TAT RULES ON VARIOUS TAXES IN THE CASE BETWEEN FIRS AND MCKINSEY AND COMPANY
On 17 November 2022, the Tax Appeal Tribunal (TAT or “the Tribunal”) handed a decision in the tax appeal brought by MCKINSEY & COMPANY NIG GLOBAL LIMITED (“the Appellant”) against the Federal Inland Revenue Service (FIRS or “the Respondent”). The issues were based on VAT on the lease, VAT on reimbursement, VAT on medical supplies, WHT rate on securities services, NOTAP, and so on.
BRIEF OF THE CASE
In a letter dated April 6, 2018, the Respondent imposed an additional assessment of NGN1,468,691,542 (One Billion, Four Hundred and Sixty-Eight Million, Six Hundred and Ninety-One Thousand, Five Hundred and Forty-Two Naira) for the 2016 year of assessment. They assessed the Appellant for NGN821,897,100 (Eight Hundred and Twenty-One Million, Eight Hundred and Ninety-Three Thousand, One Hundred and Forty Naira) as its Company Income Tax (CIT) liability, NGN54,793,140 (Fifty-Four Million, Seven Hundred and Ninety-Three Thousand, One Hundred and Forty Naira) as its Education Tax (EDT) liability, and NGN159,905,829 as Withholding Tax (WHT) liability and NGN432,095,473 as Value Added Tax (VAT) Liability.
The Appellant objected to many components of the Respondent’s evaluation in a letter dated May 10, 2018. In response, the Respondent reiterated its position in a letter dated June 2, 2018, and demanded that the Appellant obtain approval from the National Office of Technology Acquisition and Promotion (NOTAP) or the Minister of Finance. The parties met for a reconciliation meeting on August 6, 2018, after which the Appellant provided additional papers via letter dated August 8, 2018, to assist the Respondent with an understanding of the Appellant’s objection. In response, the Respondent, in a letter dated August 15, 2018, amended liability and assessed the Appellant to additional tax in the sum of NGN183,424,628 (One Hundred and Eighty-Three Million, Four Hundred and Twenty-Four Thousand, Six Hundred and Twenty-Eight Naira).
In a letter dated October 4, 2018, the Respondent demanded payment from the Appellant for the purported increased tax due for the assessment year of 2016 in the amount of NGN183,424,628 (One Hundred and Eighty-Three Million, Four Hundred and Twenty-Four Thousand, Six Hundred and Eighty-Eight Naira). In a letter dated November 4, 2018, and sent to the respondent that same day, the appellant protested the demand notice through its tax advisor. However, the Respondent rejected the Appellant’s concerns and reiterated its Reassessment Notice in its Notice of Refusal to Amend (NORA), dated the l8 day of November 2018, and delivered to the Appellant on the 3rd day of December 2018.
The Appellant, who was not pleased with the outcome, filed a Notice of Appeal on December 31, 2018, asking for the Honorable Tribunal’s orders to set aside the Demand Notice, including the interest and penalties.
ISSUES FOR DETERMINATION
1. Whether the Appellant is liable to pay additional CIT and EDT with respect to wholly, reasonably, exclusively, and necessary expenses incurred for services required by the Appellant.
2. Whether the Appellant is liable to remit WHT at the rate of 5% with respect to security services.
3. Whether the Appellant is liable to pay VAT with respect to lease rentals.
4. Whether the Appellant is liable to pay VAT on supplies received from outside the Country.
5. Whether the Appellant is liable to pay VAT with respect to supplies to organizations providing medical support services.
6. Whether the Appellant is liable to pay VAT on the reimbursable expenses incurred on behalf of its clients.
7. Whether the Appellant is liable to pay interest and penalties.
JUDGEMENTS OF THE TAX APPEAL TRIBUNAL
1. Whether the Appellant is liable to pay additional CIT and EDT with respect to wholly, reasonably, exclusively, and necessary expenses incurred for services required by the Appellant.
