UAE. The Discounted Cash Flow (DCF) valuation of Ncell, covering a 10-year projection with detailed budgeting and operational data, supported the notion that the USD 1.365 billion consideration paid by Axiata to Telia Sonera was intended to sustain Ncell’s operations for approximately 10 years (refer to page 65/82 in this report – Ncell – Audit Report and Expert Opinions for the FY 16 July 2015).
Is it a scheme to not pay taxes?
Taxes paid in the past
Whatever the tax evasion schemes Ncell has been embroiled in, it is one of the largest taxpayer in Nepal – a bigger taxpayer than NTC for that matter. I have this to share – the details of the taxes paid by Ncell and NTC over the last decade. The limitation to this data? It assumes that all the taxes are paid by these entities through online vouchers generated in IRD’s system – which generally is the case.
Ncell is simply a huge part of Nepal’s economy – not just for the reason that it is a basic telecommunication service provider but due to its sheer size and influence in the Nepalsae economy. The National Contribution Report of 2021 issued by Ncell shows that it is the contributor of 1.5% of Nepal’s GDP and 2.5% of the total tax revenue contributor to the Government of Nepal with 16.8 million subscriber base.
NTC despite having more in earnings than Ncell doesnt pay as much tax as Ncell does in total – maybe much of that has to do with its operational efficiency and its diverse operations. NTC operates other areas of service like PSTN, WLL, FTTH, VSAT, CDMA, Radio Wi-Fi whereas the operations of the Ncell is limited to GSM and Mobile Broadband only. NTC’s GSM subscriber base is 30% wider than that of Ncell whereas in terms of revenue NTC’s GSM revenue is lower than that of Ncell by 40% in comparison (refer NTC’s Annual Report of 21/22). Which in plain arithmetic means the per subscriber charge of Ncell is almost double than that of NTC. Which begs a question – could the cost of GSM service be brought down way lower with alternative investments in the telecommunication sector than the prevalent telecom mafias of Nepal?
Revenue generated by Major Telecommunication Companies in Nepal:
The legislative intent behind Section 57 of Income Tax Act 2058
Not everything is black and white most things are in the gray category. Despite the genuine overpriced basic telecom service of Ncell I am inclined to support Ncell’s argument in its Section 57 taxes.
Much discussion has been made about the provisions of Section 57 of the Income Tax Act, 2058 should be applied. What is the primary legislative intent behind it? Section 57 of the Income Tax Act in Nepal might have been driven by three key legislative intents – we will discuss them:
Preventing Abuse of Tax Attributes
This theory assumes that the legislative intent of Section 57 aims to curb the indirect transfer of tax attributes of an entity to another not commonly owned with the original entity. Section 57 prevents the carry forward of tax attributes, treating an entity as realizing all its assets and liabilities in the event of a 50 percent or more change in ownership within a 3-year period. This prevents purchasers from indirectly accessing tax attributes of the losses in a loss making entity.
Capturing Off-Shore Transactions
This theory assumes that the legislative intent of Section 57 is to capture offshore transactions with underlying business or investment in Nepal. Section 57 requires the entity to undergo a deemed disposal of its assets and liabilities at market values, subjecting it to taxation at the normal rate. This helps ensure that transactions involving Nepalese entities with offshore elements are properly taxed in Nepal.
Reflecting Actual Business Transactions and Taxation of Unrealized Gains
This theory assumes that the legislative intent of Section 57 is to address the asymmetry in transactions made through instruments like shares, ensuring taxation aligns with the value-in-use of business assets. In transactions using instruments like shares, the value-in-use of the asset is not reflected in the net assets of the entity being transacted. Section 57 rectifies this by taxing the deemed profit from the deemed disposal of the net assets of the entity with changed substantial ownership.
