AN EVALUATION OF THE RULES OF PRACTICE AND PROCEDURE OF TAX APPEALTRIBUNAL IN NIGERIA

AN EVALUATION OF THE RULES OF PRACTICE AND PROCEDURE OF TAX APPEALTRIBUNAL IN NIGERIA

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ABSTRACT

The role of tax as a major source of income for government cannot be overemphasized. The imposition, collection and administration of tax are matters which are within the exclusive domain of positive law. Not a kobo would be levied on any citizen unless there is a clear Statute that provides for such a levy. The courts have also construed taxing statutes strictly allowing no room for any intention or assumptions. These factors have made tax disputes between the tax authorities and taxpayers a daily occurrence. The Tax Appeal Tribunal was, therefore, established under the Federal Inland Revenue (Establishment) Act, 2007 to provide a platform for a cheaper, friendly and timely resolution of the inevitable disputes that would arise from the implementation of the various tax laws. To guide the Tax Appeal Tribunal in its function, the Tax Appeal Tribunal (Procedure) Rules, 2010, the main focus of this exercise, was made. This work evaluates the Tax Appeal Tribunal (Procedure) Rules 2010 and demonstrates the extent to which it can assist in the attainment of the lofty goals of quicker, cheaper and efficient resolution of tax disputes. Using the doctrinal methodology of research, a number of other Rules of Courts were compared to demonstrate that the Tribunal may not achieve the desired objective having regard to the many lacuna in the Rules as constituted. A good number of the lacuna have been identified here, chiefly amongst them is the very enormous powers of the Minister of Finance to solely appoint virtually all the Personnel of the Tribunal without any input or supervision from any other arm of government. Another major problem relates to the very scanty provision for a dissatisfied party to exercise his constitutional right of appeal to the Federal High Court. There is also the problem of apparent conflict in the exercise of the Tribunal‟s discretion to enlarge time within which to challenge an assessment and when same becomes final after service of demand notices. A great effort has been spared to review these lacuna with corresponding practicable suggestions on how best to address some of the problems so identified. In arriving at conclusions here, this work has drawn from a wide range of authorities and views expressed in both primary and secondary materials. It is hoped that the views expressed here would be found useful by all category of readers including tax administrators and practitioners and above all engender further research in this aspect of law.

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CHAPTER ONE

GENERAL INTRODUCTION

1.1        INTRODUCTION

The issue of taxation has often generated controversies between the tax authorities on one hand

and the taxpayers on the other. These controversies or disputes generally stem from the very

nature of tax itself and the peculiar way in which taxing Statutes are interpreted by the Courts.

Taxes are levies imposed under the authority of the legislature and they are levied by a public

body for public purposes.1 Tax is created by law and levied on individuals, incomes,

commodities and transactions to yield public revenue that affords government the opportunity to

offer protection and other socio – economic amenities to the citizens.2 It is one of the sources of

income for government.3 Taxes are imposed by Statutes only.4 The issue of tax is consequently

outside the ambit of common law. Therefore, for any individual to be chargeable to tax there

must be a clear link between the charging provisions and the intended taxpayer. The link must be

direct, not inferential.5 The insistence on the direct link between the charging provisions and the

intended taxpayer has been a source of sustained controversies between the taxpayers and the tax

authority.

1 Lawson v. Interior Tree Fruit and Vegetable Committee of Direction (1931) SCR 357. Per Duff J.

2 Abdulrazaq, M.T., Principles and Practice of Nigerian Tax Planning and Management, Batay Law Publications Ltd. Ilorin (1993) P.1

3 Farayola, G.O., Guide to Nigerian Taxes, All Crowns Ltd, Lagos (1987) P. 3

4 Tenant v. Smith (1892) A.C. 150. It was held that no person must be made to pay tax except the taxing Acts specifically provided for it ; Also in Addax Petroleum Development (Nig.) Ltd v. FIRS. (2012) 7 T.L.R.N. 74, @     85,

the Tax Appeal Tribunal held that “payment of tax or who is entitled to pay tax is an issue of law not of agreement, contract or compromise.”; Ayua, I.A. Nigerian Tax Law, Spectrum Law Publishing Ltd. Ibadan     (1996)

P.46.

5 Abdulrazaq, M.T., Revenue Law And Practice In Nigeria, Malthouse Press Ltd. Lagos (2010), p.11

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