TAX AUTHORITIES AND BURDEN ALLEVIATION IN A PANDEMIC

INTRODUCTION

We are all aware that nothing can be said to be certain, except death, football and taxes. While it is no news that the outbreak of the Coronavirus pandemic in Nigeria has adversely affected individuals, businesses, companies and even the government, the generation of taxes however remains inevitable.

Though this is the case, fairness and convenience, among others, still remain the principles of taxation and this article focuses on the need for the tax authorities to alleviate the burden of taxpayers in light of prevailing circumstances.

Take a look at what we have here:

“For FIRS so loved Nigerians, that she gave them a basket of palliatives, and whosoever pay their taxes before stipulated time, shall not be punished, but shall enjoy freedom from all penalties and interest.”

TAX OR TREAT

From the 23rd of March 2020 till date, the FIRS offered taxpayers various palliative measures as a way of mitigating the harsh impact of the virus. These measures include:

  • The extension of time for remitting Value Added Tax (VAT) and Withholding Tax (WHT) from the 21st to the last working day of the month, following the month of deduction.
  • The extension of time for filing Companies Income Tax returns by one (1) month.
  • Permission for taxpayers to file returns with unaudited accounts provided that the audited accounts are afterwards submitted within two (2) months after the revised due date of filing.
  • Waiver of late returns penalty for taxpayers who pay their taxes early and file later.
  • Option of paying in Naira for taxpayers facing challenges in sourcing for FOREX to offset their liabilities.
  • Extension of filing deadline of Personal Income Tax returns for Foreign Affairs, Non-Residents, Military and Police Personnel to the 30th of June, 2020.
  • Waiver of interest and penalty on tax arrears which arise as a result of desk review, tax audit, and investigation, as long as the outstanding taxes are remitted on or before the 20th of June, 2020.
  • Suspension of Field Audits, Investigations and Monitoring visits till further notice.

On the 9th of April, 2020, the Federal Capital Territory Internal Revenue Service (FCT-IRS) issued a public notice extending the deadline for filing annual tax returns (2019 Individual Income Tax Returns) from 31st of March, 2020 to 30th of June, 2020 as a result of the pandemic.

Also, in Lagos state, the Lagos State Internal Revenue Service (LIRS) has extended the deadline for the filing of Annual Returns for individual taxpayers including self-employed persons for two (2) months from 1st of April, 2020 to 30th of June, 2020.

It is understandable that the activities of government cannot be suspended permanently because of the pandemic and the tax authorities are lauded for these tax treats as they have assisted taxpayers in balancing the unprecedented impact of the pandemic with their tax obligations. Can more, however, be done?

OLIVER TWIST?

The palliative measures by the tax authorities are highly commendable but it is easy to notice that they focus majorly on ‘lightweight’ matters such as due dates, penalties and interests and filing. Some favour the opinion that the requirement to continue paying taxes at the full rate should be reviewed in view of the new realities ushered in by the pandemic.

Can taxpayers, like Oliver Twist, ask the tax authorities for more?

Before we proceed on this point, we will examine tax measures some countries have taken to provide succour to taxpayers from the pandemic.

In Kenya, the Kenyan tax authorities have:

  • provided 100% tax relief for low income earners (namely persons earning gross monthly income of up to KES 24,000 [USD 226]);
  • decreased the marginal Pay-As-You-Earn (PAYE) rate from 30% to 25%;
  • decreased the value-added tax rate from 16% to 14% with effect from 1 April 2020; and
  • decreased the resident corporate income tax rate from 30% to 25%, etc.

Verified VAT refund claims are also being repaid to taxpayers.  

In Ghana;

  • the salary of health workers for the months of April to June 2020 are exempt from income tax;
  • donations and contributions made toward fighting the Covid-19 pandemic are allowable deductions; and
  • goods donated for fighting Covid-19 are VAT exempt.

The Ghana Revenue Authority has also extended filing due dates and waived penalties for taxpayers who settle their outstanding debts by 30 June 2020.

In Sweden:

  • businesses can defer VAT for up to a year. Businesses can also reclaim January to March’s tax payments and then repay them after a year;
  • social security contributions paid by employers, sole proprietors and partners in partnerships are temporarily reduced; and
  • there are plans to pay financial support to Companies who had a significant decrease in turnover due to Covid-19.