These legislative intents collectively aim to ensure fair taxation, prevent abuse of tax attributes, capture offshore transactions, and reflect the actual nature of business transactions for tax purposes. The provided information also highlights interpretations and considerations, such as the continuity of business tests in Tanzania and the notion of goodwill in the context of market values. But I believe that, just like intended by Peter Harris in the Model Tax Act, the intent of Section 57 is to prevent the abuse of the tax attributes. See more detailed discussion on this topic in my other post here: Section 57: Taxing Rule or Anti-Abuse Rule? where I have posted my reasoning on why Section 57 should not be a offshore transaction capturing taxes and how offshore transactions should be taxed with a proper source principle taxation under Section 67 and Section 95Ka of the Income Tax Act, 2058.
The tax base that Ncell lost on Telia Transaction
Basically, once an entity pays the income taxes accruing under the deemed disposal as per Section 57 the tax base of the assets that were marked to their market values are then revised to their respective market values as at the date of transaction.
Let’s discuss one unfortunate story of Ncell about the tax that was assessed on Ncell vide these two decisions, extensively discussed in my other post: Principles underpinning the Ncell Case
Decision One: Dwarikanath Dhungel v. Large Taxpayer’s Office 6-Feb-19
Decision Two: Ncell Pvt. Ltd. v. Large Taxpayer’s Office 26-Aug-19
The tax assessment on the Ncell was made on the entire transaction price of USD 1.365 billion. But this in itself raises many questions. The meaning of MV of “assets” of the company doesn’t necessarily include the value of goodwill of the company. Additionally, the transaction price that triggers the application of Section 57 doesn’t not always indicate the entire change of 100% ownership of the business. Hence the transaction price is not a wise substitute for the Market Value of the assets that are deemed disposed.
Then, why was transaction price taken as the basis of taxation under Section 57 in Ncell Case? In Ncell Case, the decision to consider transaction price as MV of the asset is probably wrong. However, the assessment authority and the decision from Supreme Court might have taken that view because:
(i) of Ncell’s failure to submit accurate details of transactions
(ii) for the purpose of determining the MV of the license (presence of identifiable intangible asset like license, unlike goodwill)
(iii) Supreme court reserves reserves the “उचित उपचार प्रदान गर्ने” र “विवादको टुङ्गो लगाउने” असाधारण अधिकार as per संविधानको धारा १३३
Whatever might be the logic behind to consider the transaction price as basis for taxation under Section 47 in Ncell Case, the decision has in words:
सेयर तथा हितहरू बिक्री कारोबारसँग सम्बन्धित कागजातहरू पेस गर्न एनसेललगायत एक्जिएटा टेलिया सोनेरालाई पटकपटक माग गर्दासमेत हालसम्म पेस गरेको छैन । सेयर हस्तान्तरण गरिँदा कुन मूल्यलाई आधार मानी लाभ र दायित्व तय गरी कारोबार गरिएको छ भन्ने कुरा Due Diligence Audit Report, Share Purchase Agreement (SPA), Escrow Agreement, Escrow Account सम्बन्धी विवरणलगायतका कागजातहरू उपलब्ध नभएसम्म स्पष्ट हुन सक्ने देखिँदैन । यी कागजातहरू विपक्षी ठूला करदाता कार्यालयले मागेको र सो प्राप्त नभएपछि तत्काल देखिएका प्रमाणका आधारमा कर निर्धारण गरी थप प्रमाण र सूचना प्राप्त हुँदा लाभकर्ताको थप आय भएको पाइएमा पुनः कर निर्धारण गर्दै जाने नीति अख्तियार गरी मिति २०७४।३।१३ मा सो समयसम्म प्राप्त कागजातका आधारमा बिक्री मूल्य रू.१,४४,७८,२५,०६,०००।- कायम गरी सो आधारमा ठुला करदाता कार्पुँयालयले पुँजीगत लाभकर निर्धारण गरेको पाइयो ।
The transaction was made in 2015 and by the time the final decision was made by the Supreme Court it was already 2019 and Ncell had continued its self assessment of annual taxes by taking into the existing tax base as the basis for computation of tax deductibles. Based on industry average “asset to turnover ratio” that was prevalent in the telecommunication industry before the introduction of the 4G Services – and due to lack of publicly available information on the Ncell’s Affairs – we still can assume that the tax base of Ncell was well below 1 Kharba during 2015 when the transaction between Telia Sonera and Axiata was made. This means that if after the decision in 2019 from the Supreme Court, Ncell was not able to restate its assets to the extent of the Section 57 taxes assessed on it, it clearly lost its deductible tax base of assets in many billions. I estimate at least 20 Arba – I could be wrong, probably am, but the figure must have been significant.
