Principales Valores aplicados a la educación

69 In the case of an individual other than an itinerant worker and

persons covered under paragraph (b) of subsection (1) of this section, tax for any year of assessment maybe collected only by the State in which the individual is deemed to be resident for that year under the provisions of the first schedule to this Act and in the case of persons referred to in subsection (1)(b) of this section, tax shall be collected by the Federal Board of Inland Revenue.

The confusion created by the wordings of the items D7 and D9 of the concurrent legislative list continues as series of interpretations have come up but is not ending. The controversy led to the imposition of taxes arbitrarily whether they possessed the powers or not relying on the delegated power as justification. The consequences of this is the prevalence of multiple taxation, double taxation and persistent litigation suffered by tax payers and tax authorities.

The only available remedy to the confusion and controversy is placing heavy reliance on the provisions of Taxes and Levies (Approved List for Collection) Act which made effort to streamline the taxes each tier of government should collect.

70 Notwithstanding anything contained in the Constitution of

the Federal Republic of Nigeria 1979, as amended or in any other enactment or law, the Federal Government, State and local government shall be responsible for collecting the taxes and levies listed in part I, part II and part III of the schedule of this Act respectively.

The effect of the letters of the Act as stated above suggests that the Act excludes the provisions of the constitution as it relates to taxing powers. The only answer to the wording of the Act above is to state that the Constitution is the supreme law of the land and cannot be subject to any other law. The only understanding of this misnomer is that the Act was promulgated as a Decree in a military dictatorship which has in its nature the tradition of suspending parts of the Constitution. The only problem is that in a democracy the parliament should have immediately after coming into session, modify the sections that are necessary and offending the Constitution and bring it into conformity with the provisions of the Constitution.²⁰⁶ Section 1(1) and (3) of the said Constitution declares and renders any provision of a law or Act that is inconsistent with its provisions null and void to the extent of its inconsistency with the Constitution. Section 1(1) of the said Act offends section 1(1) and (3) of the CFRN 1999 as amended and shall to the extent of its inconsistency be void. The only thing left is that the National Assembly should as a matter of serious concern repeal the offending provisions in the Act.

The Taxes and Levies (Approved list for collection) was enacted in substantial conformity with items 16, 25, 36, 39, 58, 59, 62 and 66 of the Exclusive Legislative List of the 1999 Constitution which enumerates the taxing powers of the Federal Government. Item D paragraph 7, 8, 9 and 10 of the Concurrent Legislative List of the 1999 Constitution set out

206 1999 Constitution of the Federal Republic of Nigeria, as amended, s. 315(1).

71 the concurrent powers of both the Federal and State Government to legislate. The fourth schedule to the CFRN1999 as amended sets out the tax matters within the legislative competence of the local government. The court has expressed that the Act is in conformity with the Constitution and same is in tandem with the decision in Knight, Frank &Rutley v.

A.G. (Kano State).²⁰⁷ There is over 55 taxes and levies listed by the Act and this necessitated some overlap leading to multiplicity of taxes. Multiplicity of taxes overburdens the taxpayer and such is counter-productive.

The Federal and some State governments are engaged in serious battle over who has the jurisdiction to impose tax despite the enumeration of the limits by the Act. In Hon.

Minister for Justice& Attorney-General of the Federation v. Attorney-General of Lagos State,²⁰⁸the Supreme Court held that the Federal Government lacks the constitutional vires to make law outside its legislative competence which by implication residual matters for the State House of Assembly on tourism. In Eko Hotels Ltd v. Attorney-General of Lagos State²⁰⁹ the Court held that imposition of Sales Tax and Value Added Tax at the same time would amount to double taxation. In AG Ogun State v. Aberuagba,²¹⁰ it was held that inter-state trade and commerce are left for the Federal Government while the intra state trade and commerce are within the residual jurisdiction of the state. In Institute of Human Rights &

Humanitarian Law v. Attorney-General, Rivers State &Ors,²¹¹ it was held that a State House of Assembly has no power to enact laws on taxes and levies outside Section 4 of the CFRN 1999 as amended and Part II of the Second Schedule to the Taxes and Levies (Approved List for Collection) Act. In AG Cross River v Ojua,²¹² it was held that State Government imposing levies outside Taxes and Levies (Approved List for Collection) Act was an usurpation of

207(1998) 7 NWLR (pt. 556) 1 at 37.

208(2013) 8 ALL NTC 425.

209(2004) 5 ALL NTC 267.

210(1985) 1NWLR (pt. 3) 395.

211(2013) 9 ALL NTC 1.

212(2010) 7 ALL NTC 167.

72 taxing powers of the local government. The conflicting decision of the Court of Appeal in UAC of Nigeria Plc &Ors v. AG Lagos State &Ors²¹³ is to the effect that the court has not resolved the issue. The court held:

The Lagos State structures for signage and advertisement law was made for the control and regulation of outdoor advertisement is constitutional. The constitution does not prohibit states from performing the functions assigned to the Local Government under the Constitution.

The Court of Appeal decision was made despite that the same court maintained that signage and advertisement are functions assigned to the Local Government by the Constitution of the Federal Republic of Nigeria 1999. This decision was based on the Taxes and Levies (Approved List for Collection) Act (Amendment) Order 2015 which on its own existence is affected by same vice. This conflict will persist as some states²¹⁴ have also enacted laws usurping the functions assigned to the Local Government. Local Governments have been notorious for imposing several other levies outside the law.²¹⁵ In Fast Forward Sports Marketing Company Ltd v The Port-Harcourt City Local Government Area²¹⁶ it was held that the imposition of Agricultural Development Levy and Economic Development Levies by a local government amounts to double taxation. The imposition of corporate permit levy and frozen shop operational license by local government was declared illegal in Eti-osa Local Government v. Mr. Rufus Jegede & Anor.²¹⁷

213(2008) 6 ALL NTC.

214 The Anambra State Signage and Advertisement Agency Law, 2010, S. 5(1) established an Agency whose functions include to manage and control outdoor structures to be used for signage and advertisement.

215J AAgbonika, Problems of Personal Income Tax, op. cit. p. 220.

216(2010) 7 ALL NTC 183.

217(2007) 6 ALL NTC 251; Mr. Rufus Jegede & Anor v. Eti-osa Local Government 5 ALL NTC 31.

73 It is also to be identified that there is a concentration of revenue imposition and collection on the Federal Government. This is a violation of the principles of federalism²¹⁸ which abhors overconcentration of fiscal powers at the center. This has led to the confusion experienced in the tax administration in Nigeria as some states maintained status quo that was in operation during the military, however, some have adjusted in conformity with the provisions of the CFRN 1999 as amended as experienced in some of the cases cited above.

The only option is that the said Constitution should be further amended in line with the provisions of the Taxes and Levies (Approved List for Collection) Act. It is hoped that this amendment will salvage the situation.