As of 2020 Papua New Guinea is in the process of significant tax reform following recent amendments to the country’s tax code. Among the most recent changes are those related to the taxation of extractive industries, while proposed reforms include the introduction of a capital gains tax and the rewriting of the Income Tax Act.
The 2020 budget was the first to be issued by the government of Prime Minister James Marape, who was elected in May 2019. The 2020 budget established the fiscal reform priorities of the government for 2020. Consistent with recent policy, the primary focus of the 2020 budget was to improve revenue generation by upgrading the administration of the tax system with the objective of collecting more tax revenue on a sustainable basis. The government acknowledges there are significant institutional and capacity issues within the agencies in charge of revenue administration. It is therefore seeking to strengthen the operation and effectiveness of these agencies.
As such the 2020 budget focused mainly on the reform of the revenue administration system. It also included a limited number of changes to the tax regime. The main tax measures introduced in the 2020 budget are:
• The introduction of a new tax regime for small and medium-sized enterprises (SMEs);
• The reduction in the permitted debt-to-equity ratio for resources companies from 3:1 to 2:1;
• Amendments to the tax dispute resolution process; and
• Various changes to tariffs, levies and licence fees. Measures noted for future policy development include the review of the infrastructure tax credit scheme and the proposed rewrite of the Income Tax Act of 1959.
Income Tax Reform
The Treasury of PNG, in conjunction with the IMF, has been undertaking a rewrite of the Income Tax Act, and in February 2020 it released a draft version of the new proposed act.
The rewrite of the Income Tax Act of 1959 is a component of the government’s medium-term revenue strategy.
The stated intention is to replace the existing act with a new modern and simplified Income Tax Act, one better suited to the needs of PNG. However, although the stated intention is simplification, in many cases there appear to be policy changes included in the new act. Examples of potential policy changes include:
• The introduction of a capital gains tax in PNG, mainly focused on real property assets and companies with significant real property holdings;
• The introduction of some industry-specific rules, e.g. for financial institutions;
• Changes to the taxation of extractive industries;
• Changes to tax depreciation and capital writeoff rules, including the removal of some existing accelerated depreciation concessions;
• The removal of a number of tax exemptions and concessions currently provided in the Income Tax Act of 1959; and
• The revision of non-resident withholding tax rules. The new act is proposed to come into operation from January 1, 2021.
It is likely that the implementation of the new Income Tax Act will be aligned with the implementation of the new Tax Administration Act, which was enacted in 2018 but has not yet become operational.
PNG’s tax regime is based on the Income Tax Act, the Goods and Services Tax (GST) Act, the Stamp Duties Act, the Customs Act and the Excise Tax Act, and is supported by related legislation and regulations. Within the Income Tax Act, a specific set of rules apply to taxpayers operating in the natural resources sector (namely the mining, gas and petroleum segments), while the general provisions of the other laws apply not only to those taxpayers engaged in mining, petroleum or gas operations, but to all other taxpayers as well.
Types of Corporate Entity
A number of different types of legal entities are available to those looking to do business in PNG. These include incorporating a PNG company (“subsidiary”), registering as an overseas company in PNG (a “PNG branch”), entering into a partnership agreement and establishing a trust.
The choice of entity is generally based on the commercial goals of the enterprise, legal and regulatory requirements, and the consequences for taxation. Most foreign enterprises operating in PNG do so through a subsidiary or branch.
Companies Act Requirements
Where a company incorporated outside PNG carries on business in PNG, it is required on commencement to register as an overseas company under the Companies Act. For the purposes of the Companies Act the term “carrying on business” is given an extended meaning, but otherwise has its ordinary meaning.
As a general proposition for the purposes of the Companies Act, an overseas company that enters into a contract for work to be done in PNG and undertakes work in PNG for a period of more than 30 days is regarded as carrying on business in PNG.
Investment Promotion Act
Companies (domestic and foreign) with foreign shareholdings of 50% or more (held or controlled by non-citizens of PNG), or effectively controlled by non-citizens of PNG, are required to be certified by the Investment Promotion Authority (IPA) before they can carry on business in PNG.
The meaning of carrying on business for the purposes of the Investment Promotion Act, so far as is relevant, is identical to the meaning of carrying on business for the purposes of the Companies Act. It thereby follows that this requirement applies whether an overseas company intends to carry on business in PNG through a subsidiary or through a branch.