It is likely that Ncell had claimed to have its tax base of the transaction restated to its Section 57 values after the decision in 2019 was made by the Supreme Court. Still trying to get the copies of these two cases registered by Ncell on the Supreme Court, both of which are still awaiting the final decision from Supreme Court are related to the issue I discussed above (i.e. Ncell making effort to restate its tax base to the market values marked by the Section 57 assessment and decision following this decision from Supreme Court Dwarikanath Dhungel v. Large Taxpayer’s Office 6-Feb-19). Will definitely update this post once I have more data on these two particular cases:
- एनसेल आजियाटा लि. को तर्फवाट रमेश घिमिरे समेत विरुद्ध अर्थ मन्त्रालय सिंहदरवार काठमाडौ समेत Case Number: 077-WO-0613
- एनसेल आजियाटा लि. ललितपुर महानगरपालिका एकान्तकुनामा रजिष्टर्ड कार्यालयको तर्फवाट अधिकारप्राप्त कम्पनी सचिव निशिका शर्मा समेत विरुद्ध आन्तरिक राजस्व विभाग लाजिम्पाट काठमाण्डौ समेत Case Number: 077-WO-0707
Fines, Penalties and Others - It's just silly
This press release from Axiata on 1 December 2023 is worth reading – Axiata Concludes Sale of Ncell, Exits Nepal.
The major tax related highlight from the press release is:
Axiata’s international arbitration proceedings with the International Centre for the Settlement of Investment Disputes (ICSID) concluded on June 9, 2023. The tribunal ruled that Nepal should refrain from imposing additional tax, fees, penalties, or interest related to Axiata’s acquisition of Reynolds in 2016. Specifically, Nepal was instructed not to enforce the January 2021 Assessment. Despite Axiata’s success in convincing the Government of Nepal to comply with the tribunal’s decision, the government and its Tax Authority (LTPO) have yet to withdraw the January 2021 assessment. If upheld, this assessment could amount to USD 433.6 million as of January 13, 2021, inclusive of interest and penalties. Considering this assessment, the total taxation on the USD 1.365 billion transaction in 2016 would reach USD 855.5 million, representing 62.7% of the transaction value. For more details on the award, refer to the Media Release dated June 12, 2023.
“Considering this assessment, the total taxation on the USD 1.365 billion transaction in 2016 would reach USD 855.5 million, representing 62.7% of the transaction value.” Well, speaking purely from a tax perspective, that’s an insane rate – it’s no tax, it’s theft, and the outcry of Axiata on that part is justified.
The tax base that Ncell (not Axiata) will again lose on the new transaction
Axiata is exiting from Ncell by selling its stake to Spectrlite UK Limited for a fixed and conditional consideration comprising of the below:
- Fixed consideration: USD 50 million, of which USD 5 million is payable within 6 months of transaction completion and the remainder is payable after 48 months post transaction completion.
- Conditional consideration: Share of the going forward distributions contingent upon the future business performance by Ncell until 2029, and any windfall gains secured during this period.
The total consideration, valued at approximately NPR 60 Arba at present, factors in the estimated NPR value of 50 million USD and the average income until 2029 AD. The present tax base of the net assets of Ncell can be assumed to be around 140 Arba at the present date, estimating from the present asset to turnover ratio of the telecom industry in Nepal – this figure could be significantly higher as well.
