THISDAY

Real Estate Firm Successful­ly Appeals against FIRS VAT Regime

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Bennett Oghifo

Areal estate firm, Ess-ay Holdings Limited, has successful­ly appealed against an order of Value Added Tax (VAT) re-assessment by the Federal Inland Revenue Service (FIRS).

The Judgement in the Tax Appeal Tribunal in the Lagos Zone, holden at Lagos Appeal No: TAT/LZ/VAT/029/2019 between: Ess-Ay Holdings Limited and Federal Inland Revenue Service was held by the Chairman, O.M. Lassise-Phillips, Esq; Hon. Commission­ers, M. A. C. Dike; Mrs. T. Akibayo; and R.A Quadri. Temitope Adewale Esq appeared for the Appellant (Ess-ay Holdings Limited) and Folashade Kalesaro for the Respondent (FIRS).

The judgement dated 10th September 2020 reads, “This is an Appeal by the Appellant against the decision of the Respondent in respect of the Appellant’s alleged tax liability for the 2014-2016 accounting years as set out in the Respondent’s VAT ReAssessme­nt Notice dated July 9, 2019 (the “VAT Re-Assessment”).

“In the final analysis, the Tribunal finds merit in this Appeal, which is accordingl­y upheld. The assessed VAT liability of the Appellant together with the interest and penalties is hereby set aside,” said the judgement, which Certified True Copy, dated 11/09/2020, was sighted by THISDAY.

Background stated in the judgement

The Appellant invests and engages in the developmen­t of real properties which are rented or leased to tenants. The said properties are put to both commercial and residentia­l purposes. On the other hand, the Respondent is an agency of the Federal Government. It is responsibl­e for the assessment, collection and general administra­tion of federal taxes on behalf of the Federal Government of Nigeria including the Value Added Tax Act (VAT Act).

Following a tax audit, the Respondent by a letter dated October 19, 2018 informed the Appellant of its intention to assess the Appellant to additional taxes particular­ly with respect to Value Added Tax (VAT) on incomes derived from letting out its properties for the 2014 -2016 accounting years. As a result of this letter, a series of meetings was held between the parties to reconcile the issues and correspond­ences were exchanged. The bundle of documents evidencing the correspond­ences and meetings is before this Tribunal.

Ostensibly, these meetings did not yield any positive outcome because by July 9, 2018, the Appellant was served amongst others, the Respondent’s VAT Assessment Notice in relation to v AT on incomes derived from its commercial tenants. The Appellant objected to the said VAT Assessment Notice via its objection letter dated July 15, 2019.

On the 26th of July 2019, the Respondent served its Notice of Refusal to Amend (NORA) dated July 22, 2019 on the Appellant. Dissatisfi­ed with the Respondent’s action, the Appellant filed this Appeal, the subject-matter of this Judgment before the Tax Appeal Tribunal on August 22. 2019.The Appellan1 filed three (3) Grounds of Appeal to wit:

Ground 1

The VAT assessment in the sum of NS4. 263. 899 .SO (Fiftyfour Million, Two Hundred and Sixty-Three Thousand, Eighth Hundred and Ninety-Nine Neira. Fifty Kobo) as Value Added Tax (“VAT”) on rental income earned by the Appellant in the period 2014 to 2016 thereby unlawfully subjecting the rental income of the Appellant to VAT contrary to the provisions of the Value Added Tax Act as amended and currently compiled as Cap Vl, Laws of the Federation of Nigeria 2004.

Particular­s of error

l. Section 2 of the VAT Act provides that VAT shall be charged and payable on the supply of goods and services (referred to as taxable goods and services) other than those goods and services listed in the First Schedule to the VAT Act.

2. VAT is not a tax on returns on investment­s such as rent dividends and interests.

3. Rental incomes are not derived from a supply of goods and services.

4. Rental income cannot be subjected to VAT solely on the premise that it is not exempt from VAT under the First Schedule to the VAT Act.

Ground 2

The Respondent erred in law when it issued a Notice of Refusal to Amend v AT Additional Assessment­s dated 22 July 2019 (“NORA”) where it stated that “income from commercial rent is VAT-able income and the one from residentia­l has administra­tive exemption.”

Particular­s of error

l. There are no provisions in the VAT Act which designate rental income as a taxable good or service under the VAT Act in the circumstan­ce that “rent” is neither a good nor service.

 ??  ?? Hon Justice Olubunmi Femi-Adeniyi; Hon Justice Afis Dabiri; Lagos State Chief Judge, Hon Justice Kazeem Alogba; Special Adviser to Lagos State Governor on Housing, Mrs. Toke Benson-Awoyinka; and Deputy Director, Administra­tive and Human Resource, Lagos State Real Estate Regulatory Authority (LASRERA), Mrs. Titilayo Omorodion, during a courtesy visit on the Chief Judge of Lagos State by the management of the Agency… recently
Hon Justice Olubunmi Femi-Adeniyi; Hon Justice Afis Dabiri; Lagos State Chief Judge, Hon Justice Kazeem Alogba; Special Adviser to Lagos State Governor on Housing, Mrs. Toke Benson-Awoyinka; and Deputy Director, Administra­tive and Human Resource, Lagos State Real Estate Regulatory Authority (LASRERA), Mrs. Titilayo Omorodion, during a courtesy visit on the Chief Judge of Lagos State by the management of the Agency… recently

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