Total Energies Marketing Ghana Plc v Ghana Revenue Authority

Judgment

p. 1Source page 1IN THE INDEPENDENT TAX APPEALS BOARD (ACCRA, GHANA)

THE INDEPENDENT TAX APPEALS BOARD Appeal Number: ITAB/03/2025 No. 3 SAM NUJOMA ROAD DATE: ....... EXECUTIVE SECRETARY 07/08/26 BETWEEN

TOTAL ENERGIES MARKETING GHANA PLC

Appellant AND

GHANA REVENUE AUTHORITY

Respondent

RULING

1. INTRODUCTION

1.1 This is an appeal brought to the Independent Tax Appeals Board (the Board) by the Appellant, Total Energies Marketing Ghana PLC., pursuant to Paragraph 2 of the Fourth Schedule to the Revenue Administration (Amendment) Act, 2020 (Act 10290, and Regulations 19 and 22 of the Revenue Administration Regulations, 2025 (L.I. 2513) against the Objection Decision of the Respondent, the Ghana Revenue Authority, served on the Appellant on 11 September 2025. 1.2 The appeal concerns the Appellant's challenges to certain assessments and/or determinations by the Respondent relating to Corporate Income Tax ("CIT") and Withholding Tax ("WHT") matters for 2011 to 2020 years of assessment.

Total Energies Marketing/ITAB/03/2025

p. 2Source page 22. PANEL

The appeal was heard by the following members of the Board:

Mrs. Mangowa Ghanney - Chairperson

Mr. Theophilus Tawiah - Member

Dr. Isaac Nyame - Member

3. REPRESENTATION

For the Appellant: Wisdom Kwame Kpano, Tax Partner, Deloitte & Touche - Representative

For the Respondent: Mimi Kwarteng, Counsel, Ghana Revenue Authority - Representative

4. BACKGROUND FACTS

4.1 The Appellant is Total Energies Marketing Ghana Plc. a company incorporated in Ghana and a taxpayer registered with the Respondent.

4.2 The Respondent is the Ghana Revenue Authority (GRA), a statutory body corporate established under the Ghana Revenue Authority Act 2009, (Act 791), responsible for the assessment and collection of taxes in the Republic of Ghana.

4.3 The Respondent in the exercise of its statutory duty conducted a comprehensive tax audit of the Appellant's business operation for the 2011 to 2020 years of assessment.

4.4 Upon completion of the audit the Respondent made certain assessments and/or determinations against the Appellant relating to Corporate Income Tax (CIT) and Withholding Tax (WHT) matters, and by letter dated 23 July 2024, issued a final tax audit report and assessment against the Appellant.

4.5 The Appellant being dissatisfied with the assessment and having satisfied the deposit payment requirement under Section 42(5) and (6) of the Revenue Administration Act, 2016

p. 3Source page 3(Act 915), served an objection to the tax decision on the Respondent on 4 October 2024, pursuant to Sections 42(1) and (2) of Act 915, raising several issues relating to Corporate Income Tax (CIT) and Withholding tax (WHT).

4.6 The Respondent, after consideration of the objection, served an Objection Decision on the Appellant on 11 September 2025 pursuant to Section 43(1) of Act 915, partly accepting the Appellant's objections and partly upholding the final tax audit report and assessment.

4.7 The Appellant, dissatisfied with the Respondent's Objection Decision, filed an appeal with the Independent Tax Appeals Board on 15 October 2025, against the Objection Decision of the Respondent pursuant to Section 44 of Act 915, and Regulations 19 and 22 of the Revenue Administration Regulations, 2025, (L.l. 2513) to challenge the tax decisions made by the Respondent. There were eight grounds of appeal (numbered Grounds A-H herein for ease of reference).

4.8 The Respondent did not file a Response to the Appellant's appeal before the first hearing of the Appeal on 22 April 2026.

4.9 At the first hearing of the Appeal, the Respondent, with the consensus of the Appellants, applied to the Board for an extension of time for the Parties to attempt a settlement of the Appeal. The Parties were granted fourteen (14) days leave to attempt settlement pursuant to Regulation 41(1) of L.I. 2513.

4.10 The Parties held discussions in good faith and agreed terms to resolve the Appeal in part on Appeal Grounds E, F and G. No resolution was reached by the parties in the settlement negotiations, on Grounds A ("Duplication of Depreciation Addback issue"), B ("Additional Depreciable Assets issue"), C ("DODO issue"), D ("2020 CIT Payment Issue"), and H ("WHT issue").

4.11 On 7 May 2026, the parties filed a Settlement Agreement with the Board on Grounds E, F and G, pursuant to Regulation 41(3), (5), and (7) of L.l. 2513. As a result of the settlement, an amount of GHS6,357,695.87 representing principal WHT and GHS1,907,308.75 representing the corresponding interest assessment has been taken out of the tax assessment.

p. 4Source page 44.12 At a second hearing on 13 May 2026, the Appellant informed the Board that the Parties had reached a partial settlement on Grounds E, F and G, and prayed the Board to adjudicate Grounds A to D and H, as it did not appear the Parties would reach settlement on those grounds of appeal.

4.13 Prior to commencement of the second hearing the Respondent by letter dated 13 May 2026 requested an extension of time from the Board to file an appeal response, and at the hearing, sought leave of the Board to file an appeal response.

4.14 As the Appellant had no objection, the Board granted the Respondent five (5) days to 20 May 2026 to file an Appeal Response and granted the Appellant five (5) days after being served with the Response to review it and file an answer, if any.

4.15 The Appellant opted not to file an answer, and on 20 May 2026, the Respondent filed an Appeal Response.

4.16 A third hearing convened on 11 June 2026 to commence hearing Grounds A-D and H of the Appeal.

4.17 The Appellant acknowledged receipt of the Respondent's response and sought to put on record that the Respondent, although appearing in the Response to admit Ground A, was raising additional issues that were not originally before the Board in the Appeal by making references to certain sections, particularly Section 7, of the Revenue Administration Act, 2016 (Act 915) in an attempt to review its assessment in a manner that would result in "additional assessments".

4.18 The Respondent agreed that there was error on their part and that although the ground was not settled in the filed Settlement Agreement, the parties continued to engage, and the Respondent had conceded to resolve Ground A.

4.19 The Appellant sought to make it clear that the appeal hearing is not the proper forum for adjusted assessments, and that in accepting the ground, there should be no semblance by the Respondent of making an adjustment, and that the Objection Decision the Appellant submitted to the Board, is conclusive as the decision of the Respondent.

p. 5Source page 54.20 The Respondent countered that the Appellants position was not the case and that their use of Section 37 of Act 951 was just to basically state that if an assessment has been made, any changes that are made subsequent to that adjustment, be it a reduction or an increment, that basically the Commissioner-General does in fact have the power to make such adjusted assessments.

4.21 On 8 July 2026, a fourth hearing convened to continue the unsettled appeal Grounds A, B, C, D, & H. At the onset of the hearing, the Appellant moved for the Board to adopt the partial settlement of the Appeal that was filed at the Board on 7 May 2026.

4.22 The Board approved and adopted the filed Settlement Agreement on Grounds E, F, & G, and continued hearing on unsettled grounds.

5. ISSUES FOR DECISION

5.1 Upon considering the grounds of appeal, and discounting the appeal grounds amicably settled by the Parties, it appears that the fundamental issues remaining for determination with regards to the unsettled grounds are:

1) Whether the Respondent was justified in its tax decisions against the Appellant with respect to Grounds A, B, C, D and H of the Appeal; and 2) Whether any resultant interests and penalties assessed are justified

6. SUMMARY OF APPELLANT'S CASE

6.1 The Appellant's appeal is grouped under eight Grounds A to H, with two main headings: Corporate Income Tax (CIT) matters, and Withholding Tax (WHT) matters.

6.2 The Withholding tax matters under Grounds E, F and G were settled and filed with the Board on 7 May 2026, with the CIT matters under Grounds A-D and H remaining to be adjudicated.

6.3 The basis of the Appellant's appeal is that Respondent erred in law and fact by:

6.3.1 GROUND A: Duplicating the "addback"/disallowance of depreciation expenses of GHS7,057,608.00 for 2011 year of assessment

p. 6Source page 66.3.1.1 The Appellant says the Respondent duplicated depreciation in the amount of GHS7,057,608.00 for 2011 year of assessment, in that the Appellant's Corporate Income Tax (CIT) return included a total disallowed depreciation of GHS7,057,608.00 within the total unallowable deductions of GHS8,697,235.10.

6.3.1.2 The Respondent's audit disallowed the same depreciation amount again, resulting in a duplication and an inflated tax liability.