What does this mean? This means that given the trend of assessing the Section 57 taxes in Nepal based on the transaction prices, Ncell could be booking business losses pertaining to Section 57 to the tune of 80 Arba in its books for FY 2023/2024 merely by the reason of this new transaction with Spectrlite UK Limited. That would amount to around 25 Kharba in tax expense (loss) to Ncell.
But is this all a ruse?
But while we are busy discussing the intricacies and the webs and tangles of the taxes all – could it be an elaborate scheme on the part of Axiata to actually avoid having to transfer the telecom infrastructure of Ncell to the government?
How could this work out in Axiata’s Favor? - Hypothesis
Here is an ongoing hypothesis that suggests a strategic plan by Axiata to avoid relinquishing control of Ncell to the Government of Nepal. Axiata appears to have been well aware of the regulatory landscape, notably the Section 57 tax for changes in ownership and Section 33 of the Telecommunication Act, 2053, which mandates foreign investors to hand over infrastructure to the government after 25 years, a milestone approaching in 2029 AD.
Despite that, Axiata also very well knows it has the unique advantage of being in a country that could be easily bought and sold because of the compromised influence and power peddlers in the corrupt national politics in Nepal, that it could leverage to its benefit. To avoid having to transfer the Ncell to the government. Maybe, just maybe, could it be that Axiata is enabling all this to happen. How could this workout?
There have been speculations that Axiata may have facilitated Satish Lal Acharya, a Singaporean national and owner of Spectrlite UK Limited, to execute the transaction by transferring an amount coincidentally equivalent to the agreed consideration between Axiata and Spectrlite UK Limited for Axiata’s exit from Ncell.
Axiata’s potential strategy could involve transferring the share ownership of Spectrlite UK Limited, a foreign company, to a Nepali national, thereby avoiding the requirement to transfer telecom infrastructure to the Government of Nepal as stipulated by Section 33 of the Telecommunication Act, 2053. This could unfold in various ways:
- Spectrlite UK Limited, Reynolds Holdings, or Satish Lal Acharya may sell ownership of Reynolds Holdings to a Nepali national, such as Bhawana Singh Acharya (Satish Lal Acharya’s wife), for a consideration designed to minimize taxation and transaction friction.
- Satish Lal Acharya might transfer his shares in Reynolds Holdings (owned by Spectrlite UK Limited) to his wife without any consideration. Such transfers of personal assets within three generations of the same family are exempted transactions under the current Income Tax Laws of Nepal. As it does not fall into the category of taxable personal assets and is a non-conditional transfer from husband to wife, it would not be treated as a realization from foreign investment made by a Nepali national, thus relieving it from taxes in Nepal.
After the issuance of the new license to Ncell, Axiata could potentially reenter the scene and spring back into GSM action by acquiring the existing national investors and resume its telecommunication operations in Nepal.
If that is so - I think Nepal is again set for another big fight with Axiata
Dwarikanath Dhungel’s legal petition, titled Dwarikanath Dhungel v. Large Taxpayer’s Office, filed on February 6, 2019 significantly altered the landscape, introducing a situation where Ncell and/or Axiata may be liable for substantial Section 57 taxes and interest, amounting to 62.7% of the total transaction value in 2015 AD, totaling USD 1.365 million. This development underscores Nepal’s notable success in challenging Axiata’s tax avoidance strategies.
