Examining The Limits Of Tax Planning & Management In Nigeria

Introduction

Tax planning and management refers to the processes and schemes by which taxpayers arrange their affairs and businesses in such manner as to attract the lowest possible tax rates under applicable tax laws.  It is the art of limiting the amount of tax payable without breaking the law. It involves optimization of marginal tax rates using devices and tools such as trust arrangements, corporations, charitable entities, deductible expenses, tax exemptions, capitalization of profits, residency rules, and profit shifting arrangements.  Tax planning and management differs from tax evasion¹, which is a crime under the law.

Nigerian law recognizes the right of taxpayers to arrange their affairs in such manner as to avoid or minimize their liability to tax. However, in exercising this right, taxpayers are obliged to maintain minimum ethical standards and observe the limits set under applicable tax legislation in Nigeria.

This article reviews the legal basis, limits, and ethics of tax planning and management activities in Nigeria. It also recommends options for effective management of the tax affairs of individuals and corporate entities, without breaching the law.

1. Legal basis for tax planning and management in Nigeria

   In G. M. Akinsete Syndicate v Senior Inspector of Taxes, Akure², the Supreme Court recognised that a person may use lawful means to avoid tax; what he may not do is to try to evade tax.  This attitude of the Nigerian courts towards tax planning and management is traceable to Lord Clyde’s famous “liquor for tax avoidance goons” in the English case of Ayrshire Pullman Motor Services v IRC³ (“Ayrshire“), where His Lordship held that:

   “… The Inland Revenue is not slow – and quite rightly – to take every advantage, which is open to it under the taxing statutes, for the purpose of depleting the taxpayer’s pocket. And the taxpayer is, in like manner, entitled to be astute to prevent, so far as he honestly can, the depletion of his means by the Inland Revenue.”

   Nigerian courts have also followed the decision of the English court in Duke of Westminster v CIR⁴ (“Duke of Westminster“), where Lord Tomlin made his famous “Holy Grail of Tax Avoidance” pronouncement thus:

   “Every man is entitled, if he can, to order his affairs so that the tax attaching under the appropriate Acts is less than it otherwise would be”.

   Thus, the decision in Duke of Westminster, which was also decided on the strength of Ayshire, reaffirmed the position that once a tax planning scheme is valid, the courts would uphold the scheme on the basis that taxpayers are entitled to manage their affairs in such manner as to avoid or minimize tax.  In JGC Corporation v FIRS (2016) 22 TLRN 37, the Federal High Court, Lagos Division, upheld the rights of taxpayers to embark on tax planning exercises and structure their business transactions in such manner as to reduce or eliminate their liability to tax.

2. Limits of tax planning and management activities in Nigeria

   Tax planning and management is legal and acceptable under applicable Nigerian tax law. However, in order to prevent abuse or deliberate acts of tax evasion to the detriment of the Government, provisions are contained in relevant tax statutes in Nigeria; limiting the extent to which taxpayers may exercise their right to plan and manage their tax affairs. Specifically, the regimes limiting this right can be found in certain statutory instruments including:

   1. General Anti-Avoidance Provisions (“GAAPs“)⁵ set out in  the various tax legislations;
   2. Income Tax (Country by Country Reporting) Regulations 2018 (the “CBCR Regulations“);
   3. Income Tax (Transfer Pricing) Regulations 2018 (the “TP Regulations“); and
   4. Income Tax (Common Reporting Standard) Regulations 2019 (the “CRS Regulations“).

   1. 2.1 The GAAPs

      The GAAPs are designed to prevent deliberate schemes for avoiding tax. To this effect, a tax authority is allowed to strike down a transaction, dip the full length of the largest taxing shovels into the taxpayer’s accounts, and scoop therefrom the full amount of taxes due on the taxpayer’s income; where the transaction:

      • is fictitious, artificial, or a sham;
      • presents no real commercial value;
      • is specifically designed to avoid or minimize tax, or
      • is not conducted at arm’s length between related parties where one has control over the other.

      Although GAAPs had been useful in the past, it appears that they are insufficient in addressing the complexities of modern tax planning and management; particularly in relation to Base Erosion and Profit Shifting (“BEPS“) practices.  BEPS practices refer to tax planning strategies that exploit gaps and mismatches in tax rules across different countries to artificially reduce tax base or shift profits from higher tax jurisdictions to low or no-tax locations where there is little or no economic activity, thus eroding the tax base of the higher tax jurisdictions. As BEPS generally revolves around arbitrage between domestic taxation rules, it was found that tackling its negative effects would require improvement in transparency and international cooperation on tax matters.

      To this end, the Organization for Economic Cooperation and Development (“OECD“) coordinated a reform process following which several action policies were proposed in its 2015 report, which include:

      • Requiring taxpayers to disclose their aggressive tax planning arrangements;
      • Making dispute resolution systems more effective;
      • Preventing the artificial avoidance of Permanent Establishment (“PE”) status for tax purposes;
      • Strengthening controlled foreign company rules; and
      • Re-examining transfer pricing documentation.

      Nigeria participated in the OECD reform process and has been largely influenced by revolutionary tax policies proposed by the OECD and this, in effect, has resulted in the issuance of the CBCR Regulations, the TP Regulations, and the CRS Regulations by the Federal Inland Revenue Service (“FIRS“).