6.3.1.3 The Appellant objected to this error and provided a detailed breakdown, but the objection was rejected.

6.3.1.4 The Appellant requests a reversal of the duplicated amount and the associated tax and penalties, and pointed out during hearings that the Respondent has conceded this Ground, and that on pages 2 and 3 of its Appeal Response, the Respondent concluded that following a re-computation of the assessment by reference to additional documents, "there is no longer any duplicated amount of GHS7,057,608 to reverse, nor any associated tax of GHS1,764,402 and penalty of GHS354,880.40", and that "this ground of Appeal has been resolved and is no longer a ground of contention".

6.3.2 GROUND B: Disallowing capital allowance on invoices for depreciable assets amounting to GHS8,548,735.34 for 2012 to 2020 years of assessment on the basis that the invoices were not attached to the objection, even though the Appellant confirmed these were available

6.3.2.1 The Appellant obtained additional invoices (Vat Relief Purchase Orders and Form 9) for the depreciable assets and notified the Respondent, offering the documents for review. The Respondent did not review the documents and proceeded to reject the objection on the basis that the invoices were not attached.

6.3.2.2 The Appellant's appeal is based on grounds that tax rules, particularly Section 14 of the Income Tax Act, 2015 (Act 896), allow a taxpayer tax depreciation or capital allowance as deduction against its assessable income, when the claimed depreciable assets are owned and used by the taxpayer. During the audit, the Appellant confirmed to the Respondent that they had a total of GHS8,548, 735.34 in invoices supporting depreciable assets or fixed assets that they should be allowed to take capital allowance for.

p. 7Source page 76.3.2.3 The Appellant points out that Sections 8 and 9 of Act 896 provide the rules on overall deduction of expenses under Act 896, and that nowhere is there a requirement that the supporting documents for assets purchased for capital allowance should be in their original form.

6.3.2.4 The Appellant further submits that the audit spans the period of 2011 to 2020, and that by the time of the audit 10-13 years had lapsed regarding the documents the Appellant is being required to produce.

6.3.2.5 The Appellant's explains that its document maintenance policy is to keeps its fiscal documents for about 4 to 5 years at its head office, after which, due to the sheer volume of documents, they are warehoused at the Appellant's facility in Tema after being scanning onto their accounting system to maintain a clear copy of the documents.

6.3.2.6 For the audit, the Appellant made available the documents in the form of various invoices showing clearly the fixed asset purchases. The Appellant points to the sheer volume of Exhibit G, and the hundreds of copies of the invoices supporting the various asset purchases, fixed asset purchases, etc., stressing the clarity of the copies that the Respondent is saying do not suffice to support the capital allowance claim because they are not originals.

6.3.2.7 Further to that, the Appellant submits that the Evidence Act makes it quite clear that duplicate documents and photocopies are admissible evidence to prove the content of what the originals are.

6.3.3 GROUND C: Disallowing Capital Allowance on Dealer Operated Dealer Owned (DODO) assets amounting to GHS2,382,677.00, acquired by the Appellant on the basis that those assets are used by Dealers to generate income

6.3.3.1 The Appellant argues that DODO arrangement does not qualify as finance leases under Section 30 of the Income Tax Act, 2015 (Act 896), as the assets are used exclusively for the Appellant's business and revert to the Appellant upon termination.

6.3.3.2 The Appellant admits that under both Act 592 (Section 20) and Act 896 (Section 14), a person qualifies for capital allowance on depreciable assets where the person both owns and uses it in the generation of income of that person.

p. 8Source page 86.3.3.3 The Appellant claims it has demonstrated full ownership of the assets with supporting documentation, including invoices, the only question then being on the use of the assets by the Appellant to generate income.

6.3.3.4 The Appellant submits that even though DODO dealers are separate legal entities, they are treated as agents who earn commission/margin on the sale of the Appellant's products for the purpose of the Appellant's operations. Products are supplied to the dealers, who sell and deposit all receipts to the bank account of the Appellant who in turn remits commission/margin to the dealers.

6.3.3.5 The Appellant determines and fixes the price of all products sold at its service stations, without the dealers having the authority to change prices, thus the arrangement clearly indicates an agency relationship between the Appellant as the principal and the dealers as the agents, and as such under the DODO arrangement, the dealers use the assets to generate income for the Appellant's business.

6.3.3.6 The Appellant cites, in support, the case of Fan Milk Limited Vs Commissioner General, Ghana Revenue Authority [2022] DLCA16265in which the court characterized the relations between Fan Milk and its independent distributors as that of a principal and agent relationship, since Fan Milk controlled the prices at which its products were sold by the distributor to customers nationwide, with no opportunity for the distributor to add any margin or profit.

6.3.3.7 According to the Appellant, its business model is comparable to that of Fan Milk and its distributors, hence the arrangement between the Appellant and its dealers (distributors) qualify as one of principal-agent relationship.

6.3.3.8 An agent works on behalf of the principal and therefore any income generated by the agent working in the ordinary course of business is income earned by the principal. The agent is compensated for the service provided to the principal.

6.3.3.9 Similarly, the Appellant submits that dealers are provided with conditions and assets to enable them to fulfill their obligations under the DODO Agreement, and that the dealers are agents of the Appellant, therefore the assets used for the generating of income are indeed used for and on behalf of the Appellant as the rightful owner of the assets and the direct beneficiary of the usage of the assets by its agents.

p. 9Source page 96.3.3.10 The Appellants therefore qualify to claim capital allowance on the DODO assets.

6.3.4 GROUND D: Disallowing a deduction for 2020 CIT payment of GHS1,512,569.03 on the basis that the payment receipt from Respondent erroneously stated 2021 year of assessment, even though the payment related to 2020 year of assessment. This resulted in Respondent applying late payment interest charge of GHS2,289,030.00 for 2020 year of assessment

6.3.4.1 The Appellant made a final payment of GHS1,512,569.03 to settle its 2020 CIT liability, but the Respondent erroneously allocated the payment to the 2021 year of assessment.

6.3.4.2 The Appellant provided correspondence it sent to the Respondent requesting the payment to be correctly allocated to 2020, but the Respondent rejected the correction objection.

6.3.4.3 The Appellant seeks correction of the allocation and the reversal of the accrued interest on the outstanding 2020 liability.

6.3.4.4 The Appellant's case is that the Respondent erred in allocating the payment to the wrong year of assessment as the payment related to 2020 and not 2021, and the Appellant has not claimed the payment against its 2021 CIT liability but rather made the payment in respect of its final tax liability for the 2020 year of assessment.

6.3.4.5 This is evident from the letter from the Appellant's consultant PwC dated 30t April 2021 and received by the Large Taxpayer Office of GRA on the same day, together with the Tax Return and acknowledgment of same on the GRA portal.

6.3.4.6 The Appellant by written request asked for a correction and allocation of the payment to the 2020 year of assessment, but that has not been addressed by the Respondent.

6.3.4.7 Based on the Appellant's estimation, the late payment interest charged on the amount at the audit report issue date of 26 July 2024, is GHS1,512,569.03, as a result of the obvious error.

6.3.4.8 The Appellant therefore prays the Board to consider their submission and accordingly revise the company's tax position by including GHS1,512,569.03 as tax payment for the

p. 10Source page 102020 year of assessment and reverse the late payment interest of GHS2,289,030.00 charged.

6.3.5 Ground H: Application of WHT on items that are generally exempted from WHT (including reversed transactions, payment for regulatory fees)

6.3.5.1 Ground H, though not settled by the Parties through negotiation, was finally admitted by the Respondent in its Appeal Response. However, the issue of calculation of interest remains in contention, and the Appellant requests the Board to do a holistic review of this Ground and make a decision on it. The Appellant contends that the Respondent applied WHT on certain transactions that are exempted from WHT. These items and transactions generally covered reversed transactions, and payments for regulatory fees and charges.

6.3.5.2 The Appellant also raises concerns about the WHT rates applied, and some discrepancies in the late payment interest calculations, and that even though in its Objection Decision the Respondent confirmed that the transactions which are not subject to WHT were excluded from the WHT assessment, the detailed working file was not provided to the Appellant to enable the Appellant confirm the conclusion, thus the Appellant is unable to verify the final amounts stated in the Objection Decision.

6.3.5.3 Based on the Appellants review of the transaction level details (ledgers) which were shared with the Respondent on the WHT analysis, the Appellant identified that wrong rates (usually higher rates) may have been applied on certain transactions for 2013 and 2016, and that also, for 2016, late payment interest was significantly overstated, the result being excess WHT charge, including interest of GHS364,317.83 for 2013, and GHS7,329,775.39 for 2016.

