The Tax Court
The Federal Executive Council, the highest Executive decision making organ in Nigeria, on the 1st of February 2017, approved a new National Tax Policy (NTP) for the country. The NTP establishes fundamental principles to guide an orderly development of the Nigeria tax system and reinforces the need for tax laws and administrative practices to promote economic development. One of the key recommendations includes the establishment of a Tax Court as an independent body to adjudicate on tax matters.
A Tax Court is a specialized court of law that adjudicates on tax-related disputes and issues. The Tax Courts, for example, in the United States and Canada are federal and superior courts which hear tax-related cases. Tax courts have the authority to provide rulings on a wide range of taxation subjects. The U.S. Tax Court hears cases relating to income, estate and gift tax, notices of deficiency and worker classification to reviews of collection actions. Most of the cases heard by the Tax Court of Canada are in connection with income tax, goods and services tax and employment insurance.
In Nigeria, a taxpayer, whether individual or corporate, that is aggrieved by an assessment or a demand notice from any relevant tax authority may file an objection to the assessment with such tax authority. Where the latter refuses to amend the assessment, it will issue a notice of refusal to amend. Upon receiving the notice, and within 30 days, the taxpayer may file an appeal with the Tax Appeals Tribunal (TAT).
Towards accelerating resolution of tax disputes and removing the endemic bureaucratic strictures with the traditional judicial process, the TAT was established under Section 59(1) of FIRSEA. Further, the tribunal was conferred with powers to settle disputes arising from the operations of FIRSEA. However, the FIRSEA provides that TAT’s jurisdiction does not extend to criminal or fraudulent conduct which must be referred to the appropriate law enforcement agency for prosecution.
Having a special tax court will go far afield in the development of tax in Nigeria. Though there is an existing tax tribunal as stated above, a tax court is expected to better thrive and gain more relevance and legitimacy. It will encourage the speedy and expedient resolution of tax disputes, as the workload on other superior courts will be abridged. Ordinarily, the slow dispensation of justice in the country is no fresh news. Establishing such special court will create a kind of division of labour where resolutions are reached quicker and issues are brought to the ‘best qualified hands’. Besides, it will make taxation sui generis, ensuring that all stakeholders in taxation duly play their role. It may as well, on the long march, encourage Nigeria run on a tax-driven economy.
Albeit, there are necessarily two sides to be considered on a coin; the pros and cons. Perceptibly, a peculiar issue which persistently and occasionally plagues Nigerian courts, especially the special courts, is that of jurisdiction. An exemplar of this is the National Industrial Court (NIC). In Nigeria, the body charged under the law with the powers to seat over labour and industrial disputes in judicial proceeding is the NIC (Section 7 of the NIC Act, 2006). While it was established as far back as 1976 and was listed in the constitution as a superior court of records in 2010, the court seems more or less like a toothless bulldog.
Matters within its jurisdiction are often brought before other courts with coordinate or higher jurisdiction. In the notorious cases between the Nigerian Labour Congress (NLC) and the Federal Government in 2010 and 2015, the NIC was inaptly snubbed. Correspondingly, the orders (like injunction, bail and so on) of the average court, talk less of that the NIC, are largely flouted by individuals and the government alike. Hence, in a country said to be guided by the principles of rule of law, where the Federal Government itself violates hackneyed courts’ orders, what is the hope of a novel court?
Furthermore, there has been the issue of whether the NIC is a court of first and last resort, a court whose decisions and awards cannot be appealed. This misperception was identified by the Court of Appeal in Coca-Cola (Nig) Ltd and 2 Ors v. Akinsanya and Lagos Sherton Hotel & Towers v. Hotel & Personnal Services Senior Staff where it held, on the strength of Section 243(2) of the Constitution as amended, that the NIC is not a final court as appeals can lie from its decision as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of the Constitution and also in respect of criminal causes of which the National Industrial Court is conferred with jurisdiction. This then brings to mind the question; what then is the significance of such special court where most of its decisions and award can be blown away on appeal?
Some have even argued that maybe the country is not matured enough to embrace and appreciate the development of having a tax court. There are still grounds to be covered in the area of tax, the need to have adequate personnel as specialized judges and so on.
Be that as it may, in the event we resolve to create a Tax Court, to ensure that it isn’t confronted with the same issues which confronted the National Industrial Court at its inception, cues must be deduced from experience. Appropriate laws must be passed and constitutional amendments made to solidify its jurisdiction and making it a court of superior records. It should also have a final and appellate jurisdiction over tax related matters. Tax institutions must begin to work together with all sectors of the economy, including the informal sector, in a bid to stabilize the tax system in Nigeria. Certainly, the idea of a Tax Court is a welcome one which could take taxation in Nigeria to the next level and ultimately become a reference point in the Nigerian judicial system.