The rules governing transfer pricing include legislation and various regulations. These are the Income Tax Act, Chapter 323 of the Laws of Zambia (the “Income Tax Act”) as read with the Income Tax (Transfer Pricing) Regulations, and Statutory Instrument No 20 of 2000 (the “Transfer Pricing Regulations”) (collectively, the “Transfer Pricing Rules”), as amended by the following regulations:

• the Income Tax (Transfer Pricing) (Amendment) Regulations, Statutory Instrument No 24 of 2018;
• the Income Tax (Transfer Pricing) (Amendment) Regulations, Statutory Instrument No 117 of 2020;
• the Income Tax (Transfer Pricing) (Amendment) Regulations, Statutory Instrument No 107 of 2021;
• the Income Tax (Transfer Pricing) (Amendment) Regulations, Statutory Instrument No 89 of 2022; and
• the Income Tax (Transfer Pricing) (Amendment) Regulations, Statutory Instrument No 62 of 2023.

Transfer Pricing Rules in Zambia were first introduced in 1999 under Section 97A of the Income Tax Act Chapter 323 of the Laws of Zambia (“Income Tax Act”), and the Income Tax (Transfer Pricing) Regulations, Statutory Instrument No 20 of 2000 (the “Transfer Pricing Regulations”) in the year 2000. However, the Zambian government only began to focus on major transfer pricing reforms in 2012, when four officers from the Zambia Revenue Authority’s (ZRA) Large Taxpayers Office undertook transfer pricing audits within mining and non-mining audit units. These reforms commenced when the ZRA became aware of the need for robust documentation rules to clarify taxpayer expectations and avoid unnecessary delays in the audit process.

In March 2016, the ZRA created a Transfer Pricing Unit comprising four officers with the aim of providing a direct focus on transfer pricing audit cases, which generally take a longer period of time to conclude compared with normal audits. Additionally, the ZRA had noted that without specific guidelines taxpayer compliance was difficult to enforce regarding the need to prepare a transfer pricing policy document for the relevant group. This is in view of the fact that the ZRA, in ensuring compliance, relied on the general provisions in the Income Tax Act to compel taxpayers to submit transfer pricing documentation and information.

In 2017, the Zambian government joined the Inclusive Framework on Base Erosion and Profit Shifting (BEPS) and agreed to adopt the BEPS project agreement, the country-by-country reporting measures to prevent tax treaty shopping, and the minimum standards that were set out by the OECD and G20 nations in 2015. In doing so, the government aimed to increase tax revenue payments and reduce the tax burden on easy-to-pay taxes by creating an atmosphere of fairness among companies that are liable for tax, which, it was hoped, would lead to voluntary compliance.

In view of the foregoing, the government strengthened the Transfer Pricing Rules by amending the Transfer Pricing Regulations. Major changes were introduced in 2018 when these amendments introduced, inter alia, provisions relating to the arm’s length principle and preparation of transfer pricing documentation. In 2021, the requirement for country-by-country reporting was introduced, and further amendments were made to the Transfer Pricing Regulations in 2022 and 2023.

In 2024, the provisions of the income tax were amended to enhance clarity and coherence in determining the timeline for submitting claims related to transfer pricing when legal proceedings are involved. Section 97A(11) of the Income Tax Act outlines prerequisites for claiming credit under a Double Taxation Agreement for foreign tax, emphasising the exclusion of any foreign tax amount not meeting arm’s length conditions. It underscores that the determination of income eligible for credit should align with arm’s length conditions. Section 97(11A) imposes a time limit, stipulating that claims must be submitted within twelve months from the assessment date. The crux of the recent amendment, encapsulated in Section 97A(11B), addresses a procedural nuance, in that for cases under litigation, the date of determination or the final ruling shall be considered as the date of assessment. It states that in cases where a decision under Section 97A is under appeal or pending before a court, the date of assessment mentioned in Section 97(11A) will be deemed the date when the decision on appeal is rendered, or the final court ruling is provided.

The Transfer Pricing Rules recognise the application of the OECD Transfer Pricing Guidelines and the United Nations Practical Manual on Transfer Pricing for Developed Countries. However, the Transfer Pricing Rules will prevail in the case of any inconsistencies.