These measures seem more substantial, touching many important issues such as covid-19 donations, tax reduction/ suspension and tax refunds.

One may then wonder why the Nigerian tax authorities are still giving us something light with the tax palliative measures, especially considering the influx of funds, loans and reliefs from local sources and international monetary bodies. (or is it audio money)?

For many individuals and businesses in this time, financial hardships have never been more real. Many are dealing with indefinite pay cuts/ pay suspensions, covid-19 infections, deaths, epic financial downtimes, etc. Even Life is Eazi Ltd. is not having an eazi life. Given these, are more palliatives too much to ask?

A CASE FOR THE TAXMAN

It is easy to look to the taxman in times like these, when things go awry and taxpayers want more.

It may be hard to recall that the taxman is just a go-between. The taxman derives his powers from statutes created by the Government and the taxes he collects, are for the Government. In unanticipated situations such as this, there is an extent to which the taxman can act. This liberty to act is even more restrained when the tax statutes do not provide for certain scenarios, such as the present pandemic one.

Given the current state of our laws, it may be said in favour of the taxman that the ‘lightweight’ form the Covid-19 palliatives have taken are really what the taxman has the capacity to give.

So imagine that Enny Money was walking in a field overlooked by a house and a thunderstorm started all of a sudden.

The gate man rushes to her with an umbrella and she is grateful for a while… until the wind blows the rain all over her regardless. She is cold, drenched and the umbrella even gets blown away by the heavy winds.

The gate man again rushes to her with a raincoat which she wears. She still gets further drenched, thumped by the rain and deafened by the winds. Miserable and shivering, she rushes from the field to the house. The door is locked, she looks to the gateman.

He cannot however open the door because the owner did not give him the key. The key to the house which is the real/ substantial shelter from the thunderstorm, is out of his hands.

You already know that the gateman is the taxman and Enny Money is the taxpayer. The umbrella and the raincoat are tax palliatives but just like the key, the real, substantive tax palliatives do not lie with the tax collecting agencies, they lie with the Government.

The taxman cannot suddenly arise and defer Companies Income Tax and Personal Income Tax till next year or reduce the rate of VAT. The job of a revenue collecting agency remains to collect revenue and while various considerations should ordinarily be given in light of the adverse effects of the pandemic, taxpayers are not entitled to substantial tax incentives/ palliatives unless the tax statutes say so.

Upon closer examination, we would find that in Ghana, Sweden and Kenya mentioned above, the tax measures taken were as a result of rapid response parliament actions/ presidential directives. All three countries passed laws that specified the substantial palliatives given and allowed for almost immediate implementation which the tax authorities then acted upon.

Our tax laws contain various provisions that allow the Minister or the President to by order amend various parts of the law. A prime example is the part of the Companies Income Tax Act (CITA) that relates to donations. Section 25 of the CITA allows the Minister to amend its Fifth Schedule which specifies bodies and institutions that tax deductible donations may be made to.

The President in Section 23 of CITA is also granted the power to exempt any Company or class of Companies from all or any of the provisions of the Companies Income Tax Act.

The Value Added Tax Act in Section 38 also grants the Minister the power to amend the VAT rate and the First Schedule to the VAT Act which relates to goods and services exempt from VAT.

We find that the taxman cannot by any stretch of imagination assume these powers reserved by the tax statutes for the Minister/President in the name of giving palliatives.

CONCLUSION

There is no doubt that the scope of palliatives handed over to taxpayers in Nigeria could be greatly improved. Pertinent tax-related issues such as tax refunds, tax on essential items, tax subsidies, deductible donations, tax rates and flexible payment plans are left in the hands of uncertainty and discretion.

While this is an unpleasant situation, we have shown that the tax authorities are quite incapable of making significant change. This power lies with the parliament and the President/ Minister of Finance.

While taxpayers await intervention by the appropriate arms of Government, they are advised to take advantage of the existing palliatives and it is hoped that they can reach a mutually agreeable position with the tax authorities upon a case by case evaluation of their distinct issues borne from the pandemic.

#StaySafe

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