LEGAL TYPES OF BUSINESS STRUCTURE IN NIGERIA

INTRODUCTION

One of the key decisions a business owner will make when starting a business is the business structure he or she wants to adopt.  The choice of business structure comes with different variations such as the taxes that go along with it, cost of setting it up, personal liability, the amount of paper work and registration process associated with the business.

A business structure can be defined as a category of an organization that is legally recognized in a given jurisdiction or in a country and it is characterized by the legal definition of that category. This simply means that business structures varies from one another. Common business structures in Nigeria includes sole proprietorship, partnership, public limited liability company and private limited liability company.

FACTORS TO CONSIDER WHEN CHOOSING A BUSINESS STRUCTURE

When choosing a particular structure that suits you, choose the one that best suits your needs because there are certain key factors and variables that must be considered. The key factors are:

• Licenses and permits that the business will require
• The amount of tax to be paid
• Cost of setting up the business structure
• Potential personal liability of the business owner
• The amount of control one will have over the business
• Volume of paper work associated with the business

Business owners can change their business structure as time goes on especially when the business starts to grow and expand, the business owner may move to a different type of business structure.

• SOLE PROPRIETORSHIP

Sole proprietorship is a type of unincorporated business that is privately owned and run by one person. A sole proprietorship is the simplest form of business structure because it is very simple and easy to set up, it has unlimited liability due to the fact that the business has not been formally registered as a company. As a sole proprietor, you are legally responsible for all aspects of your business including any debts and losses and day-to-day business decisions. Most of the businesses that are run in Nigeria are in the hands of the sole proprietorship and it is the first business structure that comes to mind when setting up a business in Nigeria.

CHARACTERISTICS AND ADVANTAGES OF SOLE PROPRIETORSHIP

• It is only run by one person.
• The owner has unlimited control and keeps all the profits in the business
• Low costs of setting up this kind of business
• Payment of lower taxes and fees

DEMERITS OF SOLE PROPRIETORSHIP

• No continuity: There is a high possibility that when the owner if the business dies, there is no continuity. Such business will collapse
• The liability is unlimited: The organization and its owner are one and seen as the same in the eyes of the law. This means should the enterprise fail in its ability to pay back its creditors, the owner would have to cough out funds from other sources like his personal assets to repay the creditors
• Improper record keeping and lack of financial control will affect the business in a negative way
• There is no separation between the money made from the business and the owner’s personal money
• Access to loans and new capital is harder for such businesses. Many investors prefer to invest in and deal with corporations.

REGISTRATION OF A SOLE PROPRIETORSHIP IN NIGERIA

Registering a Sole proprietorship business in Nigeria is not stressful and requires less documents. A sole trader willing to start a business in Nigeria should register with the Corporate Affairs Commission whose mission is to provide regulatory and registration services for companies so that the companies could benefit the economy of the country. The sole trader will need the following

• A business name by paying the sum of N10,000 to any Corporate Affairs Commission (CAC) office nearby
• A government issued I.D card such as the National I.D card or voters card
• Details regarding the business such as the address

TAXATION OF A SOLE PROPRIETORSHIP IN NIGERIA

The income of individuals in any form such as employee, sole trader, artisan etc. are covered in the Personal Income Tax Act (PITA) as amended. This mean that a sole trader is meant to only pay Personal Income Tax (PIT)

Personal Income Tax (PIT) can be defined as a direct tax that is charged on the income of an individual or a sole proprietor. The Personal Income Tax Act (PITA) as amended in 2011 divided individuals into two groups which are the employees (PAYE) and the self-employed. The study deals with the latter which is the self-employment tax. The self-employment tax is a tax that is paid by either a sole proprietor or a partner based on the amount of profit earned.

Sole traders are responsible for filing their tax returns themselves and paying the relevant taxes when due according to the provisions of the Personal Income Tax Act (PITA).

A business owner in Nigeria is liable to pay tax in Nigeria for each year of assessment on the aggregate amount for every source of income. This will include profits made from the business, salaries, wages, fees, allowances or any other gains or profit gotten from employment including benefits, compensation.

