In a recent epochal decision,
The Tax Objection/Appeal Process
Prior to the enactment of the FIRS Act, the tax objection and appeal process was respectively enshrined in sections 69-76 CITA (for CIT, CGT and ET), sections 38-43 PPTA (for PPT and ET), section 20 and 2nd Schedule VATA (for VAT). For upstream tax disputes, the process per PPTA provisions, entailed: (a) issue of assessment by FIRS to tax payer; (b) written objection within 21 days to FIRS; (c) consideration of objection by FIRS and issue of revised assessment or NORA; (d) appeal to Tax Appeal Commissioners within 30 days; (e) further appeal to the
Generally, an uncontested assessment 0r unchallenged NORA (i.e. assessment not objected to/NORA not appealed against within time), renders the assessment final and conclusive against the taxpayer - the Revenue can enforce collection of the tax represented therein. CITA and PPTA had provisions for extension of time within which to object/appeal. I submit that although PITA had no such provision, upon satisfactory reasons being shown for delay, a taxpayer should enjoy such relief, so as not be shut out from contesting an objectionable assessment. The inherent jurisdiction of the Court and provisions of the relevant
The FIRS Act which became effective in
Paragraph 13(1), 5th Schedule FIRS Act provides that: "a person aggrieved by an assessment or demand notice made upon him by the Service or aggrieved by any action or decision of the Service under the provisions of the tax laws...may appeal against such decision or assessment or demand notice within the period stipulated under this Schedule to the [Tax Appeal] Tribunal". Section 59 FIRS Act provides the basis for the above prescription, with section 59 (2) vesting the TAT jurisdiction to "settle disputes arising from the operations of this Act and under the First Schedule."
It would seem therefore that the absence of section 18 CITAA type provision for PPT/PIT taxpayers does not weaken the view that it is possible to appeal directly to the TAT.
Furthermore, whilst the FIRS Act replaces the administrative positions of the tax laws, where it fails to provide for detailed procedure that is already provided for by PPTA, such extant provision should be utilised if not inconsistent with the FIRS Act. Owing to years of ingrained practice, risk management or some other "strategic" reason, some taxpayers may prefer to utilize the objection process, as a first step towards resolution of their tax disputes. The FIRS is unlikely to challenge such approach, having set up "arbitration desks" at Integrated Tax Offices to handle tax disputes, and then at Regional Offices before resort to the TAT (
The Appellant had received additional assessments for 2006 - 2008 years of assessment, and objected thereto in
In dismissing the Respondent's submissions, the TAT held inter alia that: (a) NORA (or indeed objection) is no longer a prerequisite for tax appeal under the FIRS Act, given Para 13(1) 5th Schedule (reproduced as Order 3, Rule 1 TAT (Civil Procedure) Rules); (b) although the law only stipulated 30 days within which taxpayer must object to assessments, "a 90 day timetable" is reasonable and generous" within which the Revenue should respond to the objection. At p. 123, the TAT stated: "the taxpayer anxious to know its correct and precise tax liability is entitled to get that information quickly...the tax collector should not be allowed to hang the dread of an impending NORA over the taxpayer's business -that would turn the taxman into a hangman." This is moreso as "the taxpayer cannot force NORA out of the dilatory tax collector. We must hold the Respondent, to a reasonable level of responsibility in the performance of its duties especially its duty of timely business correspondence with taxpayers"; (c) on the issue that appeals can only be against a 'decision' or 'order', the TAT affirmed that "an assessment entails both a decision and an order"; (d) a taxpayer challenging an assessment is a person aggrieved within Para 13(1), 5th Schedule; (e) the TAT can deem a decision to have been made by the FIRS: where "the FIRS omits for too long to respond one way or another, their omission must be interpreted, or deemed as a refusal decision - a [NORA]."
Conclusion
How much more in dealing with objections as in
Originally published in in 'Taxspectives by Afolabi Elebiju' column in THISDAY LAWYER,
Originally published
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr Afolabi Elebiju
LeLaw Barristers & Solicitors
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Off
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Tel: 1712 0213
E-mail: a.elebiju@lelawlegal.com
URL: www.lelawlegal.com
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