by Onyekachi Umah, Esq., LL.M, ACIArb(UK)
“When Must Online Businesses and Entities Pay Tax in Nigeria?” Daily Law Tips (Tip 814) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)
Introduction:
Laws are made for societies and like the societies, they grow with time. As at 1993, most Nigerians in Nigeria could not imagine purchasing a toothpaste, renting an apartment and ordering wraps of moi-moi (beans pudding) via online. While most online activities were accepted by Nigerians as mere social fun or remote fraud for the youth, many of such activities have now made more Millionaires in Nigeria than any government enterprise. Governments, organizations and even the self-rated sanctimonious religious center now seek online resources even on the “children platforms” like they tagged it; “Facebook”, “WhatsApp” and the Instagram.
The commencement path and the operation pattern of most online businesses have caused many to wonder; “Should Businesses and Online Entities Pay Tax in Nigeria?” and “When Online Businesses and Entities Must Pay Tax in Nigeria?”. This work answers the questions within the provisions of Nigerian laws. It considers Tax in Nigeria: the Concept and Brief History; Human Beings, Corporate Beings and Taxes in Nigeria; and the Online Businesses, Online Entities and Taxes in Nigeria. It also discussed the place of formal (organised) and informal (unorganised) sectors, registered and unregistered businesses and entities in Nigeria, viz-a-viz payment of tax, for revenues generated via online and digital platforms. Parts of the Constitution of Nigeria, the Personal Income Tax Act, the Companies Income Tax Act, the Finance Act, were considered.
Tax in Nigeria: the Concept and Brief History.
Contextually, TAX is a statutorily recognized fee/dues demanded by government from all or some persons as an obligation to government. Tax is created and demanded by government through a written law, also tax must be certain and predictable. The collecting agent of a tax must be the person appointed and authorized by law and the person to pay tax must be expressly listed as well as the government account to receive the paid tax. Government cannot demand tax that is unknown to law.
Historically, Tax is not alien to the pre-Nigeria communities, especially the communities in the present-day Northern Nigeria. The position in the communities that were in the then Southern Nigeria was a bit different, as evidenced by the Aba Women’ Riot. In 1929, the women of Aba (in the present day in Abia State) protested the head count of women, children and livestock by the colonial masters (western thieves), that was set to usher in tax on women, having successfully imposed tax on men, earlier in 1928. The plan of Captain J. Cook met the opposition of Women from communities in Igbo land and unfortunately, the British invaders and looters murdered 51 Igbo women and a man. So, tax has been in Nigeria for long and will not cease anytime soon.
In the present-day Nigeria, taxes are been levied and enforced by the Federal Government of Nigeria, the State Governments and the Local Governments, within their respective legislative powers. Like the Edo State Local Governments Uniform and Harmonised Levies, Rates, Fees and Charges Law, 2017.Powers to impose tax and issues to be taxed are generally provided for in the Constitution of Nigeria. Furthermore, federal laws, state laws and local government bye-laws have gone further to forge elaborate legal frameworks for taxes in Nigeria. This work will only consider the federal laws on tax, due to their overriding and covering powers over all persons and entities in all parts of Nigeria.
Human Beings, Corporate Beings and Taxes in Nigeria:
One of the most popular taxes in Nigeria is the Personal Income Tax and then followed by the Company Income Tax. The Nigerian laws recognize human beings/persons and corporate beings/persons (Companies, Corporate bodies, Associations, Societies, Charities, Not-For-Profit and Non-Governmental Organizations). As such, both human beings and corporate beings are allowed by Nigerian laws to own properties, monies, and to sue and be sued by any person. To this extent, taxes focus on human beings and corporate beings as the owners of the factors of productions and the generators of wealth to pay tax to government.
Generally, in Nigeria, any person, business and entity can be formal (registered with government) or informal (not registered with government). For example, the informal sector has a lot of persons, entities and businesses in Nigeria that make millions of Naira but are not captured by any government, so they do not pay tax and perform other obligations. On the other hand, are the human beings and corporate beings that have registered with government to allow government to track and regulate them, as well as collect taxes (although, most governments in Nigeria are too corrupt and indiscipline to perform such duties). Registration with government often starts with the incorporation and registration of Business Names, Companies, Associations, Societies, Charities, Not-For-Profit and Non-Governmental Organizations at the Corporate Affairs Commission (CAC) and the issuance of Tax Identification Numbers (TIN).
