GET CTC OF THIS JUDGMENT


IN THE TAX APPEAL TRIBUNAL

SOUTH-SOUTH ZONE

HOLDEN AT BENIN

 

APPEAL No.: TAT/SSZ/011/2023

BETWEEN:

BAYELSA STATE BOARD OF INTERNAL REVENUE             APPELLANT

AND

MI NIGERIA LIMITED                                                                               RESPONDENT

 

BEFORE:

PROF. OBEHI A. ODIASE-ALEGIMENLEN                    CHAIRMAN

DR DAVID ALA-PETERS                                                   COMMISSIONER

MRS HILDA OFURE OZOH                                               COMMISSIONER

MR VITALIS FRIDAY AJOKU                                           COMMISSIONER

PROF. OLATUNDE JULIUS OTUSANYA                        COMMISSIONER

                                                                                                WEDNESDAY 24TH APRIL 2024

JUDGEMENT

This Appeal is brought before the Tax Appeal Tribunal (South-South Zone Sitting in Benin), dated and filed on 09/01/2023 in Suit No. TAT/SSZ/011/2023.

 

BRIEF FACTS

The Appellant is a body corporate established by the Bayelsa State Board of Internal Revenue Law CAP B2 Laws of Bayelsa State, 2006 and is charged with the responsibility, amongst others, with the collection of all taxes, fees, levies and penalties due to the Government of Bayelsa State; and the administration of the relevant tax laws in Bayelsa State as provided for in the Personal Income Tax Act (PITA) 2011 (as Amended) while the Respondent is a corporate body registered with the Corporate Affairs Commission that is engaged in providing innovative drilling fluid engineers and developing drilling fluid systems and additives to oil and gas operators

 

The Appellant being dissatisfied with the Respondent’s failure/refusal to file and pay the revised assessed tax liability in the sum of ₦5,472,000.00 (Five Million, Four Hundred and Seventy Two Thousand Naira only) in respect of PAYE and Bayelsa State Infrastructural Maintenance Levy, appealed to the Tax Appeal Tribunal, South South Zone upon the grounds set out as follows:

i.              The Respondent has failed, refused and/or neglected to file and pay its Pay-As-You-Earn taxes of its staff whose principal place of residence is in Bayelsa State.

 

ii.           Consequent upon such failure, an administrative assessment of ₦5,472,000.00 (Five Million, Four Hundred and Seventy Two Thousand Naira only) being unremitted taxes (PAYE) for the period of March 2021 and December 2021 is outstanding and has become a debt owned by the Respondent to the Bayelsa State Government.

iii.         The respondent has failed, refused and/or neglected to pay the assessed liabilities despite letters of notifications, demand notices, letter of invitation and report of administrative assessment.

 

Consequently, the Appellant sought the following reliefs from this Honorable Tribunal.

(a) AN ORDER OF THIS TRIBUNAL that the Respondent is indebted to the Appellant in the sum of ₦5,472,000.00 (Five Million, Four Hundred and Seventy Two Thousand Naira only) being unremitted PAYE of its Staff and Bayelsa State Infrastructural Maintenance Levy in accordance with Section 1(b) and (d) of the First Schedule to Personal Income Tax Act (Amendment) 2011 and Bayelsa State Infrastructural Maintenance Levy Law 2003.

(b)AN ORDER directing the Respondent to pay to the Appellant the sum of ₦5,472,000.00 (Five Million, Four Hundred and Seventy Two Thousand Naira only) being the assessed tax liability for March 2021 and December 2021 due the Appellant in accordance with the relevant tax legislations.

(c) AN ORDER demanding the Respondent to file its tax returns with the Appellant as prescribed by law.

(d)A declaration that the Respondent is liable to file returns and remit its P.A.Y.E. liabilities in accordance with Sections 81(2) and 82 of the Personal Income Tax Act 2011 (as amended).

(e) A  declaration that the failure, refusal and/or neglect of the Respondent to deduct and remit its P.A.Y.E of its staff is in breach of Sections 81 and 82 of the Personal Income Tax Act 2011 (as amended).

(f)  A declaration that the failure, refusal and/or neglect of the Respondent to file Tax returns and/or pay its tax as at when due amounts to tax evasion punishable under Section 94 of the Personal Income Tax Act (as amended).

(g) Cost of this action – N1,000,000.00 (One Million Naira) only.

(h)And for such further order or other orders as this Honourable Tribunal may deem fit to make in the circumstance.