6.3.5.4 The Appellant, in light of its reasons and legal basis concludes that the Respondent's Objection Decision is erroneous and should be set aside, and prays the Board to consider its submission and grant the Appellant's relief as follows:

a) A declaration that the Respondent erred in law in duplicating the "addback"/disallowance of depreciation expenses and an order for the reversal of the amount of GHS7,057,608.00 in a revised corporate income tax computation for 2011 year of assessment.

p. 11Source page 11b) A declaration that the Respondent erred in law in disallowing capital allowance on invoices for depreciable assets and an order for the grant of capital allowance on the total amount of GHS8,548,735.34 for 2012 to 2020 years of assessment. c) A declaration that the Respondent erred in law in disallowing capital allowances on Dealer Operate Dealer Owned (DODO) assets acquired by the company and an order for the grant of capital allowance on the total amount of DODO assets acquired of GHS2,382,677.00 for 2015 to 2018 years of assessment. d) A declaration that the Respondent erred in law in by refusing to grant deduction for 2020 CIT payment of GHS1,512,569.03 and an order for deduction and reversal of corresponding interest of GHS2,289,030.00 from the 2020 CIT assessment. e) A declaration that the Respondent erred in law in the application of WHT on revenue/income account balances for 2011 and 2012 and an order for the reversal of excess tax charged of GHS158,034.77 (penalty GHS47,410.43) for 20122, and GHS541,128.80 (penalty GHS162,338.64) for 2012. f) A declaration that the Respondent erred in law in the application of WHT on closing account balances of and an order for the reversal of the excess WHT charge of GHS3,738,494.28 (penalty GHS1,121,548.28), and GHS1,904,216.18 (penalty GHS571,264.85) respectively for 2011 and 2012 years of assessment; g) A declaration that the Respondent erred in law in the application of WHT on "provision" account balances in the balance sheet, even though the corresponding expense items (actual expense) have been subjected to WHT for 2011 year of assessment, contrary to Sections 84, 85 and 167 of the Internal Revenue Act, 2000 (Act 592), and an order for the reversal of the excess WHT charge of GHS15,821.84 (penalty; GHS4,746.55). h) A declaration that the Respondent erred in law in the application of WHT on items that are generally exempted from WHT (including reversed transactions, payment for regulatory fees) and applied wrong WHT rates applied and wrong calculation of late payment interest for 2013 and 2016 years of assessment, and an order for the reversal of the excess WHT charge, including interest of GHS364,317.83 for 2013 and GHS7,329, 775.39 for 2016.

7. SUMMARY OF RESPONDENT'S CASE

7.1 The Respondent denies the allegations of error in law and fact contained in the Appellant's Grounds of Appeal, and contends that the assessments raised were lawful, reasonable, and

p. 12Source page 12made in strict compliance with the Income Tax Act, 2015 (Act 896) and the Revenue Administration Act, 2016 (Act 915)

7.2 The Respondent submits that the Appellant's grounds of appeal do not have a basis in law and fact and as such the Board should set aside the Appeal before them.

7.3 Following the institution of the appeal, the Respondent conducted further comprehensive review of the assessment in the light of additional explanations and documentation supplied by the Appellant, and that the Respondent's willingness to correct an internal scheduling error to grant relief where documentation eventually proved satisfactory, demonstrates the fairness and integrity of the tax administration process.

7.4 Critically however, several core issues remain unresolved, and the Respondent maintains that those parts of the assessment were and remain correct in law.

7.5 The Respondent therefore opposes the appeal on the grounds set out below and invites the Board to dismiss the outstanding grounds.

7.5.1 Ground A: Disallowance of Depreciation Expense of GHS7,057,608.00 for 2011 year of assessment

7.5.1.1 The Respondent says it is empowered under Section 37 of the Revenue Administration Act, 2016 (Act 915) to adjust an assessment "in a manner that ensures that the taxpayer is liable for the correct amount of tax in the circumstances to which the assessment relates." Section 37 further provides that "the Commissioner-General shall use best judgment and information reasonably available in making an adjusted assessment."

7.5.1.2 The correction of a scheduling error falls squarely within the scope of this power. Furthermore, under Section 43 of Act 915, upon receiving an objection, the Commissioner-General may "vary the tax decision, in whole or in part, or disallow the objection."

7.5.1.3 Accordingly, during the Parties attempt of settlement, it became evident that during the audit, the Respondent's officers prepared two internal analytical working papers within

p. 13Source page 13Schedule 1 of the audit report: Working Paper A, reflecting the Appellant's tax position before audit, and Working Paper B, reflecting the proposed audit adjustments.

7.5.1.4 Working Paper B contained a depreciation addback of GHS7,057,608.00, Working Paper A did not. In error, the final assessment was based on Working Paper B, creating the appearance of a duplicated addback of depreciation.

7.5.1.5 As a result of the Appeal, the error was detected and the Respondent has since recomputed the assessment by reference solely to Working Paper A

7.5.1.6 Accordingly the corrected assessment contains no duplication and the Respondent has consequently concluded that there is no longer any duplicated amount of GHS7,057,608.00 to reverse, nor any associated tax of GHS1,764,402.00 and penalty of GHS354,880.40, as annexed to the Appeal Response as Exhibit GRA 3, showing the recomputed assessment schedule based on Working Paper A.

7.5.2 Ground B: Disallowance of Capital Allowance on invoices for Depreciable Assets Amounting to GHS8,548,735.34 (2012-2020)

7.5.2.1 Capital allowances are governed by Section 14 of the Income Tax Act, 2015 (Act 896) which provides at subsection (2) that: (2) A capital allowance is (a) granted in respect of a depreciable asset owned and used by a person during a year of assessment in the production of the income of that person from a business; and (b) calculated in accordance with the provisions specified in the Third Schedule."

7.5.2.2 The Third Schedule of Act 896 further specifies the classes of depreciable assets applicable rates, and the methods of computation. The GRA's published guidance on Capital Allowance under Act 896 (Practice Note Number DT/2016/010) confirms that three cumulative conditions must be satisfied:

(a) The depreciable asset must be owned by the person applying for the allowance; (b) The depreciable asset must be used in carrying on the business of the person during the relevant basis period; and (c) The depreciable assets must be owned at the end of a basis period by the person ending within the year of assessment.

p. 14Source page 147.5.2.3 Critically, under Section 14(3) of Act 896, capital allowance granted in respect of a particular year of assessment shall not be carried over to another year by the person.

7.5.2.4 Further, Section 27 of the Revenue Administration Act, 2016 (Act 915) imposes a mandatory obligation on every person subject to tax to: "27(1) maintain, within the country, necessary records (a) to provided information in respect of documents to be filed with the Commissioner-General under and tax law; (b) to enable an accurate determination of tax payable under a tax law; and (c) that may be prescribed by Regulations or by the Commissioner-General."

7.5.2.5 Section 27(2) expressly provides that "necessary records include underlying documents, however described in the nature of receipts, invoices, vouchers, contracts or in the case of electronic records, any medium by which the information can be extracted."

7.5.2.6 Section 27(3) mandates that such documents "shall be retained for a period of at least six years from the relevant date." Where a person objects to or appeals against a tax decision, the documents relevant to the matter in dispute "shall be retained until the matter is decided and the decision is executed."

7.5.2.7 Furthermore, Section 92 of Act 915 establishes the fundamental principle that in every tax appeal proceeding, the burden of proving that an assessment is excessive or erroneous lies on the taxpayer. The Appellant cannot discharge this burden by mere assertion. The Appellant must adduce credible documentary evidence.

7.5.2.8 As reiterated in Section 27 of Act 915, taxpayers must keep their invoices, receipts, accounting records, withholding tax exemption letters, and other documents that support their tax positions for at least six years, in case they are required by the tax authorities for audit or verification purposes.

7.5.2.9 The Respondent says it has repeatedly requested the original allowance during the original audit and throughout the objection process, repeatedly requested the original invoices supporting the claimed capital allowance however the Appellant failed to produce them, and the Respondent cannot consequently grant an allowance on the basis of an unsubstantiated assertion.

p. 15Source page 157.5.2.10 An objection is not a forum for mere pleading; it is a process in which the taxpayer must produce documentary evidence that supports the tax return.

7.5.2.11 The Commissioner-General is empowered to require a taxpayer to furnish such particulars as the Commissioner-General deems necessary, and the Appellant's failure to do so at the material time left the Respondent with no alternative but to disallow the claim.

7.5.2.12 The Appellant has during the pendency of this appeal, submitted some photocopies of invoices.

7.5.2.13 The Respondent has examined these photocopies and raises a genuine question as to their authenticity, as the Respondent has not previously seen or endorsed the original invoices from which the copies were purportedly made, and photocopies, particularly where the originals have never been presented for inspection are of inherently low probative value.

7.5.2.14 The Respondent is entitled, and indeed bound, to insist on the production of the original primary records before accepting that capital expenditure was truly incurred in the amounts and on the dates claimed.