Whether formal or informal, all persons (human beings and corporate beings) in Nigeria and even outside Nigeria that make money by any form or style in Nigeria must pay tax to the government of Nigeria. Yes, this is the position of the federal law; Personal Income Tax Act, 1993 and the Companies Income Tax Act, 1977. Section 2(b)(iv) of the Personal Income Tax Act provides that “(iv) a person resident outside Nigeria who derives income or profit from Nigeria” must pay tax to Nigeria. Expectedly, section 2(b)(i) – (iv) provides that all persons resident in Nigeria must pay tax to Nigeria. Then, section 9 of the Companies Income Tax Act mandates companies to pay tax on the income to the Federal Government of Nigeria. However, there are few tax exemptions to some of business and entities in Nigeria.
To this extent, human beings and corporate beings that make income or profit in any part of Nigeria, whether there are registered or not, in Nigeria or outside Nigeria, so far as they make money in Nigeria, must pay tax to Nigeria. So, any human being, firm, group, Business Name, Company, Association, Society, Charity, Not-For-Profit or Non-Governmental Organization (whether registered or not) that makes money (income or profit) from Nigeria is mandated by the federal laws to pay tax to the Nigerian government.
Online Businesses, Online Entities and Taxes in Nigeria:
The online space in Nigeria is also full of formal and informal operators; it is a true reflection of the unregulated Nigeria and her challenges. It is even easier to start up an online business or social enterprise than to start up such offline. They are more businesses that operate only online that those that operate offline. Also, more offline businesses are starting to operate online, generating revenue in both spheres; offline and online. The boom of online businesses in Nigeria is not unrelated with the lack of adequate regulations and the poor enforcement of regulations on online operators.
Online businesses and entities in Nigeria are either registered in Nigeria or not registered in Nigeria. There is also the class that is not registered at all in any country. However, the good, the bad and the ugly entities, all operate in the largely ungoverned internet/online space of Nigeria, making monies from persons in Nigeria, with or without having their offices in Nigeria. For example, the popular brands; Facebook Inc., Amazon.com Inc., Twitter Inc., and Alibaba Group are foreign companies that are not registered in Nigeria but sell their services to persons in Nigeria. They make huge revenue from the uncounted (or may be uncountable due to weak institutions) population of Nigeria. Also, there are unimaginable numbers of online businesses owned by Nigerians in Nigeria and in diaspora that make huge revenue from Nigeria. Shouldn’t all online and digital business that make money from Nigeria pay tax to Nigeria, whether they make such money in shrines, bus stops, internet or social media platforms?
Building on the above remark on section 2 of the Personal Income Tax Act and sections 9 of the Companies Income Tax Act, it is important to point out that section 6 of the Personal Income Tax Act and section 13 of the Companies Income Tax Act envisaged the situation where businesses, persons and entities outside Nigeria may make money from Nigeria without operating in Nigeria. In such circumstances, the federal laws place statutory obligations on such entities in any part of the globe. Businesses and entities (including online or digital enterprises) making money from Nigeria must pay tax to Nigerian government for the money made from Nigeria. The part of the monies (income and profit) of such entity that is not made from Nigeria is excluded from the tax to be paid to Nigeria.
Well, contrary to public opinions, most Nigerian laws do not need to be amended for them to apply to online businesses and entities that make revenue in Nigeria. For example, the provisions of the Personal Income Tax Act and the Companies Income Tax Act are clear, that any person that makes money (profit or income) in Nigeria should pay tax to Nigeria on the money made from Nigeria. It is not limited to making money through physical offices, representatives and operational bases in Nigeria, it clearly covers all forms and styles (including online businesses) so far as the ventures are lawful. To this extent, all online businesses and entities that make revenue from persons in Nigeria (whether such entities are registered or not in Nigeria, whether they have office or representatives in Nigeria or not) are by law mandated to pay tax in Nigeria on the money made from Nigeria.
