Appointment Of Commissioners Of The Tax Appeal Tribunal: The Need For Change

Introduction
There is a local adage that says; “A day’s enjoyment can make one forget twenty years of suffering”. That seems to be the case with the operations of the Tax Appeal Tribunal (“TAT” or “the Tribunal”). There is no denying that since the constitution of the present Tribunal in 2018, we have had some landmark rulings which have contributed in no small measure to our tax jurisprudence. This phase can be likened to the ‘enjoyment’ in the adage.

However, we seem to have forgotten that before this ‘enjoyment’, the TAT was inactive for about two and half years after the tenure of the last set of Commissioners expired in June 2016, despite repeated calls by taxpayers and tax practitioners to the Minister of Finance and the Federal Government to appoint new commissioners and reconstitute the Tribunal. During this period, taxpayers continued to file appeals at the registries of the different zones of the Tribunal but those appeals could not be heard. Thus, the appeals remained hanging over the taxpayers with some companies having to book provisions for the probable tax liabilities in their books. This period can be likened to the ‘suffering’ in the adage.

In a few months’ time, the present commissioners of the Tribunal will embark on the final year of their three-year tenure, subject to a renewal of their tenure for another final term of three years. Sworn in by the Minister of Finance in November 2018, their initial three-year term will expire in November 2021. Are we going to see a repeat of the ‘suffering’? What can be done to prevent a recurrence?

Provision for appointment of Commissioners

Paragraph 2 (1) of the fifth schedule to the Federal Inland Revenue Service Establishment Act (FIRSEA) provides that “A Tribunal shall consist of five members to be appointed by the Minister.” Paragraph 4 provides for a three-year tenure for the Commissioners, renewable for another term of three years only.

One major problem with this provision is that the Minister is the sole appointing authority. This makes the Minister beholden and answerable to no one, perhaps with the exception of the President when it comes to the appointment of the Commissioners.

Further compounding this issue, the Act does not stipulate a definite time frame for the Minister to appoint new commissioners. This has essentially made the appointment of the Commissioners to be at the whims and caprices of the Minister. As amply demonstrated by the ‘suffering’ experience, it is entirely possible for the Minister to refuse to appoint Commissioners for the Tribunal for 4 years (the entire duration of a democratically elected government) and there will be little anyone can do about it as long as the President acquiesces.

View from Other Countries

While the provision for the Minister to appoint members of the Tribunal is constant across the establishment laws of the Tribunals in other countries in Africa, there are some subtle differences that can be gleaned from the Tax Appeal Tribunal Acts in some of those countries.

In Zambia, S. 4 of the Tax Appeals Tribunal Act 2015 provides that the members of the Tribunal who are legal practitioners are to be appointed on the recommendation of the Judicial Service Commission, while the Chartered Accountant members must be certified by the Zambian Institute of Chartered Accountants.

In Uganda, S. 3 of the Tax Appeals Tribunals Establishment Act 1998 also provides that the Chairperson of the Tribunal is to be appointed by the Minister in consultation with the head of the Judicial Service Commission.

In Tanzania, S. 8 of the Tax Revenue Appeals Act 2006 which established the Tax Revenue Appeals Tribunal provides that the Chairman of the Tribunal is to be appointed by the President after consultation with the Chief Justice.

The common thread in these countries is that the appointment of the members of the Tribunal, or at least some of them is not done by the Minister unilaterally.

Proposed Amendments to the FIRSEA
  1. The provisions in the Zambian, Ugandan and Tanzanian Acts provide a template that can be modified to fit the Nigerian reality. An amendment can be made to the fifth schedule such that the appointment of legal practitioners as Commissioners of the Tribunal is in conjunction with, or on the recommendation of the Federal Judicial Service Commission (FJSC), or Nigeria Bar Association or some other appropriate body. The other Commissioners can be appointed on the recommendation of the Institute of Chartered Accountants of Nigeria (ICAN) and the Chartered Institute of Taxation of Nigeria (CITN). The involvement of these bodies in the appointment process will also ensure that as much as possible, seasoned professionals are appointed as Commissioners.  
  2. The National Assembly should also amend the fifth Schedule to include a definite period, say six months for the Minister to appoint new commissioners after the expiration of the tenure of a set of commissioners. Where the Minister does not appoint within the period, the appointment of new commissioners can be done collectively by the FJSC, ICAN and CITN or other bodies chosen by the National Assembly for that purpose, subject to ratification by the National Assembly. 
  3. Alternatively, the appointment of the Commissioners can be done solely by the Minister as is the present case, but then include a provision empowering the stated bodies to make the appointments where the Minister does not appoint within the specified period.
National Assembly Oversight
Where the Minister neglects or refuses to appoint new commissioners for the Tribunal, the National Assembly can also exercise its powers of oversight under section 88 (1) and (2) of the 1999 Constitution (as amended) to investigate the refusal of the Minister to do so. It can be argued that the power to appoint tax appeal commissioners is a public duty which has been bestowed on the Minister by the lawmakers.

Section 88 (1)(b) of the constitution empowers the National Assembly to direct an investigation into the conduct of affairs of anyone charged with the duty for executing or administering any law enacted by the National Assembly. Where the Minister refuses to discharge this obligation, the National Assembly can exercise its oversight powers under the Constitution to summon the Minister to explain why. This also accords with the principle of checks and balances. In any case, the National Assembly needs to step up to the plate if we have a repeat of the 2016 scenario.

Conclusion

The role played by the Tax Appeal Tribunal has become too vital in the tax dispute resolution process in Nigeria for its constitution to be left at the mercy of the Minister or the government of the day.  The National Assembly should make amendments to the schedule to the FIRSEA such that there are checks to the powers of the Minister to appoint the Commissioners, particularly where the Minister neglects to make the appointments. There might also be a need to look into the funding of the TAT to make the Tribunal as independent as possible.

This article was written by Adeoluwa Akintobi