7.5.2.15 The Respondent's insistence on original documents is a legitimate exercise of the Commissioner-General's power to require a taxpayer to furnish such particulars as the Commissioner-General deems necessary.

7.5.2.16 That power would be rendered nugatory if a taxpayer could simply withhold originals during an audit and objection and then attempt to cure the deficit with photocopies at the appeal stage.

7.5.2.17 The Respondent therefore submits that the Appellant has not yet discharged its duty and the disallowance must therefore stand.

7.5.3 Ground C: Disallowance of Capital Allowance on Dealer Operated Dealer Owned (DODO) assets (GHS2,382.677.00)

p. 16Source page 167.5.3.1 The Respondent submits that Section 14(2) of the Income Tax Act, 2015 (Act 896) stipulates that capital allowance is "granted in respect of a depreciable asset owned and used by a person during a year of assessment in the production of the income of that person from a business."

7.5.3.2 The use of the conjunctive "and" confirms that both ownership and use in the person's own business are cumulative requirements. Neither alone is sufficient.

7.5.3.3 The GRA's Capital Allowance guidelines restate these conditions as follows:

a. The Depreciable Assets must be owned by the person applying for the allowance." b. The Depreciable Assets must be used in carrying on the business of the person during the relevant basis period." c. The Depreciable Assets must be owned at the end of a basis period of the person ending within the year of assessment."

7.5.3.4 The Respondent says this this ground turns on the proper characterisation of the DODO arrangement and examined a typical DODO Agreement entered into by the Appellant dated 1 April 2015, and finds its terms are binding and clearly evidence the legal and commercial relationship between the Appellant and the dealers.

7.5.3.5 The Agreement expressly stipulates that the Dealer is an independent contractor and "NOT AN AGENT" of the Appellant.

7.5.3.6 This declaration is fundamental, as it means the Dealer carries on its own business, separate and distinct from that of the Appellant.

7.5.3.7 The equipment installed at the station is employed in the Dealer's business and not the Appellant's. The agency argument advanced by the Appellant is therefore directly contradicted by the express terms of the contract that the Appellant itself signed.

7.5.3.8 Furthermore, Clause 3 of the Agreement, titled "PRODUCT SUPPLY AND EQUIPMENT ON LOAN", provides that the Appellant shall, at its own cost, supply and install the equipment at the station on loan.

p. 17Source page 177.5.3.9 This mechanism is a financing arrangement, and the Appellant may retain a bare legal title for security purposes, though the economic substance is that the equipment is being used by the Dealer.

7.5.3.10 The Dealer exercises exclusive operational control. In such circumstances, it is the Dealer who incurs the capital expenditure and uses the asset in his income-earning operations, not the Appellant.

7.5.3.11 The Respondent says that for the Appellant to claim capital allowance under Section 14(2) of Act 896, it must demonstrate both possession of the asset and use of that asset in the production of its own business income.

7.5.3.12 The Appellant's business is the sale and distribution of petroleum products, not the retail operation of a service station.

7.5.3.13 The DODO model means that the retail business is the Dealer's. Even if the Appellant bears the initial installation cost, the asset is placed on loan and eventually paid for by the dealer.

7.5.3.14 The asset does not generate income for the Appellant; it generates income for the Dealer.

7.5.3.15 The Respondent therefore submits that it correctly disallowed the capital allowance.

7.5.4 Ground D: Disallowance of 2020 CIT Payment Deduction and Late Payment Interest (GHS1,5125,69.03 and GHS2,289,030.00)

7.5.4.1 The Respondent submits that the payment receipt in contention was unequivocally issued in respect of 2021 year of assessment.

7.5.4.2 The Appellant filed and utilized this receipt to take credit for the 2021 year of assessment. Yet during the audit Appellant simultaneously sought to present the very same receipt as evidence of a payment made for the 2020 year of assessment.

7.5.4.3 The Respondent's payment processing systems allocate payments according to the taxpayer's designation. Where a taxpayer designates a payment for a specific year of assessment, the Respondent is bound to apply it accordingly. Hence, the Appellant's attempt to claim double credit, once for 2021 and again for 2020, is impermissible. The

p. 18Source page 18Respondent could not lawfully accept the 2021 receipt as discharging the 2020 liability without creating an inconsistency in the taxpayer's account and potentially prejudicing the 2021 assessment.

7.5.4.4 Interest on late payment of tax is governed under Sections 70 and 71 of the Revenue Administration Act, 2016 (Act 915).

7.5.4.5 Section 71 provides that where a taxpayer fails to pay taxes by the due date, interest is charged at 125% of the bank of Ghana's statutory rate (monetary policy rate), compounded monthly, commencing from the date the tax becomes payable to the date it is finally paid.

7.5.4.6 Because no valid payment had been made against the 2020 year of assessment at the due date, the 2020 liability remained outstanding.

7.5.4.7 Late payment interest accrues automatically by operation of law from the due date until date of actual payment.

7.5.4.8 The interest charge of GHS2,289,030.00 is not a penalty imposed at the Respondent's discretion, but the legal consequence of the Appellant's failure to pay the 2020 tax on time.

7.5.4.9 The Respondent submits, therefore, that the disallowance of the deduction for 2020 and the associated statutory interest charge under Sections 70-71 of Act 915 is correct in law and should be upheld.

7.5.5 Ground H: Withholding Taxes on Exempt Items, Wrong Rates and Interest Calculation (2013 & 2016)

7.5.5.1 The Appellant's complaint under this ground comprises three elements:

a) The application of withholding tax to items general exempt from WHT; b) The use of incorrect WHT rates; and c) An error in computation of late payment interest for the 2016 year of assessment.

p. 19Source page 197.5.5.2 Under Section 43(1) of Act 915, the Commissioner-General, upon receiving an objection, "may vary the tax decision, in whole or in part, or disallow the objection," and notify the taxpayer of the objection decision in writing within 60 days.

7.5.5.3 The Respondent confirms that elements (a) and (b) were in the Appellant's original notice of objection and were resolved during the objection determination process. As such, the Respondent holds the view that there is no subsisting dispute on these points.

7.5.5.4 Sub-ground (c) remained the sole outstanding matter under Ground H. The Respondent has, upon review, granted a total adjustment of GHS6,052,616.43 to resolve the wrong computation of 2016 outstanding interest.

7.5.5.5 The Respondent submits that the disputed interest for the 2016 year of assessment as assessed should be resolved based on the granted adjustment amount.

7.5.5.6 In conclusion, the Respondent submits that the assessment and the decision to disallow the various grounds of appeal have basis in law and implores the Board to deny the instant tax appeal.

8. DECISION

8.1 GROUND A: Disallowance of Depreciation Expense of GHS7,057,608.00 for 2011 year of assessment

8.1.1 The Appellant contends that the Respondent had duplicated the addback and disallowed depreciable expense of GHS7,057,608 for 2011 year of assessment.

8.1.2 The Respondent justifies the disallowance of the same amount that there was transposition error at the time of compiling relevant information to arrive at the assessment during the tax audit, and consequently there is no duplication of the depreciation expense.

8.1.3 The Respondent's response on this ground is quoted for emphasis "... the Respondent's Officers prepared two internal analytical working Papers within Schedule 1 of the audit report: Working Paper B, which reflected the proposed audit adjustments.

8.1.4 Working Paper B contained a depreciation addback of GHS7,057,608.00. Working Paper A did not. In error, the final assessment was based on Working Paper B, creating appearance

p. 20Source page 20of a duplicate addback of depreciation. By reason of this appeal, the error was detected and Respondent has since recomputed the assessment by reference solely to Working Paper A."

8.1.5 The Respondent's position to adjust an assessment during the appeal is based on Section 37 of the Revenue Administration Act, 2016 (Act 915) which provides for an assessment to be "in a manner that ensures that the taxpayer is liable for the correct amount of tax in the circumstances to which the assessment relates." Section 37 further provides that "the Commissioner-General shall use best judgment and information reasonably available in making an adjusted assessment."

8.1.6 The correction of a scheduling error falls squarely within the scope of this power. Furthermore, under Section 43 of Act 915, upon receiving an objection, the Commissioner- General may "vary the tax decision, in whole or in part, or disallow the objection."

8.1.7 The powers conferred on the Respondent by Sections 37 and 43 of Act 915 can be freely exercised during tax administration, but not when there is a disputed ground(s) of a tax appal.

8.1.8 Despite these powers above conferred on the Respondent, there are statutory safeguards that preclude the Commissioner-General from making adjusted assessment or assessment in general in special circumstances (see DHL Logistics Ghana Ltd v Commissioner-General Suit No. CM/MISC/1213/19 (Unreported) dated 8 May 2020; Taylor v Taylor Ltd v Commissioner-General, Attorney-General Suit No. Tax/01/15 dated 21 December 2017.