Residence Rules for Corporate Tax
A company is deemed a resident for corporate income tax (CIT) purposes if it meets either the incorporation test or the management and control test.
• Incorporation test: A company incorporated in PNG is automatically regarded as a PNG tax resident. However, the law of another country and a relevant double taxation agreement (DTA) may result in a company also being treated as resident in another country.
• Management and control test: A company is a PNG tax resident if it carries on business in PNG and is managed and controlled in PNG, regardless of where it is incorporated. Generally, a company is managed and controlled in PNG if key decisions affecting the firm are made at directors’ meetings held in PNG. This includes a company incorporated outside PNG that trades in PNG and has its voting power controlled by resident shareholders.
The concept of permanent establishment (PE) has limited significance in PNG’s domestic taxation law and is defined to mean a place at or through which a person carries on any business. Under domestic taxation law, PNG will seek to tax the income of a non-resident that is sourced in PNG, whether or not that income is derived at or through a PE in PNG. Where PNG has entered into a DTA, the concept of PE as defined in the DTA becomes more important, as it will then be one of the factors determining PNG’s taxing rights over income sourced in PNG, particularly with respect to the business profits of a non-resident company. In general terms, PNG’s DTAs:
• Define a PE to be a fixed place at or through which the business of an enterprise is wholly or partly carried on; and
• Deem a PE to exist in various circumstances, including those relating to the presence of substantial equipment in PNG and the time spent by personnel of a firm furnishing services in PNG.
Companies that are deemed to be resident in PNG are liable for income tax on their worldwide income. Companies that are not resident in PNG are only required to pay tax in PNG on income sourced in PNG. A non-resident’s PNG-sourced passive income, including dividends, interest and royalties, is generally only subject to withholding tax (WHT). Generally, the payer of the dividend, interest or royalty must withhold the relevant amount of the tax and remit this to PNG’s Internal Revenue Commission (IRC).
Trading profits and other income (except income that is specifically exempt) of companies resident in PNG are assessed tax at a rate of 30%, whereas non-resident companies that carry on operations in PNG are assessed tax at a rate of 48%, unless the income of the non-resident is taxed under the foreign contractor rules explained as follows: 1. Taxable income: Taxable income is defined as assessable income minus allowable deductions. In practice, profits are calculated for tax purposes by reference to the profits reported in the financial accounts. Companies’ accounts must be prepared in accordance with PNG accounting principles, which follow the International Financial Reporting Standards. 2. Dividend income: Dividends are included in the assessable income of a resident company shareholder unless otherwise exempt from CIT.
• Inter-company dividends: Dividends received by a resident company from other companies, whether resident or non-resident, while being assessable to tax, are generally subject to a full tax rebate and are effectively received tax-free. However, where a company has losses on other activities or losses carried over from earlier years, those losses are applied against dividend income before the calculation of the dividend rebate. From January 1, 2017 no dividend withholding tax applies to dividends paid by a PNG resident company to another PNG resident company.
• Stock dividends: In most cases, the payment of a dividend by way of the issue of shares is subject to the same taxation treatment as the payment of a dividend by way of cash or the distribution of other property. However, dividends paid by the issue of shares wholly and exclusively out of profits arising from the sale or revaluation of assets not acquired for the purpose of resale at a profit are exempt from income tax and dividend WHT. 3. Interest income: Unless exempt under specific provisions, any interest paid or credited by a financial institution, the central bank or a company to a person who is resident in PNG is included in income, and the institution or person paying the interest in the account is liable to withhold and pay tax upon the amount. 4. Exchange gains: Generally, foreign exchange gains realised and derived from debts made on or after November 11, 1986 and denominated in a currency other than the kina are included in assessable income. Realised foreign exchange gains on revenue items are also included in assessable income. 5. Foreign income: PNG resident companies are liable for CIT on their income from all sources, including income that is derived from foreign sources. However, a foreign tax credit may be available to offset foreign tax paid against the tax payable in PNG. There are no provisions in PNG that permit deferral of the taxation of income derived outside PNG. Subject to the operation of a DTA, foreign-sourced income derived by a resident of PNG is subject to tax in PNG in the year in which it is derived, regardless of whether or not that income is repatriated to PNG. 6. Deductions: General deduction provisions provide that all losses and expenditures, to the extent they are incurred in gaining or producing assessable income, or are necessarily incurred in carrying on a business for the purpose of gaining or producing that income, are allowable deductions.