The following personal reliefs are allowed against a sole proprietor

The taxable income left after deducting the relevant allowances shall be subjected to tax. The following tax rates would be applied:

ALLOWABLE DEDUCTIONS UNDER PIT

These can be defined as expenses incurred that are related to the business purpose. PITA provides that all outgoings and expenses wholly, exclusively, necessarily and reasonably incurred during that period and ultimately borne by the business of individuals in the production of their income are deductible in the process of determining the assessable income to be used for tax purposes. They include:

• Interest on loan
• Rent and rates( must be related to the business)
• Bad debts written off
• Repairs and maintenance of any asset employed in the business
• Contribution to a pension scheme
• Provision of doubtful debts of a specific nature

NON ALLOWABLE DEDUCTIONS UNDER PIT

These can be defined as expenses incurred that are not related to the business purpose. They include

1. Personal expenses
2. Capital expenditure
3. Fines and penalties
4. Donations
5. Depreciation of any asset
6. Any loss or expenses recoverable under insurance
7. Taxes on income or profits levied in Nigeria

• PARTNERSHIP

Section 1(1) of the Partnership Act states that a Partnership is the relation which subsists between persons carrying on a business in common with a view to making profit. A partnership business is simply a formal arrangement by two or more parties to manage and operate a business and share its profits. Setting up a partnership business is a little bit more complex than that of a sole proprietor but it is still also easy to set up. The profits and debts are both shared and incurred by the partners in the business depending on the amount each partner invested. Partnerships in Nigeria are regulated by the Partnership Act of 1890 and the Partnership Law 1958 (Western Region).

CHARACTERISTICS AND ADVANTAGES OF A PARTNERSHIP BUSINESS

• The business is owned by two to twenty (2-20) persons, but in a banking enterprise, it is between two and ten (2-10)
• The sources of capital to run the business is from partner’s contribution, based on a legal agreement.
• The lifespan of a partnership business depends on the agreement signed by partners.
• The business is managed by active partners.
• There is joint decision making. This will lead to better results when 2 or more people rub minds together

DISADVANTAGES OF A PARTNERSHIP BUSINESS

• Partners have unlimited liabilities. Partners are liable for the debts of the business up to extent of using their assets
• Disagreements may arise in the business
• The action of one partner is binding on the other partner
• The death of one partner may lead to the end of the business

TYPES OF PARTNERS

There are certain partners based on their activity in the firm and the extent of their liabilities in the firm

• Active Partner

As the name suggests, an active partner takes active participation in the firm. He or she carries on the daily business on behalf of all the partners. This means he acts as an informer or agent of all the other partners on a day to day basis and with regards to all ordinary business of the organization

• Dormant or Sleeping Partner

This is a partner that does not participate in the daily functioning of the organization, i.e. he does not take an active part in the daily activities of the firm. He is however bound by the action of all the other partners.He will continue to share the gains and losses of the firm

• Nominal Partner

This is a partner that does not have any real interest in the partnership. So, in essence, this partner is only lending his name to the partnership. He will not make any capital contributions to the firm, and so he will not have a share in the profits either.

• Limited partner

A limited partner is the one who has agreed to contribute capital to a partnership business, prevented by law to take any active part in management of the business

REGISTRATION OF A PARTNERSHIP BUSINESS IN NIGERIA

A partnership business is no different from other businesses and will need registration before it kicks off. The following will be needed

• A business name with CAC
• Obtain a name reservation form from the nearest Corporate Affairs Commission. The name reservation form contains the following details

1. Address and place of business
2. Address of the principal place of business including plot number, name of building or street.
3. Copy of College Certificate for one of the partners.
4. Full names of partners.
5. Name of the business
6. Nature of Business
7. Passport for each partner
8. Passport photo for each partner
9. Postal Address

• Present the partnership deed. A partnership deed or partnership agreement is a document or a written agreement between 2 or more individuals who wants to carry on a business. The deed of a partnership contains:

1. The name of the business
2. Location of the business
3. Identity of partners
4. Nature of the business
5. The scope of the business
6. Admission of partners
7. Duration of the partnership
8. Duties of partners
9. The capital contribution of each partner either in monetary terms or properties.
10. Criteria for sharing profits and losses.
11. Mode of salary payments, drawings, and other remuneration
12. Right of a partner in the case of withdrawal
13. Provisions for continuing the business by in the event of death or withdrawal of a partner.
14. Restrictions to be placed on the authority of certain partners.

