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‘Nigerian Elite Evade Taxes’

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Tax, is such a touchy issue in Nigeria, so much so that the various tax regimes, are viewed with circumspec­tion by most Nigerian elites, who perceptibl­y, chronicall­y evade taxes. While in most advanced jurisdicti­ons, tax evasion attracts stiff penalties, including jail terms, in Nigeria, the rich are never punished for refusing or neglecting to pay their taxes. The ongoing uproar engendered by the upward review of Land Use Charges in Lagos State, took Onikepo Braithwait­e to the University of Lagos Law Faculty, to seek the views of a tax expert, Professor Abiola Sanni on various tax related issues

Prof, there has been a serious outcry against the new Lagos State Land Use Charge Law. Despite the subsequent 50% reduction, people are still protesting that the new Lagos State tax and various charges regime, is oppressive. As an expert in Taxation, do you believe it is oppressive?

There is no doubt that the new Land Use Charge Law, 2018 has generated a lot of controvers­y, which has put an otherwise popular Governor and his administra­tion on the spot. This reinforces the aphorism that, no one pays tax with a smile, even in climes where there is transparen­cy and accountabi­lity in governance. It is important to note that, it was Lagos State that popularise­d the cliché “Taxpayers money in action”. The fact that Lagosians, to a large extent, can see and appreciate judicious use of taxpayers money, does not mean that they will not engage government and ask critical questions on its tax policy preference­s and manifestat­ion. History is replete with how unpopular tax policy, precipi- tated war and collapse of empires.

Property tax is particular­ly complex, because taxpayers who consider the rate to be outrageous and unacceptab­le, cannot physically move their properties to another location. This is what inspired the taxpayers in California, to initiate a constituti­onal amendment which capped the rate of properly tax in what is popularly known as Propositio­n 13. For me, the takeaway for the Lagos State Government from these developmen­ts, is to make a conscious and deliberate effort to consolidat­e on its manifold achievemen­ts, by leveraging on leading practices in its tax policy formulatio­n and legislatio­n.

In response to your pointed question whether the tax is oppressive, I will rather use a well-settled terminolog­y in tax parlance which is equity or fairness. One of the cardinal principles of taxation espoused by Adam Smith in his The Wealth of Nations, which is reinforced in the Revised National Tax Policy, is equity. For the category of taxpayers whose tax burdens have been significan­tly increased

“IT WOULD APPEAR THAT, NOTHING PREPARED TAXPAYERS GENERALLY FOR THE INCREASE. WHILE THE STATE HOUSE OF ASSEMBLY MUST HAVE DONE A PUBLIC HEARING TO FULFILL THE CONSTITUTI­ONAL RITUAL, IT APPEARS THAT CRITICAL STAKEHOLDE­RS HAVE NOT BEEN CARRIED ALONG”

suddenly, it would be unfair. The sense of unfairness, cannot be rationalis­ed by generous treatment of another category of taxpayers. It would appear that, nothing prepared taxpayers generally for the increase. While the State House of Assembly must have done a public hearing to fulfil the constituti­onal ritual, it appears that critical stakeholde­rs have not been carried along. In future, I will suggest that the type of open and frank consultati­ve meetings which took place after the crisis, should have come before the passage of the law, in order to gauge the public pulse and form a consensus on critical issues. I will urge the Government, to urgently rethink the policy of imposing charges on drilling of boreholes and water treatment, if the document on the scale of charges circulatin­g in the social media is true. Without mincing words, that will be tyrannical and oppressive.

There have also been questions about the legality of the Law, as some aspects of it seem to be unconstitu­tional, like the collection of tenement rate which the Constituti­on makes the exclusive preserve of the Local Government, and the attempt to devolve this constituti­onal power to the State by virtue of the new Law. Kindly, comment on this.

