Nigeria’s largest independent power plant (IPP)

Nigeria’s largest independent power plant (IPP), Azura Edo Power Plant, is a huge suction pipe set up to siphon millions of tax-free dollars through a network of Mauritius-incorporated offshore shell companies to a number of trusts and private equity firms, an investigation by PREMIUM TIMES and the International Consortium of Investigative journalist (ICIJ) has revealed.

A study of the data obtained by German newspaper, Suddeutsche Zeitung, and ICIJ from two offshore secrecy providers (Appleby and Asiaciti Trust) and 19 secrecy jurisdictions showed that promoters of the power plant will earn as much as $28 million before the first light bulb comes alive from power generated by the facility.

The 1.4 terabyte leaked data, now named Paradise Papers, contains 13.4 million records and ranks among the biggest leaks in history.

For 12 months, more than 380 journalists from 96 media organisations in 67 countries pored over the gigantic data, which cover a period of nearly 70 years, from 1950 to 2016. PREMIUM TIMES is the only Nigerian media organisation involved in the investigation.

More than 120 politicians and country leaders, in nearly 50 countries as well as hundreds of business people across the world were identified in the record as users of offshore entities.

The beginning

In October 2014, former President Goodluck Jonathan, a spade in hand, flanked by Adams Oshiomhole, then governor of Edo State, and other dignitaries broke the earth of the sprawling 100 hectares site for the Azura Edo Power Plant for the first time.

The power plant, located at the Ihovbor/Orior Odemwende communities outside Benin City was hailed as the first fully financed private power plant in Nigeria.

The first phase of the IPP, which is planned to take off in 2018, will produce 450 megawatts of electricity but ultimately, the plant is expected to produce 1,500 megawatts.

Mr. Jonathan said the project demonstrated the “strong foundation” on which his administration was “building a sound and sustainable electricity industry, with great expectations for robust growth in the sector.”

Azura Edo was an instant hit with foreign investors and multilateral financial institutions. The gas-fired plant had little problem generating the $1 billion ($700 million for the construction of the plant and $300 million to build associated infrastructure) required to set it up.

The World Bank provided a partial risk guarantee of up to $245 million. The board of the International Finance Corporation (IFC) and the Multilateral Investment Guarantee Agency (MIGA) approved loans and hedging instruments of up to US$135 million and guarantees of up to US$659 million.

The project received loan financial backing from First City Monument Bank, Rand Bank of South Africa, Standard Chartered Bank, United Kingdom and the Netherlands Development Finance Company (FMO).

Other financial institutions that provided debt financing were Standard Bank of South Africa, SWEDFUNDS International, AB, Sweden, and Overseas Private Investment Corporation, USA.

But after the funfair of the groundbreaking ceremony, work on the project stalled. The Mr. Jonathan’s administration, for undisclosed reasons, withheld its backing of the World Bank facility needed for the plant to take off.

In August 2015, however, the President Muhammadu Buhari administration breathed new life into the plant, signing a $237 million risk guarantees with the World Bank in support of the power plant. The guarantees included a debt mobilization guarantee of $117 million and a liquidity guarantee of $120 million.

“This landmark development confirms the Buhari administration’s commitment to the continuation of the power sector reforms which is anchored on attracting private sector investments, and establishing and supporting institutions that are critical to the reforms,” the Ministry of Power said in a statement.

Similarly, during an inspection tour of the power plant, in April 2016, the immediate past governor of Edo State, Adams Oshiomhole, praised the promoters of the plant.

“It requires a measure of confidence in our country, people, and about our future to initiate a gigantic project such as this. Even while you are at the stage of construction, all of us here are already beneficiaries of that vision,” he said.

It is not hard to see why the Nigerian government is excited about the project. At full generating capacity of 1,500 megawatts, the plant will be producing more than a third of the country’s current total generating capacity.

A cluster of Offshore entities

But while the power plant enjoys a flurry of local and international financial supports and the Nigerian government gushes about its benefits, documents obtained from the database of global offshore law firm, Appleby, showed that Azura Power West Afica, the Nigerian company building the plant is owned by a cluster of offshore entities in Mauritius.