The Transfer Pricing Rules apply to controlled transactions, which are defined as transactions between associated persons. Associated persons include the following:

• parties connected directly or indirectly through shareholding, equity or partnerships;
• any joint venture owned or operated jointly with an unrelated person;
• connected persons;
• parties connected through direct or indirect management control and capital; or
• any existing arrangements, whether in writing or not, that benefit two or more entities whose conditions are deemed not to be at arm’s length.

It is important to note that a party is associated with another if:

• the person participates directly or indirectly in the management, control or capital of the other; or
• the persons participate directly or indirectly in the management, control or capital of both of them.

The Transfer Pricing Rules provide for the following five transfer pricing methods that taxpayers may use:

• comparable uncontrolled pricing method;
• resale pricing method;
• cost plus method;
• transactional net margin method; and
• transactional profit split method.

A taxpayer or the Commissioner-General of the ZRA may apply a different method, provided the Commissioner-General is satisfied that:

• none of the approved methods can be reasonably applied to determine arm’s length conditions for the controlled transaction; and
• such other method yields a result consistent with that which would be achieved by independent persons engaging in comparable uncontrolled transactions under comparable circumstances.

Where the taxpayer wishes to apply a different method, the taxpayer must state why the five transfer pricing methods listed in 3.1 Transfer Pricing Methods were regarded as less appropriate or non-workable in the circumstances of the case, and the reasons why the selected method was regarded as the most appropriate for satisfying the arm’s length principle.

The application to use a different transfer pricing method should be made in writing to the Commissioner-General.

The tax authorities have the discretion to select the most appropriate transfer pricing method from the methods listed in 3.1 Transfer Pricing Methods based on the facts and circumstances of the case and reliability of data for the comparability analysis. The tax authorities will consider the following:

• the respective strengths and weaknesses of the methods in the circumstances of the case;
• the appropriateness of the approved transfer pricing method, having regard to the nature of the controlled transaction, determined through an analysis of the functions undertaken by each person in that controlled transaction and taking into account assets used and risks assumed;
• the availability of reliable information needed to apply the selected transfer pricing method or other transfer pricing methods; and
• the degree of comparability between controlled and uncontrolled transactions, including the reliability of comparability adjustments, if any, that may be required to eliminate differences between them.

The rules provide that where the comparable uncontrolled price method and the other listed transfer pricing methods can be applied with equal reliability, the tax authorities would choose the comparable uncontrolled price method. Further, where the comparable uncontrolled price method, the resale price method, the cost plus method, the transactional net margin method and the transactional profit split method can be applied with equal reliability, the tax authorities would choose either the comparable uncontrolled price method, the resale price method or the cost plus method.

The Transfer Pricing Rules provide for the arm’s length range, which is defined as a range of relevant financial indicator figures including prices, margins or profit shares produced by the application of the most appropriate transfer pricing method to a number of uncontrolled transactions, each of which is relatively equally comparable to the controlled transaction based on comparability analysis (though in some cases not all examined comparable transactions will have a relatively equal degree of comparability).

Further, the regulations provide for the interquartile range, which is used to enhance the reliability of the analysis where the range includes a sizeable number of observations, and the taxpayer has made reasonable efforts to exclude points of lesser degree of comparability.

There is no express requirement for comparability adjustments. However, when picking the most appropriate transfer pricing method, the tax authorities consider the degree of comparability between controlled and uncontrolled transactions, including the reliability of comparability adjustments.

It is worth noting that the tax authorities may adjust the taxpayers’ results where the results fall outside the arm’s length range.

Zambia’s Transfer Pricing Rules define “intangible property” as including any property which is not a physical or financial asset, and is capable of being owned or controlled for use in commercial activities. This includes the following:

• patent;
• invention;
• secret formula or process;
• design;
• model;
• plan;
• trade mark;
• know-how; or
• marketing intangible.

For transactions that involve intangible property such as licences and sales, the determination of the arm’s length conditions for controlled transactions between associated parties takes into account both the perspective of the transferor of the property and the perspective of the transferee. Such transactions also take into account the pricing at which a comparable independent enterprise would be willing to transfer the property and the value and usefulness of the intangible property to the transferee in its business.