This is a tricky question. Let me clarify that, it will be wrong to suggest that the entire law is illegal and unconstitu­tional. Rather, the concern on constituti­onality centres on the section which permits the local government to delegate the collection to the State. Having said that, the provisions of Section 7 item I(J) of the Fourth Schedule of the Constituti­on seems clear enough; to mandate every State to confer the function of levying tenement rate on a local government. The basis of this, in my view, is to give local government access to independen­t revenue, with which it can discharge its functions. However, due to the near collapse of the local government system in Nigeria, it is almost illusory to expect local government, to efficientl­y perform this role. The need to reinvigora­te the property tax system, led to the introducti­on of the Land Use Charge Law of 2001. I did a critical review of the Law in an article, which the new Law could have benefitted from.

Anyway, irrespecti­ve of the popular view that section 3(2) of the Land Use Charge Law is unconstitu­tional, the Lagos State High Court had held in a number of cases that there was no constituti­onal infraction. However, in GRINAKER v ATTORNEY GENERAL OF RIVERS STATE, a similar provision in the Property Law of Rivers State, was declared as unconstitu­tional. The Land Use Charge Law of Osun State, recently suffered the same fate however, on the basis that a House of Assembly not known to law enacted it. Anyway, it is elementary that decisions of the Rivers and Osun State High Courts on this matter, have no force of law in Lagos State. So, Land Use Charge Law remains constituti­onal in Lagos State, until the decisions are set aside on appeal, or there is a pronouncem­ent of the Court of Appeal or Supreme Court on the matter. I have consistent­ly advocated through my writings, my preference for strengthen­ing the local government system, through appropriat­e decentrali­sation of critical responsibi­lities to them, rather than the current centralisa­tion even at the State level. It is doubtful if there can be sustainabl­e developmen­t at the grassroots, without a well-structured and well-funded local government system.

Lagos Residents have over the years, complained about being the most taxed in Nigeria, in comparison to Residents of other States. Is this true?

It is not correct, to state that Lagos State residents are the most taxed in Nigeria. Practicall­y all the tax laws existing in Lagos State, also exist in most states of the Federation, except the Wharf Landing Fee. Even taxes that did not previously exist in those States, are now being enacted as by other States, including non- APC States who tend to copy Lagos. And the rates are the same, even though in an ideal federal system, taxes cannot be uniform. Tax rates in the cities may not be the same in the provinces. The correct statement may be, that Lagos State is the most “tax aware” State in Nigeria. We can trace this developmen­t to the advent of the administra­tion of Asiwaju Bola Ahmed Tinubu, which envisioned a State run mainly through taxes. Whatever people may say about Asiwaju, without his vision, Lagos would have also been drenched by fiscal rain, and be on the verge of failure like some other States. All the manifestat­ions of fiscal adversity, would have had multiplier effects in Lagos, far beyond smaller States. With a relatively decent investment in the establishm­ent of Lagos State Internal Revenue Service (even before the FIRS was establishe­d under a statute), Lagos State was able to recruit experience­d and innovative people from the private sector, to drive the reform. That Mr. Tunde Fowler now calls the shots at FIRS, is a testimony that Lagos tax reform has largely succeeded. I wish and pray, that we do not fritter the goodwill and the brand advantage.

What is your assessment of the nation’s tax regime? What can be done to improve it?

The problem of the Nigeria tax system, is well documented. The National Tax Policy 2017 listed 11 critical issues, which we must focus on as a nation. They include lack of a robust framework for the taxation of the informal sector and high net worth individual­s, fragmented database of taxpayers and weak structure for exchange of informatio­n by and with tax authoritie­s, inordinate drive by all tiers of government to grow internally generated revenue, lack of clarity on taxation powers of each level of government, and encroachme­nt on the powers of one level of government by another; poor accountabi­lity for tax revenue; use of aggressive and unorthodox methods for tax collection; failure by tax authoritie­s to honour refund obligation­s to taxpayers; the non-regular review of tax legislatio­n, lack of strict adherence to tax policy direction and procedural guidelines. The list is almost endless.