Part of the documents obtained by PREMIUM TIMES from the leaked data are two undated organisational charts of Azura Power West Africa.

One of the charts, which appeared to be the original structure of the company, shows that Azura Power West Africa was wholly owned by Azura-Edo Limited, a Category 1 Global Business Company (GBC1) incorporated in Mauritius.

Azura-Edo Limited is further completely owned by Azura Power Holding Limited, a Category 2 Global Business Company (GBC2) also incorporated in Mauritius.

Azura Power Holding is then jointly owned by two GBC2 companies – Amaya Capital Limited (86.23 percent) and Hollyhock Limited (13.77 percent). Hollyhock Limited is the GBC2 subsidiary of the private equity firm, American Capital Limited.

Amaya Capital is jointly owned by The Principal Investment Trust (40 percent) belonging to Philp Iheanacho the co-founder of Investment firm, Afrinvest, and an ally of the current governor of Edo State, Godwin Obaseki, with whom he co-founded Afrinvest.

The Rasa Trust owns 40 percent of Amaya Capital. The trust belongs to Sundeep Bahanda, a former top executive at Deutsche Bank, London, while David Ladipo, the founder of Lintstock, a corporate advisory company and a former adviser to the Nigerian government on energy, owns 20 percent of Amaya Capital.

The second ownership chart, apparently drafted after the new investors were welcomed into the power project, showed that Azura Edo Limited 100 percent ownership of Azura Edo West Africa had reduced to 97.5 percent.

The Edo State government was also brought on board as marginal co-owner of the company with 2.5 percent stake. The company explains on its website that the 2.5 percent equity was given to Edo State for the providing 1100 hectares of land on which the company is built.

The document further showed that Azura Power Holding divested 50 percent of its equity in Azura Edo Limited to Aldwych Azura Limited, England (9.2 percent), FMO (4.8 percent), Asset & Resource Management Company Limited, ARM (6 percent), African Infrastructure Investment Fund 2 (AIIF2), South Africa (15 percent) and African Infrastructure Investment Fund 2 (AIIF2), Mauritius (15 percent).

Amaya Capital and Hollyhock still held their original equity of the remaining 50 percent of Azura Power Holding.

Transfer Pricing

Tax experts have argued that elaborate company ownership structures involving entities registered in Mauritius under its GBC system like that of Azura Edo are primarily designed to avoid paying taxes in the country where they are based and generate revenue from.

As a GBC2 company, Azura Power Holding Limited, the parent company of Azura Edo West Africa, is not required to and does not have physical property in Mauritius. It has no staff, telephone line or computers. It uses a care-of address (Les Cascades, Edith Cavell Street, Port Louis, Mauritius) which directs its correspondences to the headquarters of International Mauritius Limited (IMM).

IMM is one of Mauritius’ best known financial service provider, which helps clients to set up and manage offshore entities including companies, trusts and funds. IMM carries a stock of ready-formed shelf companies and can obtain approval to set up new companies in two days.

It also assists offshore companies with nominee directors for offshore companies. A nominee director helps hide the identities of owners of offshore companies. He or she is a resident of a tax haven who is paid to lend his or her name on the board of an offshore firm in place of a non-resident trustee of the firm.

Although Azura Power Holding is required to file a financial summary within six months of its financial year, it is not subjected to an audit and is not available publicly. It is not considered a non-taxable entity therefore it is not required to pay any tax or file a tax return.

One of the ways multinationals cash in on this kind of ownership structure is through a cost-pushing mechanism called transfer pricing. This is when the parent company (mostly in a tax haven) of a multinational charges its subsidiary in another country for the supply of products or services. The transactions are usually artificial as the purported goods and services are often only supplied on paper.

Critics say this technique allows owners of multinationals to impose artificially high prices for the product or services they render with the aim of moving money from a high tax country, where they are based to a low to zero tax jurisdictions like Mauritius.

In Azura Edo Power Holdings’ business plan it was stated that the company was originally set up to “hold investments in the development, finance, building and operation of power plants and distribution companies across Africa with a particular focus on Nigeria.”

But the company later extended its service to the provision of “management services for business in which it has investment”.