In transactions involving the licensing, sale or transfer of intangible property, a person is required to consider special factors relevant to the comparability of the controlled and uncontrolled transactions, including the following:

• the expected benefits from the intangible property;
• any geographic limitations on the exercise of rights to the intangible property;
• the commercial alternatives otherwise available to the acquirer or licensee derived from the intangible property;
• the exclusive or non-exclusive character of the rights transferred; and
• whether the transferee has the right to participate in further developments of the intangible property by the transferor.

Zambia does not have any special rules regarding hard-to-value intangibles.

The Transfer Pricing Rules recognise cost contribution arrangements and define them as arrangements among persons to:

• share the costs and risks of developing, producing or obtaining assets, services or rights; and
• determine the nature and extent of the interests of each participant in the results of the activity of developing, producing or obtaining the assets, services or rights.

There are no special rules that apply to these types of arrangements.

A taxpayer may make an adjustment where the conditions of an actual transaction differ from the arm’s length principle requirements. The taxpayer may make the relevant adjustment in the calculation of assessable income included in the annual tax return. Generally, year-end adjustments are permitted before filing of the income tax return for the relevant financial year.

Zambia does not currently have specific rules concerning secondary adjustments.

Zambia has signed 23 tax treaties which provide for exchange of information agreements.

Further, it has signed the ATAF Agreement on Mutual Assistance in Tax Matters which established exchange of information and assistance in tax collection among the contracting countries in Africa.

While Zambia has international agreements which provide for exchange of information, this is not sufficient for country-by-country (CbC) reporting purposes. Zambia has not yet implemented the Qualifying Competent Authority Agreements (QCAA) which govern the automatic exchange of CbC reports filed on an annual basis between party jurisdictions and between authorised representatives of those jurisdictions that are parties to an international agreement.

Joint audits are not applicable in Zambia. Presently, the tax authorities significantly address transfer pricing issues in the mining sector.

Zambia participates in the OECD Inclusive Framework on BEPS, which promotes international co-operation on tax matters; however, Zambia does not currently operate a formal simultaneous audit or joint audit programme, nor is such a mechanism embedded in domestic tax legislation or supported through specific bilateral arrangements. In practice, Zambia continues to rely on unilateral audits, where the Zambia Revenue Authority (ZRA) deals directly with the taxpayer rather than conducting co-ordinated or parallel examinations with foreign tax authorities.

Furthermore, there is no statutory or regulatory framework in Zambia that provides for simultaneous tax examinations or joint audits with other jurisdictions. Likewise, no enhanced co-operation programmes tailored specifically to simultaneous controls are in place. Zambia has invested in strengthening its transfer pricing audit capabilities – particularly in the mining sector – and its membership in the Inclusive Framework enables the possibility of spontaneous or requested exchange of information with other tax administrations on transfer pricing issues.

In the context of a transfer pricing audit, communication flows directly between the taxpayer and the ZRA. The ZRA issues formal written requests for information or documentation, which taxpayers must ordinarily provide within 30 days, and maintains an active dialogue through meetings, follow-up queries, and requests for clarification. Taxpayers are also obligated to supply information held by foreign associated persons, effectively ensuring that cross-border communication occurs indirectly through the taxpayer, even though no direct inter-administration audit mechanism exists.

Zambia is not currently participating in the OECD International Compliance Assurance Programme (ICAP) or any comparable multilateral risk‑assessment programme.

Zambia does not have advance pricing agreements (APAs), and these are not expected in the near future given that transfer pricing audits are still in their early stages.

This is not applicable in Zambia. See 7.1 Programmes Allowing for Rulings Regarding Transfer Pricing.

This is not applicable in Zambia. See 7.1 Programmes Allowing for Rulings Regarding Transfer Pricing.

See 7.1 Programmes Allowing for Rulings Regarding Transfer Pricing.

See 7.1 Programmes Allowing for Rulings Regarding Transfer Pricing.

This is not applicable in Zambia. See 7.1 Programmes Allowing for Rulings Regarding Transfer Pricing.

See 7.1 Programmes Allowing for Rulings Regarding Transfer Pricing, as the duration of APA cover is not applicable in Zambia.

This is not applicable in Zambia. See 7.1 Programmes Allowing for Rulings Regarding Transfer Pricing.