After submitting all the required documents, it will take like 2 to 4 weeks before a certificate of incorporation will be given for them to start their business

TAXATION OF A PARTNERSHIP BUSINESS IN NIGERIA

Partnerships itself are not chargeable to tax. It is the share of profit gotten from the partnership that is chargeable to tax. A partnership business is liable to the following tax

• PERSONAL INCOME TAX

Partners in a partnership business are liable to pay Personal Income Tax (PIT). They are also entitled to the reliefs, allowable and non-allowable deductions. This personal income tax of a partner is the same as that of a sole proprietorship (All details concerning the Personal Income Tax under the category of the Sole proprietorship is applicable here too)

• VALUE ADDED TAX (VAT)

Value Added Tax (VAT) can be defined as a type of indirect tax that is imposed on the supply of goods and services in a given state. VAT is governed by the Value Added Tax Act Cap V1, LFN 2004 as amended. It is mostly eventually borne by the final consumer of the goods and services. VAT in Nigeria was calculated at a flat rate of 5% before the Finance Bill 2020 that was signed in October 2019 by the President amended the rate to 7.5%. Section 7 of the VAT act grants the power of administration of VAT on the Federal Inland Revenue Service (FIRS) in Nigeria.

Every VAT collected by every business owner must be remitted to the Federal Inland Revenue Service (FIRS) on or before the 21st day of the month following the month the goods and services were sold. That is Value Added Tax (VAT) collected in March must be remitted before the 21st of the following month which is April.

1. Input VAT

This type of VAT is paid on raw materials, goods are services that will be used for production purposes or goods for resale or goods imported directly for resale. When computing, Input VAT on overheads, services and general administration should be treated as an expenses in the profit and loss account while Input VAT on any capital item and item should be capitalized together with the cost of the item or the asset

2. Output VAT

This type of VAT is charged on goods and services supplied and it is collected by a supplier from its distributors, agents, clients, consumers on goods and services supplied to them.

When Output Vat is greater than Input VAT, the tax payer is required to remit the excess to the Federal Inland Revenue Service (FIRS) but when the Input VAT is greater than the Output VAT then the tax payer is entitled to a return from the Tax board.

There are exempted goods and services that are not subject to VAT. They include

1. Medical and Pharmaceutical products
2. Basic Food items
3. Sanitary pad (proposed by the Finance bill)
4. Baby products
5. Books and educational materials
6. Fertilizer (locally manufactured), agricultural and veterinary medicine, farming machinery and farming transportation equipment
7. Medical services
8. Services rendered by community banks
9. Plays and performance conducted by the educational institutions as part of learning
10. Oil exports

• CAPITAL GAINS TAX

When partnership business sells an asset and make gain on the sale of the asset, the business must pay 10% of the chargeable gains made from the sale of the asset. The capital gains is the difference between the sales proceeds from the sale of an asset.

ASSETS CHARGEABLE UNDER CAPITAL GAINS TAX

1. Options, debts, and incorporeal property
2. Any currency other than the Nigerian currency
3. Any form of property created by the person disposing of it, or otherwise coming to be owned without being acquired
4. Assets situated outside Nigeria

EXPENDITURES ALLOWABLE FOR DEDUCTION FROM THE SALES CONSIDERATION

1. Expenditure wholly, exclusively and necessarily incurred for the acquisition of the asset
2. Incidental cost on the acquisition of the assets
3. Expenditure wholly, exclusively and necessarily incurred in enhancing the values for the assets of the disposal
4. Expenditure incurred on asset for the purpose of establishing, preserving or defending the title or right over an asset
5. Incidental cost of making the disposal

GAINS NOT CHARGEABLE

Section 26 of the Capital Gains Tax Act in Nigeria exempt some capital gains from taxation. They are:

1. Gains of ecclesiastical, charitable or educational institutions, statutory and diplomatic bodies are exempt from such taxation
2. Where trustees or nominees transfer assets to beneficiaries they are not considered to be disposing the asset, hence the transaction does not attract Capital gain tax (CGT)
3. Gains made upon a disposal of business assets where the proceeds are now spent in acquiring new business assets

• WITHHOLDING TAX (WHT)

Withholding tax (WHT) can be defined as an advance and indirect source of taxation deducted at source from the invoices of the tax payer. The main purpose of the withholding tax is to capture as tax payers might have evaded. Withholding tax rate are usually 10% or 15% depending on the type of transaction carried out. Withholding tax can also be said to be an advance payment of income tax. The WHT tax must be remitted to the relevant tax authorities on or before the 21st day of the month following the month in which the deductions were made.

When a business or an individual supplies goods or services to another company, there will be an evidence of payment which is known as an invoice in the course of the transaction. Take for example, the amount paid by the person who is purchasing the goods is N5, 000,000 and the relevant tax rate is 10%, then upon payment the person purchasing the goods will deduct N500, 000 from the invoice of the supplier and then remit it to the relevant tax authority.

The person purchasing the goods is meant to acquire an evidence of remittance of tax payment in the form of a withholding tax credit on behalf of the supplier where he purchased the goods from. The supplier can then use the Withholding tax credit to reduce the income tax payable for the year.

RELEVANT DOCUMENTS NEEDED FOR FILING WITHHOLDING TAX RETURNS

1. Evidence of payment from transaction such a bank teller or an electronic receipt
2. Schedule of WHT deducted indicating the : Name of the supplier or vendor, Tax Payer Identification Number (TIN) of the company or individual (supplier or vendor ) from which the tax was withheld and the remaining amount

Source: firs.gov.ng

Withholding tax is applicable on some type of transactions as indicated below:

The penalty or the failure of a business to remit its Withholding tax (WHT) as at when due is 10% of the amount not deducted or remitted. Most companies are ignorant and most times pay double taxes. That is why a business should always engage with a consultant before taking some certain measures. This is because Withholding tax (WHT) credit note can be used to offset the income tax liability for the year

• LAGOS STATE PARTNERSHIP LAW

The scope and nature of business enterprises in Lagos State have changed with the creation of Limited Partnerships under the Partnership Law of Lagos State. The introduction of Limited Liability Partnerships has given impetus to the general law of Partnerships in the State. The Partnership Law of Lagos State 2003 which was amended in 2009 provided for the Limited liability partnership (LLP).

The Limited Liability Partnership is provided for under Part 4 of The Partnership Law of Lagos State 2009 and it is subject to the conditions provided for under the Partnership Law.

Limited liability partnerships can be regarded as the combination of the benefits of a corporate structure such as limited liability companies with that of a partnership structure. It is simply a combination of both to form one.

The Principal Law is amended by inserting the following Provisions immediately after Section 57 as Sections 58

1) A Limited Liability Partnership may be formed in the form and manner prescribed by the provisions of this Law.

(2) The partners of a Limited Liability Partnership shall have liability to contribute to its assets in the event of its being wound up (or dissolved) as provided for by this Law.

(3) There shall be a capital adequacy ratio for a Limited Liability Partnership as described in Section 78(2) (d) of this Law.

(4) A Limited Liability partnership may be sue and be sued in its registered name however a limited liability partner will be liable to be sued in his personal capacity for acts of the partnership in the following circumstances

(a) Cases of fraud, misrepresentation and other improper conduct alleged to have been committed by the limited liability partner

(b) With the written consent of the Commissioner where it is established that it is in the reasonable interest of the public for an action to be maintained against an individual or a limited liability partner.

(5) A judgment against the partnership is not by itself a judgment against a partner. A judgment against a partnership may not be satisfied from a partner’s asset unless there is also a judgment against the partner.

(6) A judgment creditor of a partner may not levy execution against the assets of the partnership based on a claim against the partner unless a judgment based on the same claim has been obtained against the partnership and a Writ of Execution on the judgment has been returned unsatisfied in whole or in part.