8.1.9 The power of the Respondent to assess a taxpayer is not exercisable into perpetuity, thus it is not absolute. Section 122 of the Internal Revenue Act 2000 Act 592 ("Repealed Act") and also Section 79(2) which permitted the Commissioner-General to raise additional assessment "where the need to make an additional assessment arises by reason of fraud or a gross or willful neglect by, or on behalf of, a person or the discovery of new information in relation to the tax payable for any year of assessment", are subject to judicial order (emphasis ours).

8.1.10 The principle of legal certainty is of particular importance in tax law. In Northumbria Healthcare NHS Foundation Trust (Respondent) v Commissioners for His Majesty's Revenue and Customs (Appellant) [2025] UKSC 37 at [47] Lady Justice Falk stated that

p. 21Source page 21"Turning to legal certainty, namely the requirement that [Community] legislation "must be certain and its application reasonably foreseeable by those subject to it", a rule that "must be observed all the more strictly in the case of rules liable to entail financial consequences"

8.1.11 In Commissioner for South African Revenue Services v KWJ Investments Service (Pty) Ltd 81 SATC 1 at [44] per Davis Aja

"The Commissioner was precluded from raising an additional assessment, notwithstanding that such an assessment may be justified in terms of the relevant provisions of the Act, where (a) the prescription period of three years from the date of the original assessment applied or (b) where the original assessment was issued in terms of a practice generally prevailing at the time of issuing the original assessment. In short, in these two sets of circumstances, the legal consequences of the transaction so assessed gave way to the principle of certainty which justified the principle of prescription or of a practice generally prevailing at the time the original assessment was issued."

8.1.12 This Board accepts that the Respondent should collect the correct amount of tax. However, that objective cannot be pursued in a manner that undermines the principles of fairness, finality and legal certainty.

8.1.13 Where a taxpayer has appealed a specific assessment, the Commissioner-General cannot rely on Section 37 of Act 915 to retrospectively reconstruct or replace the assessment that is the subject of the appeal. To permit such an approach would effectively allow the Respondent to defend an assessment different from the one originally issued, thereby prejudicing the taxpayer's right to challenge the assessment on the grounds upon which it was made.

8.1.14 Allowing the Commissioner-General to adjust an assessment pursuant to Section 37 of Act 915 because of a purported error of a Ground being appealed by the Appellant before the Board, runs counter to the principle of legal certainty. Had the Appellant accepted the Respondent's explanation and agreed to a consensual amendment of the assessment, a different consideration might have arisen. That, however, is not the present case.

8.1.15 The purported adjustment offends the principle of legal certainty and is inconsistent with the objection and appeal framework established under Sections 42 and 43 of Act 915.

p. 22Source page 228.1.16 Consequently, the Board sets aside the additional assessment based on the combined effects of Sections 42(8) and 43(1) of Act 915 (as Amended).

8.1.17 Upon receipt of the Appellant's objection, the Respondent ought, through the exercise of due diligence, to have identified any computational error and issued an appropriate tax decision before the matter proceeded to appeal.

8.1.18 The Board accordingly directs the Respondent to allow the depreciation expense of GHS7,057,608.00 for the Appellant's 2011 year of assessment.

8.2 Ground B: Disallowing Capital Allowance on invoices for Depreciable Assets amounting to GHS8,548,735.34 for 2012 to 2020 years of assessment on the basis that the invoices were not attached to the objection

8.2.1 The contention of this ground is the unavailability of original invoices for depreciable assets purchased by the Appellant for the relevant years of assessments and for which capital allowances have been claimed.

8.2.2 The Appellant argues that the original copies of the invoices were not available at the time of the objection. Photocopies of the invoices for depreciable assets were provided to the Respondent for their review, but the Respondent proceeded to issue the tax decision without regard to the additional invoices.

8.2.3 The Respondent asserts Section 27(1) of the Revenue Administration, 2016 (Act 915) which states that (1) A person shall maintain, within the country, necessary records (a) To provide information in respect of documents to be filed with the Commission - General under a tax law; (b) To enable an accurate determination of tax payable under tax law; and (c) That may be prescribed by Regulations or by the Commissioner-General.

8.2.4 The Respondent further cites Section 27(2) Act 915 that, "For the purpose of subsection (1), necessary records include underlying documents, however described in the nature of receipts, invoices, vouchers, contracts or in the case of electronic records, any medium by which the information can be extracted."

p. 23Source page 238.2.5 The Respondent submits that during the original audit and throughout the objection process, it repeatedly requested for the original invoices supporting the claimed capital allowance, however the Appellant failed to produce them.

8.2.6 Refund or credit claims or expense deductibility should not be denied merely because original invoices were unavailable and photocopies were produced. The Respondent should examine whether the transaction • itself was genuine rather than rejecting the claim solely on documentary technicality.

8.2.7 Section 91(1) of Act 915 provides that

(1) The following are admissible in proceedings on appeal or in recovery of tax under a tax law without calling the person who prepared or signed it:

(a) A document that has been seized or obtained by a tax officer acting in the performance of duties under a tax law, relating to the tax affairs of a person; (b) A statement relating to the tax affairs of a person that is made to a tax officer acting in the performance of duties under a tax law; and (C) a copy of, translation of or extract from a document or statement referred to in paragraph (a) or (b).

8.2.8 Section 164 of the Evidence Act, 1975 (NRCD 323) provides

"A "duplicate" of a writing is a copy produced by a technique that ensures an accurate reproduction of the original, and includes a copy produced by the same impression, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, but does not include a copy reproduced after the original by manual handwriting or typing."

8.2.9 Section 165 of the Evidence Act, 1975 (NRCD 323) provides

"Except as otherwise provided by this Decree or any other enactment, no evidence other than an original writing is admissible to prove the content of a writing."

8.2.10 Section 166 of the Evidence Act, 1975 (NRCD 323) provides that

p. 24Source page 24"A duplicate of a writing is admissible to the same extent as an original of that writing, unless-

(a) a genuine question is raised as to the authenticity of the original or the duplicate; or (b) in the circumstances it would be unfair to admit the duplicate in lieu of the original."

8.2.11 The above statutory provisions are clear that duplicates or photocopies can be good evidence where it is impracticable to adduce the originals for purposes of evidence. In Orica Ghana Limited v. The Commissioner-General, Suit No. CM/Tax/0118/2022 dated 19 July 2022, the question of whether photocopies of VAT Relief Purchase Orders (VRPOs) are admissible as evidence, arose.

8.2.12 The Court held that the "The photocopied VRPOs having met the threshold requirements in the Evidence Act and the Respondents having not disputed that they had earlier authenticated the originals by initialing same as provided by Section 91(1)(a) and (C) of Act 915, nothing stands in the way of this Court in holding that the Respondent should accept the said VRPOs in its assessment of the Appellant's tax liability."

8.2.13 The Respondent had the benefit of seeing the electronic copies of the invoices and same was submitted to the Board during the appeal. On the face of the record before the Board, the invoices looked eligible, had identified suppers and serial invoice numbers.

8.2.14 The Appellant produced corroborating evidence by way of bank statements showing payments to the suppliers, and associated withholding taxes paid on the transactions.

8.2.15 It should be stressed that at no time did the Respondent raise a genuine question about authenticity except to say that the copies were not legible, which the Board found not to be the case, and that Respondent was not convinced because the Appellants had a long time to produce the originals but did not.

8.2.16 Where original invoices are not available, the Respondent must have regard to

a) Verifying if the supplier's name, address, tax identification number, and registration details are accurate and verifiable. b) Obtaining the underlying documents (purchase order, contract, delivery note, timesheet, or other supporting documentation) supporting the transaction.

p. 25Source page 25c) In the substitute, performing alternative tax audit procedures to confirm the genuineness of the transactions.

8.2.17 Based on the foregoing, the Board accordingly directs the Respondent to grant the Appellant capital allowance on the invoices for depreciable assets amounting to GHS8,548,735.34 for 2012 for 2020 years of assessment.

8.3 Ground C: Disallowance of Capital Allowance on Dealer Operate Deal Owned (DODO) Assets (GHS2,382,677)

8.3.1 The Appellant submits that the DODO arrangements are not akin to finance leases pursuant to Section 30 of the Income Tax Act 2016 (Act 896) (as Amended) and contends that the assets are used exclusively for the Appellant's business and that those assets revert to the Appellant when the DODO agreement is terminated.

8.3.2 The Appellant relies on Sections 20 and 14 of Act 896 (as Amended) which provided that a person qualifies for capital allowance on a depreciable asset where the person owns the asset and uses it in the generation of income of that person.