”This Honourable Tribunal had held in the case of MTN Nigeria Communications Plc v Federal Inland Revenue Service Appeal No:TAT/LZ/CIT/001/2018 that these requirements are cumulative. In that case, it was held that even though the disputed sum was incurred wholly, exclusively and reasonably in the circumstances because it was paid to, inter alia, save MTN’s business], the payment did not meet the test of necessity because it was not unavoidable or inevitable. The Tribunal emphasized that the WREN Test is cumulative. In addition to the above requirement of the WREN, Section 27(g) of CITA, also provides that no deduction shall be allowed for the purpose of ascertaining the profits of any company in respect of any expense of any description incurred within or outside Nigeria for the pu{pose of earning Management Fee unless prior approval of the agreement giving rise to such management fee has been obtained from the Minister in addition to the expenses being WREN to the taxpayer s business. Equally, Section 4(d) of NOTAP requires that agreements or contracts having an effect in Nigeria for the transfer of foreign technology to Nigeria party shall be registrable if its purpose or intent is wholly or partially in connection with any of the purposes so mentioned. These purposes include amongst others technical expertise and assistance, supply of machinery and plants, training of personnel. In addition, it is clear that the Management and Support Services were to be supplied to the Appellant which therefore necessarily require the registration approval of the same as contemplated by the provisions of the laws cited above. At the trial, it was clear that such approval was never obtained as required by the law. Failure of the Appellant to so obtain the approval gives rise to consequences as stated in Section 7 of NOTAP Act. Accordingly, the Respondent was right in disallowing all payments made subsequent to Exhibit Al and A9 for the failure of the Appellant to register the agreement. Therefore, the Appellant is liable to pay additional CIT and EDT.”
2. Whether the Appellant is liable to remit WHT at the rate of 5% with respect to security services.
”The Federal Inland Revenue Service Information Circular No. 2009t01of July 2009 provides for explanatory comments on WHT principle, operation, and definition of terms and collection procedure for WHT. This circular seeks to clarify the definition of “transactions or sales in the ordinary course of business” and also clarify the types of contracts which are subject to WHT. Haven reviewed the arguments of the Respondent, the Appellant and the FIRS Information Circular copiously quoted above, this Honourable Tribunal is persuaded by the arguments of the”Appellant and therefore rules that, the security services provided to the Appellant do not amount to professional services. To that extent, we, therefore, decide that the applicable WHT rate for security services, in this case, is 5%, being a contract of service”
3. Whether the Appellant is liable to pay VAT with respect to lease rentals.
”It concluded that rent derived from the lease of real properties, whether for residential or commercial purposes, is not a supply of goods or services and is therefore not liable to VAT.
4. Whether the Appellant is liable to pay VAT on supplies received from outside the Country.
”The Appellant is liable to pay VAT on supplies received from McKinsey US which is a non-resident company in Nigeria”
5. Whether the Appellant is liable to pay VAT with respect to supplies to organizations providing medical support services.
The First Schedule to the VAT Act has listed goods that are tax-exempt, and Medical and Pharmaceutical products are part of the items so listed. It, therefore, follows that supplies to organizations providing medical and support services fall within this category and as such, are tax-exempt. The Appellant is therefore not liable to pay the VAT with respect to those supplies.
6. Whether the Appellant is liable to pay VAT on the reimbursable expenses incurred on behalf of its clients.
”When an organization incurs incidental cost while supplying goods and/or services to its customers or clients and later charges it to them, such costs are not disbursements. As these expenses are utllized or consumed by the supplier in the process of supplying the goods and services, these expenses will be treated as reimbursement and VAT will not apply on them. If, however, there is the markup on the reimbursement, then the markup will be considered as a gain and will, therefore, be liable to VAT. It is our considered decision that the Appellant is not liable to pay VAT on the reimbursable expenses incurred on behalf of their clients, except if it is established that there was an element of markup in the reimbursement ”
7. Whether the Appellant is liable to pay interest and penalties.
”By the provisions of Section 82 of CITA, any person who is obliged to deduct any tax fails to deduct, or having deducted fails to pay within twenty-one days from the date the amount was deducted or the time the duty to deduct arose, shall be guilty of an offense and shall be liable to a penalty. Equally, in Sections 19 and 34 of the VAT Act, if a taxable person does not remit the tax within the time specified penalty and interest shall apply. The same penalty and interest are provided for in Section 32 of FlRS(Establishment) Act 2007 where tax is not paid as at when due. Therefore, the Appellant is liable to pay penalties and interest for the default.”