LEGAL CHARACTERISTICS AND TAX IMPLICATIONS OF A REPRESENTATIVE OFFICE IN SENEGAL
A foreign company interested in establishing an entity in Senegal for activities less important than those usually reserved for a branch or subsidiary may set up a representative or liaison office. It may be the promotion of headquarters activities, provision of information, scientific research, etc.
Through this kind of establishment, a foreign company can test the Senegalese market, make contact with customers or consumers before launching through a stronger structure. Senegal reserves a different tax treatment based on the legal framework enshrined in the Revised Uniform Act relating to Commercial Companies and the Economic Interest Grouping in OHADA.
I. Legal system
From the legal point of view, the representative or liaison office is an institution owned by a company and responsible for marking the link between the later and the State market in which it is located. It does not have management autonomy and exercises only preliminary or auxiliary activities relating to the company which created it (Article 120.1 of the Revised Uniform Act relating to Commercial Companies and the Economic Interest Group).
The representative office is not distinct from the company that created it.
Moreover, its legal structure does not exempt it from the obligation of registration in the Trade and Personal Property Credit Register in the Member State of OHADA where the company is based.
II. Tax system
For tax purposes, the representative or liaison office enjoys special treatment according to the specificity of the activities to be carried out.
Corporation Tax (IS): The representative or liaison office is not taxable in Corporate Tax because its activity is not consistent enough to give rise to a permanent establishment. Indeed, the Tax Administration considers that the representative office activity does not allow it to generate revenue. Moreover, in principle, its activity must not be the same as that of the company which created it.
Nevertheless, if the representative of liaison office is not limited to its purpose, it will then be subject to corporation tax. This is the case if it engages in the achievement of commercial operations however small these latter may be.
Note that the representative office does not have the power to enter into contracts on behalf of the parent company. In doing so, he runs a risk of requalification in a taxable permanent establishment in Senegal.
Concerning other taxes, the analysis is to be done on a case by case basis. Let’s give some examples:
Value Added Tax (VTA): In principle, the representative office does not perform any operation that can justify that it charges VTA. However, the foreign company should be able to request a refund of the VTA on the invoices sent to the said office. But in Senegal, it is not possible in our tax legislation.
Payroll deductions at source and BRS services: Withholding taxes such as the BRS deduction (Withholding on Amount paid to Third parties in Senegal) and VRS (Withholding Tax on Wages) must be made and paid since they are taxes paid by persons other than that said office.
CEL: the representative or liaison office shall not pay the local economic contribution, former Business license tax, due to the non-profit character of its activities (Article 320 of the CGI).