8.3.3 The Appellant argues that although the DODO dealers are separate legal entities, they are treated as agents who earn commission/margin on the sale of the Appellant's products for the purposes of the Appellant's operations. Products are supplied to the dealers, who sell and deposit all receipts to the bank accounts of the Appellant who in turn remits commission/margin to the dealers.

8.3.4 The Appellant submits that the price of all products sold at the service stations are fixed and determined by the Appellant, thus the Dealers do not have authority to change prices. The Appellant considers the arrangement with the dealers of an agency relationship character.

8.3.5 The Appellant relies on the case of Fan Milk Limited Vs Commissioner General, Ghana Revenue Authority [2022] DLCA16265 and argues that the court characterised the relationship between Fan Milk and its independent distributors as that of a principal and agent relationship, since Fan Milk controlled the prices at which its products were sold by the Distributors to customers nationwide, with no opportunity for the distributors to add any margin or profit.

p. 26Source page 268.3.6 Appellant submits that the assets are being used for generating of income for and on behalf of the Appellant, thus the Appellant is the rightful owner of the assets and direct beneficiary of the usage of those assets by its agents, and as a result the Appellant must be the one to claim capital allowance on the DODO assets.

8.3.7 The Respondent on the other hand argues that based under Section 14(2) of Act 896 (as Amended), the Appellant is not entitled to capital allowance on the DODO assets. Section 14(2)(a) provides that

(2) "A capital allowance is (a)granted in respect of a depreciable asset owned and used by a person during a year o f assessment in the production of the income of that person from a business,"

8.3.8 The Respondent cites the GRA's Practice Note (Number DT/2016/010) on Capital Allowance as set out below: a) The depreciable assets must be owned by the person applying for the allowance b) The depreciable assets must be used in carrying on the business of the person during the relevant basis period; and c) The depreciable assets must be owned at the end of a basis period by the person ending within the year of assessment. 8.3.9 The Respondent contends that on the proper characterisation of the DODO agreement, the Dealer is an independent contractor and not an agent of the Appellant. The Respondent asserts that the Dealer carries on his own business, separate and distinct from that of the Appellant.

8.3.10 That Clause 3 of the Agreement, titled "Product Supply and Equipment on Loan," provides that the Appellant shall, at its own cost, supply and install the equipment at the station on loan.

8.3.11 The Respondent further argues that the mechanism is a financial arrangement and the Appellant may retain a bare legal title for security purposes, though the economic substance is that the Equipment is being used by the Dealer, and the Dealer exercises exclusive control.

8.3.12 The Respondent argues that the Appellant must demonstrate both possession and use of the asset in the production of its own business income.

p. 27Source page 278.3.13 The Appellant's business in the DODO arrangement is the sale and distribution of petroleum products, not the retail operation of a service station. Thus, the asset does not generate income for the Appellant, but it does generate income for the Dealer.

8.3.14 The Oil Marketing Companies (OMC), of which the Appellant is one, operate brand filling stations in their retail network using these models; the company owned company occupied ("COCO") model, the company owned and dealer operated ("CODO") model, and the dealer owned and dealer operated ("DODO") model.

8.3.15 The OMC signs specific agreements with the dealers under the CODO and DODO models.

8.3.16 It is important to highlight that these models are particular to the downstream petroleum sector and their usage is widespread. The Appellant adduced separate agreements on CODO and DODO for the Board's review. The facts in respect of the claim of capital allowance are under the DODO model.

8.3.17 Exhibit "GRA 4" is a sample copy of the Dealer-Owned Dealer Operated Petrol Filling/Service Station Agreement (the "Agreement"). The Agreement has been redacted.

8.3.18 A careful review of the agreement discloses that the Appellant signed the DODO with an individual. The Agreement provides that a legal entity could sign where the contracting parties is not a natural person.

8.3.19 A global viewing of the Agreement shows that the Dealer is an Independent Contractor. This suggests that an individual or an undertaking as a Dealer is not an affiliate or employee of the Appellant but acting in an independent capacity as a business.

8.3.20 The Appellant (the Company) contends that it has legal ownership of certain depreciable asset of the dealership, being the pumps, tanks and branding equipment that it makes available to the Dealer. Clause 3.1 of the Agreement provides that "In consideration of the Dealer's agreements and undertakings herein the Company shall supply or cause to be supplied and delivered at the Station such quantities of the Petroleum Products required for sale at the Station and the Company shall at its own cost and expense supply and install on loan basis the Equipment at the Station."

p. 28Source page 288.3.21 Clause 3.2 of the Agreement also provides that "Where the Dealer is supplied on credit basis, the Dealer authorises the Company to deduct from his monthly margin an amount of GHS 0.0069 per litre earned on white products sold at the Station as his contribution towards the costs of credit for products supplied at the Station."

8.3.22 Clause 13.1 of the Agreement provides that "Nothing herein contained or done by either Party pursuant hereto shall be deemed or construed to constitute a partnership or joint venture between the Parties nor to constitute the Dealer an Employee or an Agent of the Company."

8.3.23 Although the Supreme Court of Ghana has confirmed the application of strict interpretation to tax laws in Multi-Choice (GH) Ltd vs. Commissioner, Internal Revenue Service (2011) 2 SCGLR 787 and Seadrill Ghana Operations Limited v the Commissioner-General, Ghana Revenue Authority, Civil Appeal No. J4/31/2024 (Unreported) dated 3 June 2026, the same approach cannot be adopted in construing an agreement signed by parties. In Eric Ansong V Mr. Albert Gorman & Mrs. Gorman, Civil Appeal J4/37/2011 30 December, 2011 at [664], the Court stated that "Indeed in construing every agreement the paramount consideration is what the parties themselves intended or desired to be contained in the agreement. The intentions must prevail at all times... The general rule is that a document should be given its ordinary meaning if the terms are clear and unambiguous."

8.3.24 The Appellant is inviting the Board to apply a loose interpretation on the meaning of the term "loan" in the context of the Agreement and submits that no loan was provided to the Dealer by the Appellant. As such the arrangement was not a finance lease as the Respondent contends.

8.3.25 On the totality of the DODO arrangements, the Board finds that they do not reflect economic substance. The businesses of the Dealer and the Appellant are separate legal entities. The Appellant provides assets to be used for the Dealer's business without economic compensation for the use of the assets. Based on Clause 3.1 and 3.2 of the Agreement, it is evident that the Agreement provides legal basis for the Appellant to control the proceeds from the sale of the petroleum products to pay off the use of the assets over time by the Dealer.

8.3.26 A depreciable asset may have a life span of 2.5 years to 10 years depending on the class of the assets. The DODO is fixed for a five-year period, as such, the assets would likely have been fully depreciated by the fifth year depending on the class of the asset.

p. 29Source page 298.3.27 'Section 34 of the Income Tax Act, 2015 (Act 896), on General anti-avoidance rule provides:

(1) For purposes of determining a tax liability under this Act, the Commissioner- General may recharacterize or disregard an arrangement that is entered into or carried out as part of a tax avoidance scheme (a) which is fictitious or does not have a substantial economic effect; or (b) whose form does not reflect its substance.

(2) For purposes of this section, "arrangement" includes an action, agreement, course of conduct, promise, transaction, understanding or undertaking, which is (a) express or implied; (b) enforceable by legal proceedings or not; and (c)unilateral or involves two or more persons; and "tax avoidance" includes an arrangement, the main purpose of which is to avoid or reduce tax liability.

8.3.28 In Eaton Towers Ghana Ltd v Commissioner-General (Ghana Revenue Authority) & Attorney- General, High Court (Commercial Division), Accra, Suit No. CM/TAX/0003/18 9(Unreported) dated 27 February 2018, the Court stated that

"The law recognizing such situations are likely to arise provides at section 34 of the Income Tax Act, 2015 (Act 896) the power for the Commissioner-General to disregard or to re-characterize any arrangement which is fictitious or does not have a substantial economic effect or whose form does not reflect its

substance."

8.3.29 It is evident from the law and the Courts that the Commissioner-General may look beyond the legal form of a transaction to its economic substance. In the circumstances, therefore, the Respondent contends that the depreciable assets must be in the books of the Dealer and capital allowance granted accordingly, and not to the Appellant.

8.3.30 The facts of the case of Fan Milk Limited Vs Commissioner General, Ghana Revenue Authority [2022] DLCA16265 is distinguishable from the facts before the Board in respect of the DODO arrangements. It bordered on the payments made by Fan Milk to its distributors, which

p. 30Source page 30although described as "discounts ', were in substance commissions paid to sales agents and, therefore subject to withholding tax under the Act 896. The Court held that merely describing a payment as a "discount" does not determine its tax treatment. The true legal and commercial nature of the payment must be examined.