Conclusion:
Tax is one key mechanism for generating revenue for government, to enable government perform its obligations to citizens. Hence, payment of tax is an obligation of citizens and the failure to pay tax could lead to imprisonment and other penalties. However, many have argued that the payment of tax to a corrupt government promotes the embezzlement and undue redistribution of wealth, like is seen in Nigeria. Well, above all, the realities of Nigeria will not supersede the laws of Nigeria, rather the Nigerian legislatures must ensure that the laws of Nigeria align with the realities of Nigeria, until then, tax laws and other laws must be obeyed at all times.
In line with the provisions of the Personal Income Tax Act, Companies Income Tax Act and the Finance Act, all persons, businesses and entities in any part of the world that make revenue (profit/income) in Nigeria must pay tax to Nigeria. So, all offline and online businesses and entities in any part of the world that make monies from Nigeria or persons in Nigeria are to pay tax to the government of Nigeria. As such, the Government of Nigeria (through its tax collectors; the Federal Inland Revenue Services) could engage online businesses and entities on the Nigerian space, for payment of Personal Income Tax or Companies Income Tax, among others.
My authorities, are:
Sections 1, 2, 3, 4, 5, 6, 7, 318 and 319 and the Schedules to the Constitution of the Federal Republic of Nigeria, 1999.
Sections 1, 2, 6 of the Personal Income Tax Act, 1993.
Sections 9, 13, 23, 105 and 106 of the Companies Income Tax Act, 1977.
Sections 13, 25, 80 and 81of the Finance Act, 2020. Click to download a free copy of the Finance Act 2020 via https://learnnigerianlaws.com/free-copy-of-the-finance-act-2020/
The judgment of the Court of Appeal (on whether a foreign company is liable to pay company income tax and withholding tax in Nigeria on the profits derived from its contract with Nigerian Company) in the case of SAIPEM CONTRACTING NIGERIA LIMITED & ORS v. FEDERAL INLAND REVENUE SERVICE & ORS (2018) LPELR-45118(CA).
The judgment of the Court of Appeal (onwhether a foreign company is liable to pay value added tax over goods and services supplied to consumers in Nigeria) in the case of SAIPEM CONTRACTING NIGERIA LIMITED & ORS v. FEDERAL INLAND REVENUE SERVICE & ORS (2018) LPELR-45118(CA).
Adaobi Onyeakagbu, “The real story behind the Aba women’s riot and the list of people that died” (Pulse.ng, 7 June 2021) https://www.pulse.ng/lifestyle/food-travel/the-real-story-behind-the-aba-womens-riot-and-the-list-of-people-that-died/605kbl1accessed 12 July 2021.
Onyekachi Umah, “NIGERIANS MUST PAY TAX ON INCOMES MADE ABROAD FROM ANY SOURCE AND FAILURE TO DO SO IS AN OFFENCE” (LearnNigerianLaws.com, 11 October 2011) https://learnnigerianlaws.com/nigerians-must-pay-tax-on-incomes-made-abroad-from-any-source-and-failure-to-do-so-is-an-offence-daily-law-tips-tip-433-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “CAN TAX OFFICE UNILATERALLY IMPOSE PERCENTAGES OF TURNOVER AS ANY PERSON’S INCOME TAX” (LearnNigerianLaws.com, 19 September 2019) https://learnnigerianlaws.com/can-tax-office-unilaterally-impose-percentages-of-turnover-as-any-person-s-income-tax-daily-law-tips-tip-417-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “WHEN CAN A VILLAGE/COMMUNITY IN NIGERIA BE CHARGED PERSONAL