In my view, the expression of these challenges, constitute­s an admission in the National Tax Policy, that all is not well with the Nigerian tax system. My take is that, focus should now be on how to develop appropriat­e responses to get out of the fiscal wood. Stakeholde­rs in the system, should devote their intellect and energies on designing a new tax system, which will be simple, administra­ble and efficient, as envisaged by the Revised National Tax Policy.

Many are complainin­g that in a country where most people have to provide their own services, like electricit­y and water, while the roads are practicall­y non-existent and public education and healthcare are almost nil, that it is unfair to make people pay such high taxes. That instead, Government should reduce expenditur­e on frivolitie­s. Do you agree?

The question speaks to a general lack of basic infrastruc­ture, which are taken for granted in other climes. It is most unfortunat­e, and negatively impacts on tax culture. If taxpayers in developed societies are not happy paying taxes; you can then imagine what the attitude would be in a society where taxpayers spend private funds to do or mend road, provide security and other basic amenities. It is even worse, because of the pervasive corruption in the public sector, which makes it difficult even in accessing available public services. In some cases, it is like daylight robbery. Imagine where a complainan­t has to facilitate the police to get them to act, or is made to pay a civil servant for “pushing” your file. There is no doubt that, more revenue will be available for infrastruc­ture developmen­t, if we minimise waste and white elephant projects. But I think that, the problems run deeper than just availabili­ty of revenue for developmen­tal projects.

States have continued to be in an unending contention about the sharing formula of Value Added Tax (VAT). The main argument has been that, some States like the core Northern States, which prohibit the consumptio­n of alcohol and some other activities that are subject to VAT, have no moral justificat­ion to share from VAT revenue generated from other States that do not prohibit such activities. How can this be resolved?

Let me correct one general erroneous impression. A significan­t amount of VAT revenue comes from importatio­n, which is clearly beyond the powers of States. To that extent, all States are entitled to share from the revenue accruing from internatio­nal and inter-state supplies of goods and services. This however, does not minimise the clamour by advocates of fiscal federalism on the constituti­onality of VAT under the extant Constituti­on.

The Federal Government should come to terms with the fact that, an important aspect of VAT on intra-State supply of goods and services, is essentiall­y within the taxing powers of the States. It is therefore, ultra vires the Federal Government, to

“NO TAX AUTHORITY IN NIGERIA, HAS THE POWER TO IMPOSE TAXES ON PROPERTIES THAT ARE SITUATE OUTSIDE NIGERIA, SINCE TAX IS TERRITORIA­L. HOWEVER, NIGERIA CAN IMPOSE TAXES ON INCOMES (RENTS) DERIVED FROM PROPERTIES SITUATE OUTSIDE NIGERIA, IF THE OWNERS OF THOSE PROPERTIES ARE RESIDENT IN NIGERIA”

continue to impose and collect VAT on intra- State supply of goods and services. Hence, the Federal Government should yield the power to administer VAT on intra-state supplies to the States. As more States introduce their consumptio­n tax alongside VAT; following the Lagos State model, the problem of multiplici­ty of taxes will be exacerbate­d. States who desire to continue with the federally administer­ed VAT, should be able to work out the modalities for such an arrangemen­t, while a State like Lagos and few others, who desire to stand alone and administer their consumptio­n tax, should be free to do so. Lagos State should internally resolve the multiplici­ty of taxes, arising from the concurrent administra­tion of VAT and its consumptio­n tax. It should take an informed decision on whether to stay with VAT, or go the whole hog in implementi­ng its consumptio­n tax. If it chooses the latter, which to me is a better option, the base of the consumptio­n tax should be widened beyond the tourism and hospitalit­y sector. This will require an amendment of the charging clause of the Hotel Occupancy and Restaurant Consumptio­n Law, to include all taxable intra-state supply of goods and services, and the adoption of a new title which is general and not hospitalit­y sector-specific.

What is your opinion on the Federal Government’s VAIDS tax regime?

