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The new VAT combat is a protest

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By Eric TENIOLA


THE actions of Chief Nyesom Wike (57) governor of Rivers state and Mr. Babajide Sanwo-Olu (56) governor of Lagos, have made us take another look at the issue of taxation in Nigeria. Specifically, the actions of these governors and their states of Assembly and the southern governors that met recently, have reawakened our thoughts on the issue of the Value-Added Tax (VAT). Tax simplification is not simple.

The tax system is too complex and too complicated. The concept of tax complexity turns out to be quite elusive when one tries to pin it down. Very difficult to understand. What the governors have done so far is that they have ignited a flame out of emotions. No one knows how long it will burn out. The Supreme Court and its interpretation will not be the final arbiter on the issue. In the end, some state governors may realise later that they have been shortchanged. If it’s not too late, let the sleeping dogs lie. One thing seems certain, there will be duplication of taxes in this country and the people might not be truly sure of whom to pay their tax to, is it FIRS or state functionaries. The average Nigerian will be financially strangulated.

There will be an emergence of tax enforcers or tax brigades who will be worse than political thugs or Motor Park touts. It will lead also to over taxation and will cripple various businesses in the country. And in a country where unemployment is high, where super inflation is on the increase, with insecurity all around, debt profile keeps rising, bad roads, bad medical facilities, the system itself may collapse.

For some time now, we have been debating on how to share the bread, (FIRS collected 1.53trillion naira on VAT alone last year), no one is talking about how to bake the bread. If we are not careful, very soon, there will not be any bread to share on the table.

I am aware that the current VAT war is a protest on the central government and its certain policies of exclusion, partisanship, nepotism, ethnicity, non-consultation and unfairness. To top it all, the central government has been lackadaisical, indifferent and slothful to some areas in the country in an arrogant manner. In some instances the central government has been turning deaf ears to genuine advice and appeals treating its citizens like conquered and captured people. And that is not good for a fragile country like Nigeria.

Albeit, all relationship goes through hell, rare relationships get through it. A relationship is like a house, when a light bulb burns out, you do not go out to buy a new house. You fix the bulb.

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Protest movements are often synonymous with inspiring leaders. Lack of leaders may exacerbate tensions and violence when protesters have no one to provide direction on how to confront the authorities. Interestingly, the leaders of those protesting against the centre today, were themselves products of the centre itself.

The present chairman of the governors’ forum, Dr. John Olukayode Fayemi (56) from Isan-Ekiti in Oye Local Government in Ekiti state served as Minister of Solid Minerals Development from 11 November 2015 to 30 May 2018.

Chief Nyesom Wike (57), an Ikwerre from Rumuepirikom in Obio-Akpor, Rivers State served as Minister of State for Education from 14 July 2011 till 2014. The present governor of Benue state, Mr Samuel Ioraer Ortom (60) from Guma Local Government Area of Benue State was Minister of Industry, Trade and Investment from 11 July 2011- 25 October 2015. As for Arakunrin Oluwarotimi Akerodolu alias AKETI (65), SAN, from Owo in Owo Local Government Area of Ondo state, he has always been a chronic fighter.

If these governors and many others are rebels today, the Central Government made them so.

I am one of those who believe that the arrogance of the Central government is creating problems in this union called Nigeria. The matter could have been solved if there was a strong dialogue and a line of communication between the central government, state and local governments.

There are different types of taxes in the country today. We have the Personal Income-tax Act (PITA), the Companies Income tax Act(CITA), the Petroleum Profit Tax Act(PPTA), Value Added Tax Act(VATA), Education Tax Act(ETA), National Automobile Council Act, Customs, Excise Tariffs, etc (Consolidation Act) and the Sugar Development Council Act.

The subject of discussion is the Value Added Tax (VAT).

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The Value Added Act decree of 1993 was promulgated by General (rtd.) Ibrahim Babangida (80) GCFR. In fact it was part of the military legacy. The programme was first introduced by the first Minister of Finance under General Babangida, Dr. Kalu Idika Kalu (82), from Ebem, Ohafia in Imo state.