INCOME TAX” (LearnNigerianLaws.com, 13 September 2019) https://learnnigerianlaws.com/when-can-a-village-community-in-nigeria-be-charged-personal-income-tax-daily-law-tips-tip-414-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “BUSINESSES AND COMPANIES IN NIGERIA CANNOT PAY PERSONAL INCOME TAX” (LearnNigerianLaws.com, 10 September 2019) https://learnnigerianlaws.com/businesses-and-companies-in-nigeria-cannot-pay-personal-income-tax-daily-law-tips-tip-411-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “WHEN CAN A FAMILY BE CHARGED PERSONAL INCOME TAX” (LearnNigerianLaws.com, 29 August 2019) https://learnnigerianlaws.com/when-can-a-family-be-charged-personal-income-tax-daily-law-tips-tip-403-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “WHEN CAN PROPERTY OF A DECEASED PERSON PAY PERSONAL INCOME TAX” (LearnNigerianLws.com, 23 August 2019) https://learnnigerianlaws.com/when-can-property-of-a-deceased-person-pay-personal-income-tax-daily-law-tips-tip-398-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “BUSINESS NAMES IN NIGERIA CANNOT PAY PERSONAL INCOME TAX” (LearnNigerianLaws.com, 20 August 2019) https://learnnigerianlaws.com/business-names-in-nigeria-cannot-pay-personal-income-tax-daily-law-tips-tip-396-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “DEADLINES FOR PAYMENT OF PERSONAL INCOME TAX BY SELF EMPLOYED PERSONS AND EMPLOYEES” (LearnNigerianLaws.com, 6 August 2019) https://learnnigerianlaws.com/deadlines-for-payment-of-personal-income-tax-by-self-employed-persons-and-employees-daily-law-tips-tip-388-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “WHEN PERSONS RESIDING ABROAD MUST PAY PERSONAL INCOME TAX TO NIGERIA” (LearnNigerianLaws.com, 31 July 2019) https://learnnigerianlaws.com/when-persons-residing-abroad-must-pay-personal-income-tax-to-nigeria-daily-law-tips-tip-384-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021
Onyekachi Umah, “DURATION FOR ISSUANCE OF TAX CLEARANCE CERTIFICATE IN NIGERIA” (LearnNigerianLaws.com, 30 July 2021) https://learnnigerianlaws.com/duration-for-issuance-of-tax-clearance-certificate-in-nigeria-daily-law-tips-tip-383-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021.
Onyekachi Umah, “THINGS YOU CANNOT DO IN NIGERIA WITHOUT A TAX CLEARANCE CERTIFICATE” (LearnNigerianLaws.com, 17 July 2019) https://learnnigerianlaws.com/things-you-cannot-do-in-nigeria-without-a-tax-clearance-certificate-daily-law-tips-tip-373-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021
Onyekachi Umah, “PUNISHMENT FOR FAILURE TO PAY PENALTY FOR NON-PAYMENT OF PERSONAL INCOME TAX” (LearnNigerianLaws.com, 8 May 2019) https://learnnigerianlaws.com/punishment-for-failure-to-pay-penalty-for-non-payment-of-personal-income-tax-daily-law-tips-tip-326-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2019
Onyekachi Umah, “PENALTY FOR NON-PAYMENT OF PERSONAL INCOME TAX” (LearnNigerianLaws.com, 2 may 2019) https://learnnigerianlaws.com/penalty-for-non-payment-of-personal-income-tax-daily-law-tips-tip-322-by-onyekachi-umah-esq-llm-aciarb-uk/ accessed 12 July 2021
Onyekachi Umah, “NO PERSON/FIRM CAN COLLECT TAX/LEVY ON BEHALF OF ANY GOVERNMENT IN ANY PART NIGERIA” (LearnNigerianLaws.com, 2 march 2019) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-279-no-person-firm-can-collect-tax-levy-on-behalf-of-any-government-in-any-part-nigeria/ accessed 12 July 2021.