However, the general deduction provisions do not allow a deduction to the extent that a loss or expenditure is an outgoing of capital; nor of a capital, private, or domestic nature; nor incurred in relation to the gaining or production of exempt income. 7. Exchange losses: Generally speaking, foreign exchange losses realised and derived from debts made on or after November 11, 1986 and denominated in a currency other than the kina are an allowable deduction. Realised foreign exchange losses on revenue items are also allowable deductions.
As foreshadowed in prior budgets and the Medium Term Revenue Strategy of previous governments, the 2020 National Budget introduced an SME tax regime designed to provide certain tax concessions to encourage the development of the SME sector. While the policy measure indicates that the provisions should apply to privately owned corporations, partnerships and individuals, the amending legislation only applies to individuals, provided they are not performing professional service, as follows:
• A 2% tax on turnover where the SME’s turnover is less than PGK250,000 ($73,700), payable on a quarterly basis; or
• An annual fee of PGK400 ($118) for businesses with a turnover of less than PGK50,000 ($14,700). Furthermore, measures designed to simplify the taxation of SMEs are intended to apply as follows:
• Income will be taxed on a cash basis;
• Record-keeping requirements are reduced to three years; and
• Taxpayers may irrevocably opt out of the provisions.
A deduction is generally available for interest incurred on an arm’s-length basis, subject to meeting the general principles and conditions for deductibility. Where interest is incurred in connection with the construction or acquisition of an item of a plant or a capital asset, that interest is not immediately deductible.
Rather, such interest is deemed to form part of the cost of that asset. In the case of a plant, this interest will form part of the base from which future depreciation deductions are claimed.
PNG’s thin capitalisation rules apply to PNG companies across all industries with a permitted debt-to-equity ratio of 2:1. If the permitted ratio is breached, a proportion of interest paid will be denied as a tax deduction. The thin capitalisation rules do not apply to licensed financial institutions.
There is currently no general capital gains tax in PNG. However, profits arising from the sale of property acquired for the purpose of resale at a profit, or from the carrying out of a profit-making scheme, are taxable as ordinary income.
Net Operating Losses
Domestic trading losses may be offset against all income received in the same accounting period or carried forward and offset against future trading profits. From January 1, 2019 the limitation period on the carrying forward of losses has been reduced from 20 years to seven years. Primary production losses and resource project losses may be carried forward for 20 years (previously there was no limitation).
Losses may not be carried back against prior years’ profits. The deduction of losses in all cases is subject to a 50% or more continuity of shareholding and a control test, or a continuity of business test where there is a breach of the ownership test.
Foreign losses incurred by a resident taxpayer from a source outside PNG (other than in relation to export market development) are not deductible against assessable income derived within PNG. In practice, overseas losses can be carried forward and offset against overseas income for up to 20 years.
Payments to Foreign Affiliates
The deduction available to a taxpayer for management fees paid to an associated person is limited to the greater of:
• 2% of the assessable income derived from PNG sources by the taxpayer; or
• 2% of the total allowable deductions, excluding management fees, incurred by the taxpayer in PNG. The limitation is applicable to both resident and non-resident taxpayers. Special rules apply to mining, petroleum and gas companies. These limits may not apply where the recipient of the management fee is resident in a country with which PNG has a DTA or where it can be demonstrated that the management fee arrangements do not have the purposes or effect of avoiding or altering the income tax payable in PNG.
As with most jurisdictions around the world, WHTs comprise an important part of PNG’s tax revenue collection regime. Details of PNG’s major withholding taxes are provided below.
• Dividend WHT: From January 1, 2017 dividends paid by a PNG company are generally subject to a 15% dividend WHT. Dividends paid to PNG-resident companies and superannuation funds, and non-resident superannuation funds, may be exempt from WHT.
• Interest WHT: Where interest is paid or credited by any person to a non-resident or to a resident, a 15% withholding tax must be deducted. The withholding tax acts as a final tax for non-residents and the rate may be reduced where the recipient is a resident of a country with which PNG has a DTA.
