CITN member petitions NBA, opposes some provisions of Finance Acts, 2021, 2022
Member, Taxation Standards and Practice Monitoring Committee of the Chartered Institute of Taxation of Nigeria, (CITN), Francis Uzoma Ubani, (FCTI) has petitioned the Nigerian Bar Association (NBA) over some provisions of Finance Acts, 2021, 2022.
An acknowledged copy of the petition was made available to journalists on Tuesday.
He called on the NBA to rise to the occasion and not give room to ‘brazen violation’ of the Constitution of Nigeria.
The letter reads in part: “Deposit Money Banks and Financial Institutions should henceforth STOP remitting qualified chargeable stamp duties/EMTL accruable to the different federating States of the Federation, pursuant to Section 4 (2) of the Stamp Duties Act, as amended, to the FIRS, instead start henceforth to remit to the “Relevant Tax Authorities in the various federating States of the Federation as applicable.
“The different federating States of the Federation have a duty to explore and track the recovery of stamp duties/EMTL that accrue to both the Federal Government and the State Governments, pursuant to Section 4 (1) and 4 (2) and Section 163 (a) and (b) of the 1999 Constitution, as altered, and to recover back years of unremitted stamp duties from banks and other companies in the various sectors of the economy.
“It is obvious that the activities of the Federal Government through the FIRS, CBN and Deposit Money Banks, in the collection, remittance and distribution of stamp duties/EMTL, is shrouded with a lot to be desired, and calls to question as to the motive behind the unwholesome actions of the Federal Government, and its agencies, (FIRS) and (CBN) in this regard.
Section 4 (1) and 4 (2) of the Stamp Duties Act, and Section 163 (a) and (b) of the 1999 Constitution, as altered, are very clear and unambiguous on Taxing Powers of the Federal and State Governments on issues of stamp duties and capital gains tax in Nigeria. Therefore, the unnecessary controversies surrounding stamp duties/EMTL are clearly caused by the lack of transparency in the collection, remittance and distribution of stamp duties/EMTL on the part of the Federal Government, and its agencies, (FIRS and CBN), on how much stamp duties/EMTL that has been generated, pursuant to Section 4 (1) and 4 (2) of the Stamp Duties Act.
“We, therefore, urge all Federal Government Institutions, Deposit Money Banks and individuals involved, to be more transparent, observe and obey the Rule of Law on stamp duties/EMTL, collection, recovery and distribution, as enshrined in the relevant provisions of the 1999 Nigeria Constitution, as altered, and Stamp Duties Act, 2004, as amended, as when injustice becomes law, resistance becomes a duty.
“In the light of the very clear provisions of the 1999 Constitution of the Federal Republic of Nigeria, and the Stamp Duties Act, it is obvious that the Federal Government, through the FIRS has no “Constitutional Right” to demand and collect stamp duties, pursuant to Section 4 (2) of the Stamp Duties Act, that is not provided for them by the Constitution to collect. I believe that we have been able to set the record straight and hereby enjoin the Federal Government, through the FIRS to desist from further usurping the powers of the different federating States of the Federation forthwith.”
“The National Assembly may, subject to such conditions as it may prescribe, provide that the collection of any such tax or duty or the administration of the law imposing it shall be carried out by the Government of a State or other authority of a State”. (Such as State IRS). (emphasis, mine).
It appears that the provisions of Section 162 Subsections (1) and (10) of the 1999 Constitution are general in nature, while those of Section 163 of the Constitution, which deal in particular with Capital Gains Tax and Stamp Duties are specific. Uwais CJN (as he then was) in interpreting the above cited provisions of the said 1999 Constitution, in the case of Attorney-General of Ogun State & Ors. Vs. Attorney-General of the Federation (2010) 2 N.T.L.R. 902 @ 943 para. B HELD thus:
“It seems to me that the provisions of Section 162, Subsections (1) and (10) of the 1999 Constitution, are general in nature, while those of Section 163 of the Constitution, which deal in particular with Capital Gains Tax and Stamp Duties are specific. Therefore, the latter provisions, override the former, for generalibusspecialia derogant (i. e. special things derogate from general things). There are the Capital Gains Tax Act, Cap. 42 of the Laws of the Federation of Nigeria, 1990, as altered and Stamp Duties Act, Cap. 411, which are “existing laws” under section 315 of the 1999 Constitution. However, the Acts do not contain provisions, pursuant to Section 163 of the 1999 Constitution, and as of now, the National Assembly has not prescribed how the proceeds of such tax or duty are to be distributed among the States on the basis of derivation.”