Understanding Tax Appeal Tribunal’s (Procedure) Rules, 2021

By Emmanuel Seungwa Ukera

The Tax Appeal Tribunal (Procedure) Rules, 2021 (hereinafter referred to as the TAT Rules, 2021) were recently issued by the Minister of Finance, Budget and National Planning, Mrs Zainab Shamshuna Ahmed, in exercise of her powers under paragraph 21, Fifth Schedule to the Federal Inland Revenue Service (Establishment) Act, No.13,2007 (hereinafter referred to as the FIRSEA,2007).

The TAT Rules, 2021, introduced with the intention to address procedural gaps observed in the course of implementing the repealed rules, took effect on June 10, 2021, and effectively revokes and replaces the Tax Appeal Tribunal (Procedure) Rules, 2010 (hereinafter referred to as the Repealed Rules).

Although the introduction of the TAT Rules, 2021 was well received and hailed by a vast majority of tax payers, analysts and other stakeholders as a commendable step that would fully unlock the potentials of the Tax Appeal Tribunal and make it more efficient in the dispensation of justice to aggrieved persons, a few analysts have picked holes in the rules particularly the provision of Order 3 Rule 6 which provides for mandatory payment of 50 per cent of the assessed tax to a designated account of the tribunal as a security for prosecuting the appeals.

In contrast to the Repealed Rules which had 24 Orders (XXIV), the TAT Rules 2021 have 27 Orders (XXVII) with each order broken into specific rules dealing with specific issues relevant to each subject matter covered under the Order. The TAT Rules, 2021 also have two Schedules. The First Schedule which deals with the various Forms relevant to the conduct of the proceedings or filing of pleadings and documents before the Tribunal designated as Forms TAT I to TAT II. The Second Schedule stipulates the filing fees for various processes and documents and related costs, most of which have been reviewed upward by 100 per cent to reflect current economic realities. Another unique feature of the TAT Rules, 2021 is that there is a table of contents and clear marginal notes introduced for ease of reference.

It should be clarified that the Documents Only Procedure under Order XV of the TAT Rules, 2021 is intended to allow the Tribunal to resolve tax disputes solely on the basis of documentary evidence especially where the taxpayer and the relevant tax authorities have agreed on the questions of facts. Parties may under such circumstance file an appeal consistent with Forms TAT 6 and TAT 7 to seek the interpretation of the Tribunal regarding the unresolved question of law. The Summary Appeal Procedure under Order XVI on the other hand is useful to the relevant tax authorities in the recovery of tax debt or liquidated money demand such as assessments that have become final and conclusive. Tax payers can also make use of Order XVI to enforce tax refunds recognised under the relevant tax statutes. However, under Order XVI Rule 3 (a) where the Tribunal finds merit in the defence entered by the respondent, it shall transfer the Appeal for hearing and order the parties to file pleadings in compliance with Order III.

Similarly, the introduction of Order XXII empowering the Tribunal to award costs is made subject to the general principle on costs under paragraph 22 of the Fifth Schedule to the FIRSEA which states that each party to an appeal shall bear its own cost. It is trite that while the Tribunal is precluded from awarding the cost of prosecuting appeals before it against either parties, the enabling Act is silent on wasted costs hence the provision of Order XXII which now allows the Tribunal the discretion to award costs against any party or his representatives in deserving circumstances.

By and large, the TAT Rules, 2021 gives recognition to e-filing under Order 3 Rule 5; mandatory payment of 50 per cent of tax assessed as security for prosecuting appeals before the Tribunal and deposition as to payment of undisputed/provisional tax as security as in Form TAT 1(B) under Order 3 Rule 6 (a) and (b) respectively; filing of appeals at any Zone of the Tribunal but heading same in the appropriate zone of the Tribunal where it is to be heard under Order 4 Rule 2; service of processes by electronic means; power of the Tribunal to order service of processes by electronic means and proof of service (including proof of electronic service of processes under Order 7 Rules 3, 5 and 8 respectively; relisting of appeals struck out to be upon application by the appellant, Tribunal to be satisfied before proceeding with hearing in the case of non- appearance by the respondent under Order IX Rules 2 and 3 respectively; hearing of applications and delivery of rulings remotely by virtual means, hearing of ex parte and non–contentious applications in chambers and from chamber to the Tribunal and vice versa, and ruling on applications under Order XI Rules 4, 5 and 6; conduct of pre-trial conference under Order 17 Rule 2; limitation on adjournments under Order XIX; proviso deeming filed addresses as having been adopted under Order XX; and hearing and conclusion of appeals not to exceed six months except as determined by the Tribunal, review of decisions of the Tribunal, time for application for review, time for appeal after review of Tribunal decisions, filing of terms of settlement and entry of consent judgement under Order XXI Rules 1, 6,7, 8 and 9 (1)(2) and(3).

Ukera is a Tax Commissioner, North Central Zone, Jos