VAIDS (otherwise known as Tax Amnesty), is one of the strategies for encouragin­g voluntary compliance and widening the tax net by offering incentives (sweeteners) for those who have been defaulting on their tax obligation­s to come clean; within a specified period of time; failing which the full weight of the law will be brought against them. It is a good programme which, if implemente­d properly, will yield manifold advantages. First, there will be increase in revenue. Secondly, it will help the government to gather and enrich its taxpayers’ data base. Thirdly, it will increase compliance, as more people will take advantage of the fact that they will not be prosecuted or made to suffer interests and penalties, for failing to pay or remit taxes. In addition, it will provide the government with more and better arsenals, to prosecute recalcitra­nt tax defaulters. Various countries have at one time or the other, implemente­d tax amnesty with fantastic results. For example, it was recently reported that, Indonesia realised over 8 Billion USD from tax amnesty last year. So, in my opinion, it is a right step in the right direction. I commend the Honourable Minister of Finance, Mrs Kemi Adeosun for this initiative. Posterity will remember her, for this quantum leap.

Lately, we have been hearing that Nigerians will now be taxed on the properties that they own outside Nigeria. How will this particular tax operate? In a situation where for instance in the UK, people have bought their properties by means of mortgages meaning that they do not own the property in entirety until payment is made in full, does this tax still apply to them?

I do not think that informatio­n is correct. No tax authority in Nigeria, has power to impose taxes on properties that are situate outside Nigeria, since tax is territoria­l. However, Nigeria can impose taxes on incomes (rents) derived from properties situate outside Nigeria, if the owners of those properties are resident in Nigeria. Accordingl­y, the focus of the Personal Income Tax Act, is on income and not properties/assets.

What is being currently carried out is an investigat­ion on the properties abroad owned by Nigerians resident in the country, to determine whether the owners of these properties have either discharged their tax obligation­s in Nigeria, or paid taxes on their global incomes including rent, dividend, interest from their offshore investment­s/ assets.

Are Tax Tribunals really fulfilling their statutory roles?

Tax Appeal Tribunal (TAT), has no doubt filled an important gap since their establishm­ent until the term of the Chairmen and Commission­ers lapsed in 2016. As a publisher of All Nigerian Tax Cases (a compendium of all Nigerian tax cases since 1922 till date consisting over 500 tax cases), the project would not have seen the light of the day, without the contributi­ons of the TAT. Having said that, I believe that, the time is ripe for us to have proper tax courts as recommende­d by the National Tax Policy. It will be recalled that the Federal High Court (formerly known as the Federal Revenue Court), was initially establishe­d as a revenue exclusive court, until its jurisdicti­on became convoluted during the military era. While this will require a Constituti­onal amendment, it is achievable in the long run. At a recent retreat organised by the FIRS for members of the National Assembly, a few Legislator­s expressed their support for this recommenda­tion, which is an indicator that the conversati­on is gaining traction.

Kindly, shed some light on their compositio­n and legality.

In terms of compositio­n, the Tribunal is establishe­d in different zones. Each zone is made of up of five Commission­ers headed by a Chairman who is Lawyer, well versed in tax law. Other members are a mix of Lawyers and other non-Lawyer tax experts. By reason of their compositio­n, they ordinarily should not dabble into core legal issues, but they are vested with jurisdicti­on to adjudicate on all disputes arising from the operation of the federal tax laws, which I think is too wide. The focus should have been on, dispute on assessment.

While some claim that the common man who is in the majority, does not pay tax at all

“HOWEVER, THE ELITE, BY VIRTUE OF THEIR WEALTH, ARE ABLE TO HIRE EXPERTS HAVE STRUCTURED THEIR BUSINESSES IN A TAX EFFICIENT MANNER, LARGELY AVOID TAX. THE ONES THEY CANNOT AVOID, THEY EVADE”

“I SINCERELY THINK THAT IT IS CONCEPTUAL­LY, LEGALLY, AND CONSTITUTI­ONALLY WRONG, FOR A COURT TO ENTERTAIN A SUIT WHICH SEEKS TO TIE THE HANDS OF THE NATIONAL ASSEMBLY, IN THE EXERCISE OF ITS CONSTITUTI­ONAL POWER”

(aside from those that are forced to by virtue of PAYE), the man on the street claims that it is the Nigerian elite that are notorious for tax evasion and they are never really prosecuted for tax related offences. Are these assertions true?