 

The Respondent being served with the processes in this suit, filed a Respondent reply acknowledging receipt of the Notice of Appeal. This response was dated 3rd March 2023 and filed on the same day stating its reasons for contesting this Appeal as follows:

 

(a) The demand for the alleged unpaid Pay as You Earn (PAYE)  tax issued by the Appellant vide its demand letter dated 18th December 2020 for March 2020 to December 2020 and the Administrative Assessment for March 2021 to December 2021 in the sum of ₦5,472,000.00 (Five Million, Four Hundred and Seventy Two Thousand Naira only) and contained in the Appellant’s letter dated 24th January 2022 are null and void because of the fact that the Respondent employees mentioned in the Appellant letters were not tax resident in Bayelsa State and consequently, are not subject to personal income tax in Bayelsa State.

(b) The applicable PAYE taxes of the Respondent employees mentioned in the Appellant’s letters for the years 2020 and 2021 respectively have been deducted by the Respondent and remitted to Rivers and Lagos State where the affected employees reside

(c) The Appellant lacks the powers to levy PAYE tax on persons who are not tax resident in Bayelsa State.

 

Trial in this matter commenced on 17TH APRIL 2023 with the Appellant opening its case where Appellant called its sole witness, Mr. Ransome Parode Omukoro, its Technical Tax Adviser who testified as AW1. He adopted his Written Statement on Oath sworn 9th January 2023 and tendered Eight (8) Exhibits (Exhibit BYS 1- BYS 8).  At the close of his Evidence in Chief, he was cross-examined by the Respondent and the matter was adjourned to Wednesday the 24th of May, 2023 for defence. The Respondent opened its defence on WEDNESDAY 21st June, 2023 by calling its first witness (RW1), Mrs Data Maureen Moore who tendered Four (4) Exhibits, (Exhibit MIS 1 to MIS 4) and was fully cross-examined. Pursuant to an order by this Tribunal on the 15th November 2023, the Notice of Appeal was amended, by amending the Respondent name from MI SWACO to MI Nigeria Limited. On 16th November 2023, the Respondent second witness, Mrs Teninlanimi Arowosegbe (RW2) adopted her witness statement on Oath sworn on 1st November 2023. She tendered four (4) Exhibits (Exhibit MIS 5 to Exhibit MIS 8) and was also dully cross examined. At the close of the cross-examination of RW2, Respondent closed its case on the 13th November, 2023 and this Honourable Tribunal adjourned the matter to the 24th day of January, 2024 for the Adoption of Final Written Address. Both parties adopted their Final Written Addresses on Wednesday 13th March 2024 and the matter was then adjourned to today Wednesday 24th April, 2024 for Judgement.

 

ISSUES FOR DETERMINATION

Respondent Counsel, Chisom Ndubuisi, in his Final Written Address dated 19th December 2023, postulated two (2) Issues for determination as follows:

(1) Whether having regard to the testimony of the parties and evidence tendered, the Appellant is entitled to receive pay-as-you-earn (PAYE) tax for March to December 2021 from the Respondent; and

 

(2) Whether having regard to the testimony of the parties and evidence tendered, the Appellant is entitled to any of the reliefs sought in this Appeal

 

The Appellant Lead Counsel, I. M. Beinbein ESQ, after being served with the Respondent Final Written Address, also formulated two Issues for determination in his Final Written Address dated 13th February 2024 which are:

(1)              Whether the Administrative Assessment carried on by the Appellant on the Respondent            for PAYE and other taxes is proper?

(2)              Whether the Appellant has adduced credible evidence to be entitled to judgement?

 

After listening to the witnesses in this matter and evaluating the evidence tendered and arguments canvassed by their Counsel, the Tribunal is of the opinion that the cardinal issue that calls for determination in this matter is:

 Whether the Appellant has proved Its Case as required by Law to be entitled to the             judgement of this Tribunal?

DETERMINATION OF THE ISSUE

 Whether the Appellant has proved Its Case as required by Law to be entitled to the             judgement of this tribunal?

It is the Appellant case that the Respondent has failed, refused and/or neglected to file tax returns and pay its pay-as-you-earn taxes and Bayelsa Infrastructure Maintenance Levy (BIM) for some of its personnel deployed onboard Respect Rig in Ogboinbiri, Southern Ijaw Local Government Area of Bayelsa State. Consequently upon such failure, the Appellant raised an Administrative Assessment of ₦5,472,000.00 (Five Million, Four Hundred and Seventy Two Thousand Naira only) on the Respondent. In opposition, the Respondent argued that as part of Respondent operations, some of its employees sometimes go on board oil drilling platforms, rigs and boats for a very short period. That in 2020 and 2021, the affected Employees were deployed to the OES RESPECT RIG for less than two weeks to execute a project. That the affected Employee neither resides in Bayelsa nor work in Bayelsa State on a permanent basis. That all the affected staff resides in Rivers State and Lagos State respectively and therefore all applicable tax obligations regarding the deduction and remittance of PAYE of these staff for 2020 and 2021 has been remitted to Rivers and Lagos tax authorities. From these arguments by the parties, it is obvious that the bone of contention is whether the personnel deployed by the Respondent to work on the OES RESPECT RIG actually worked on the rig for the number of days to qualify as Itinerant Workers.

