The Legal Concept of Tax Evasion and Avoidance: a Proposal for an Effective Tax Compliance Regime

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Tax law concept. Word TAX with wooden letters with gavel and money on the table.

By Anoruo Nneoma Mediatrix

INTRODUCTION:

The concept of taxation has been a concern of global significance from time immemorial, it is as important to any government as air is to man. It was the practice of imposing levies on members of the community for the development of the community. The history of taxation in Nigeria has shown that it is a fundamental way for countries to generate public revenue as it ensures investment in human capital, infrastructure, and provision of services for citizens and businesses. This article is an introduction to taxation principles in Nigeria and will discuss what taxation is, how it works, the types of tax, the principles of tax evasion and avoidance, incentives and exemptions available to tax payers.

CONCEPT OF TAXATION IN NIGERIA

“To some, tax is the Shepherd they don’t want; It maketh them lie down in the greatest anxiety; It leadeth them beside the still factories; It disturbeth their soul on the path of financial destruction; Yeah, though they walk through the valley of sadness; They anticipate no recovery, for taxes are with them; Tax officials and their offices, they frighten them; Their expenses runneth over”

PROFESSOR C.S OLA.[i]

 DEFINITIONS

Section 24(f) of the 1999 Constitution as amended, provides as follows:

“It is the duty of every citizen to declare his income honestly to appropriate and lawful agencies and pay his tax promptly”.[ii]

The above position has been judicially interpreted in the case of INDEPENDENT TELEVISION/RADIO v E.S.B.I.R[iii]

“Failure of any citizen to pay his tax strips him off the protection afforded” by sec   44(1) (2) (a) of the 1999 Constitution as amended.”

According to Omotoso (2001), in his definition of the modern taxes, defined tax as a compulsory charge imposed by a public authority on the income of individuals and companies as stipulated by the government decrees, acts or cases laws irrespective of the exact amount of services rendered to the payer in return.[iv]

In the same vein, Daniel Defoe, in his book, The Political History of the Devil stated that ”Things as certain as death and taxes can be more firmly believed”. [v]

A modest definition was given by Mr. Justice Roberts in the American case of United States v Butler (297 US.1. 1936 at 61), as follows:[vi]

“a tax, in the general understanding of the term, and as used in the Constitution signifies an extraction for the support of the Government”

The Court in MATHEW v CHICORY MARKETING BOARD [vii], defined tax as a compulsory extraction of money by a public authority for a public purpose or raising money for administering the government budget by employing contributions from individual persons.

As could be gleaned from the above definitions, a tax is not therefore a voluntary payment; it is a compulsory pecuniary burden placed upon the subjects of a given country to support the people. Therefore, taxes are the lifeblood of a government.

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FEATURES OF TAX

  1. Tax is a compulsory payment.
  2. Money realized from tax is for the general good of all.
  3. Tax is charged irrespective of the exact amount of services rendered.

DEFINITION OF TAX AVOIDANCE AND TAX EVASION

Tax avoidance and evasion are forms of tax non-compliance, the distinction lies in the legality of avoidance and illegality of evasion[viii].

The above is further reiterated in the case of 7UP BOTTLING COMPANY PLC v LIRS (2000) 3NWLR (Pt 650) 565 at 591 paras H-A, where it was stated that tax avoidance is legal and evasion is illegal, furthermore, it provides thus:

It has often been the view of the courts here and elsewhere that if a person sought to    be taxed, comes within the letter of the law, then such a person must be taxed, on the other hand, if the tax authority is seeking to recover tax from a person, is unable to bring him within the letter of the law, the person will be free, however apparently within the spirit of law, his case ought to otherwise appear to be”[ix]

  TAX AVOIDANCE

This is any legal method used by a taxpayer to minimize the amount of income tax owed. Tax avoidance arises in a situation where  the taxpayer arranges his affairs in  a way that would make him pay the least possible amount of tax without infringing the legal rules.[x]

(Tax avoidance as defined by Aim and Martinez (2001) is the legal reduction in tax liabilities by practices that take full advantage of the tax code, such as income splitting, postponement of taxes and tax arbitrage across incomes that face different treatments (Aim and Martinez, 2001; Eboziegbe, 2007).[xi]

Professor Wheat Craft observed that tax avoidance is an art of winning games without actually cheating; thereby beating the internal revenue and the government to their own game.

The ruling in the English case of AYRSHIRE PULLMAN MOTOR SERVICE & RITCHIE V COMMISSIONERS OF INTERNAL REVENUE, justifies the legality of tax avoidance, it emphasizes the fairness or Justice in permitting a citizen to be clever in the depletion of his income or in taking advantage of tax law just as the tax administrative body is allowed to take advantage under the tax law to deplete the tax payer’s income. Lord Clyde remarked:

“No man in this country is under the smallest obligation, moral or otherwise so to arrange his legal relation to his business or to his property as to enable the Inland Revenue to put the largest possible shovel into his stores. The Inland Revenue is not slow and quite rightly to take every advantage, which is open to it under the taxing statuses for the purpose of depleting the tax payer’s pocket and the tax payer is, in like manner, entitled to be astute to prevent, so far as he honestly can, the depletion of his means by the Revenue.”[xii]

Examples: claiming the child’s tax credit, putting money in a health savings account, submitting claims for the expenses in earning the income, thereby reducing the income to be taxed  .

