The judiciary plays a crucial role in the administration of justice. Applicable tax laws in Nigeria clearly define the procedures for tax appeal and for challenging any decision of tax authorities. Unfortunately, taxpayers hardly explore this avenue in asserting their rights and entitlements in the wake of tax related disputes. This creates situations where tax payers yield to the demands or directives of tax authorities even when they have a good cause of action. On many occasions a settlement arrangement is reached and the tax payer settles the alleged liability in pre-agreed instalments, unconscious of the notion that, a course of action not explored may continuously culminate to injury without remedy. This notion is most evident in the area of tax disputes as tax is a periodic and recurrent obligation owed by tax payers to the government based on the provisions of relevant tax laws. As Benjamin Franklin once said: ” … in this world, nothing is certain except death and taxes“. Seeking judicial intervention on those theeting and recurrent tax issues may earn you unquantifiable tax savings and bring the much-needed succour to your business.
The recent legislative and fiscal policy reforms aimed at attracting investment and enabling ease of doing business in Nigerian may not yield the desired result without active judicial intervention. For instance, a critical look back into history reveals that the foundation for the framework of our criminal justice system, constitutional law, corporate governance, and electoral laws were laid down by the Nigerian judiciary, such that, certain legislative provisions cannot be cited without immediate reference to relevant judicial pronouncements on interpretation and application of such legislative provisions. This level of judicial activism is also needed in tax administration. However, this hinges significantly on the level of awareness of the tax payers. The process starts with the tax payer recognizing existing rights, entitlements and courses of action in any given circumstance that may warrant commencement of a tax appeal. Since it is practically impossible for the legislature to make laws applicable to all facts and circumstances, it behoves on taxpayers to initiate tax appeal processes in deserving cases so as to create the avenue for judicial intervention. This will develop the law and create the much-needed certainty in tax administration.
Tax Appeal Procedure
Based on the provisions of section 13(2) of the Fifth Schedule to the Federal Inland Revenue Service (FIRS) Establishment Act and other applicable tax laws, a taxpayer served with a notice of tax assessment or any decision of the tax authority may issue a notice of objection to such tax assessment or decision within a period of 30 days. The tax authority will either accept the objection and withdraw/revise the assessment or reject the objection. Where the tax authority rejects the objection, a notice of refusal to amend (NORA) will be issued and served on the taxpayer. Upon receiving a NORA, the taxpayer may within 30 days institute an appeal challenging the assessment or decision of the tax authority before the Tax Appeal Tribunal (TAT) or court of competent jurisdiction.
Presentation of Facts in Tax Disputes
In seeking redress through the tax appeal process, it is important to aptly present the peculiar facts, plight and circumstances of the taxpayer’s affairs or business operations. All relevant facts should be presented with verifiable supporting documents. This is an essential feature of our adversarial legal system. Following the maxim Ubi jus ibi remedium, the general disposition of the court or tribunal is to do justice in any given circumstance. Thus, the course of justice will, often times, be served whenever the facts and peculiar circumstances of a case are properly laid before a court or tribunal no matter how ambiguous the provisions of applicable laws may be. A review of judgements delivered in previous tax appeals will stress this further. For instance, the judgement delivered by the TAT in the case between Prime Plastichem Nigeria Limited (PPNL) and the FIRS is a pointer to the responsibility of tax payer to present clear and credible facts in substantiating any claim. In that case, PPNL, a private limited liability company engaged in the business of trading in imported plastics and petrochemicals, in its 2013 Transfer Pricing documentation, applied the Comparable Uncontrolled Price (CUP) method in evaluating the arm’s length nature of its purchase of petrochemical products from its foreign related party, Vinmar Overseas Limited (Vinmar). This was done by comparing the prices at which Vinmar sold similar products to third party customers. However, in 2014, Vinmar did not transact with third party customers in Nigeria, as such, there was no comparable information available to apply the CUP. Consequently, PPNL was constrained to apply the Transactional Net Margin Method (TNMM) in evaluating the purchase of petrochemical products from Vinmar.
In 2016, the FIRS reviewed PPNL’s Transfer Pricing documentation and disregarded the CUP method applied in the 2013 Transfer Pricing documentation. The FIRS applied TNMM to both 2013 and 2014 transactions, and issued an assessment of ₦1.74 billion. Both parties disagreed on the applicable profit level indicator (PLI) to be adopted in applying the TNMM and the comparable selected in the TNMM analysis. PPNL appealed to the TAT. However, in the course of the proceedings relevant facts and credible evidence justifying the use of CUP method in 2014 assessment year were not presented before the TAT rather, the powers of the FIRS, under applicable laws and regulations, to disregard CUP method used in 2014 assessment year was challenged. Other legal issues were also raised and argued vehemently. On 19 February 2020, the Tribunal upheld the FIRS’ assessment. According to the TAT, Since PPNL was unable to provide to the FIRS reliable information that satisfactorily explained its use of CUP method for 2014 assessment year, the FIRS has no choice but to jettison the CUP method used and adopt the TNMM for 2014 and 2015 assessment years respectively.
It is clear from the decision of the TAT that PPNL has not proved its case to the satisfaction of the TAT to enable it to be entitled to the claims and reliefs sought against the FIRS. What was also lacking was detailed explanation of the peculiar circumstances and processes of PPNL’s group operations.
Another glaring example is the judgment delivered in Oando v. FIRS during the “pre–Finance Act era”. The Finance Act 2019 expressly excluded franked investment income and retained earnings that has suffered tax from the purview of excess dividend tax. It is common knowledge that prior to enactment of the Finance Act 2019, implementation of Section 19 of the Companies Income Tax Act (i.e., excess dividend tax rule) created a lot of controversy and was a major pain point for holding companies in Nigeria. In the absence of express legislative provisions, the Court of Appeal in that case was inclined to do justice by excluding dividend declared from retained earnings that has suffered tax from excess dividend tax. This can be inferred from the analysis made and words used in the judgment. However, the Court of Appeal was unable to rule in favour of the tax payer in that case because sufficient facts substantiating the source of dividend payments were not presented before the court. According to the court, had there been clear evidence that the dividends in issue were sourced from retained earnings which had previously been taxed, the court would have held that such dividend payments should not be subjected to excess dividend tax rule even in the absence of express legislative provisions.
The handful of cases referred to above demonstrates the importance of identifying supporting documents and facts that will substantiate a tax payer’s position in the event of a tax dispute. Judgement or rulings made in the course of hearing a tax appeal forms part of precedents and reference points in subsequent appeals. This will develop the legal system and create certainty and clarity in many areas of the law. But, first, the tax payer must opt to institute a tax appeal and secondly, prosecute the appeal diligently by providing all material facts before the court or tribunal so that the substance of the appeal will not be eroded by legal technicalities or insufficiency of evidence.
Conclusion
To obtain the needed judicial intervention, the peculiar facts pertaining to the operations of the taxpayers must be aptly presented and substantiated with credible evidence. Identifying the facts that are in dispute, relevant documents required to substantiate grounds of objection, and understanding provisions of applicable laws are crucial to effective tax dispute resolution process.
Author
Joshua Akhator is the director and head of Tax, Transfer Pricing and Restructuring unit of Alliance Law Firm. He is a renowned legal and tax expert with about 14 years of experience in tax planning, mergers and acquisitions, advisory, and compliance transactions. Joshua is a member of the Nigerian Bar Association and the International Bar Association. He is also a chartered tax practitioner certified by the Chartered Institute of Taxation of Nigeria.
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