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Rolling back the tax incentives regime by advocating cutting the high investment in discretionary tax exemptions.

June 2023

Executive Summary

Uganda’s tax incentives regime is comprised of discretionary and non-discretionary exemptions. Non-discretionary exemptions are laid out under the income tax act and the eligibility criteria is clearly stipulated. Discretionary exemptions on the other hand are not clearly defined under the law and are generally granted at the discretion of the executive. Discretionary incentives especially are harmful to Uganda’s revenue mobilization drive due to the lack of transparency in selecting the beneficiaries which makes the process prone to abuse. This has not only affected tax morale but has led to Uganda losing out on revenue estimated to be around 1-2 percent of GDP. Despite evidence that tax exemptions are generally ineffective at attracting investment, they have remained part of Uganda’s tax policy. In countries where tax exemptions have been effective, it was largely due to factor specific characteristics that are lacking in many African countries. Factors like political stability, sound macroeconomic policy and levels of investment in infrastructure are more relevant to attracting investments than granting incentives. It is therefore pertinent that more emphasis be put on improving the general investment climate while simultaneously eliminating the tax exemption regime.

Tax incentives are quantifiable tax-related economic benefits given to particular businesses or categories of businesses to encourage investment in certain sectors and/or regions (World Bank, 2009). Tax incentives may be in the form of tax holidays/ exemptions, reduced tax rates, tax credits, investment allowances and accelerated depreciation schemes (Tax Justice NetworkAfrica & Action Aid International, 2012).

Tax incentives are a part of the preferential tax fiscal policy instruments that nations use to advance specific economic, social, or environmental policy goals, including encouraging saving and investment, protecting domestic industry, promoting, or discouraging the production or consumption of particular goods and services, boosting employment, assisting the most vulnerable members of society, and protecting the environment, among others (Inter-American Centre of Tax Administrations, 2011).

The use of these tools involves a reduction in tax revenue, which is known as tax expenditure. (Inter-American Centre of Tax Administrations 2011). According to current projections, the Ugandan government will avoid lose at least 2 trillion shillings to tax expenditure in the fiscal year 2023/2024 (“URA to Lose UGX 2 Trillion to Tax Exemptions,” 2023).

Delepierre & Aslam (2022) have previously revealed that the tax regime in many African countries is riddled with incentives with an estimated 49–72 per cent of all low-income countries offering tax incentives (Maria et al., 2018). The most common type of tax incentives in African countries are tax exemptions in the form of holidays that exempt firms from specified taxes in most cases corporate income tax for a given period (Mick et al., 2018). A study on tax incentives in 30 Sub-Saharan Africa found that 60 per cent of them are in the form of a tax holidays (Sebastian, 2013).

The Tax exemption regime has had a far reaching impacts on the economies of developing countries where the tax to GDP ratio remains low and stands at 10-15 percent in majority of them (SEATINI, 2019). In particular, Uganda’s corporate income tax (CIT) to GDP ratio is among the lowest on the African continent at around just 0.9%(OECD, 2022). Furthermore, in Uganda, the amount of revenue foregone as a result of tax expenditure is estimated to have grown by more around 80 percent between 2017 and 2022 (MoFPED, 2022).

1. Introduction.

With regard to tax incentives, policy decisions are often based on an analysis that exaggerates the likely benefits and seriously underestimates the probable costs (Bruce, 2004). Although there is some evidence of tax incentives having been successful in attracting investment in particular jurisdictions, this has been due to factor specific characteristics. They have by and large been ineffective and highly detrimental to many African countries. In Uganda's case, it has been noted that the tax incentives are usually granted in an ad hoc fashion to individual sectors and firms (Tax Justice Network-Africa & Action Aid International, 2012). Nevertheless, tax holidays have remained prevalent because the potential benefits are very easy to understand, whereas the fiscal and economic costs are not (Eric, 2014).

In a bid to reduce its budget deficit, the Ugandan government has committed itself to increase revenue collection by reducing revenue foregone as a result of tax expenditure by 0.1% of GDP in FY 2022/23 and then by 0.2% of GDP in FY 2023/24 and the subsequent years (IMF, 2022)

a. Uganda's Tax Incentives Regime

Uganda's tax incentives exist under two categories. Those spelt out under the law (nondiscretionary incentives) and those that are granted at the discretion of government (Discretionary incentives)

i. Non-Discretionary Tax Incentives

Non-discretionary tax incentives in Uganda are laid out in the income tax Act. These include: a 10-year exemption from Corporate Income Tax for exporters of finished consumer and capital goods who export over 80% of their production, a 10-year Corporate income tax exemption for operators of industrial parks or free zones if an investment is made of US$50m or US$10m in the case of foreigners and citizens respectively and a 10-year CIT exemption for any manufacturer who invests at least US$35m (if a foreign investor) or US$5m (for a local investor).1

There has been a gradual increase in the number of new beneficiaries of the non-discretionary tax exemptions regime from just two when the legal provision was introduced in FY 2018/19 to 18 new beneficiaries in FY2021/22 and later to 38 (Namunane et al., 2023). This number is likely to continue growing leading to erosion of the tax base.