Once again, the unfolding narrative of Nepal versus Axiata is marked by two legal petitions lodged in Nepalese courts, further complicating the Axiata’s transaction in 2023 AD. These cases, under our scrutiny, include:
- At Patan High Court (News): गोकुल बहादुर रोकाया विरुद्ध कम्पनी रजिस्टारको कार्यालय, नेपाल दुरसंचार प्राधिकरण, नेपाल धितोपत्र बोर्ड, नेपाल सरकार सुचना तथा संचार मन्त्रालय, Ncell Axiata Limited, अक्जियाटा समुह बहार्ड, स्पेर्कड यु.के. लिमिटेड, युनिभेरा क्यापिटल भेन्चर, आन्तरिक राजस्व बिभाग ठुला करदाता कार्यालय Case Number: 080-WO-0911
- At Supreme Court: अमरेश कुमार सिँह विरुद्ध एनसेल एक्जियाटा लिमिटेड, नेपाल दूर सञ्चार प्राधिकरण, कम्पनी रजिष्ट्रारको कार्यालय, सञ्चार तथा सूचना प्रविधि मन्त्रालय , प्रधानमन्त्री तथा मन्त्रीपरिषद्को कार्यालय, आन्तरिक राजस्व विभाग ठूला करदाता कार्यालय Case Number: 080-WO-0529
But if that is not true - then Axiata’s Outcry is genuine and Nepal will fail bigly in FDIs
If Axiata is not scheming to evade taxes and/or avoid having to transfer the assets as per the legal requirements, as per the hypothesis above and if Axiata’s media outcry is true then Nepal will fail bigly in any future investments. Why?
Because the outcry of Axiata against the tax assessment in Nepal, framing it as more akin to theft than legitimate taxation, is rooted in several perspectives, including concerns about fairness, transparency, and potential instances of power and influence peddling, as well as policy-level corruption prevalent in Nepal. Here are some justifications in favor of Axiata:
- Excessive Taxation Rate: If the assessment of the Revenue Department goes as per the view of the assessment it will result in a tax rate of 62.7% on the transaction value which is exceptionally high and could be perceived as disproportionately burdensome despite the fact that it includes interest and fines. From a tax perspective, such a rate might be seen as unreasonable and bordering on confiscatory.
- Lack of Fairness and Equity: Axiata has a correct argument in the sense that Section 57 taxes under Income Tax Act, 2058 lacks fairness and equity. Tax systems are expected to be just and equitable, and debatable tax provisions like Section 57 could seriously impede any capital nature of transactions made by an entity.
- Concerns about Policy-Level Corruption: Axiata might assert that the persisting tax assessment, despite the arbitration tribunal ruling in its favor, raises concerns about policy-level corruption. If the government fails to withdraw the subsequent assessments for the same transactions, it could indicate a disregard for fair and transparent tax practices. Axiata also has a valid argument in that the failure to honor the arbitration tribunal’s decision constitutes a breach of investment protection agreements. This could lead to a loss of confidence among investors in the country’s commitment to protecting foreign investments.
- Discourage foreign investments: Ncell has made significant contributions to the socio-economic development of Nepal. As the country’s largest taxpayer, Ncell contributed NPR 2.83 Kharba in taxes and fees as of last Fiscal Year FY 2021/2022 since its inception. Ncell, both directly and indirectly, supports more than 25,000 jobs and connects over 1.7 crore customers across its networks. If powerful entities or individuals are influencing the taxes and operating market of the telecommunication industry it makes business processes challenging and undermines the integrity of the tax system.
The people who enable Axiata to take twisted approach
The conclusion drawn from the ongoing “Ncell Case – the second one” is evident: Nepal presents a unique scenario where individuals at the highest echelons of the government actively facilitate companies, both domestic and international, in navigating intricate pathways to circumvent the existing laws of the nation. Simultaneously, these individuals appear to benefit substantially from such transactions.
Contrary to our innocent beliefs that various professional domains are governed by experts in their respective fields—doctors overseeing healthcare, engineers managing engineering, and technology officers guiding the telecommunications sector—Nepal challenges this perception. It seems that the intricate workings of the Nepal are, in fact, influenced by corrupt individuals who have forged careers in politics and business, alongside their affiliated cadres who hide in the politician’s pocket. Its sad.