The Transfer Pricing Rules provide that failure to maintain the required transfer pricing documentation or make transfer pricing information available to the ZRA when required to do so may render the entity liable to pay a fine not exceeding ZMW40,000 or to imprisonment for a term not exceeding 12 months, or to both.

Although the fine is capped at ZMW40,000, interest is always charged on debts owed to the ZRA and there is no cap on the interest that accrues on such debts. Interest is charged at the Bank of Zambia discount rate plus 2% per annum. The Income Tax Act also states that the Transfer Pricing Regulations may create offences which will render an entity liable to pay a fine not exceeding ZMW32 million; however, presently the Transfer Pricing Regulations do not contain penalties and provide that the penalties under the Income Tax Act are applicable.

The Transfer Pricing Rules further provide that a taxpayer is required to provide transfer pricing documentation to the ZRA within 30 days from the date of receiving the request for documentation. In addition, where the ZRA serves a taxpayer with a notice of assessment, the taxpayer may within 30 days of the date of said service object to the assessment by way of written statement addressed to the Commissioner-General of the ZRA, setting out the grounds of objection. If the taxpayer is dissatisfied with the outcome of the Commissioner-General’s decision concerning the objection to the assessment, the taxpayer may, within 30 days of the date of being served written notice of this decision, appeal against the assessment to the Tax Appeals Tribunal (the “Tribunal”).

Taxpayers must retain documents and records relating to transfer pricing for ten years from the date of the last entry in those documents and records. The documentation must contain information that verifies that the conditions in a taxpayer’s controlled transactions for the relevant tax year are consistent with the arm’s length principle. The documentation must reflect the following:

• the controlled transactions, including the nature, terms and price of each controlled transaction, details of property transferred, or services provided, and the quantum and value of each respective transaction;
• the identity of associated persons involved and the relationship between the associated persons;
• a detailed comparability analysis of the person and associated person with respect to each documented category of controlled transaction, including the functions performed, risks, borne tangible and intangible assets used, and any changes made compared to prior years;
• details of other controlled transactions that directly or indirectly affect the pricing of the subject controlled transaction;
• records of the economic forecasts, budgets or other financial estimates prepared by the person for that person’s business or separately for each division or product that may have a bearing on a controlled transaction;
• uncontrolled transactions and information on financial indicators for unrelated parties relied on in the transfer pricing analysis, including a description of the comparable search methodology, and a record of the nature, terms and conditions relating to any uncontrolled transaction with unrelated parties relied upon in the transfer pricing analysis;
• the details of any comparability adjustments performed, indicating whether they have been performed on the tested party or on the comparable uncontrolled transaction, or both;
• the transfer pricing methods considered in determining the arm’s length price in relation to each transaction or class of transaction, the method selected as the most appropriate method, why that method was selected, and how that method in each controlled transaction;
• which associated person is selected as the tested party, and an explanation for the choice of the tested party;
• a summary of financial information used, and the assumptions made in applying the transfer pricing methodology;
• the reasons for performing a multi-year analysis, where applicable;
• the assumptions, policies and price negotiations, if any, which have critically affected the determination of the arm’s length price;
• details of the adjustments, if any, made to the transfer price to align it with the arm’s length price, and consequent adjustments made to the total income for tax purposes;
• the reasons for concluding that the controlled transactions were conducted on an arm’s length basis, based on the application of the selected transfer pricing method;
• information and allocation schedules showing how the financial data used in applying the transfer pricing method may be tied to the annual financial statements of the taxpayer;
• summarised schedules of relevant financial data for comparables used in the analysis; and
• any other information, including information relating to the associated person that may be relevant for determination of the arm’s length price.

Transfer pricing documents and records must be prepared on an annual basis.

Zambia has adopted a three-tiered structure that taxpayers must adopt. The master file and local file reports are mandatory, while a country-by-country report must only be prepared and filed with the ZRA subject to meeting certain conditions.

Zambia’s Transfer Pricing Rules closely align with the OECD Transfer Pricing Guidelines, as they are to be construed in a manner consistent with the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations as supplemented and updated from time to time.

Where there is any inconsistency between the Transfer Pricing Rules and the OECD Guidelines, the Transfer Pricing Rules prevail to the extent of the inconsistency.

Zambia’s Transfer Pricing Rules do not depart from the arm’s length principle.

