Tax Alert - August 2014 - Tax Appeal Tribunals Constitutionality?

by Oserogho & Associates
Contact

INTRODUCTION

Two divergent decisions of the Federal High Court, in the Lagos and Abuja Divisions, on the constitutional authority of the Tax Appeal Tribunal to hear and determine tax appeals, have again highlighted the contentious nature of resolving tax disputes and any appeals arising from such disputes.

An examination of the applicable Statutes and relevant case law may provide a better appreciation of these Court decisions.

TAX APPEAL TRIBUNALS – STATUTORY PROVISIONS.

The Constitution of the Federal Republic of Nigeria 1999 (“the 1999 Constitution’’), as the supreme law, confers on the National Assembly the exclusive authority to make laws on matters bordering on the taxation of income, profits and capital gains; amongst other matters. The National Assembly is further empowered to legislate on any matter that is/are incidental or supplementary to the matters of taxation, etc; which matters are enumerated in the Exclusive Legislation List, the Second Schedule, Part 1 of the 1999 Constitution.

In furtherance of the above ancillary authority, the Federal Inland Revenue Service (Establishment) Act, 2007 established the Tax Appeal Tribunal to settle disputes arising from the collection of taxes accruing to the Government.

Any person dissatisfied with a decision of the Tax Appeal Tribunal is entitled to appeal against such a decision, only on point of law, to the Federal High Court. Further appeals from such a decision are to be made to the Court of Appeal, from whence appeals go to the Supreme Court, which is the highest Court in Nigeria.

CASE LAW – TSKJ II CONSTRUCES INTERNACIONALS SOCIODADE LDA v. FEDERAL INLAND REVENUE SERVICE, T.L.R.N (VOL. 13) PAGE 1.

In October 2013, the Federal High Court seating in the Abuja Division held that Section 59 (1) and (2) of the Federal Inland Revenue Service (Establishment) Act, 2007 – which created the Tax Appeal Tribunal – is in direct conflict with Section 251 (a) and (b) of the 1999 Constitution which confers exclusive original jurisdiction on the Federal High Court, to the exclusion of all other Courts, on matters connected with or pertaining to taxation.

As a result of the above conflict, this Division of the Federal High Court held that the provisions of the Statute establishing the Tax Appeal Tribunal, was null and void with the implication that the decision of the Tax Appeal Tribunal was set aside. The Tax Appeal Tribunal was further restrained from adjudicating on tax matters relating to the revenue of the Federal Government, with the Federal Minister for Finance directed to disband all existing Tax Appeal Tribunals in Nigeria.

As is to be expected, this decision is now on further appeal to the Court of Appeal.

CASE LAW 2 – NIGERIA NATIONAL PETROLEUM CORPORATION v. TAX APPEAL TRIBUNAL & 3 ORS, T.L.R.N (VOL. 13) PAGE 39.

In December 2013, a Federal High Court seating at the Lagos Division, held that the Tax Appeal Tribunal, as an inferior administrative panel from which appeals go to the Federal High Court in the first instance, has the constitutional authority to hear and determine tax appeals. This was contrasted with the Value Added Tax Tribunal from which appeals were taken directly to the Court of Appeal, thereby usurping the constitutionally guaranteed exclusive and original jurisdiction of the Federal High Court to hear and determine tax/revenue matters of the Government.

It is germane to observe that the application for Certiorari was found to be without any legal basis as the name of the Applicant was struck out at the Tax Appeal Tribunal thereby depriving the Applicant of the Locus Standi – legal authority – to file the Certiorari Application at the Federal High Court. On this ground alone, the Federal High Court could have determined this appeal without considering the constitutionality of the Tax Appeal Tribunal.

CONCLUSION

Congestion of the regular Courts, and continuing capacity building in specialised technical matters like taxation, has continued to make the Tax Appeal Tribunal a preferred option for tax appeals in Nigeria. Two conflicting decisions of two Judicial Divisions of the same Court may however hampered this objective.

The urgent decision of the Superior Appellate Court(s) to determine the current appeal, or amendments to the existing Statutes, will remove the conflict in the two Federal High Court decisions; and also remove the uncertainty over the constitutional authority of the Tax Appeal Tribunal to hear and determine tax appeals in Nigeria.

DISCLAIMER NOTICE

This is a free educational material which does not create a Client/Attorney relationship. Readers are advised to always seek professional legal advice to their specific situations from qualified Legal Practitioners. Questions, comments, criticisms, suggestions, new ideas, contributions, etc. are always welcomed. You can also visit our website www.oseroghoassociates.com for more legal materials.

INTELLECTUAL PROPERTY PROTECTED.

This material is protected by

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Oserogho & Associates | Attorney Advertising

Written by:

Oserogho & Associates
Contact
more
less

Oserogho & Associates on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!