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FHC faults FIRS using banks as collection agents unduly 

A Federal High Court (FHC) has ruled that it is unlawful for FIRS to appoint the Guaranty Trust Bank as its collecting agent.

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FIRS, VAT, Tax, Dangote, FHC faults FIRS using banks as tax agents , FIRS boss, Babatunde Fowler’s tenure ends, replacement disclosed 

Federal High Court (FHC) has ruled that it is unlawful for the Federal Inland Revenue Service (FIRS) to appoint Guaranty Trust Bank as its collecting agent to recover alleged Companies Income Tax (CIT) liability from Ama Etuwawe Esq (plaintiff).

In its judgement in the case between the plaintiff, FIRS and GTBank, who are jointly referred to as Defendants, FHC held that the Plaintiff is not liable to pay CIT, being an individual, who carries on legal practice in its name, and issued an order of perpetual injunction restraining the FIRS, its agents, privies, employees, etc., from demanding the payment of CIT from the Plaintiff.

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[READ MORE: FIRS boss reacts to communications tax, says Nigerians talk too much on phone]

The court also awarded monetary sum as damages against the Defendants for illegal and unlawful freezing of the Plaintiff’s bank account.

What it means: It means that the tax regulator does not have the right to appoint banks as its agents for the collection of taxes when the taxes are not proven to be due. The court insisted that such a move is premature and exposes the banks to risk if such taxes are not actually due, or are lesser than the sum actually paid to the FIRS.

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It also means that going forward, FIRS must demonstrate that the alleged liability is final and conclusive, and that the taxpayer has failed to pay the liability within the statutory time limit before it can validly appoint an agent of collection for that purpose. In any case, the court ruled that such enforcement must be limited to the amount of the valid liability and not the total funds in the affected taxpayer’s bank account.

The FHC judgement added that a risk of exposure in the form of an award of damages may crystalize on the banks where the freeze order is determined to have been wrongly issued and executed, especially where the bank failed to obtain adequate comfort from the FIRS that the liability is indeed final and conclusive before executing the lien.

What really happened: In 2018, the FIRS commenced the issuance of Letters of Substitution to banks in Nigeria, pursuant to Section 49 of the Companies Income Tax Act, Cap. C21, Laws of the Federation of Nigeria, 2004 (as amended) and Section 31 of the Federal Inland Revenue Service Establishment Act, 2007.

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By the letter, the FIRS alleged that certain listed customers (“affected companies”) maintaining bank accounts with such banks failed to fulfil their tax obligations, and therefore appointed the banks as tax collecting agents for the deduction and remittance of the alleged tax liabilities. The FIRS also requested the banks to “freeze” the accounts of affected companies and demanded that the banks should not execute any mandate on those accounts without its prior approval.

[READ ALSO: Tax defaulters: Firms can challenge FIRS in court as deadline approaches]

Following the above, KPMG issued a Newsletter highlighting key issues that the FIRS should consider before implementing its directive to the banks, some of which the FHC addressed in this judgement.

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The FHC judgement declaring the FIRS’ action as “unlawful, null and void” is, therefore, not surprising given the plethora of issues associated with the FIRS’ directive, some of which we had highlighted above.

Patricia

Abiola has spent about 14 years in journalism. His career has covered some top local print media like TELL Magazine, Broad Street Journal, The Point Newspaper. The Bloomberg MEI alumni has interviewed some of the most influential figures of the IMF, G-20 Summit, Pre-G20 Central Bank Governors and Finance Ministers, Critical Communication World Conference. The multiple award winner is variously trained in business and markets journalism at Lagos Business School, and Pan-Atlantic University. You may contact him via email - [email protected]

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Economy & Politics

Buhari sheds light on why Magu was suspended

Shehu’s statement sheds more light on Magu’s suspension.

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Following the suspension of the Acting Chairman of the Economic and Financial Crimes Commission (EFFC), the Presidency revealed the grounds for his suspension through the Senior Special Assistant on media and publicity to the President, Garba Shehu in a statement on Saturday evening.