• Royalty WHT: Tax is imposed on royalties and similar payments made to non-residents who do not have a PE in PNG. The tax must be withheld by the payer on behalf of the payee and remitted to the IRC. The tax payable on royalties to a party who is not an “associated person” is the lesser of:
• 48% of the net royalty, i.e. gross royalty, less applicable expenses; and
• 10% of the gross royalty. Royalty payments to a non-resident “associated person” are liable for a withholding tax of 30% of gross payments (subject to any DTA), with no option to adopt the net income basis.
The definition of “associated person” is detailed and widely drawn. Broadly speaking, it encompasses relatives, partners, companies under effective common control, and related trust interests. There is also a 5% WHT on mining, petroleum, timber and fishing royalties to landowners.
• Management Fee WHT: A 17% WHT applies to management fees along with technical fees paid to non-residents. The WHT only applies to the amount allowable as a tax deduction. The tax must be remitted to the IRC within 21 days after the month in which such fees are paid or credited.
• Foreign Contractor WHT: There are specific provisions included within the Income Tax Act which deal with the taxation of non-residents, other than individuals, who conduct certain contract activities in PNG. Such non-residents are referred to as “foreign contractors”.
The contract activities include undertaking installation and construction projects or providing professional and consultancy services in PNG, as well as equipment lease and charter payments. Income derived from these contracts is subject to a 15% foreign contractor WHT.
The PNG contracting entity must provide the IRC with a copy of a relevant contract within 14 days of its signing, following which the Foreign Contractor WHT can be deducted from payment to the foreign contractor. In instances where tax is withheld from the foreign contractor, the deductions are to be remitted to the IRC within 21 days after the end of the month in which the payment was made.
From January 1, 2017 foreign contractors no longer have the option under PNG domestic law to lodge an income tax return in PNG and pay tax on net profit, instead of withholding tax.
Non-Resident Insurers Tax
Premiums paid to non-resident insurers in respect of insurance contracts on property situated in PNG or insured events that can only occur in PNG are subject to tax in PNG.
The tax is calculated on a deemed taxable income equal to 10% of the gross premium, which is taxed at the non-resident tax rates of 48% for companies or 30% for unincorporated associations. Tax treaties may limit the rate of tax applied.
Overseas Shippers Tax
Income derived by overseas shippers or charterers carrying passengers, livestock, mail or goods out of PNG is liable to taxation in PNG. The tax is calculated on a deemed taxable income, equal to 5% of the gross income, that is taxable at the non-resident rate of 48% in the case of companies.
The IRC may exempt the overseas shipper from such tax if the shipper’s home country itself exempts PNG shippers from a similar tax.
Double Tax Agreements
PNG has concluded DTAs with Australia, Canada, China, Fiji, Germany, Indonesia, South Korea, Malaysia, New Zealand, Singapore and the UK. However, as of June 2020 Germany had not yet ratified the treaty.
Furthermore, PNG has negotiated but not yet ratified a DTA with Thailand.
Rates of tax imposed on payments to non-residents and the liability of non-residents to PNG tax may be affected by a DTA and these rates are summarised in the table on the left.
PNG domestic legislation provides an exemption from withholding tax for interest and dividends in certain circumstances. The higher rates quoted are the maximum rates allowable under the DTA. However, the domestic exemption may still apply in some circumstances.
Where transactions involving non-residents are not defined to be at arm’s length, the IRC may impose an arm’s-length consideration for income tax purposes and determine the source of any income arising from such transactions.
Corporate taxpayers (including companies, superannuation funds, associates and unit trusts) that have transactions or dealings with international related parties that exceed PGK100,000 ($29,500) in an income year, or have aggregated loan balances with the international related parties in excess of PGK2m ($590,000) at any time during an income year, are required to prepare and lodge an international dealings schedule (IDS) with their income tax return for that year of income. The IDS requires disclosures of the nature of the transactions with international related parties; the underlying transfer pricing methodologies followed to determine transfer prices; and the nature of documentation supporting those pricing methodologies.
Business Income WHT
Payers who make an “eligible payment” of PGK5000 ($1470) or more in relation to one contract are required to register with the IRC as a paying authority and attend to the obligations imposed on it under the act. In broad terms, eligible payments are payments for services including construction, road transportation, motor vehicle repairs, joinery services and security services.