 

Section (1A) of PITA 2011(as amended) states that notwithstanding anything in the Principal Act, the relevant tax authority in a State shall have powers to collect tax under this Act from itinerant workers. Section 108 of PITA 2011(as amended) defined “itinerant worker” to include

an individual irrespective of his status who works at any time in any state during a      year of assessment (other than as a member of the armed forces) for wages, salaries      or livelihood by working more than one State and work for a minimum of twenty (20)        days in at least three (3) months of every assessment year.

 

Section 3 of PITA 2011(as amended) referring on Persons whom tax is to be collected provides as follows:

In the case of an itinerant worker, tax may be collected for any year by any State in      which the itinerant worker is found during the year: Provided that— (a) in an           assessment for any year upon an itinerant worker credit shall be given against the tax        payable, but not exceeding the amount thereof, for any income tax already paid by       him to any other tax authority for the same year; and (b) collection of so much of any          tax imposed in a territory on an itinerant worker for a year of assessment as remains       unpaid on the itinerant worker leaving that territory during that year shall remain in       abeyance during his absence from that territory, and if he returns to that territory             having during his absence paid tax in some other territory for that year, credit shall     be given against any unpaid tax in the first-mentioned territory, but not exceeding that    unpaid amount, for the tax paid in that other territory’’

 

A combined reading of the above provisions will reveal that an itinerant worker can be in two different tax jurisdiction in a particular Year of Assessment and once a taxable person, individual or Company operates in the territory of a Tax Authority, that Tax Authority has become a Relevant Tax Authority, notwithstanding whether or not that individual or business will eventually be liable to tax or not as provided in Section 108 of PITA 2011(as amended) and Section 3 of PITA 2011(as amended). Whether or not the taxpayer who is eventually found in the territory of a relevant tax authority will pay tax to that authority or not, will be determined by that Relevant Tax Authority based on information and documents at their disposal and as provided by PITA 2011(as amended). This information is to be made available by the taxpayer to the tax authority. In this case, how can the relevant tax authority determine whether such Respondent worker worked in the OES RESPECT RIG for just the 2 weeks as stated by the Respondent or worked more than 60 days as provided by the law, if this information is not made available by the Respondent. Through the length and breath of the Respondent’s defense in this case, the Respondent didn’t exhibits valid evidence to support their claim that the affected workers did not work more than 2 weeks in Bayelsa State. (see Exhibits MIS 1-8).

 

In addition, the Appellant Counsel during cross examination confronted the Respondents Witness with the following questions:

Appellant: Do you know the use of time sheet for IOC (International Oil Company)?

RW1: Yes, I do.

Appellant: You did not attach the time sheet of employees earlier mentioned that is correct?

RW1: Yes, that is correct.

Appellant: You did not also frontload the payroll schedules of these workers; that is correct?

RW1: That’s correct, but we attached the evidence of tax clearance certificate of the employees to show that PAYE was duly deducted by the company and remitted to the Employees State of Resident.

It is trite law, that when a party who is in possession to produce evidence, and fails to do so, it is deemed that his failure to produce same is an intended act because the evidence if so produced will be adverse to its case. See the case of OGUNNIYI V HON. MINISTER OF FCT & ANOR (2014) LPELR-23164(CA)

 

Section 46 of PITA 2011 (as amended) gives Power to the Relevant Tax Authority to call for further returns as provided:

The relevant authority may give notice in writing to a person when and as often as it    thinks necessary requiring him to deliver within a reasonable time limited by such        notice fuller or further returns respecting any matter as to which a return is required         or prescribed by this Act.

 

Section 47 of PITA 2011 (as amended) further empowers the Tax Authority to call for returns, books, documents and information as follows:

(1)              For the purpose of obtaining full information in respect of the income or gain of a person, the relevant tax authority may give notice to the person requiring him, within the time limited by the notice, to—

(a) complete and deliver to the relevant tax authority, any return specified in the notice;

(b)  attend personally before an officer of the relevant tax authority for examination with respect to any matter relating to such income gains;

(c)  produce or cause to be produced for examination at the place and time stated in the notice which time may be from day to day for such period as the relevant tax authority may consider necessary, for the purpose of the examination of any book, document, account and return which the relevant tax authority may deem necessary; or

(d)  give orally or in writing any other information including a name and address specified in the notice

(2)              For the purpose of subsection (1) (a) to (d) of this section, the time limited by a notice shall not be less than seven days from the date of service of the notice, so             however that an officer of the relevant tax authority not below the rank of a              Chief   Inspector of Taxes may act in any of the cases Personal Income Tax Act            stipulated in subsection (1) (c) or (d) of this section, without giving any of the             required notices set out in this section.