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TAX EVASION 

This is when a person or company escapes paying tax illegality, this can be achieved by concealing the true state of their affairs to tax authorities.

Tax evasion is defined by Aim and Martinez–Vazquez (2001) as a deliberate and willingly practice of not disclosing complete taxable income in other to pay lesser tax, This means that tax evasion is illegal in the eyes of the law.[xiii]

Kiabel  and Nwokah(2009) posit that tax evasion is the fraudulent, dishonest, intention concealment of facts and figures in other to avoid or reduce tax payable.

This is an intentional violation of tax law and it is evident, for instance, where tax liability is fraudulently reduced, it can result in problems that could affect the economic development of a country.

This was the case in INDEPENDENT TELEVISION/ RADIO v E.S.B.I.R (2014) LCN\7241 (CA) where the defaulter failed to render a tax return to the relevant tax authority.

Examples: false claims of contribution to a pension scheme, deliberate misrepresentation of mental facts, and filing fraudulent tax returns, under reporting income, deliberately underpaying taxes.

Tax evasion is a criminal offence and one can be fined or imprisoned, tax evasion in Nigeria is punishable under Sec 40 of the Federal Inland Revenue Service Act. In addition to this, it is a criminal offence under Sec 41 of the Federal Inland Revenue Service Act to hinder or assault any authorized tax officer in the performance of his duties; anyone found guilty of this can be liable to a punishment of 3 years imprisonment.

The company Income Tax Act (CITA) also makes provisions for the offences and penalties of evading tax.

CAUSES OF TAX EVASION AND AVOIDANCE

The causes of tax evasion and avoidance could range from corruption in public office, inadequate tax education and awareness, misappropriation of taxes collected, ignorance of the authority, lack of adequate enforcement for default, proliferation of taxes, loopholes in the tax law, high level of illiteracy, high tax rate and absence of Quid Pro Quo i.e. something of value given in return (by the Government) for taxes paid.

EFFECT OF TAX EVASION AND AVOIDANCE

Tax evasion and avoidance has undoubtedly affected adversely the government revenue generation capability and the economy as a whole. Amongst the effects includes:

  1. Inability of the Government to execute socio-economic program. The absence of funds in any country naturally prevents the Government from carrying out its responsibility for the benefit of the people.
  2. The reduction in revenue. Tax avoidance and evasion leads to drastic reduction in revenue that would have been realized by the Government through taxation.
  3. Stagnancy in economic growth and development. All that has been said centers around this point, the aim and objective of paying tax is to bring growth and development in the economy.
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EFFECTIVE IMPOSITION AND PAYMENT OF TAX

A good tax system should ensure that taxes are proportioned, certain, and not arbitrary, and the method of paying the tax must be convenient to the taxpayers. Hence, there are various methods of ensuring effective Tax payment and they are as follows:

Offering electronic filing system and payment

An electronic system for filing and paying taxes, if implemented well and used by most taxpayers, benefits both the tax authorities and firms. For tax authorities, electronic filing lightens the workload, for taxpayers, electronic filing saves time by reducing calculation errors on the tax return and makes it easier to prepare, file, and pay taxes.

 Effective Administration

Effective Tax Administration can mitigate the effect of high tax burden and help to reduce the level of informity in an economy.

Fair and equitable tax system

The government needs to balance goals such as increased mobilization and sustainable growth while enduring that the tax system is fair, and equitable fairness consideration includes poor and the rich, corporate and individual, cities and rural areas.

Easy to pay

The payment of tax should be an easy one this would reduce from the mind of citizens, the stress they would go through in paying their taxes, this ease, creates an environment of voluntary compliance.

In conclusion, tax is as important as the air we breathe. Tax is therefore necessary for the growth of any country. Tax avoidance and tax evasion are detrimental to the growth of a country. However, if our laws are spelled out and not ambiguous, this can curb the practices of tax avoidance and tax evasion.


FOOTNOTE

[i]   PROFESSOR C.S OLA. “Tax Avoidance as a form of Tax Planning” 

[ii]  Section 24(f) of the 1999 Constitution 

[iii] (2014) LCN/ 7241 (CA) 

[iv]  Journal of Economic and Sustainable Development ISSN 2222-1700(Paper) ISSN 2222- 2855( Online) Vol.5, No.18, 2014 

[v]  Daniel Defoe. “The Political History of the Devil” 1726.

[vi]  297 U.S 1(1936) at 61 

[vii] (1938) 60 CLR 263 at 276

[viii] By Adeiye Adenekan https://www.linkedin.com/in/michaelmas-chambers-5a4900146 

[ix]  (2000) 3NWLR (Pt 650) 565 at 591 paras H-A

[x]  Basic Principle On Taxation In Nigeria: Tax Evasion And Avoidance, Exemption

   and Incentives by Osama Obasoyo ( Marcus-Okoko & Co) 

[xi] Journal of Economic and Sustainable Development

   ISSN 2222-1700(Paper) ISSN 2222- 2855( Online)

  Vol.5, No.18, 2014    

[xii] (1929) 14 TC 754

[xiii]Akinyomi Oladele John and Okpala Kenneth:“Appraisal Of Factors Influencing Tax Avoidance And Evasion In  Nigeria.

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