Friday, 17 April 2015

Are feasibility studies tax deductible?

This is a good and valid question to consider when incurring such costs. This may be answered in the following case by the Special Commissioners of Income Tax in Ketua Pengarah Hasil Dalam Negeri v Shell Refining Company (FOM) Sdn Bhd.

In this case the taxpayer carried on the business of refining and manufacturing of petroleum products. In the course of its business, it engaged the services of Shell Global Solutions International (SGSI), a related company incorporated in the Netherlands, to study its refinery operations in order to assist the taxpayer in complying with the new emission standards introduced by the Government.
In consideration of the services and advice provided by SGSI in conducting the feasibility study, the taxpayer incurred an amount of RM3,476,716.49 in payments to SGSI and claimed tax deductions under s 33(1). The IRB disallowed the claim and also imposed penalties under s 113(2). 

The Special Commissioners of Income Tax (SCIT) held that the payments to SGSI in respect of the feasibility study were tax deductible and it also discharged the penalties imposed on the taxpayer and held that the IRB had acted mechanically in imposing the penalties without considering the facts and merits of the case. 

The IRB appealed to the High Court which on 17 April 2015 affirmed the decision of the SCIT.

The typical question to consider when claiming any expense is whether it is important to the profit-making activities and incurred in the nature of the taxpayer's business activities.

It was surprising when IRB disallowed the claim since the company is in the business or refining and manufacturing petroleum products and such a study of refinery operations was indeed a clear cut activity in relation to its business activity.

Nevertheless, a precedent has been established thanks to this case. Therefore, in order for an expense to be claimable, companies must remember that the key point is that the expense must be "wholly and exclusively incurred for the production of Gross Income".

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