 

Exhibit BYS 1-8, shows that Appellant wrote to Respondent demanding for taxes after discovering that the Respondent is carrying out Economic Activities in its territory. Respondent did not respond to these letters neither did it object to the Assessment or file its Returns and provide information on their activities in the OES RESPECT RIG. Section 54(3) of PITA 2011 (as amended) provides that:

Where a taxable person has not delivered a return within the time allowed and the                   relevant tax authority is of opinion that tax is chargeable on that person, the relevant tax authority may, according to the best of its judgement, determine the amount of the       assessable, total or chargeable income and make an assessment accordingly, but that         assessment shall not affect any liability otherwise incurred by such person by reason     of his failure or neglect to deliver a return.

A combined reading of Section 47 & 54(3) of PITA 2011 as Amended, reveals that if a taxpayer did not file its Return to the Tax Authority as required or refuse to furnish the Tax Authority with available documents as requested, the Tax Authority has the power to resort to a Best of Judgement Assessment.

Moreover, Section 58(1) of PITA 2011(as amended) states that any assessment that has not been dully objected to within the stipulated 30 days period has become final and conclusive.

 

The records of proceedings in part states;

Appellant:  Mrs. Please take a look at Exhibit BYS1A &B, BYS2A&B, BYS3, BYS4A&B, BYS5A&B, BYS6A&B, BYS7A&B and BYS8A&B. The Respondent is duly served on its demand notice; that is correct?

RW1: Yes, I can see they were served on us.

Appellant: She affirms that we actually served it.

Appellant: Upon the receipt of the Exhibit BYS1-8, the Respondent did not respond to any of these demand notices; that is correct?

RW1: Yes, that is correct because we have no employee resident in Bayelsa State.

Therefore, in our opinion, the window statutorily given to the Respondent to respond to the Administrative Assessment elapsed long before the Appellant even approached the Tribunal, and thus is statute barred and the Assessment has become Final and Conclusive. See the cases FIRS V Oba International Services Ltd, All Nigerian Tax Cases, Vol. 11, page 400; FIRS V Nigeria Services and Supply Ltd, All Nigerian Tax Cases, Vol. 11, page 390; FBIR V Manila Industrial Security Services Ltd, All Nigerian Tax Cases, Vol. 2, Page 62.

It is trite law that equity aids the vigilant not the indolent. See the cases of AJAYI V. OSUNUKU & ORS (2008) LPELR-8332 (CA), AG RIVERS STATE V. UDE & ORS  (2006) LPELR-626 (SC). We are aware of the reason put forward by the Respondent for not responding to any of the Appellants letters that the workers deployed to the OES RESPECT RIG in Bayelsa State did work there only for two weeks. It is our opinion that the Respondent should have been vigilant enough to know that once its workers are deployed to the Appellant territory, it’s lawful for the Appellant to call for records and information concerning those staff. And it’s the duty of the Respondent to furnish the Appellant with the required documents such as time sheet etc to show that such Employees did not work in that territory for more than two weeks as is been claimed. Ignoring the Appellant does not help its case because it is trite law that a party who is in possession to produce evidence but fails to do so, it is deemed that his failure to produce same is an intended act because the evidence if so produced will be adverse to its case. See the case of OGUNNIYI V HON. MINISTER OF FCT & ANOR Supra

In our opinion, there is merit in the Appellant claim and judgement is hereby entered in favour of the Appellant.

 

The Tribunal hereby orders as follows:

(1) that the Respondent to pay to the Appellant the sum of   ₦5,472,000.00 (Five Million, Four Hundred and Seventy Two Thousand Naira only) being the assessed tax liability for March 2021 to December 2021 due to the Appellant in accordance with the relevant tax legislation.

 

(2) There is no order as to cost

 

 

Dated this __         24th _____ day of __       April____ 2024.

 

Signed:

 

Hon. Prof. Obehi Adetokunbo Odiase-Alegimenlen                                                                                        Chairman

 

 

Hon Dr. Ala-Peters David                          Hon. Mrs. Hilda Ofure Ozoh   

 Member                                                                                Member

 

 

 Hon. Barr. Ajoku Vitalis Friday                                         Hon. Bar Vitalis Friday Ajoku                         Hon. Prof. Olatunde Julius Otusanya

              Member                                                                              Member                                                                  Member

 

 

 

APPEARANCES:

I. M. Bein Bein with B. E. Cocodia            -                       Appellant

Chisom Ndubuisi                                         -                       Respondent

 

 




CLICK HERE TO READ THE FULL JUDGEMENT