1 Section 21(1) (a) Income Tax Act of Uganda cap 340 as amended

It should be noted however that although these exemptions are laid out in law, they may be too broad hence requiring an approval process which makes them discretionary in a way (Waiswa&Rukundo, 2023). In practice, the investor is required to write to the Minister of Finance and the request is transmitted to the Tax Policy Department at the Ministry of Finance which considers the merits of the application and may then submit it to the minister for approval (Waiswa&Rukundo, 2023).

Non-discretionary exemptions it has been argued are to be preferred to discretionary incentives. (SEATINI, 2019). Nevertheless, they also need to be based on well laid out procedures and guidelines which should be made public and open to public and parliamentary scrutiny (SEATINI, 2019).

ii. Discretionary Incentives

Discretionary incentives on the other hand usually take the form of government policy and may or may not be established under any given law (Waiswa&Rukundo, 2023). In many instances, the process of granting such exemptions is rarely transparent hence making them prone to abuse which defeats their very purpose (Sebastian, 2013). In Tanzania for example, the Minister of Finance has the power to exempt any income from tax.2 In Uganda, the government has the power to grant discretionary exemptions to individual companies that function as private contracts between government and a third party, as well as effective exemptions where government agrees to pay tax on behalf of a company (MoFPED, 2019). The Tax Procedures Code Act was amended in 2019 to grant the Minister of Finance power to pay any tax due and payable by Government arising from a commitment made by Government to pay tax on behalf of a person.3

Today, there is currently a high level of discretion in granting tax incentives which has created a number of key policy challenges such as complexity in tax administration, obscurity in the real effects of tax burden, and sizable tax revenue loss (Lakuma Paul, 2019).

2 Section 10, Income Tax Act of Tanzania 2004 as amended

3 Section 40A(1), Tax Procedure Code Act of Uganda as amended

As of 2019, the Ministry of Finance had committed to settling taxes for 67 companies. (OAG, 2019)

b. Rationale for the Tax Incentives Regime

The rationale for the tax incentive regime is the belief that it spurs investment in the economy thereby ensuring economic growth and development (URA, 2021). This is in line with Uganda’s Vision 2040 whose goal is to transform Uganda from a predominantly low-income country to an upper middle- income country within 30 years (URA, 2021). Advocates of tax incentives point to their success in countries like South Korea, Singapore, Malaysia, Ireland, Costa Rica, and Mauritius(Sebastian, 2013). The extensive use of incentives especially in Asian countries to achieve economic growth has been pointed to as evidence that they can be a vehicle for economic growth by attracting investment. The view that tax incentives are key in attracting foreign direct investment is held at the highest levels of the Ugandan government including the President as evidenced by his spirited defense of the incentives granted to businesswoman Enrica Pinetti (Ainebyona, 2022).

One of the reasons why tax incentives are offered to Investors in low income countries is because they face a number of challenges like higher levels of cost, uncertainty and risk than in developed countries (Waiswa&Rukundo, 2023). The tax incentive regime is therefore intended to compensate for the deficiencies in the investment climate of low income countries (Waiswa&Rukundo, 2023). In fact, one of the reasons why investors may prefer tax exemptions like holidays is to avoid having to deal with the usually inefficient and corrupt governments and their respective tax bodies (Matovu et al., 2001).

Tax incentives are therefore intended to ensure firms engaged in certain commercial activities have higher after tax return which can result in import substitution, export promotion, or increased employment. (Matovu et al., 2001). It is also presumed that these temporary exemptions will in the future lead to accelerated economic growth and a recoup of the tax forfeited. (Matovu et al., 2001)

Tax incentives have also remained prevalent because they satisfy certain political and economic ends. The alternatives to tax incentives such as significant public expenditure to improve areas

like infrastructure are unlikely due to financial limitations (UN & CIAT, 2018). The tax incentive regime is therefore easier to control and implement in addition to it not being subject to the same scrutiny as public expenditure (Waiswa&Rukundo, 2023).