In his 403 page book titled “LETTING A THOUSAND FLOWERS BLOSSOM”, Dele Sobowale narrated how VAT came to be. He said “VAT was one of Dr Kalu Idika Kalu’s unpopular proposals and for which he would have been lynched if the economic illiterates dominating discussion in the media could lay their hands on him. It was not even accepted by the majority of the cabinet members. On the day General Babangida adopted the proposal, Dr. Kalu was invited as was usual before such monumental decisions were made, to defend the initiative. The matter was thrown open for discussion. Dr. kalu’s reliable supporters—Chief Samuel Oluyemi Falae (82), Dr. Chu S.P. Okongwu (87), Alhaji Abubakar Alhaji (83), Professor Jubril Muhammad Aminu(82) and Professor Bolaji Akinwande Akinyemi (79)—constituted a small minority. The rest went after Dr. Kalu Idika Kalu’s with every verbal arsenal at their proposal. Suddenly, General Babangida stopped the discussions and started to summarise in a way that indicated that he had accepted the minority view. But, he was also politically sagacious enough to realize that it would be a tough sell. So, when he mentioned one of the sticking objections of those against, Dr. Kalu raised his hand. It was fortunate that sitting next to him was Professor Jubril Aminu who kicked Dr. Kalu under the table and asked him to put down his hand. Later, Aminu, warned him by saying “When the boss apparently adopted your proposal you have nothing more to say.” That was how VAT came to be.

According to the Value Added Tax decree, item 40 (distribution of revenue) states that notwithstanding any formula that may be prescribed by any other law, the revenue accruing by virtue of the operation of this Act shall be distributed as follows, that is—(a) 15% to the Federal Government (b) 50% to the State Government and the Federal Capital Territory, Abuja and (c) 35% to the Local Governments.

In 1992, General Babangida appointed a study group headed by Professor Emmanuel Chukwuma Edozien (1937-2019), the late Ojiba of Asaba. It was this group that established the Federal Inland Revenue Service (FIRS) as the operational arm of the Federal Board of Inland Revenue and set up revenue services at other tiers of government—States and Local governments.

In the same year, 1992, General Babangida also established another study group on indirect taxation headed by Dr. Sylvester Uzor Ugoh(90) from Umuokrika Ekwerazu; Alii- azu-Mbaise in Imo state, which culminated in policy shift from direct to indirect/consumption tax (VAT evolved). To most Nigerians, Dr Ugoh is mostly remembered as the running mate of Alhaji Bashir Othman Tofa (74) in the June 12, 1993 Presidential election. But he was more than that, he was an outstanding Economist. He had his education at Holy Family College, Abak, 1947-1951, University of New Hampshire, Durham, New Hampshire, USA, 1955-1959, Harvard University, Cambridge, Massachusetts, USA, 1959-1961, 1963-1964, deputy director, Economic Development Institute, University of Nigeria, Nsukka, 1966-1972, executive director, SKOUP and Company (Management Consultants), 1973, member, Constituent Assembly, 1977-1978, Minister of Science and Technology, 1979-1982, Minster of Education, 1982-1983 and detained between 1984 and 1985. The reports of Professor Edozien and that of Dr Ugoh were submitted to General Babangida. Afterwards General Babangida then setup the implementation committee on VAT headed by Chief Emmanuel Itoya Ijewere (75), a Chartered Accountant. Chief Emmanuel Itoya Ijewere started his accounting career in 1965 with Coopers and Lybrand. He is a past President of the Institute of Charted Accountant of Nigeria, also past President of Directors and past President of the Nigerian Red Cross Society.

Upon being elected in 1999, President Olusegun Obasanjo, GCFR, invited Professor Adedotun Oluwole Phillips to submit a comprehensive paper on taxation in Nigeria for implementation.

President Obasanjo then appointed a taxation expert Mrs Ifueko Omoigui-Okauru as Chairman of the Federal Inland Revenue Service (FIRS). President Obasanjo effected certain reforms in the taxation policy in the country. The main objective of the reform programme was to “operate a transparent and efficient tax system that optimizes tax revenue collection and voluntary compliance”. The reform programme was charged with the responsibilities to diversify the revenue base from petroleum-related taxes; treat taxpayers in a fair and responsible manner; promote investment in a diversified economic base in order to promote further economic growth; simplify procedures and policies so that compliance is enhanced; reorganize the tax administration to increase effective compliances, reduce the compliance cost to taxpayers and make it more supportive of taxpayer services; promote integrity by both tax administrators and taxpayers and provide a reasonable allocation of responsibilities for fiscal matters between the partners in the federal system. Other objectives of the reform program include a shift in relative emphasis from income to consumption taxes i.e. indirect tax; a revised comprehensive personal income tax regime; modernized accounting and derivation for taxable profit for companies Income tax; restricting the number of tax instruments available to sub-national governments, as well as how these taxes are administered while ensuring that such governments have access to reasonable own source revenue; modernizing the FIRS and/or the Joint Tax Board so that it is equipped to administer the reforms in an effective manner and obtain financial and administrative autonomy for FIRS to make it more effective and efficient.

