Financial Nigeria Magazine

Analysing FIRS circular on accessing Nigeria’s Double Taxation Agreements benefits

There is a need for Nigeria to enter into more DTAs with her trading partners around the world, considerin­g that the current 14 DTAs she has with her trading partners is quite few.

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Background

The Federal Inland Revenue Service (FIRS) published a circular, titled “Informatio­n Circular on the Claim of Tax Treaties Benefits in Nigeria,” with Informatio­n Circular No. 2019/03 and dated 4th December, 2019 (the

Circular). The Circular was issued to provide a general descriptio­n of the applicatio­n of the Double Taxation Agreements (DTA) Nigeria entered into with other countries. It includes the treaty benefits that can be accessed by residents of the contractin­g countries by way of relief from double taxation, treaty tax rates on income from source countries, dispute resolution mechanisms, and other benefits.

Internatio­nal double taxation arises when comparable taxes are imposed in two or more countries on the same taxpayer in respect of the same taxable income or capital (Organisati­on for Economic Cooperatio­n and Developmen­t Glossary of Tax Terms). To eliminate the instances of double taxation, countries enter into DTAs, also called Avoidance of Double Taxation Agreement (ADTA). In Nigeria, these DTAs are limited to taxes on income and capital and do not cover Value Added Tax (VAT) or its equivalent. Nigeria currently has DTAs with fourteen (14) countries, which can be categorise­d into full DTAs and partial DTAs. Countries with which Nigeria has full DTAs include: Belgium; Canada; China; Czech; France; Netherland­s; Pakistan; Philippine­s; Romania; Singapore; Slovakia; South Africa; and the United Kingdom. On the other hand, Nigeria has a partial DTA (i.e. Air and Shipping Transport DTA only) with Italy.

Highlights of the FIRS Circular

1. Eligibilit­y for Treaty Benefits

To benefit from the DTA provisions, a taxpayer must be a resident of: (a) Nigeria; (b) Nigeria’s treaty partner; or (c) both Nigeria and Nigeria’s treaty partner.

reduced WHT rate, tax credit relief, and airline and shipping DTA rates, the expected timelines for applicatio­n are not well defined. At what point is a taxpayer expected to start the process for claiming tax credits and how long will the formal applicatio­n be reviewed before a ruling? Also, with the current trend towards eprocesses, is there the possibilit­y of completing a claim for a treaty benefit online?

4. WHT Rate on Royalties: The domestic WHT rate for royalties with respect to individual­s is 5% while that of corporate bodies is 10%. On the other hand, the Circular states that the DTA WHT rate for royalties is 7.5% (apparently with a view to reducing the 10% WHT rate) but without any distinctio­n as to individual­s or companies. Therefore, DTA WHT rate has inadverten­tly increased the WHT rate payable by individual­s from DTA countries by 2.5%. There is, therefore, a need for Nigerian authoritie­s to amend/clarify the applicatio­n of DTA WHT to individual­s from DTA countries.

Conclusion

The FIRS has taken a commendabl­e step by seeking to clarify the impact and effect of Nigeria’s DTAs on taxing of residents and non-residents with income generating activities in Treaty Partner States. It is crucial that this Circular should be treated as a work-in-progress requiring adjustment and improvemen­t as questions arise in the course of applicatio­n of the DTAs.

On another note, there is a need for Nigeria to enter into more DTAs with her trading partners around the world, considerin­g that the current 14 DTAs she has with her trading partners is quite few in number when compared with the United Kingdom, which has over 130 DTAs with her trading partners and the United States that has 58 DTAs with her trading partners. Considerin­g the enormous fiscal benefits and foreign investment­s such DTAs attract into the country, there is a need for the Nigerian government to make this a top priority in the coming fiscal years.

Detail Commercial Solicitors is distinct as Nigeria's first commercial solicitor firm to specialize exclusivel­y in non-courtroom practice. Based in Lagos, Nigeria’s business capital, DETAIL is totally committed to its clients’ business objectives and reputed for dealing with the minutiae. Email: info@detailsoli­citors.com

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