Where a business income payee enters into a contract with a paying authority to perform work or becomes entitled to receive a business income payment and does not produce a certificate of compliance, it is required that a 10% business income WHT based on the gross payment be deducted by the paying authority.
Furthermore, the WHT deducted must be remitted to the IRC within 21 days after the end of the month in which the tax was deducted.
Tax Credits & Incentives
A summary of the most popular credits and incentives for companies are outlined below:
• Foreign tax credit: A foreign tax credit may be available to offset foreign tax paid against PNG tax payable. The foreign tax credit is limited to either the foreign tax paid or the average PNG tax payable on the foreign income, whichever is less. There is no mechanism to carry forward excess foreign tax credits for utilisation in a subsequent year.
• Double deduction for export market development costs: Expenditures incurred in the promotion for sale outside PNG of goods manufactured in the country or incurred in the promotion of tourism are eligible for double deduction. The total tax saving cannot exceed 75% of the expenditure.
• Tax credit for infrastructure development: A tax credit is available to companies engaged in agricultural, mining, petroleum, gas and certain tourism-related activities that incur expenditure on a prescribed infrastructure development. In the case of taxpayers that are engaged in mining, petroleum and natural gas operations, the tax credit is limited to a total of 0.75% of the assessable income or the amount of tax payable for the year (in respect of that mining, petroleum or natural gas project), whichever is less. Excess expenditure over the 0.75% or tax payable may be included in the following year’s tax credit claim. In the case of taxpayers engaged in agricultural production, the credit is limited to 1.5% of the assessable income or the amount of tax payable for the year, whichever is less. Prescribed infrastructure developments include schools, aid posts, hospital roads and other capital assets that have been approved as such by the Department of National Planning and the IRC. It cannot be an expenditure required under the Mining Act or the Oil and Gas Act. The Department of National Planning and Monitoring has announced that the infrastructure tax credit scheme will be extended to companies in all sectors, and the allowable credit will be increased to 2.0% of assessable income. However, legislation to give effect to the higher credit has not yet been presented to Parliament and the timing of the changes is uncertain. More recently, the proposed rewrite of the Income Tax Act has signalled the intention of the Treasury to review the terms of the infrastructure tax credit scheme. However, as of June 2020 the operation of the scheme under the proposed new act has yet to be announced.
• Agricultural production extension services deduction: A 150% deduction is available for expenditure on services provided free of charge to smallholder growers. Such services include the provision of advice, training and technical assistance in relation to primary production and delivered for the purpose of assisting growers with production, processing, packaging and marketing issues.
Other Tax Incentives
Other tax incentives available in PNG include:
• Primary production, with 100% deduction for most capital expenditure on primary production;
• Manufacturing, with 100% deduction for capital expenditure on assets used directly in the manufacturing process;
• Exemption of income derived from the export of certain manufactured goods;
• Immediate deduction for the costs of acquiring and installing solar heating plants;
• A 10-year tax exemption for qualifying new business located in prescribed remote areas of PNG; and
• A specific deduction for environmental protection and clean-up costs. A number of these tax incentives may no longer be available once the Income Tax Act rewrite has been completed and implemented.
Taxation of Other Entities
The taxation scheme for entities and vehicles other than standalone corporations are as follows:
• Partnerships: A partnership is defined to include any association of persons in joint receipt of income. The members of a partnership include their individual share of the profit or loss of the partnership in their own tax returns. The partnership itself is not subject to tax, although it is required to file a tax return.
• Joint ventures: Unincorporated joint ventures are permitted to carry on mining and petroleum operations and the respective joint venture partners are assessed on their individual share of income on a project basis. Joint venture operators of a resource project are required to submit a “consolidated financial statement” for the joint venture as a whole, within two months of the end of the year of income. This consolidated financial statement must enumerate details of all expenditure incurred throughout the year. Furthermore, each joint venture partner will be required to reconcile their tax return to the consolidated financial statement. The joint venture itself is not subject to tax and is not required to file an income tax return.
• Resident trust estates: A trustee of a resident trust estate is taxed on the net income of the trust estate at a rate of 30%. Additionally, the beneficiaries of a trust estate are subject to income tax on their entitlement to the net income and on actual distribution.