Onyekachi Umah, “EDUCATION TAX MUST BE PAID YEARLY BY EVERY COMPANY IN NIGERIA” (LearnNigerianLaws.com, 20 November 2018) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-231-education-tax-must-be-paid-yearly-by-every-company-in-nigeria/ accessed 12 July 2021
Onyekachi Umah, “Monthly Deadline For Filling Returns On Value Added Tax (VAT)” (LearnNigerianLaws.com, 2 August 2018) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-155-monthly-deadline-for-filling-returns-on-value-added-tax-vat/ accessed 12 July 2021
Onyekachi Umah, “Value Added Tax (VAT); Who Pays and Who Collects” (LearnNigerianLaws.com, 13 July 2018) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-141-value-added-tax-vat-who-pays-and-who-collects/ accessed 12 July 2021
Onyekachi Umah, “Is there a Reduction of Levy for Imported Cars and Trucks?” (LearnNigerianLaws.com, 22 March 2021) https://learnnigerianlaws.com/is-there-a-reduction-of-levy-for-imported-cars-and-trucks/ accessed 12 July 2021
Onyekachi Umah, “Does the New Finance Act Exempt Companies from CAC Annual Returns?” (LearnNigerianLaws.com, 17 March 2021) https://learnnigerianlaws.com/does-the-new-finance-act-exempt-companies-from-cac-annual-returns/ 12 July 2021
Onyekachi Umah, “RADIO, TELEVISION AND COMMUNICATION MAST LICENSE FEE BY LOCAL GOVERNMENTS IN NIGERIA” (LearnNigerianLaws.com, 5 March 2020) https://learnnigerianlaws.com/radio-television-and-communication-mast-license-fee-by-local-governments-in-nigeria-daily-law-tips-tip-519-by-onyekachi-umah-esq-llm-aciarbuk/ accessed 12 July 2021
Onyekachi Umah, “LATEST DEVELOPMENTS ON LIQUOR LICENSES IN KARU LGA, NASARAWA STATE” (LearnNigerianLaws.com, 28 February 2020) https://learnnigerianlaws.com/latest-developments-on-liquor-licenses-in-karu-lga-nasarawa-state-daily-law-tips-tip-515-by-onyekachi-umah-esq-llm-aciarbuk/ accessed 12 July 2021
Onyekachi Umah, “LIST AND DETAILS OF APPROVED LOCAL GOVERNMENT LEVIES, RATES, FEES AND CHARGES FOR EDO STATE” (LearnNigerianLaws.com, 27 September 2019) https://learnnigerianlaws.com/list-and-details-of-approved-local-government-levies-rates-fees-and-charges-for-edo-state-daily-law-tips-tip-423-by-onyekachi-umah-esq-llm-aciarb-uk-2/ accessed 12 July 2021
Onyekachi Umah, “STATE GOVERNMENTS CANNOT COLLECT TENEMENT RATES IN NIGERIA” (LearnNigerianLaws.com, 6 March 2019) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-282-state-governments-cannot-collect-tenement-rates-in-nigeria/ accessed 12 July 2021
Onyekachi Umah, “Is It Legal For Government Or Any Group To Charge You For Drilling Borehole On Your Land” (LearnNigerianLaws.com, 29 November 2018) https://learnnigerianlaws.com/is-it-legal-for-government-or-any-group-to-charge-you-for-drilling-borehole-on-your-land/ accessed 12 July 2021
Onyekachi Umah, “Right To Demand and Know How Much Government and Government Officers Spend In Nigeria” (LearnNigerianLaws.com, 29 August 2018) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-172-right-to-demand-and-know-how-much-government-and-government-officers-spend-in-nigeria/ accessed 12 July 2021
Onyekachi Umah, “Goods That Are Exempted From VAT Payment In Nigeria” (LearnNigerianLaws.com, 16 August 2018) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-164-goods-that-are-exempted-from-vat-payment-in-nigeria/ accessed 12 July 2021
Onyekachi Umah, “What is Ground Rent, Who Should Pay and Who Should Collect It?” (LearnNigerianLaws.com, 26 June 2018) https://learnnigerianlaws.com/what-is-ground-rent-who-should-pay-and-who-should-collect-it/ accessed 12 July 2021
Onyekachi Umah, “What is Tenement Rate, Who Should Pay and Who Collects” (LearnNigerianLaws.com, 21 June 2018) https://learnnigerianlaws.com/daily-law-tips-by-onyekachi-umah-esq-tip-125-what-is-tenement-rate-who-should-pay-and-who-collects/ accessed 12 July 2021.
Onyekachi Umah, “Payment of Annual Development Levy by Abuja Residents” (LearnNigerianLaws.com, 8 April 2018) https://learnnigerianlaws.com/payment-of-annual-development-levy-by-abuja-residents accessed 12 July 2021.
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