Requirements and Registration of a Limited Liability Partnership

(1) For a Limited Liability Partnership to be registered the following conditions must be fulfilled:

(a) two or more persons associated for carrying on a lawful business with a view to make profit must have subscribed their names to a registration document

(b) The requirement above must have been delivered to the Registrar in a manner approved by him along with a copy of the partnership agreement, if any, between the partners or the limited liability partners

(c) there must have been delivered a statement in a form approved by the Registrar, made either by a Solicitor engaged in the formation of the Limited Liability Partnership or anyone who subscribed his name to the registration document, that the requirement imposed by paragraph (a) has been complied with

(d) There must have been delivered to the Registrar, evidence of payment of the initial registration fees as specified in the Schedule, or as may be prescribed by the State Commissioner from time to time.

(2) The registration document must:

(a) Be in a form approved by the Registrar (or as near to such a form as circumstances allow)

(b) State the name of the Limited Liability Partnership

(c) State that the registered office of the Limited Liability Partnership is to be situated in the State

(d) State the address of the registered office

(e) State the name and address of each of the persons who are to be partners of the Limited Liability Partnership on registration

(f) Either specify which of those persons are to be designated Limited Liability Partners or state that every person who is a partner of the Limited Liability Partnership is a designated partner.

• PUBLIC LIMITED COMPANY

A public limited liability can be defined as a company that has the ability to sell its shares to the public through the stock exchange. These type of companies have offered to the public the opportunity to subscribe to its shares and become shareholders thereby being part of the owners of the company. Examples of public limited companies in Nigeria are Dangote Cement plc, Dangote Sugar plc, Fidelity Bank plc, and A.G Leventis Nigeria plc

CHARACTERISTICS AND ADVANTAGES OF A PUBLIC LIMITED COMPANY

• A Public Limited Company end with the word “Plc” at the end of its name
• People with relevant professional certification or experience in similar industries may be appointed as its company secretary
• The minimal quantity of directors is three
• If a person is over 70 years of age and is able to fulfil certain statutory conditions may be appointed as one of the directors of the company
• It is necessary for a Public Limited Company to hold a statutory meeting within 6 months of its establishment
• A Public Limited Company can invite the public to subscribe for shares or debentures of the company provided it is listed on the floor of the Nigerian Stock Exchange
• Public Limited Companies can therefore raise money via IPO’s or Public Offers
• A company listed on the floor of the Nigerian Stock Exchange must be a Public Limited Company but not all Public Limited Company must be listed
• Shareholders of Public Limited Companies must be a minimum of 50
• Shares in a public liability company are more transferrable
• There is opportunity for growth and expansion due to the large amount of capital resources available to it

DISADVANTAGES OF A PUBLIC LIMITED COMPANY

• It is vulnerable to a takeover if majority of the shareholders agree to a bid
• There is control and ownership issues
• Registering a public limited liability company requires complying with lots of regulatory requirement

REGISTRATION OF A PUBLIC LIMITED COMPANY IN NIGERIA

According to the Corporate Affair Commission, which is the regulating authority on the establishment and management of companies in Nigeria, certain documents must be kept ready for a quick and easy establishment of a company. These documents are:

1. Names, addresses, phone numbers and email addresses and shareholding percentage of each shareholder
2. Name, address, phone number and email address of the Professional Company Secretary
3. Name, addresses, phone numbers and email addresses of Directors (minimum of two adult directors)
4. The Proposed Company address.
5. The Proposed share capital of the company (N500,000 at the least)
6. Means of identification for the directors, shareholders and Company Secretary to a copy of international passport, permanent voters card, national id card or driver’s license
7. Objects of the Company, i.e. business the Company proposes to operate
8. Memorandum and Articles of Association of the Company

• PRIVATE LIMITED COMPANY

A private limited company is a separate legal entity on its own which means it is separate from its owners and shareholders. It has a simplicity of structure and the personal possessions of the shareholders are considered as separate from that of the company. Private limited company do not offer their shares for public subscription