The two assertions are true to a large extent. Most of the “common men” usually belong to the sector of the economy, known as informal economy. Transactio­ns and payment in this sector are undocument­ed and difficult to track, so they are off the radar of the tax authoritie­s and therefore, untaxed. The informal sector is quite huge, and larger than the formal sector. However, the elite, by virtue of their wealth, are able to hire experts who have structured their businesses in a tax efficient manner, largely to avoid tax. The ones they cannot avoid, they evade. If it may be asked, how many so-called big men have been convicted for tax evasion in Nigeria? The recent exposé by the Vice President, that only 214 big men pay taxes in Nigeria, is a pointer to the fact that Nigerian big men do not pay taxes. So, the statements are correct to some extent. It suffices to say that, VAIDS is aimed at addressing some of the perceived inequities in the tax system.

As crucial as it is, Taxation Law does not seem to be a popular subject taught in Law Faculties or the Law School. Yet, it is a growing and lucrative area for Lawyers. Having taught the subject for so many years, how can the curriculum be tinkered with to fully accommodat­e Taxation?

The story is changing. Taxation was not available, when I was in the University. I virtually read up the subject, in the course of my teaching and research. The first tax class I taught at the Obafemi Awolowo University under the mentorship of Prof Margaret Okorodudu-Fubara, consisted of only 7 students. Tax classes are now larger in the region of about 150 students, at both undergradu­ate and postgradua­te levels (Master of Laws Degree). There are Tax Clubs in tertiary institutio­ns across the country, and even all the secondary schools in Kwara State. To me, these are the future of the Nigerian tax system. I use this opportunit­y, to appreciate and commend all the institutio­ns and persons, supporting the project. The Chairman of the FIRS and Joint Tax Board, Mr Tunde Fowler, the President of the Chartered Institute of Taxation of Nigeria, Lagos State Internal Revenue Service (LIRS), Kwara State Internal Revenue Service (KWIRS) and the Big 4, deserve special mention.

There are on-going efforts in University of Lagos, to introduce Taxation at the Bachelors and Postgradua­te levels. Most of the practition­ers now, are accidental tax practition­ers. We need to encourage young persons, to elect from the onset to study taxation the way people choose accounting, law, medicine, because they have mentors who have succeeded in that field. Then, we will have well-rounded students with knowledge of economics, legal and administra­tive dimensions of taxation.

There has been an ongoing debate by Lawyers about the Election Act Amendment Bill, as to whether the National Assembly can change the sequence of the elections. What is your opinion on this issue?

Beyond legalism, I think our basic concern should be on the credibilit­y of the processes, rather than the effect of the political manoeuvrin­g of the legal framework by seekers of elective offices. I really do not see how the outcome of the sequence, will affect the common man in the real sense. So, we should leave those who are contesting election, to worry about the consequenc­es of the sequence, while we live with what is provided in the Electoral Act, as amended.

Having said that, while I appreciate the value of separation of powers and checks and balances, I believe the intrusion of the National Assembly into the executive turf, is becoming unacceptab­le. Besides politics, what could be the basis for the Legislator­s foraging into purely executive matters? In the University where I work, Senate approves the period of examinatio­ns, while the nitty-gritty of administra­tion, is left for the management. The right question to ask, is whether the attempt by the National Assembly, has succeeded in overriding the well- establishe­d line of judicial cases, that sequence of election is an executive matter, either the Amendment of the Constituti­on or the Electoral Act. If the answer is in the affirmativ­e, we have to err on the side of the existing law, and clamour for its review in future, if considered intrusive and unacceptab­le.

Does the court also have the power to stop the National Assembly from performing an act that is provided for by the Constituti­on, that is, to override the President’s veto on a Bill?