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President Obasanjo then submitted a bill for the establishment of the Federal Inland Revenue Service (FIRS) to the National Assembly. The bill was approved in the Senate on February 20, 2007, presided over by Senator Ken Ugwu Nnamani (72) from Enugu, then of the Peoples Democratic Party (PDP).

The Bill was also passed in the House of Representatives on February 21 presided over by Alhaji Aminu Masari (71) who hails from Masari village of Kafur local government, Katsina State of the PDP. Alhaji Aminu Masar is today the governor of Katsina state. The two houses jointly passed the bill and it was signed into law on April 16, 2007. It was jointly signed into law by President Olusegun Obasanjo, GCFR, and the Clerk of the National Assembly, Alhaji Ibrahim Nasiru Arab.

The highlights of the bill state that this Act may be cited as the Federal Inland Revenue Service (Establishment) Act, 2007. A192 Federal Inland Revenue Service (Establishment) Act 2007 No. 13 SCHEDULES FIRST SCHEDULE LEGISLATION ADMINISTERED BY THE SERVICE 1. Companies Income Tax Act Cap. 60 LFN, 1990. 2. Petroleum Profits Tax Act Cap. 354 LFN, 1990. 3. Personal Income Tax Act No. 104, 1993. 4. Capital Gains Tax Act Cap. 42 LFN, 1990. 5. Value Added Tax Act 1993 No. 102, 1993. 6. Stamp Duty Act Cap. 411 LFN, 1990. 7. Taxes and Levies (Approved List for Collection) Act 1998 No.2, 1998, 8. All regulations, proclamation, government notices or rules issued in terms of these legislation. 9. Any other law for the assessment, collection and accounting of revenue accruable to the Government of the Federation as may be made by the National Assembly from time to time or regulation incidental to those laws, conferring any power, duty and obligation on the Service. 10. Enactment or Laws imposing Taxes and Levies within the Federal Capital Territory. 11. Enactment or Laws imposing collection of taxes, fees and levies collected by other government agencies and companies including signature bonus, pipeline fees, penalty for gas flared, depot levies and licenses, fees for Oil Exploration License (OEL), Oil Mining License (OML), Oil Production License (OPL), royalties, rents (productive and non-productive), fees for licenses to operate drilling rigs. Fees for oil pipeline licenses, haulage fees and all such fees are prevalent in the oil industry but not limited to the above listed. SECOND SCHEDULE Sections 3(4) SUPPLEMENTARY PROVISIONS RELATING TO THE BOARD Proceedings of the Board I. Subject to this Act and section 27 of the Interpretation Act, the Board shall have power to regulate its proceedings and may make standing orders with respect to the holding of its meetings, and those of its committees, notices to be given, the keeping of minutes of its proceedings, the custody and production for inspection of such minutes and such other matters as the Board may, from time to time determine. 2.-(1) There shall be at least four ordinary meetings of the Board in every calendar year and subject thereto, the Board shall meet whenever it is convened by the Chairman, and if the Chairman is requested to do So by notice given to him by not less than four other members, he shall convene a meeting of the Board to be held within 14 days from the date on which the notice was given. Sections 2, 25 and 68. Federal Inland Revenue Service (Establishment) Act 2007 No. 13 A193 2 Every meeting of the Board shall be presided over by the Chairman and if the Chairman is unable to attend a particular meeting, the members present at the meeting shall elect one of them to preside at the meeting. In fairness, some of the reforms projected by the President have been implemented by the FIRS. To their credit, the past Chief Executive of FIRS, from Mr. Babatunde Fowler who served from August 2015 to December 9, 2019, to the present Chairman, Alhaji Muhammadu Mamman Nami appointed on December 9, 2019, have been forthcoming in their revenue collection drive. Just like last year alone, the organization collected 4.95 trillion naira.

There have been arguments as to the type of revenue the FIRS could collect or not. There are those who still insist that the state governments are entitled to a certain percentage of what the FIRS collect in their states.