He revealed that a preliminary review was conducted on allegations leveled against Magu and other EFFC staff that justified reasons for an investigation on his activities, and a panel was constituted “in compliance with the extant laws governing the convening of such a body,” adding that in cases of allegations against the head of the EFCC, it was proper procedure for the Chair to step down to enable a fair investigation.

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“As is the proper procedure, when allegations are made against the Chief Executive of an institution, and in this case an institution that ought to be seen as beyond reproach, the Chief Executive has to step down from his post and allow for a transparent & unhindered investigation” he said.

The EFCC does not revolve around the personality of an individual, and as such cannot be seen through the prism of any individual.

“Therefore, the suspension of Mr. Ibrahim Magu, allows the institution to continue carrying out its mandate without the cloud of investigation hanging over its head.”

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He added that the EFCC is committed to fighting economic and financial crimes in Nigeria, and Magu would have the opportunity to defend himself against allegations leveled against him as stipulated by the Nigerian constitution where “every citizen is presumed and remains innocent until proven guilty.”

He said the war against corruption was not a static event and but a continuous process that required transparency and accountability, where people must be held to account for their activities so as to improve Nigeria’s democratic institutions.

“Those who see Mr. Magu’s investigation, as a signal that the fight against corruption is failing, have unfortunately, missed the boat.

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“There is no better indication that the fight is real and active than the will to investigate allegations in an open and transparent manner against those who have been charged to be custodians of this very system,” he said.

“Under this President and Government, this is our mantra and guiding principle. There are no sacred cows, and for those who think they have a halo over their heads, their days are also numbered.”

He said Ibrahim Magu was not immune to investigations regardless of the “obvious embarrassment that potential acts of wrongdoing by him” may have caused the Nigerian Government, however the government maintains its fight against corruption.

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Ibrahim Magu was suspended as EFCC Acting Chairman this week after facing a preliminary panel at the Aso Villa and was replaced by Mohamed Umar.

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Economy & Politics

Magu probe: New facts suggest case is about re-looting of previously stolen funds

The report exposed acts of corruption and money laundering against some EFCC officials, including Magu.

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Ibrahim Magu, Buhari appoints new Ag. Chairman of EFCC, gives reason for Magu's suspension

There appear to be more troubles for the suspended acting Chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu, as some new cases bordering on alleged re-looting of recovered funds and bribery may be lined up against him.

Some new facts also emerged on how accumulated interest rates on the recovered N550 billion by the EFCC in the period under review were allegedly re-looted. The suspended EFCC boss is expected to disclose the whereabouts of the missing interest funds running into millions of naira.

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The final report of the Presidential Committee on Audit of Recovered Assets (PCARA) that covered the period of May 29, 2015, to November 22, 2018, had also confirmed the concerns of the public about the contradiction in the recovered funds by Magu. These contradictions include;

For Foreign currency recoveries, EFCC reported a total naira equivalent of N46,038,882,509.87, while the naira equivalent of the foreign currency lodgments was N37,533,764,195.66, representing a shortfall of N8,505,118,314.21.’’

“These inconsistencies cast serious doubt on the accuracy of figures submitted by the EFCC. It is the committee’s view that the EFCC cannot be said to have fully accounted for cash recoveries made by it.’’

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“While EFCC reported total Naira recoveries of N504,154,184,744.04, the actual bank lodgments were N543,511,792,863.47. These discrepancies mean that EFCC’s actual lodgment exceeded its reported recoveries by N39,357,608,119.43.’

It should be noted that the about N39 billion discrepancy excludes the missing accrued interest.

With all these, the report suggests that there is an apparent case of manipulation of data in a very brazen and unprofessional manner and has greatly eroded public confidence in the anti-corruption efforts.

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The PCARA revealed how the investigative reports on EFCC’s activities by the Nigeria Financial Intelligence Unit (NFIU) exposed acts of corruption and money laundering against some EFCC officials, including Magu.

The NFIU report shows that the Acting Chairman has been using different sources to siphon money from the EFCC, and in some cases collecting bribes from suspects.