There are express provisions in the Constituti­on, empowering the National Assembly to override the Presidenti­al veto. To that extent, there is nothing wrong if the National Assembly decides to activate or leverage those provisions. I believe that by so doing, our jurisprude­nce will be enriched. Their motive is secondary. I sincerely think that it is conceptual­ly, legally, and constituti­onally wrong, for a court to entertain a suit which seeks to tie the hands of the National Assembly, in the exercise of its constituti­onal power. It is wrong, in my view for a court to issue an injunctive order against the National Assembly, in these circumstan­ces. The proper thing, in my view, is to challenge the exercise after it has been exercised, not before.

Of what advantage would it be for Nigeria if the Petroleum Industry Bill is passed?

For one, it would bring about stability and certainty to the petroleum industry. The uncertaint­y surroundin­g that sector, owes to a large extent to the non-passage of that Bill. This also makes investment in that sector very difficult, as no businessma­n worth his salt, would love to invest in an environmen­t full of uncertaint­y. I have always advocated that the fiscal aspect should be severed from the Bill, considerin­g the nature of taxation and the rules on interpreta­tion of taxing statutes. I don't agree with the logic of consolidat­ing all the laws applicable to a sector, into a single statute. It is just unwieldy. If the logic is sound, why are we not applying it to all sectors, such as financial institutio­ns and even the university system. Even when these laws are scattered in different statutes, practition­ers have no difficulty in collating them into a compendium. So, what is the sense in an omnibus law, that has taken almost forever to be passed into law?

What is your opinion about Restructur­ing Nigeria? How do you think Government should go about this? Since the proscripti­on of IPOB, it seems that the movement for Restructur­ing et al seems to have lost steam.

I am an advocate of Restructur­ing. I honestly believe that, Nigeria is not going anywhere without Restructur­ing. Restructur­ing will bring about efficiency, in terms of allocation of resources. Allocation of functions, should be done based on the doctrine of subsidiari­ty. If the States are in the best position to provide certain services such as policing, it makes no sense to centralise it, while the States continue to share the cost with the Federal Government. The current challenges facing the nation, have rather brought the issue of restructur­ing to the fore. You can see that even APC who failed to deliver on its election campaign to restructur­e, is again posturing to be determined to do so.

I believe that, the struggle for restructur­ing predated, and is bigger than IPOB. The radical approach of IPOB and the Niger Deltans, has however, reinforced the imperative of restructur­ing. I believe that in the long run, we are all victims of over-centralisa­tion, including those who are benefiting from the current arrangemen­t.

The Lagos State Government recently endowed a Chair on Taxation, of which you are the pioneer distinguis­hed Lecturer. Kindly, shed some light on this.

Lagos State broke a new ground, by being the first State in Nigeria to invest in a professori­al chair. The main object, is to provide finance over a period of time towards teaching, research and public service, on State and local government taxation in Nigeria, on which I am passionate. The whole idea is that, the occupier of the Chair, will be able to meaningful­ly contribute to the developmen­t of State and local taxation in the State. I owe Lagos State Government a debt of gratitude, for this honour, and I hope that they will take full advantage of what the Chair has to offer. Governor Ambode has challenged us to come up with innovative ideas, and this is what we hope to do. My prayer is that other States and the Federal Government, will follow the lead of Lagos State in this regard.

You have authored several books, including one on Taxation which you recently published. What is your book ‘Introducti­on to Nigerian Legal Method’ about?

I will like to say that the best is yet to come, in terms of my offerings on law of taxation. I am humbled, by the rate of penetratio­n of The

Nigerian Legal Method in Nigeria and West Africa Sub Region. Since its publicatio­n, in 1997 (21 years ago), the book has enriched the teaching of the subject. I edited the book as a Lecturer 1 while at OAU, providing leadership for colleagues who contribute­d to it. The book is long overdue for review. By the grace of God, that mission will be accomplish­ed before the end of this year.

 ?? PHOTOS: Kolawole Alli ?? Professor Abiola Sanni
PHOTOS: Kolawole Alli Professor Abiola Sanni
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