“These services will be provided by APHL itself and/or through the appointment of suitably qualified third-party service providers, as per the attached draft Management Services Agreement.

“The first project to which it will provide such services is Azura Power West Africa Limited (“APWAL”), a company incorporated under the laws of Nigeria and having its registered office address at St. Nicholas House, 10th Floor, Catholic Mission Street, Lagos, Nigeria.

“APWAL is the Project Company, which is developing a 1,000MW Independent Power Project (“IPP”) complex in Edo State, Nigeria in 2 phases. Phase 1 is the 450 MW open cycle gas fired IPP, for which the Company will be providing the management services (the “Project”),” the business plan read.

A copy of the Management Services Agreement obtained by PREMIUM TIMES revealed that Azura Power Holding Limited (the service provider) “shall manage all management and non-technical aspects of the Project on behalf of the Project Company (Azura Edo West Africa Limited) during the term.”

According to the Management Service Agreement with Azura Power Holding Limited, the initial agreement was to last 33 months and may be extended for at least a period of three months. Also, while the agreement lasts, Azura Power Holding will be paid a quarterly base fee of $500,000 as long as it performs the function for which it was hired.

Thus, Azura Power should earn $4.5 million as base fee alone for the duration of the agreement. However, a clause in the agreement pegs the maximum fee the offshore company can earn as base fee at $3 million.

Also contained in the management agreement is the plan by the owners of Azura Power Holding to pay themselves over $25 million in management fee.

A breakdown of the budget showed that the company will pay itself $9.1 million in the first year, $7.85 million in year two and $8.34 million in the third year.

The agreement further stipulates that no employee of Azura Power Holding shall be deemed as an employee of Azura Edo West Africa. This is also another tax avoidance tactic used by multinationals.

Fair Tax Mark, a UK-based not-for-profit tax rating group explains how this works:

“Multinational companies can choose to employ managers in a low tax regime country or tax haven far away from where their services are used. This can both reduce the employees individual tax bills and benefit the company by allowing them to make charges for ‘management services’ which are deducted from their profits elsewhere.

“The senior management of a multinational, may well be internationally mobile and will be willing to participate in tax planning for their own and their employer’s benefit. The result is that these senior managers might be employed in locations which suit tax planning even if their duties are undertaken elsewhere.

“From this practice, managers can obtain a favourable tax treatment for their earnings if they are employed in a location that is not their long-term home. This is because part of their income might not be taxed anywhere.”

Some of the management services the company will be providing includes providing the managing director, delivering customs and excise services, finance, and government and community relations.

Double Taxation Treaty

By creating a complicated, multi-layered ownership structure, promoters of Azura Edo Power Plant will not only be moving millions of tax-free dollars to Mauritius through transfer-pricing, they are in line to make several more if Nigeria ratifies a Double Taxation Treaties (DTTs) or Double Taxation Agreement(DTAs) it signed with the Indian Ocean country in 2012.

DTTs are primarily signed between two governments to prevent income from getting taxed twice, to prevent double non-taxation, to clarify the taxing rights between the parties involved and to aid the exchange of tax information.

However, companies often exploit loopholes in the treaty to ship significant portions of their profits to offshore jurisdictions where they pay little or zero tax. Low-tax countries like Mauritius deliberately sign DTTs with several countries which allow multinationals to engage in treaty-shopping, defined by the Business Dictionary as “the practice of structuring a multinational business to take advantage of more favourable tax treaties available in certain jurisdictions.”

“[DTTs] significantly undermines [the] ability to raise domestic revenue to underpin acountry’s development by opening up loopholes for multinational companies operating in the country and super- rich individuals to shift profits abroad through Mauritius to avoid paying appropriate taxes,” said UK-based tax watchdog, Tax justice Network.

In 2014, rights group, ActionAid Nigeria, wrote the then Nigeria’s Finance Minister, Ngozi Okonjo-Iweala, about the perils of ratifying the DTT she signed with Mauritius two years earlier.

“Double Taxation Treaties creates loopholes for tax evasion and avoidance and is exploited by companies that undertake ‘treaty shopping’ which deny our beloved country of the much-needed resources we need at this juncture for developing.