The OECD’s BEPS project influenced amendments to Zambia’s Transfer Pricing Rules. Zambia joined the Inclusive Framework on BEPS and in 2020 an amendment was introduced to bring about country-by-country obligations to the domestic landscape, thereby fulfilling the country-by-country reporting minimum standard and implementing it into domestic law.

It also worth noting that the BEPS-recommended transfer pricing methods have been implemented. These are as listed in 3.1 Transfer Pricing Methods.

Zambia has not explicitly provided a conclusive perspective on the OECD’s BEPS 2.0 initiatives. However, the country continues to introduce changes to the domestic Transfer Pricing Rules to ensure they are aligned with the OECD Guidelines. Zambia’s joining the Inclusive Framework on BEPS in 2017 illustrates the country’s commitment to and participation in reducing multinational tax avoidance and improving cross-border tax dispute resolution.

The OECD’s BEPS 2.0 initiatives involving Pillar One and Pillar Two are likely to be implemented, even though there is no definite set period for such implementation. The initiatives will likely address challenges in taxation of the digital economy in Zambia, which could lead to an increase in Zambia’s revenue growth from taxation of multinational entity digital companies, and also to tax certainty.

An example of Zambia’s commitment to the OECD’s BEPS 2.0 initiatives is that while previously Zambia’s tax legislation did not have specific rules dealing with the digital economy and digital services, as of 1 January 2023 the government has extended the turnover tax regime to service providers in the gig economy, which is a segment of the digital economy that involves individuals carrying out business through an online platform and under flexible or temporary conditions, and that includes an independent contractor or freelancer conducting business through an online platform. This exemplifies Zambia’s commitment to unifying approaches on taxation of the digital economy.

For Zambia, the likely impact of the OECD’s BEPS 2.0 initiatives involving Pillar One and Pillar Two in the coming years is the growth of Zambia’s revenue gains.

No formal domestic legislation or transfer pricing framework has been issued confirming adoption of Amount B into Zambian tax law.

The Transfer Pricing Rules do not provide for an entity to bear the risk of another entity’s operations.

Zambia’s domestic tax legislation does not contain a standalone, detailed statutory framework governing how profits must be allocated to a Permanent Establishment (PE). Instead, Zambia relies on:

• general principles under the Income Tax Act (Chapter 323) relating to source‑based taxation and income attributable to operations carried on in Zambia; and
• transfer pricing regulations, which apply broadly to controlled transactions but do not provide a dedicated PE allocation methodology.

While Zambia does not explicitly adopt the Authorised OECD Approach (AOA) in domestic legislation, its definition of a PE aligns closely with the OECD Model Tax Convention. Specifically, Zambia considers a PE to arise where a non‑resident operates through a fixed place of business or provides services in Zambia for more than 90 days in a 12‑month period – a definition that tracks the OECD Model’s structure.

However, Zambia has not incorporated the AOA into its domestic rules, and the ZRA has not issued PE‑specific profit attribution guidance comparable to the OECD’s AOA manuals. Thus, profit allocation for PEs is generally inferred from ordinary arm’s length principles and applicable double tax treaties, which typically follow Article 7 of the OECD Model.

In treaty situations, Zambia applies the treaty’s profit attribution rules, which usually require that only profits attributable to the PE’s activities in Zambia may be taxed – consistent with Article 7 of the OECD Model Tax Convention.

Zambia does not apply any safe harbour regime for allocating profits to PEs.

The Transfer Pricing Regulations provide that they are to be construed in a manner consistent with the UN Practical Manual on Transfer Pricing for Developing Countries as supplemented and updated from time to time. This illustrates Zambia’s consistency with the application of transfer pricing rules in accordance with the UN Practical Manual on Transfer Pricing. The Manual essentially influences the practice of transfer pricing in domestic legislation.

Safe harbours are provided on the amount charged for the provision of a low value-added service between connected persons. They only apply to the mark-up applied to the cost of the services. Taxpayers will still need to establish that all other conditions of the transaction are at arm’s length, including that:

• the services were actually provided;
• the services provide economic benefit to the recipient that is not incidental, duplicative or only relating to the activities of the shareholder;
• the cost of the services has been calculated using an appropriate cost base;
• the services have been allocated using appropriate allocation keys;
• the service providers have applied the cost plus method to determine the costs; and
• the mark-up on these costs is no more than 5%.

