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RESPONDENT FAILED TO ESTABLISHED EARNED TAXABLE INCOME

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Dictum

The power of the Board is not to be exercised by determining a company’s assessable profits according to its BOJ but rather to determine total profit to which the applicable tax rate is applied. The Respondent failed to establish that the Appellant indeed earned taxable income or turnover for the relevant periods or establish the nature and value of the taxable services rendered by the Appellant during the period in question i.e., 2010 to 2017.

— I.E. Ekwo, J. Daudu v FIRS (2023) – FHC/ABJ/TA/1/2021

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DEFINITION OF INCOME FOR THE PURPOSE OF TAX

See Longsdon v. Minister of Pensions and National Insurance (1956) 1 ALL E.R. 83 defining “income” inter-alia as “that which comes in.” While Lord Chetwode v. IRC (1977) 1 ALL E.R. 638 held inter-alia that “income” means gross income as reduced for the purpose of tax assessment by deductions specified in the tax code. Consequently, any contractual transaction in which something of exchangeable worth proceeding from the property, severed from the capital, is drawn by the recipient for separate use or benefit is “income” – See Goodrich v. Edwards 255 U.S. 527 referred to in the authoritative work titled Encyclopedia of Taxation Law and Practice (First Edition) page 138 by Sir T.A. Nwamara, and 7up Bottling Company (supra) on the sugar transaction between the company and third parties which was held to attract WHT liability in that case.

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TAX LAWS ARE STRICTLY OR NARROWLY INTERPRETED

Tax laws are strictly or narrowly interpreted from the bare words used in the enactment. There is no presumption or equity about a tax – See Ahmadu and Anor. v. The Governor of Kogi State and Ors. (2002) 3 NWLR (Pt. 755) 502 at 522 thus – “In a taxing legislation, one has to look...

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PURPORT OF WITHHOLDING TAX

✓ Withholding Tax (WHT) or retention tax is really a term of art/generic expression (or sui generis) devised by tax authorities for tax administration through the method of deduction of tax at source from income including payments due to a benefiting party, by the paying party, for onward remittance to the appropriate tax authority of...

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SERVING NOTICE OF TAX ASSESSMENT ON THE TAX PAYER MUST BE DONE

In this regard, the case of Fasogbon v. Layande (1999) 11 NWLR (Pt. 6280) 543 becomes very apt, wherein it was held at pages 556 557 that: “From the steps that must be taken before the tax payable is evolved, to argue that serving notice of assessment on the tax payer is not part of the procedure under the decree is unthinkable. It is like a Romeo without a Juliet. In the realm of the law, to say that the tax payer who by operation of personal income tax is legally indebted to the tax authority for the assessed income tax is not informed of the assessment of the income tax payable would be an imposition, an arbitrary act that affects his civil rights and therefore infringes upon his civil rights and of fair hearing under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.”

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TRANSACTION LOCATION, AND NOT RESIDENCE, DETERMINE WITHHOLDOING TAX

It is clear to me that the residence of third parties engaged in transactions attracting WHT with a payee is not material. The significant factor is the venue or place the transactions were effected. Once it is shown the transactions with third parties were implemented in Oyo State by way of supplying the transacted items...

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