REGISTRATION OF A PRIVATE LIMITED COMPANY IN NIGERIA

To register a private limited company in Nigeria, the following criteria must be met

• The name of your company should not be exactly identical to the name of any other company currently being held in the registry of the Corporate Affairs Commission, Nigeria
• The total members in a private limited company should not be more than 50.
• During the incorporation of the company, a minimum of 25% of the total shares should be allocated.
• A minimum of two people who are above the age of 18 must be a part of the article of association and the memorandum of associations.
• The company should keep an office in Nigeria which should be registered beforehand.
• A minimum of N10,000 should be authorised as the share capital of the company

The following documents must also be provided according to the Corporate Affairs Commission (CAC)

• Identification such as an I.D card, Voters card or Driver’s License issued by the government
• Proficiency Certificate (if the business is a consultancy or hospital)
• Note of name Reservation from CAC, Nigeria
• Receipt of payment from CAC
• Stamp Duty Certificate from FIRS
• Residence Permit (for Foreigner shareholders)

CHARACTERISTICS AND ADVANTAGES OF A PRIVATE LIMITED COMPANY

• There is continued existence. The death of any individual doesn’t bring the business to a stop
• The name of a private company limited by shares shall end with the word “Limited” or ‘’Ltd’’
• A private company must have a minimum of two shareholders and a maximum of 50
• Limited liability available to its shareholders
• It is a separate entity. It has the right to sue and be sued

DISADVANTAGES OF A PRIVATE LIMITED COMPANY

• The registration process is costly and it takes time
• There is division of ownership
• Restriction on public participation in subscribing for shares

TAXATION OF PUBLIC AND PRIVATE LIMITED COMPANY

Public and private companies are liable to payment of the following taxes

• COMPANY INCOME TAX

Company income tax is assessed and payable on a preceding year basis, subject to the rule on commencement, cessation of business and change of accounting date. The tax authority responsible for the administration of the Company income tax regime in Nigeria is the Federal Inland Revenue service established pursuant to section 1 of the Federal Inland Revenue service (establishment) act. Where taxable, the applicable rate is 30% of the taxable profit.

According to section 9 of the Company Income Tax Act, the profits of any company accruing, derived from, brought into, or received in Nigeria are taxable in Nigeria. The sources of such profits include’

• Any trade or business
• Rent or premium earned from right granted to any other person for the use or occupation of any property
• Dividends, interest, royalties, discounts, charges or annuities
• Any source of annual profits or gains not falling within any of the afore mentioned category;
• Fees, dues, and allowances (wherever paid) for services rendered
• Any profit or gains arising from acquisition and disposal of short-term money instruments like Federal Government securities, treasury bills etc.

For Nigerian companies, by virtue of section 13(1) of CITA, CIT is chargeable on their global income.

• VALUE ADDED TAX (VAT)

Any public and private limited company that deals with VATable goods and services are also liable to pay VAT which is 7.5% in Nigeria (See more on VAT under the category of a partnership business)

• PERSONAL INCOME TAX (PIT)

Employees working in a Public or Private limited company are to also pay taxes on their income (See more on PIT under the category of a partnership business)

• WITHOLDING TAX (WHT)

This is also applicable to both companies (See more on WHT under the category of a partnership business)

• CAPITAL GAINS TAX (CGT)

This is also applicable to both companies at a rate of 10% (See more on CGT under the category of a partnership business)

CONCLUSION

Each business structure comes with different procedures, documentations, taxation and registration. Their set up differs from one another.Business owners must ensure that before setting up a business, they consider the type of settings in a business structure that will go along with the type of business they want to set. They must consider certain factors like the cost of setting up the business, registration procedures and taxes to sure that the business runs smoothly.For more information on the registration, procedures and other relevant details on the legal types of business structure in Nigeria, you can contact us on  08023200801, 08075765799, Email: info@qeeva.com

About the author

Onamakinde Dare Daniel is a highly motivated accountant with knowledge in Accounting, Taxation, Management, Audit, Costing and Research. He is keen on tax matters due to its ever dynamic nature.

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