Zambia does not have specific rules governing savings that arise from operating in Zambia.

There are currently no notable unique rules or practices in Zambia, as the country’s Transfer Pricing Rules are highly influenced by the OECD Transfer Pricing Guidelines and are construed in a manner consistent with the Guidelines, except where there is inconsistency.

Zambia’s transfer pricing guidance aligns with the OECD Transfer Pricing Guidelines, except where inconsistent. The conduct of parties must align with reported accounts. Financial information must be provided by taxpayers, including:

• annual local entity financial accounts;
• allocation schedules; and
• financial data for comparables.

Further, financial documentation should be produced in English.

The Transfer Pricing Rules do not require co-ordination between transfer pricing and customs valuation; however, the ZRA has an integrated tax administration system called ASYCUDA (Automated System for Customs Data) which captures customs information and uses this as intelligence data in audits.

Zambia’s domestic transfer pricing controversy process is as follows.

Where the ZRA issues a notice of assessment following a transfer pricing audit and a taxpayer is unhappy with this, the taxpayer can challenge the assessment within 30 days of receiving notice of it. This can be done by objecting to the results of the transfer pricing audit in the notice of assessment by way of writing to the Commissioner-General of the ZRA, setting out the taxpayer’s grounds of objection.

If the Commissioner-General makes a determination following the taxpayer’s objection, and the taxpayer is still dissatisfied with this, they have the right to appeal to the Tribunal within 30 days of receiving the Commissioner-General’s decision. The decision of the Tribunal will be enforced as if it were the decision of the High Court of Zambia. Where a decision made under Section 97A of the Income Tax Act is under appeal or pending before a court, the date of assessment will be deemed to be the date when a final decision relating to the appeal is made. The 30-day period to challenge such an assessment will only begin to run once the decision is made.

It is important to note that all tax laws in Zambia, including the Transfer Pricing Rules, are based on the “pay now, argue later” rule of taxation. As such, no legislation contains any express provision that empowers the Tribunal to grant a stay of execution to prevent the ZRA from collecting dispute tax in cases where there is an appeal lodged with the Tribunal.

If either the ZRA or a taxpayer is aggrieved by the decision of the Tribunal, they have the right to appeal against the Tribunal’s decision to the Supreme Court of Zambia. The Supreme Court may determine the matter or refer it back to the Tribunal for re-hearing, confirmation, reduction, increment or annulment of the assessment or decision made by the Tribunal, and may make such further or other order on appeal, as to costs or otherwise, as the Supreme Court considers necessary.

Because the Supreme Court is Zambia’s final court of appeal, its decision on a particular transfer pricing dispute is final as it does not have the jurisdiction to review its judgments, or to set aside and re-open an appeal.

Although Zambia has a well-established legal framework for pursuing transfer pricing, and the ZRA formed a dedicated Transfer Pricing Unit in March 2016, the judicial precedent on transfer pricing is not yet well developed as not many disputes on transfer pricing have been taken to the courts.

Mopani Copper Mines Plc v The Zambia Revenue Authority – SCZ/8/269/2016

This case is considered the landmark case on transfer pricing in Zambia. It arose from an appeal from the Tribunal in which the Tribunal held against Mopani on a complaint raised by the ZRA disputing certain tax assessments made by the ZRA. In brief, the ZRA undertook an audit on the mining industry’s cost levels, and the exercise involved a tax audit on costs, revenues and transfer pricing practices. The audit was largely centred on possible transfer pricing practices between Mopani and its shareholder, Glencore International AG (GIAG), a related party that bought copper at a significantly lower price than the price at which it was sold to third parties.

The tax audit raised some concerns regarding certain related party transactions. The issue was whether the transactions between Mopani and GIAG were at arm’s length, given GIAG’s shareholding in Mopani. The ZRA had issued a tax assessment following conclusions that the internal pricing was not decided in line with the arm’s length principle, and that one of the major reasons for the mispricing was to reduce tax liability.