2. Methodology

This brief discusses the tax incentive regime in Uganda. More specifically, it seeks to demonstrate why the discretionary tax exemption regime needs to be rolled back due to its adverse impacts on the economy and the revenue mobilization drive. This brief adopted a qualitative approach that involved reviewing scholarly articles on experiences of the tax exemption regime in both developed and developing countries. It also relied on reports from the Ministry of Finance, Office of the Auditor General as well as research by reputable international organizations such as the World Bank, OECD and the IMF

3. Results and Discussion

• The negative impact of tax exemptions is both direct and indirect. This because they result in revenue loss estimated to be 1-2 percent of GDP for developing countries (IMF, 2015). The minimal growth in Uganda's GDP has been attributed to numerous tax exemptions and waivers granted to NGOs and selected private companies by the Minister of Finance. (Waiswa&Rukundo, 2023). Tax incentives are very detrimental to the Ugandan economy and are estimated to cost at least at 1 percent of GDP in foregone revenue (Lwanga et al., 2019). By 2018, this amounted to about 1.09 Trillion, more than was allocated to the agricultural sector in that financial year. (Lwanga et al., 2019). The indirect impacts are that they cause economic distortions, reduce tax morale and may lead to tax resistance if the regime is viewed as highly politicized (Waiswa&Rukundo, 2023). Tax exemptions and waivers also affect domestic revenue, create unfair competition between companies, shift the tax burden to few citizens, further narrow the already narrowed tax base and do not provide a level ground for competition in Uganda’s liberalized economy (Waiswa&Rukundo, 2023.)

• It is highly likely especially in Uganda's case that increased investment would have occurred even without tax exemptions being granted. A 2011 survey found that over 90% of investors in Uganda that had benefitted from incentives would likely have still invested without

the incentives (Sebastian, 2013). This is in part because the beneficiaries were large, pre-existing firms and it is therefore very likely that these investments would have still taken place in the absence of incentives (Namunane et al., 2023). The fact that the major beneficiaries of the incentives are large firms has caused another problem though, Tax Justice Network-Africa & Action Aid International, (2012) argue that it has led to medium sized firms carrying a disproportionate tax burden which has led to them evading tax.

• Other factors in the enabling environment dictate the success of failure of tax exemptions. Studies like one conducted among 14 SADC countries concluded that other factors such as political stability, the macroeconomic policy environment, infrastructure development, the efficiency of the banking system and the legal and judicial framework are more important than tax incentives in determining the level and quality of investment flows (Bruce, 2004). Granting tax exemptions has no positive correlation with increased investment. This was revealed by a 2010 study of 12 Western and central African countries in the CFA Franc Zone over the period 1994–2006 which found no robust positive relationship between tax exemptions in the form of tax holidays and investment. (Parys & James, 2010). Tax incentives are more likely to be effective in jurisdictions where factors like a better overall investment climate, good infrastructure, reasonable transport costs, and a policy framework favoring investment exist (Jun, 2017). As a matter of fact, there is evidence that the success of the tax incentives regime in Asian countries had nothing to do with attractiveness of the incentives but rather the characteristics of the countries where they are used, such as the quality of the civil servants and the efficiency of public bureaucracy (Tanzi & Shome, 1992).

• There is limited transparency in the process of granting tax exemptions. The Auditor General has previously reported that, "...... there is no clear policy guideline for the issuance, management, and monitoring of the different tax benefits and incentives issued by the government to different individuals. The absence of a clear mechanism and framework exposes the scheme to mismanagement and abuse." (OAG, 2021). In addition to claims that they are only granted to politically connected firms, many of the incentives granted are not disclosed to the public (“The East African,” 2012). In fact, the Ministry of Finance itself has admitted that they are unable to effectively govern the tax incentive regime. (MoFPED, 2019) The lack of transparency around granting discretionary tax incentives has led to concerns that other

ministries, other than the Ministry of Finance, are entering into agreements with private companies for tax waivers. (Waiswa&Rukundo, 2023). Additionally, the lack of transparency has made it difficult to measure their true cost of the tax exemptions since they are not generally considered as public expenditure yet they have the same effect. (Sebastian, 2013) Furthermore, due to lack of transparency, it is difficult to give an estimate of the tax foregone as a result of incentives (MoFPED, 2022).

• For foreign investors, tax exemptions result in a "net transfer" of revenue from developing nations to the developed countries of origin of the investors especially if tax is charged at a higher rate in the country of origin (IMF, 2015)

• Additionally, there is significant evidence that what the tax exemption regime has created is the so called, "race to the bottom with African countries competing with each other to provide the most attractive incentives (Waiswa&Rukundo, 2023). A previous survey on the East African countries of Kenya, Uganda, Tanzania, and Rwanda between 1996 and 2007 found evidence of a likely race to the bottom signified by a loss of up to US$2.8 billion due to competition in offering lower tax incentives. (Tax Justice Network-Africa & Action Aid International, 2012). This state of affairs has led to investors playing countries against one another such as was the case of Ramatex, a Malaysia-based textile manufacturer which negotiated with a number of governments including Botswana, Madagascar, Namibia and South Africa about where to set up its manufacturing plant and ended up benefitting from a 20 year tax waiver from Namibia that was trying to beat completion from South Africa that had offered only 5 years (Flatters &Elago, 2008)

• Tax exemptions may also promote corrupt tendencies as Firms and individuals seek to obtain preferential treatment either to expedite or go through the approval process. (Klitgaard, 1988)

• Rather than attract investors, exemptions may signal to prospective investors that the government is untrustworthy or that the investment and tax climate has some faults. (Keen & Mansour, 2009)

4. Recommendations

a. Discretionary Tax incentives in the form of tax holidays should be eliminated.