“Overall, the cost (financial and otherwise) of the treaty to Nigeria will outweigh the perceived benefits. It is advisable for Nigeria not to ratify the treaty unless certain changes are made to retain Nigeria’s taxing rights as contained in the domestic tax legislation,” the letter read.

A review of the treaty earlier commissioned by the group identified some of these loopholes.

“The Nigerian-Mauritius DTT could result in sharp practices by multinationals operating in the countries and especially in Nigeria through double non-taxation.

This is particularly the case with the reduced rate of withholding tax on streams of income flows from Nigeria such as dividend which are not taxable in Mauritius and the tax sparing provision applicable to reduced tax rates and waivers on income streams such as interest and royalty,” the report stated.

“Given that Nigeria is a net importer of capital and will remain so for the nearest future, the DTT by limiting the taxing right of Nigeria on dividend, interest and royalty potentially reduces the tax base of the country which will impact negatively on the revenue generation for the country,” the report added.

As a GBC1, Azura Edo Limited is eligible to enjoy the DTT between Nigeria and Mauritius when it is ratified by the Nigerian government. GBC1 companies in Mauritius are generally used as Special Purpose Vehicles (SPVs). None of the shareholders of a GBC1 is required to live or work in Mauritius and only one of its directors is required to be a Mauritius resident. However, this director can be a nominee director.

A nominee director is a resident of a tax haven who is paid to lend his or her name on the board of an offshore firm in place of a non-resident trustee of the firm. Though its beneficial owners are disclosed to the Mauritian Financial Services Commission (FSC), such information as well records of their shareholders and directors are hardly publicly disclosed.

For instance, documents obtained by PREMIUM TIMES revealed that two of the three listed directors of Azura Edo Limited – Sandeep Fakun and Dourvesh Chumum – are employees of IMM. Mr. Oladipo is listed as the third. The company’s secretary, Ashraf Ramtoola, is also an employee of IMM.

As a GBC1 company, the Azura Edo is also not required to make its accounts public. The incentives for the owners of Azura Edo to exploit the DTT to move its income offshore are huge. For example, while companies incorporated in Nigeria are expected to pay 30 percent corporate tax, GBC1 are only required to pay a maximum of three percent corporate tax.

Co-founder of Azura Edo responds

Responding to enquiry sent by PREMIUM TIMES, Mr. Oladipo denied that owners of the power plant were engaged in transfer pricing. He claimed that “the contractual structure of project has been highly transparent.”

“Within Nigeria, Azura Power West Africa Ltd (“APWAL”) pays and will continue to pay all taxes due to the federal and state governments,” Mr. Oladipo said. “We have no transfer pricing or tax avoidance schemes. Indeed, such schemes are impossible in the context of an open-book project financed transaction where much of the debt comes from the big development finance agencies and where the revenues are securitised by all three arms of the World Bank.

“APHL possesses a valuable stock of specialist resource which the other shareholders in APWAL wished to take advantage of. Clearly, the cost of providing this resource has to be reimbursed. And APHL also needs to earn a fee for the provision of these service, as well as bonuses if the project is delivered on budget and ahead of schedule. To put this in context, the maximum total cost (fee plus reimbursement plus bonuses) of the MSA over the entire three-year construction period represents less than 1% of the of the project’s total capital.

“It is also important to note that the MSA (management service agreement) is an arms’ length agreement that was reviewed by, and negotiated with both the lenders to the Project and the other shareholders in the Project. It represents extremely good value for money and, more importantly, it massively increases rather than decreases the profits that will be taxed in Nigeria,” he said.

Mr. Oladipo, however, did not explain why the multi-million-dollar management contract for the plant was awarded to shell companies existing only on paper, has no physical address or a history of business dealings, and ensconced in a shelf at a notorious offshoretax haven.

He also did not address the cyclical huge dollar payment to the shell company by its Nigerian subsidiary. Further, he did not explain his company’s seeming tax-avoidance tactic of classifying workers who carry out the management service as employees of the offshore parent company instead of its Nigerian subsidiary for which they offer the services directly.