Mopani argued that Section 95 of the Income Tax Act was wrongly invoked by the ZRA in the case of transfer pricing as that section can only be invoked where there is reason to believe that the main purpose of the transaction was to avoid or reduce liability with respect to tax, in which case the Commissioner-General of the ZRA would direct that a particular adjustment be made. Section 95(1) of the Income Tax Act provides that:

“Where the Commissioner-General has reasonable grounds to believe that the main purpose or one of the main purposes for which any transaction was effected (whether before or after the commencement of this Act) was the avoidance or reduction of liability to tax for any charge year, or that the main benefit which might have been expected to accrue from the transaction within the three years immediately following the completion thereof, was the avoidance or reduction of liability to tax, he may, if he determines it to be just and reasonable, direct that such adjustments shall be made as [regards] liability to tax as he considers appropriate to counteract the avoidance or reduction of liability to tax which would otherwise be effected by the transaction.”

The ZRA explained the nature of the symbiotic business relationship between Mopani and GIAG and how that special relationship reflected in the sales of the copper produced by Mopani. The ZRA further stated that the audit by the ZRA revealed issues that could cause any prudent tax authority to have misgivings about the arm’s length claim of the transactions between Mopani and GIAG. This, in the Supreme Court’s view, rightly raised reasonable suspicion sufficient to lead the ZRA to invoke Section 95 of the Act.

The Supreme Court of Zambia held in favour of the ZRA and ordered that Mopani pay a total of ZMW240 million in taxes assessed for the 2006 to 2010 tax years. This particular case shows the applicability of the Commissioner-General’s discretion under Section 95 of the Income Tax Act concerning transfer pricing.

The Zambia Revenue Authority v Nestlé Zambia Trading Limited, SCZ Appeal No 3 of 2021

This case emanated from an appeal from the decision of the Tax Appeals Tribunal which held in favour of Nestlé Zambia except for the argument on the categorisation of Nestlé Zambia as a low-risk distributor, and stated that it was erroneous for the ZRA to have aggregated the unrelated, discontinuous and not closely linked transactions as a means to test for arm’s length. The Supreme Court of Zambia allowed ZRA’s appeal and set aside the decision of the Tax Appeals Tribunal. The Court held that the burden of proof in tax matters lies squarely on the taxpayer to demonstrate, with cogent evidence, that an assessment is incorrect. This finding was anchored on Section 106 of the Income Tax Act, which provides that every assessment stands “good” unless proved otherwise by the person assessed.

The Court also found that the ZRA was entitled to aggregate Nestlé Zambia Limited’s related-party transactions when conducting its transfer pricing audit. It noted that, although the OECD Guidelines recommend a transaction-by-transaction approach where possible, aggregation is permissible where transactions are interlinked or flow from a common source. On this basis, the Tax Appeals Tribunal was faulted for holding that the transactions should have been tested individually.

On documentation, the Supreme Court rejected Nestlé’s argument that there was no obligation to provide transfer pricing information before the Income Tax (Transfer Pricing) Regulation No 18 of 2018 came into force. It held that Sections 47(1) and 58 of the Income Tax Act conferred sufficient power on the Commissioner-General to request any relevant documentation for audit purposes, and Nestlé was therefore obliged to furnish such information when requested.

The Supreme Court further upheld the Tax Appeals Tribunal’s classification of Nestlé as a low-risk distributor, finding that the company performed limited functions and operated with substantial direction and support from related parties. With respect to the use of comparables, the Supreme Court clarified that while benchmarks must as far as possible reflect conditions similar to Zambia’s economic environment, the Tax Appeals Tribunal erred in rejecting the ZRA’s reliance on Western European comparables outright.

Finally, Nestlé’s cross-appeal was dismissed. The Supreme Court found no basis to interfere with the Tribunal’s classification of the company as a low-risk distributor and held that the Tribunal had not exceeded its jurisdiction by directing a reassessment. The Supreme Court upheld the ZRA’s position and restored the tax assessment against Nestlé Zambia Limited.

Zambia’s Transfer Pricing Rules do not restrict outbound payments relating to uncontrolled transactions.

Zambia’s Transfer Pricing Rules do not restrict outbound payments relating to controlled transactions.

The Transfer Pricing Rules do not provide for rules regarding the effects of other countries’ legal restrictions.

The ZRA does not publish information on APAs or transfer pricing audit outcomes.

The Transfer Pricing Rules do not prohibit the use of secret comparables. In fact, the ZRA has procured a database for the use of comparables.