Lagos tax tribunal orders MTN to pay $72.5m

• This decision was made by a five-person panel led by Professor A. B. Hamed in an appeal marked as TAT/LZ/VAT/075, which was filed by the telecommunications firm in response to the FIRS’s demand for the outstanding tax

The Lagos State division of the Tax Appeal Tribunal has ruled that MTN Nigeria Communications must pay $72,551,059 in back taxes to the Federal Inland Revenue Service for the period from 2007 to 2017. However, the tribunal has exempted the telecommunications company from paying $21,039,807 in penalties and interest on the principal amount.

This decision was made by a five-person panel led by Professor A. B. Hamed in an appeal marked as TAT/LZ/VAT/075, which was filed by the telecommunications firm in response to the FIRS’s demand for the outstanding tax.

According to the documents submitted during the appeal, the Attorney General of the Federation’s office had conducted an investigation into MTN’s Forms A and M transactions in May 2018, covering the accounting years from 2007 to 2017. A revised report in August 2018 adjusted the alleged outstanding amount for import duty and VAT to N242.2 billion (Form M – visible transactions) and $1.284 billion (Form A – invisible transactions) for VAT and Withholding Tax (WHT).

In July 2021, the FIRS issued a VAT assessment of $93,590,366 million to MTN, consisting of $72,551,059 million as the principal liability and $21,039,807 million for penalties and interest on the principal sum (initial assessment).

MTN objected to the first assessment, after which the FIRS further reviewed the evaluation.

Accordingly, by the Notice of Assessment dated April 14, 2022, the Respondent issued a revised assessment for US $135,697,755m to MTN as a revised assessment.

Although the principal amount of tax alleged to be outstanding and due from the Appellant (principal tax liability) in the revised assessment, i.e. $47, 776, 210 million, was less than the alleged principal tax liability contained in the first assessment, i.e., $72,551,059 million, the interest and penalty imposed by the FIRS on the alleged principal tax liability in the revised assessment, i.e. $87.900 million, is higher than the interest and penalty imposed by the FIRS on the alleged principal tax liability in the first assessment, i.e., US $21, 039,807 million.

Also, by a letter of notice of objection dated May 13, 2022, MTN objected to the FIRS’s revised assessment, and FIRS, by a letter dated June 16, with ref. No. FIRS/TID/LOS/2020/0213/01 notified the MTN of its refusal to amend the revised assessment.

The Tribunal, following a consideration of all the processes filed by parties and citing a plethora of authorities, held that: “In the final analysis, it is the decision of the Tribunal that issues one to four discussed above are all resolved in favour of the Respondent, and the Appellant is therefore ordered to settle the assessed liabilities accordingly.

“However, issue five concerning penalty and interest is resolved in favour of the Appellant and is therefore set aside by this Honourable Tribunal. This is our Judgement.”