Tax holidays generally have no bearing on investment decisions and should be eliminated. In fact, they act as a hindrance to revenue collection. OECD (2008) analyzed the 3 years before 1997 and the three years after tax incentives were eliminated from repealed from the Income Tax Act of Uganda and concluded that there was an increase of one percentage point in the ratio of investment to GDP, 70 per cent increase in foreign investment inflows, and a one per cent of GDP increase in tax revenue

b. Adopting non-discretionary incentives that reduce the cost of capital.

Studies have suggested that the most effective tax incentives for attracting investment are those that are linked to the scale of the investment made or that reduce the cost of capital, such as deductions, tax credits and accelerated-depreciation schemes. (Oxfam International & ECLAC, 2019). This is due to their focus, neutrality and lower fiscal cost (Oxfam International & ECLAC, 2019). These cost based incentives are less likely to be abused and more likely to achieve the policy objectives of increased investment by limiting the possibility of profit shifting (Maria et al., 2018) Investment allowances and credits may lead to less loss in tax revenue because, unlike tax holidays, taxes on other firm assets remain and they are directly contingent on new investment (Waiswa & Rukundo, 2023).

c. Lowering the statutory tax rate is one of the other measures that could be employed as an alternative to tax holidays.

Reducing corporate tax rates can enhance investment (OECD, n.d.). Lower corporate taxes can lead to an increase in investment and entrepreneurial activity by decreasing the opportunity costs of entrepreneurship, reducing barriers to entry, and by increasing the funding available to start a new venture. (Clara Raposo et al., 2020). The other benefit is that they apply uniformly across businesses, do not bias the allocation of capital and are the least distortionary form of investment inventive (Waiswa & Rukundo, 2023). While tax holidays apply only to the period of the tax holiday, reduced tax rates apply during the entirety of the investment (Waiswa & Rukundo, 2023). They are therefore more likely to encourage investment since tax holidays discriminate against future investment after the tax holidays have come to an end. (UNCTAD, 2000) Furthermore, the lower rate is more transparent and is less prone to abuse (Waiswa & Rukundo, 2023). In Indonesia, cutting the tax rate from 45 percent to 35 percent was more effective at attracting investors than the incentives regime (Bruce, 2004). Hong Kong (China), Indonesia,

Ireland, the Lao People’s Democratic Republic, Cambodia and Estonia are examples of countries that use this type of incentive. (UNCTAD, 2000)

However, some have insisted that Corporate tax reductions only stimulate international tax competition but they do not seem to significantly attract investment or promote economic growth (Gechert & Heimberger, 2022).

d. Putting in place preferential tax rates for priority sectors.

Preferential tax rates are special fiscal regimes that offer a lower tax rate and simpler tax compliance requirements than the mainstream tax regime to their target group. (Marchese, 2021)

Preferential rates given to MSMES for example can enhance their participation in the formal economy which can eventually trigger other productivity-enhancing dynamics, notably through access to larger markets and higher-skilled workers (Marchese, 2021). They also simplify tax administration, broaden the tax base and raise additional tax revenues (Marchese, 2021).

e. Public sensitization campaigns

Greater effort should be placed on sensitizing the public about the negative consequences of tax incentives. This will hopefully lead to mass political action that pressures the decision makers to stop granting discretionary tax incentives

f. Harmonizing regional and continental tax laws.

Although it is clear that the tax competition among East African Countries means that Uganda has to show itself as an attractive destination for investment by offering the same or better tax incentives as its neighbors so as to beat competition, harmonizing tax laws would ensure that firms do not take advantage of unhealthy competition to obtain favorable terms (Shinyekwa & Othieno, 2011).

5. Conclusion

Although the belief that tax incentives in the form of exemptions can be used as a tool to attract investment has remained in tax policy discourse, evidence from Uganda and several African

countries has concluded that not only are they ineffective in attracting investment, they narrow the tax base, create economic distortions, affect tax morale and lead to significant revenue loss. It is therefore pertinent that the Ugandan government finds alternatives to the granting of discretionary tax exemptions if it is keen on attracting investment.

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