In the view of Mr. Olumide Fusika, SAN,1. Section 162(10) of the Constitution defines public revenue. It is any income or returns accruing to or derived by the Government of the federation from any source (which, of course, would include taxes) 2. Section 162(1) of the constitution provides that public revenue derived as income tax proceeds of military and police personnel, staff of foreign affairs ministry and residents of the FCT belongs exclusively to the FGN. All other public revenue must be paid into the Federation Account for sharing among the FGN, the States and the LGs. 3. Section 162(2) prescribed that sharing from the federation account pool shall be done using a formula prescribed by the RMAFC and approved by the National Assembly on the principles of population, equality of States, internal revenue generation, landmass, terrain, and population density. However, public revenue derived directly from any natural resources shall first apply the criteria of derivation of not less than 13% to the host state. 4. Outside public revenue directly derived from natural resources, the derivation principles is further prescribed in Section 163 of the Constitution. That section provides for the application of derivation principle to the sharing of public revenue derived from taxes and duties listed in the exclusive legislative list. By section 163(b) where such tax or duty is collected by the FGN or any federal authority, then there shall be paid to each state a sum equal to the proportion of the net proceeds of such tax or duty that are derived from that state. 5. The tax items under the exclusive jurisdiction of the Federal level of the Federation are Stamp duties and taxation of incomes, profits and capital gains (items 58 and 59 of the exclusive legislative list). 6. In the concurrent legislative list, item 7 provides that in the exercise of its powers to impose any of the said prescribed taxes, the National Assembly may provide that the collection or the administration shall be carried out by the Government of a state or other authority of a state. Since the use of “May” in this section isn’t mandatory, the National Assembly chose to confer the authority to collect and administer them on the FIRS, which in turn remits what it collects to the federation account where the FGN distributes, obviously without strict observance of the constitutionally prescribed derivation principle of 100% of the net proceeds (that is, what remains after administrative costs of collection) to the states where the duty it tax are derived from.7. The judgment of the FHC, P/H Division, is simply that the taxing powers of the FGN are those listed in items 58 and 59 of the exclusive legislative list (apart from PAT from the category of personnel exclusively reserved to the FGN under section 162(1) of the 1999 constitution). VAT (that is, taxes on sales and consumption) is not one of them. 8. If for reasons of ease of collection and administration, the FGN (National Assembly), with the buy-in of the States, has made an Act to regulate the collection of VAT in order to prevent the confusion that leaving each state to make its own law on it that should ordinarily be all well and good. But going beyond that to appropriate or use what is collected whimsically without regard to constitutional order is the crux of the matter.

At the time the VAT decree was promulgated by General Babangida in 1993, there was little input from the state governors. There could not have been any input because at that time we were operating a rigid military administration, even appointments of governors at that time was a military posting. At that time military governors could not travel outside of their state capital without the approval of the office of the Chief of General Staff or else they will charge for treason. Even common allocation of plate numbers for governors was part of the schedule of the Chief of General Staff, Admiral August Akhabue Aikhomu (October 20 1939- 17 August 2011) from Irrua, Isan in Edo state. I remember while serving as Press Secretary to three military governors in Ondo state (Major General (rtd) Babakayode Ekundayo Opaleye, Commodore (rtd.) Olabode Ibiyinka George and Rear Admiral Sunday Abiodun Olukoya (1947-2021) between 1986 and 1992 which is now made up of Ondo and Ekiti states, the plate numbers of their cars at that time was GHQ22.

When the National Assembly passed the FIRS Act, it did not provide or prescribe a new formula for the sharing of the proceeds. Apparently, this was in recognition of the fact that the Constitution already covered the field by the unambiguous stipulation of its under Section 163 (b) What the Assembly did in the Bill was to allow the Revenue Mobilisation Commission to work out the formula without disregarding the constitutional parameter. Unfortunately the Commission, oblivious of this constitutional prescription, relied on the existing formula promulgated by General Babangida’s decree. Albeit, the ball is in the court of the central government to resolve this issue through dialogue. The issue could not have degenerated to this level if there had been enough dialogue between the central and the state government. Fortunately, the constitution has provided where this issue and other issues could be resolved. There is a council called the National Council of State which the President could summon for a meeting at any time.

The Council of State consists of the following persons: President, who is the Chairman; Vice-President, who is the Deputy Chairman; All former Presidents of the Federation and all former Heads of the Government of the Federation; All former Chief Justices of Nigeria; President of the Senate; Speaker of the House of Representatives; All the Governors of the states of the Federation; and Attorney-General of the Federation.

The council has the following responsibilities: Advise the President in the exercise of his powers with respect to the:-National population census and compilation, publication and keeping of records and other information concerning the same; Prerogative of mercy; Award of national honours; The Independent National Electoral Commission (including the appointment of members of that Commission);The National Judicial Council (including the appointment of the members, other than ex-officio members of that Council); The National Population Commission (including the appointment of members of that Commission); and advise the President whenever requested to do so on the maintenance of public order within the Federation or any part thereof and on such other matters as the President may direct.

The last schedule of the Council could deal with issues of the VAT and other contentious issues currently dividing the country.

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