The report has shown that a particular Bureau de Change, owned by Ahmed Ibrahim Shanono linked to the Acting Chairman based in Kaduna has more than 158 accounts and has been receiving huge sums of money.

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The PCARA report also said that Magu was linked to a N28m payment to Falana who is alleged to be his close associate and ally.

Background

According to reports from the News Agency of Nigeria (NAN), the former EFCC boss is being interrogated by the Rtd, Justice Ayo Salami led Presidential Probe Panel over allegations bordering on mismanagement and lack of transparency in managing recovered assets by EFCC.

A final report of the Presidential Investigation Committee on the Federal Government Recovered Assets and Finances by EFCC from May 2015 to May 2020 had seriously indicted and implicated Magu on various allegations levelled against him.

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The terms of reference for the investigative committee were

’Investigate, verify and review the recommendations of the Presidential Committee on Audit of Recovered Assets as it relates to the EFCC, with a view to ascertaining the complicity or otherwise of the Ag. Chairman, Ibrahim Magu, in the mismanagement of the assets recovered by the Commission.’’

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‘’Identify Avenues through which the recovered assets are dissipated and seized, recovered, forfeited (Interim and Final) assets are valued, managed, disposed and/or mismanaged with a view to ascertaining compliance or otherwise with extant laws, regulations, processes and procedures.’’

‘’Review the existing procedures on the Management of the seized, recovered and Forfeited assets (interim and final) and proffer Standard Operational Procedures for the management of seized, recovered and forfeited assets.’’

‘’Determine whether assets recovered during his tenure, whether locally in Nigeria or abroad, are being kept safely in a manner as to preserve their original value and determine: –

  • Whether all the assets could be properly accounted for by the Ag. Chairman.
  • To confirm if any of the assets have been diverted to the benefit of the Ag. Chairman, his family, relation, friends or favoured staff.
  • To recover any such diverted assets and return back to the EFCC or appropriate government agency.

The committee was also to probe and report on corruption and money laundering allegations based on petitions and intelligence reports, involving Magu and Bureau De Change operators as well as some of his associates.

It was to audit the Assets and Finances of the EFCC as a legal entity from 2015-2020, with a view to establishing compliance or otherwise with procurement procedures of the EFCC in line with the provisions of the Procurement Act.

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Real Estate and Construction

Tax on rents and Certificate of Occupancy is valid – Akabueze

FIRS had announced that stamp duty will be paid on house rent and C of O.

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The Director-General of the Budget Office of the Federation, Ben Akabueze, announced that the recent FIRS taxes on Certificate of Occupancy and rents is not new and has been around since the 1980s.

He disclosed this in the 2021-2023 Medium Term Expenditure Framework and Fiscal Strategy Paper (MTEF&FSP) on Friday, adding that ever since the 80s, his landlord had always given him a postage stamp on his rent receipts, and that the law was not just recognized for a long time.

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“Over time, because the culture of postage has dropped off and that was not being implemented. What FIRS has done now is to make that into electronic stamp that you can still use to comply with the existing law,” Akabueze said.

Last week, the Federal Inland Revenue Service (FIRS) announced that stamp duty will be paid on house rent and Certificate of Occupancy (C of O), in line with its new adhesive duty. The new duty was inaugurated in Abuja at the official inauguration of the Inter-Ministerial Committee on Audit and Recovery of Back Years Stamp Duties.

FIRS Director for Communication and Liaison Department, Mr Abdullahi Ahmad, said the new policy was necessary so as to give the instruments the legal backing required and make them legally binding on all parties involved in such transactions.

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Consequently, Ahmad asked Nigerians to ensure that documents that related to rent and lease agreements for homes or offices, C of O, and other common business-related transaction instruments were authenticated with the new FIRS Adhesive Stamp Duty.

He also advised Nigerians to make sure that any document related to leasing agreements and rents related to offices and homes, including C of O and other transaction instruments used in these seals were authenticated with the new FIRS Adhesive Stamp Duty.

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