Securitisation 2025

GHANA Law and Practice Contributed by: Adelaide Benneh Prempeh, Michelle Nana Yaa Essuman, David William Akuoko-Nyantakyi and Audrey Nana Oye Addy, B&P Associates

• placing restrictions on the SPE that prevent it from incurring any liabilities outside those contemplated by the securitisation; • including non-petition clauses in agree - ments between the SPE and third parties that prohibit the third parties from commencing insolvency procedures against the SPE; and • including limited recourse wording in all significant transaction documents to restrict the recourse of a counterparty who takes enforcement action in respect of the SPE’s assets, to the assets that the SPE holds and over which the counterparty has security. In a transfer of financial assets, the primary tax that may apply is capital gains tax, which is charged on the gain made from selling or dis - posing of the asset. In Ghana, a person who realises an asset must submit a return to the Commissioner-General of the Ghana Revenue Authority within 30 days of the transaction. Therefore, the tax liability falls on the originator, not the SPE, as it is the originator who realises the asset and incurs the gain. However, the SPE may be required to withhold tax on the gross amount of the payment at the rate specified by the laws (Section 116A of the Income Tax Act, Act 896 as amended by the Income Tax (Amend - ment) Act, 2023 (Act 1094)). 7.2 Taxes on Profit Incorporated companies are required to pay corporate income tax on the chargeable income earned from their financial assets at a rate of 25%. Additionally, for the 2023, 2024 and 2025 assessment years, SPEs would be liable to pay a Growth and Sustainability Levy on the profit 7. Tax Laws and Issues 7.1 Transfer Taxes

before tax earned from their financial assets, at a rate of 5%. These taxes can be mitigated by the SPE claim - ing capital allowances on its depreciable assets and ensuring that all other allowable expenses are deducted from its gross income, thereby reducing its taxable income. 7.3 Withholding Taxes All income generated from sources in Ghana is subject to taxation in Ghana. Additionally, the foreign-sourced income of a resident person is also subject to taxation in Ghana. An SPE is considered resident in Ghana for an assessment year if it is incorporated in Ghana or if its man - agement and control are exercised in Ghana at any time during that assessment year. Therefore, any cross-border payment received by the SPE with a source in Ghana is subject to income tax, regardless of the place of payment. Addition - ally, if the cross-border payment received by the SPE is from a foreign source, it remains taxable in Ghana if the SPE qualifies as a tax resident. A resident SPE is required to withhold tax on any interest paid to investors, as well as on any consideration paid to the originator regarding the realisation of an asset, provided the payment has a source in Ghana. A common approach that practitioners often employ to deal with taxes include structuring the transaction to take advantage of Double Taxa - tion Treaties (DTTs), which may reduce withhold - ing tax rates or lower the tax liability on these transactions. Additionally, practitioners may select jurisdictions with favourable tax treat - ments to incorporate the SPE in as a means of minimising the impact of these taxes.

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