8.3.31 Firstly, on a global view, the arrangement between the Appellant and the Dealers do not reflect economic substance. Secondly, contrary to the Appellant's claim and as evidenced by Clause 13(1) of the DODO Agreement, the Dealer and the Appellant are not in an agency relationship. Thirdly, it is evident that the arrangement is to confer tax benefit to the Appellant, rather than the Dealers who may have lower taxing capacity to pay corporate income tax. It is an established principle in the DODO arrangement; the Dealer Owns and the Dealer Operates. In such circumstances, capital allowance is granted to the Dealer. The Appellant has CODO arrangements which clearly identify the Company as both the owner and user of the equipment to generate income in the Company's business. However, this is not the subject of this Appeal.

8.3.32 In view of all the above, the Board finds that the Respondent was right in disallowing capital allowance on the DODO assets of GHS2,382,677.

8.4 Ground D: The Respondent erred in law by disallowing a deduction for 2020 Corporate Income Tax (CIT) payment of GHS1,512,569.03 on the basis that the payment receipt erroneously stated 2021 year of assessment even though the payment related to 2020 year of assessment. This resulted in Respondent applying late payment interest charge of GHS2,289.30 for 2020 year of assessment

8.4.1 Section 124 of the Income Tax Act 2015, (Act 896) (as Amended) provides as follows:

(1) ...a person shall file with the Commissioner-General not later than four months after the end of each year of assessment a return of income for the year.

(2) A return of income of a person for a year of assessment shall, subject to any instructions by the Commissioner-General to the contrary (a) be on a prescribed form and specify:

(i) the assessable income of the person for the year from employment, business and investment and the source of that income; (ii) the chargeable income of the person for the year and the tax payable with respect to that income.

p. 31Source page 318.4.2 Section 126 of the Act 896 (as Amended) further provides that a return of income filed under Section 24 as stipulated above shall result in a self-assessment.

8.4.3 Further, Section 121 of Act 896 provides that an instalment payer shall pay tax by quarterly instalment if the person derives or expects to derive assessable income during the year of assessment (a) from business or investment.

8.4.4 By a letter dated 30 April 2021 ("Exhibit J") issued by the Appellant's consultants (PwC) to the Respondent on the instruction of the Appellant, the Appellant filed among others a completed Company self-assessment return for 2020, a copy of the company's annual report (which contains its financial statements); payment receipt of GHS 1,512,589.03 dated 30 April 2021 with reference number 210430125044514; and withholding tax credit certificates for the 2020 year of assessment amounting to GHS181,888.22.

8.4.5 A review of the Exhibit J shows that the above filings were done concurrently in accordance with the law and on the same date, but it was later found by the Appellant that "2021 year of assessment was written on the receipt from the Respondent, instead of '2020 year of assessment' to which the tax payment actually relates. The Appellant by letter dated 21 June 2021 ("Exhibit H") requested the Respondent to correct the error on the receipt and apply the tax to the 2020 year of assessment as its final company tax liability. At the hearing of 8 July 2026, the Appellant asserted that even though there was some indication that the error was corrected on the GRA taxpayer portal, they (the Appellant) expected to receive a letter to confirm that the matter has been resolved. The Respondent conceded to this assertion, and requested that the Appellant send another letter to confirm its request for the correction. It was apparent at the hearing that the Parties agree to correct the error and apply the tax liability paid to the 2020 year of assessment.

8.4.6 The Board therefore makes the following orders:

1. The Appellant should resubmit the letter which requested for the correction of the error with a cover letter; 2. The Respondent should correct the error which created the late payment interest, and ensure that this is reflected on the GRA portal, if not already done;

p. 32Source page 328.6.2 The Respondent asserts that the issues in respect of Ground H can be classified into a) application of withholding tax to items generally exempt from withholding tax; b) the use of incorrect withholding tax rates; and c) an error in the computation of late payment interest for the 2016 year of assessment.

8.6.3 The Respondent submits that the classification (a) and (b) were resolved in the objection process by the Respondent. The Respondent considers that the outstanding issue is (c) under Ground H and recomputed a total adjustment of GHS6,052,616.43 to resolve the wrong computation of the 2016 outstanding interest.

8.6.4 The Appellant invited the Board to consider and review the Ground H wholistcially.

8.6.5 The Board will therefore deal with withholding tax on exempt amounts, reversed transactions and regulatory fees together.

8.6.6 Section 116 of the Act 896 (as Amended) provides that

(1) Subject to subsection (3), a resident person shall withhold tax at the rate provided for in paragraph 8 of the First Schedule where that that person (a) pays a service fee with a source in the country to a resident individual (1) as fees or allowances, to a resident director, manager, trustee or board member of a company or trust, (ii) for examining, invigilating, supervising an examination, or part time teaching or lecturing; (ili) as an endorsement fee; (iv) as a commission to a resident lotto receiver or agent; (V) as a commission to a sales agent; (vi) as a commission to a resident insurance sales or canvassing agent; (vil) for any other supply of services; or (vili) for any other matter prescribed by Regulations; or (b) pays a service fee or an insurance premium with a source in the country to a nonresident person.

(2) A resident person, other than an individual, shall withhold tax on the gross amount of the

p. 33Source page 333. The Respondent should ensure that any interest charged on the Appellant's tax liability of 2020 year of assessment arising from the error is reversed and deleted from the Appellant's tax records; and 4. The Respondent should reply to the Appellant's letter requesting the correction of the error, stating the actions taken to address the Appellant's concern, and confirm that all the above steps have been taken to rectify the error.

8.5 Grounds E-G, on withholding Tax matters

8.5.1 The Parties during the appeal were granted permission by the Board to attempt settlement of the Appeal pursuant to Regulation 41(1) of the Revenue Administration Regulations, 2025, (L.l. 2513).

8.5.2 The Parties filed a Settlement Agreement with the Board on 7 May 2026, which contained settled grounds E-G of the Notice of Appeal. The Settlement Agreement was adopted by the Board on 20 May 2026.

8.5.3 The Parties agreed that the withholding tax issues concerning (i) revenue account balances, (i) fixed assets balances, (iii) provision accounts (2011-2012), and iv) reversed transactions, regulatory fees, and application of WHT rate substantially turned on questions of fact.

8.5.4 The Parties reconciled all matters relating to withholding tax under Grounds E-G of the Notice of Appeal. Consequently, the amount in issue, GHS6,357,695.87 represented principal Withholding tax and accrued interests has been taken out of the tax assessment.

8.6 Ground H: Application of WHT on items that are generally exempted from WHT (including reversed transactions, payment for regulatory fees)

8.6.1 The Appellant contends that WHT was applied on certain transactions that are exempted from WHT. These items and transactions generally covered reversed transactions, and payments for regulatory fees and charges. The Appellant identified that wrong rates (usually higher rates) applied on certain transactions for 2013 and 2016, and that also, for 2016, late payment interest was significantly overstated, the result being excess WHT charge, including interest of GHS364,317.83 for 2013, and GHS7,329,775.39 for 2016.

p. 34Source page 34payment at the rate specified in the First Schedule when the person makes a payment to another resident person who does not fall within subsection (1) or section 114 for (a) The supply or use of use of goods, (b) the supply of any works, or (c) the supply of services, in respect of a contract between the payee and the resident person.

(3) Subsection (2) applies to a contract between the payee and a resident person, where the amount of the contract exceeds two thousand currency points.

8.6.7 Section 116(8)(b) of Act (896) (as Amended) provides that "this section does not apply to a payment that is an exempt amount".

8.6.8 The Board finds that exempt amounts or payments, as well as regulatory fees, are not subject to withholding tax. Payments that are subject to withholding tax are those that have been specified by the Act, as noted in the relevant section of the Act provided. Therefore, reversed transactions, which are mainly accounting transactions, and payment of regulatory fees should not attract WHT since the law is strict on what comes within the domain of WHT.

8.6.9 Further, Section 19 of (Act 896) provides that

(1) Subject to this Act, the timing of inclusions and deductions in calculating the income o f a person during a basis period shall be made in accordance with generally accepted accounting principles.

Accounting principles underpin the formation of the tax base. Reversed transactions are accounting issues and must not have withholding tax consequences.

8.6.10 On wrong interest calculation, the Board reasons based on the following laws:

8.6.11 The position of the law in Ghana is that any enactment or regulations passed by Parliament do not have retrospective effect. This provision is grounded in Article 107(b) of the 1992 Constitution as set forth below

"Parliament shall have no power to pass any law -

p. 35Source page 35(b) which operates retrospectively to impose any limitations on, or to adversely affect the personal rights and liberties of any person or to impose a burden, obligation or liability on any person except in the case of a law enacted under articles 178 Or 182 of this Constitution."