• Landowner resources trusts: Where interests in various natural resources projects are held in trust for landowners, a trust may be approved by the Minister of Finance to be a landowner resources trust. Net income derived by the landowner resources trust is taxed at the rate of 30%. The tax is payable by the trustee. Distributions of income and capital by a landowner resources trust to its beneficiaries are exempt from income tax in the hands of the beneficiaries.
• Superannuation funds: A superannuation fund is resident in PNG if it is established or managed in PNG. The taxable income of a resident superannuation fund is subject to tax at a rate of 25%. Dividends paid to a superannuation fund qualify for the dividend rebate. Where an employer’s contributions to a superannuation fund exceed 15% of an employee’s fully taxed salary or wages, the excess contribution is included as assessable income of the superannuation fund.
PNG taxation applies to individuals. However, the scope and tax rates that apply are dependent on the resident status of the individual and the source from which their income is derived. For individuals who are residents of PNG, PNG taxation applies to their worldwide income at marginal tax rates.
For non-residents, only income that is sourced in PNG is subject to PNG tax, and at different tax rates to those that apply to residents. In broad terms, an individual will be treated as a resident of PNG in a given year of income if they spend, continuously or intermittently, more than six months in the country during that year.
Each resident individual is assessed separately; there is no joint assessment for husbands and wives. Taxpayers who have only employment income and are fully taxed at source through the salary or wages tax system do not need to complete an annual income tax return.
Taxpayers with other income such as interest, dividends, rental income, trust distribution or partnership income must disclose this in an annual income tax return.
Benefits Provided to Employees
Certain benefits provided to employees are taxed in the hands of the employees at “prescribed values”. These benefits include accommodation, housing allowance, motor vehicle, education expenses, leave fares, meals, telephones, cash allowances and contributions by an employer to an approved or overseas superannuation fund.
Other fringe benefits such as the provision of entertainment, club subscriptions, domestic electricity and domestic services are not deductible to the employer for income tax purposes.
Other taxes that supplement government income include GST. Broadly speaking, GST is imposed at the rate of 10% on the supply of most goods and services in PNG.
The GST Act – which came into force in 2003 – defines the term “supply” to include all forms of supply including the sale, transfer, hire or lease of goods, and the provision of services. A supply for GST purposes falls into one of the following three categories:
• Taxable supply, which attracts GST at a rate of 10%;
• Zero-rated supply, which attracts GST at a rate of 0%; and
• Exempt supply, which is not subject to GST. Where a taxable or zero-rated supply is made, a registered person is entitled to a credit for the input tax paid on goods or services used in making the supply.
Where an exempt supply is made, GST is not charged in respect of that supply. However, no entitlement exists to allow a recovery of any input tax that is paid on goods or services used in generating the supply.
Businesses with an annual turnover of PGK250,000 ($73,700) or more are required to register for GST, while businesses with annual income of less than K250,000 ($73,700) can register voluntarily. Persons or companies that are not registered are not permitted to charge GST.
Customs duties are imposed on the cost, insurance and freight value of imports at varying rates. With the introduction of GST, the majority of manufacturing inputs attract no duty. Duty is now primarily imposed on items that are produced locally in PNG.
Duty can be deferred where goods are to be imported and re-exported within 12 months – or some other period as approved by the collector of Customs – subject to the approval of the collector of Customs. A bond must be provided.
Excise, at varying rates, is imposed on certain locally manufactured and imported goods – primarily alcohol, tobacco and fuel products – as well as on goods deemed to be “luxury” items.
Stamp duty applies at varying rates on documents and certain transactions.
Of particular note is the duty charged on the conveyance of real property, which rises to a maximum of 5%, where the value of the real property being transferred exceeds PGK100,000 ($29,500). The duty is payable by the purchaser, and a 5% duty on the unencumbered value of land may also be payable where there is a transfer of shares in certain landholding companies. Other dutiable transactions include share transfers (including some share buybacks), subject to a rate of 1%. Leases of goods are also subject to stamp duty at a rate up to 1% of the rentals payable, depending on the term of the lease. Furthermore, stamp duty is payable on documents executed outside PNG that relate to property or projects realised or to be done within the country.
OBG would like to thank PwC for its contribution to THE REPORT Papua New Guinea 2020
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