VIVO Energy Wins Case Against URA As Court Confirms Rent Paid In Respect Of Leases As An Allowable Deduction

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Overview

This article focuses on the recent decision of the commercial court following an appeal by Vivo Energy against URA.

The key point of contention was whether rent is a capital or revenue expenditure to which the judge found that it is a revenue expenditure and therefore an allowable deduction.

Below I analyze and give my opinion on the decision.

Introduction
For any business, the Income Tax Act [“ITA”] allows the deduction of certain expenses before charging tax.

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To qualify, these expenses must be of a revenue and not of a capital nature; revenue nature in the sense that the expenses are directly incurred in the production of revenue.

However, it is not always easy to determine whether an expense is of a revenue or capital expenditure.

This was recently evident in the case of Vivo Energy Uganda Ltd Versus Commissioner General of Uganda Revenue Authority: Civil Appeal No. 1 of 2019 which was decided on the 9th day of March 2020, by Honorable Justice Richard Wejuli Wabwire.

This was an appeal arising from a decision of the Tax Appeals Tribunal [“TAT”] vide TAT No. 29 of 2017.

The facts of the case are that Vivo Energy [“Vivo”] acquired several leases for placement of their fuel stations for which they paid Premium and Rent. They had amortized these expenses.


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However, following a tax audit, URA reversed these expenses.

Vivo went to TAT seeking determination of whether premium and rent paid in respect of its lease is a deductible expense.

TAT ruled against Vivo and found that the payments were incurred towards the acquisition of capital assets and are to be considered as part of the cost base and therefore were not deductible.

Aggrieved, Vivo appealed against the said decision to the commercial court.

In the course of the appeal, Vivo conceded to premium being a capital expense but still maintained that rent was a revenue expense for which Vivo could claim a deduction.

The issue for court’s consideration was therefore;

Whether the payment incurred in respect of rent is a capital or revenue expenditure.

The Honourable judge found that Rent is a revenue expenditure and as such Vivo was entitled to a deduction.

Ratio Decidendi

To resolve this issue, the honorable judge went on to distinguish capital expenditure from a revenue expenditure.

This distinction is very important because under S.22 (1) (a) of the Income Tax Act, expenditures or losses are deductible for purposes of ascertaining chargeable income only if such expenditure or losses were incurred in the production of income included in gross income.

Relatedly, under S.22(2) (b) of the Act, no deduction is allowed for any expenditure or loss of a capital nature or any amount included in the cost base of an asset.

Vivo, therefore, had to prove that rent paid in respect of the leases was of a revenue and not a capital nature.

Whereas it seems that rent is obviously a revenue expense, in the instant case, certain facts required further investigation.

S.2(c) of the ITA defines Rent as,

“any payment, including a premium or like amount made as consideration for use or occupation of or the right to use or occupy land or buildings”.

The judge noted that;

“Whereas the definition fuses rent and premium, it does not determine whether the two together are capital expenditure or revenue expenditures”

He noted that the definition limits itself to rent being consideration for occupancy and usage of the rented premises and does not impute acquisition of such premises which would have had an implication on whether rent and premium is a capital expenditure or revenue expenditure.

He concluded that the two needed to be argued separately to determine whether they are eligible for tax deduction purposes.

The other reason is that there is also no statutory definition of the capital or revenue expenditure categorization.

The Act does not define a revenue or capital expenditure and yet there is a thin line between the two.

Regard must therefore be had to case law to determine their meaning and character.

The Judge referred to the case of Atherton V British Insulated and Helsby Cables Ltd (1925) 107.c 115 which laid down the universally accepted test for determining what is capital expenditure as distinguished from revenue expenditure.

In that case it was held that;

“Capital expenditure is a thing that is going to be spent once and for all and income expenditure is a thing that is to recur every year”.

The judge also noted that a capital expenditure brings on board an asset or advantage for the enduring benefit of the business.

Typically, capital expenditure is incurred in acquisition, extension or improvement of assets whereas revenue expenditure is a routine business expenditure.

He added that, capital expenditure is a non-recurring outlay whereas revenue expenditure is normally a recurring item which is incurred on a regular basis.

The judge thus made a distinction between rent and premium by finding that;

“Rent as expenditure is a recurrent expenditure that is periodically paid to maintain occupancy of the leased facilities or premises. It is paid to maintain the revenue generating capacity derived from possession of the lease. In a lease, the appellants acquire an income-earning asset and in paying rent, they sustain the process of earning the income. It is unlike a premium which is incurred to acquire the lease and is therefore not a part of the cost base of the lease stipulated under Section 52(2) ITA and consequently not a capital expenditure”

The other material fact was that Vivo paid its rent in installments for [a] period ranging from one month, quarterly to half yearly up to the entire tenure of one of the leases.

Moreover, the lease agreements provided for payment of rent in advance.

Regarding this argument, the Honourable judge further found that;

“The lump sum advance payment does not qualify rent into a capital expenditure”.

Assessing the evidence before him, the Judge therefore reached the conclusion that although Vivo had paid rent in a lumpsum and in some cases done so together with the premium, the premium and the rent had to be segregated.

Accordingly, whereas premium is a capital expenditure, rent is a revenue expenditure and as a result, Vivo was allowed to deduct that expense from its chargeable income.

Recommendations and Conclusion.

This case goes to show how uncertainty and ambiguity in the law in most cases prejudices and hurts the taxpayer.

Whereas it seems obvious that rent should be classified as a revenue expenditure, the fact that both URA and the Tax Appeals Tribunal had reached a different position, goes to show why certainty is one of the tenets of a good tax law.

In that regard, I recommend that;
S.2(ccc) of the ITA be amended to segregate rent (i.e. recurrent payments) from premium which is a one off.

The law should clearly define a capital expenditure and revenue expenditure.

Parties need to bear in mind that the way contracts are structured has tax implications.

The judge noted that it was necessary to look at the terms of the contract in order to determine the intent of the parties regarding the expenditure, to determine whether the expenditure was intended to create or acquire an asset or otherwise.

If it was to create an asset, then it would be a capital expenditure and if not then it would be a revenue expenditure.

In the instant case, the lease agreements made separate specific provisions for premium and rent. As a result, the judge was able to segregate the two.

Any lease or rent agreement must in clear terms spell out the treatment to be afforded to any expenditure provided for.


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