8.6.12 Section34(1)(c) the Interpretation Act, 2009 (Act 792) provides that

"the repeal or revocation shall not affect a right, a privilege, an obligation or a liability acquired, accrued or incurred under the enactment that is repealed or revoked."

8.6.13 Section 34(1)(d) of the Interpretation Act, 2009 (Act 792) provides that the repeal or revocation shall not affect an offence committed against the enactment that is repealed or revoked, or a penalty or a forfeiture or a punishment incurred in respect of that offence; or

8.6.14 Section 34(1)(e) of the Interpretation Act, 2009 (Act 792) provides that the repeal or revocation shall not affect an investigation, a legal proceeding or a remedy in respect of a right, privilege, an obligation, a liability, a penalty, a forfeiture or a punishment.

8.6.15 The combined effect of Sections 34 and 35 of Act 792 is that laws enacted by the legislature do not have retrospective effects. That said, where an offence has been committed by a person under a law before it is repealed, the person shall be penalized under the repealed law by virtue of liability having accrued or incurred before the law was repealed. By the same token, where a person has committed an offence under a repealed law, but has not yet been punished, if the Repealing Act (new law) has a lower sentence, the law is that the person must be punished under the new law. On the other hand, if the repealed law has lesser in terms of liability, the person must be penalised under the Repealed Act.

8.6.16 See British Airways an Another v Attorney-General [1996-97] SCGLR 547 where it was held that a person could not be investigated, tried or convicted under a repealed legislation unless the amending enactment saves the provision.

8.6.17 The penalty imposed by the Internal Revenue Act, 2000, (Act 592) (Repealed) and Paragraph 49 of Schedule 7 of the Income Tax Act, 2015 (Act 896) (as Amended) is four currency units per each day of failure to file tax return due. It must be emphasized that

p. 36Source page 36Schedule 7 of Act 896 (as Amended) has been repealed and replaced with the Revenue Administration Act, 2016, (Act 915) which came into force on 1 January 2017.

8.6.18 Section 73(1) of Act 915 provides that "A person who fails to file a tax return as required by a tax law is liable to pay a penalty of five hundred currency points and a further penalty of ten currency points for each day that the failure continues."

8.6.19 Penalties of GHS500.00 and a further GHS10.00 must apply for failure to file returns on time for offences prior to 2013, 2014 and 2015 years of assessments. The penalty regime under Schedule 7 of Income Tax Act, 2015 (Act 896) (as Amended) shall apply to 2016 year of assessment, and Act 915 shall apply to 2017 year of assessment. Respondent applying Act 915 penalty regime for tax offences committed before 2016 shall be in consistent with the 1992 Constitution.

8.6.20 The principles in Taylor & Taylor Limited v Commissioner-General of the Ghana Revenue Authority, Attorney High Court (Unreported) Suit No. Tax 01/15 dated 21 December 2017, and Yew Bon Tew v Kanderaan Bas Mara (1982) 3 AER 833 at [836] suggested that "a statute will be deemed retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attached a new disability in regard to events already past."

8.6.21 In view of the foregoing, the Board finds that it is retrospective and inconsistent with established law for the Respondent to apply a penalty of GHS500.00 and a further GHS10.00 for penalty for an offence which had remained outstanding. For example, 2014 return which had not been filed will penalised at GHS4.00 a day until the filing is done. So, if the filing is done on 6 August 2026, the penalty will be GHS4.00 a day until 6 August, not GHS500.00 and a further GHS10 under Act 915. Applying GHS500.00 and a further GHS10 for tax offence committed in 2014 will amount to applying the law retrospectively to a liability which had been crystalised under Act 592.

8.6.22 Based on the above, the Board directs that Respondent must review the interest calculations and apply the right tax rates. The interest ought to be calculated on the amounts that exclude the reversed transactions, exempt amounts and regulatory fees.

p. 37Source page 378.6.23 The Board orders the Respondent to do reconciliation with the Appellant and reverse the application of withholding tax on items exempt from withholding tax, apply the correct application of withholding tax rate, and assess interest using the applicable regimes under Act 592 and Act 896

9. CONCLUSION

9.1 In conclusion, having examined the records, the submissions by the Parties, and the relevant laws and cases, the Board finds that albeit the Commissioner-General is given extensive powers under the Income Tax Act, 2015 (Act 896) (as Amended) and the Revenue Administration Act, 2016 (Act 915) (as Amended) to assess tax against a taxpayer "in a manner that ensures that the taxpayer is liable for the correct amount of tax in the circumstances to which the assessment relates.", such powers are not unlimited. Thus, when a taxpayer objects to a tax decision, the Commissioner-General is enjoined by law to "use best judgment and information reasonably available in making an adjusted assessment," and issue an objection decision to the taxpayer.

9.2 If the taxpayer continues to feel dissatisfied with the objection decision, the Act 915 provides avenues for redress through judicial process.

9.3 In this way, the laws and the courts can oversee that principles of fairness, finality and legal certainty pertain in tax processes. In similar vein, the law and judicial process oversee that taxpayers do not use agreements and other business arrangements for tax avoidance. Although the Supreme Court, Ghana has confirmed the strict interpretation of tax laws in cases such as Multi-Choice (GH) Ltd vs. Commissioner, Internal Revenue Service (2011) 2 SCGLR 787 and Seadrill Ghana Operations Limited v the Commissioner-General, Ghana Revenue Authority, Civil Appeal No. J4/31/2024 (Unreported) dated 3 June 2026, the same does not apply to agreements, and so if a business arrangement seems fictitious, lacks substantial economic effect, or its form does not reflect its substance, the Commissioner- General's statutory power under Section 34(1) of the Income Tax Act, 2015 (Act 896) to "recharacterise or disregard an arrangement that is entered into or carried out as part of a tax avoidance scheme", must be upheld.

9.4 In accordance with the withholding tax regime, exempt amounts, reversed transactions and regulatory fees shall not have withholding tax consequences.

p. 38Source page 389.5 Interest calculations imposed by the Respondent must have regard to the applicable penalty under 592 and Act 896 as may be case to avoid retrospective application.

10. RIGHT OF FURTHER APPEAL

A Party dissatisfied with this Decision may appeal to the High Court in accordance with Section 44 of the Revenue Administration Act 2016, (Act 915) (as Amended) within thirty (30) days of service of the Decision of the Board.

DATED AT ITAB, ACCRA THIS 7th OF AUGUST 2026

(SGD.) Mrs. Mangowa Ghanney (Chairperson)

(SGD.) Mr. Theophilus Tawiah (Member)

(SGD.) Dr. Isaac Nyame (Member)

AUTHORITIES

Cases

1. DHL Logistics Ghana Ltd v Commissioner-General Suit No. CM/MISC/1213/19 (Unreported) dated 8 May 2020 2. Taylor v Taylor Ltd v Commissioner-General, Attorney-General Suit No. Tax/01/15 dated 21 December 2017

p. 39Source page 393. Northumbria Healthcare NHS Foundation Trust (Respondent) v Commissioners for His Majesty's Revenue and Customs (Appellant) [2025] UKSC 37 at [47] 4. South African Revenue Services v KWJ Investments Service (Pty) Ltd 81 SATC 1 at [44] 5. Orica Ghana Limited V. The Commissioner-General, Suit No. CM/Tax/0118/2022 dated 19 July 2022 6. Fan Milk Limited Vs Commissioner General, Ghana Revenue Authority [2022] DLCA16265 7. Multi-Choice (GH) Ltd vs. Commissioner, Internal Revenue Service (2011) 2 SCGLR 787 8. Seadrill Ghana Operations Limited v the Commissioner-General, Ghana Revenue Authority, Civil Appeal No. J4/31/2024 (Unreported) dated 3 June 2026 9. Eric Ansong V Mr. Albert Gorman & Mrs. Gorman, Civil Appeal J4/37/2011 30 December, 2011 at [664] 10. Eaton Towers Ghana Ltd v Commissioner-General (Ghana Revenue Authority) & Attorney- General, High Court (Commercial Division), Accra, Suit No. CM/TAX/0003/18 9(Unreported) dated 27 February 2018 11. British Airways anD Another v Attorney-General [1996-97] SCGLR 547 12. Yew Bon Tew v Kanderaan Bas Mara (1982) 3 AER 833 at [836]

Laws

1. 1992 CONSTITUTION OF THE REPUBLIC OF GHANA 2. Income Tax Act 2016 (Act 896) 3. INternal Revenue Act 2000 (Act 592) ("Repealed") 4. Revenue Administration Act, 2016 (Act 915) 5. Revenue Administration Regulations, 2025, (L.l. 2513) 6. Evidence Act, 1975 (NRCD 323) 7. Interpretation Act, 2009 (Act 792)