We are involved in mining and own a few mining licences. Recently we came across the Mining (State Participation) Regulations 2022 (Regulations) which provide for how the Government will get free carried interest (FCI) in our company. Does the free carried interest apply to companies mining rare minerals as we are soon required to notify the Mining Commission to negotiate the Government’s participation. Does the Government acquire shares in our present company or do we need to form a new company in which the Government will have its free carried interest? Forming a new company has its challenges in terms of tax efficiency for us. Please guide.
The Regulations provide in regulation 6 that the Government shall participate in mining activities through holding direct equity interests in any mining venture including mineral beneficiation. The same regulations states that any person holding a mining licence or special mining licence shall, within 90 days from the date of publication of the Regulations (publication of the Regulations was 30 October 2022), give notice to the Mining Commission to initiate negotiations for the joint venture arrangement to enable the Government acquire shareholding in the venture. Hence if you read regulation 6 in isolation it indeed provides for you to initiate negotiations with the Mining Commission to negotiate the FCI amongst others.
However, regulation 10 states that for the purposes of acquisition of shares, the Mining Commission in consultation with the Government Shareholder and TRA shall from time to time determine the types of minerals or level of investment made by a holder of special mining licence or mining licence on which the Government shall be entitled to acquire the 16 percent non-dilutable free carried interest shares or more.
To the best of our knowledge, as at the time of answering this question, we are not aware of any determination by the Mining Commission on what minerals are covered to enable you to issue the 90 days notice. Considering that time is ticking, and regulation 6 on one hand requires you to give the 90 days notice but regulation 10 needs to be triggered first on the type of minerals covered, we recommend you write to the Mining Commission for clarity. The question that you need to answer is simple: how do you comply with the 90 days negotiation notification when you are unsure if your mineral is one covered where the Government is entitled FCI in?
As to the formation of the joint venture company, the Regulations are clear that based on the named minerals under regulation 10, a new company shall be formed in which the Government’s minimum shareholding will be 16%. An issue of withholding tax on declared dividends by the JV company to your current company, as a shareholder, shall arise as an additional tax burden, but this could form part of the JV negotiations.