APPLICABILITY OF THE DOCTRINE OF LEGITIMATE EXPECTATION IN TAX DISPUTES

The doctrine is based on the principle of fairness in the use of public powers which is applied by the courts and is aimed at ensuring a degree of legal certainty.

CHAMAN LAW FIRM

6/6/20225 min read

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APPLICABILITY OF THE DOCTRINE OF LEGITIMATE EXPECTATION IN TAX DISPUTES

The doctrine of legitimate expectation is a common law principle, which demands that public authorities must respect a consistent practice or representation made by them to members of the public and apply them in the exercise of their powers and in performing their duties. It ensures that public authority respects and applies its sustained position or practice in exercising its powers. The doctrine also limits the public authority’s ability to act contrary to the legitimate expectation of a person especially where the expectation is based on a stated or sustained practice made by the public authority to the person. The doctrine is based on the principle of fairness in the use of public powers which is applied by the courts and is aimed at ensuring a degree of legal certainty. The courts apply this doctrine o the belief that public authorities are bound by an impression they created which influenced the public to act in certain way. The courts will also consider how reasonable the expectation is and the form of practice that brought about the expectation before it will be enforced.

Legitimate expectation is divided into procedural and substantive. Procedural legitimate expectation provides the procedure that a public authority must follow strictly in exercising its powers. Substantive legitimate expectation foresees the decision that the public authority would take in a particular situation.

The doctrine of Legitimate Expectation is developed in the English Administrative Law to ensure procedural fairness; upholding the rule of law. The phrase “legitimate expectations” was first used in 1969 in the case of Schmidt v Secretary of State for Home Affairs [1969] 2 Ch. 149, 170 (Lord Denning MR). Since then, the doctrine has been established as the general principle of Administrative Law. It has been examined by the court in the United Kingdom on numerous occasions. The doctrine is normally visited by court where allegedly unreasonable decisions of the executive are challenged.

DOES THE DOCTRINE OF LEGITIMATE EXPECTATION APPLY TO TAXATION IN NIGERIA?

Statutory law is the greatest limitation to the application of legitimate expectation in tax disputes. Thus, in several cases, the doctrine has been subdued by the provisions of a statute. However, the statutory limitation rule is not meant to be absolute and should instead be applied depending on the circumstances of a dispute. The sad reality though, is that Nigerian courts have not discovered lifelines of legitimate expectation in taxation. The method of the judiciary in Nigeria is instead, to exclude any consideration of fairness or equity when a tax liability arises from a statutory provision, even where the statutory provision is inclined in its wording and admits of discretion on the part of the taxman. Through this attitude, the courts have evolved principles that are recited in tax disputes to easily disrupt legitimate expectation further.

In Margret Chinyere Stitch V. Attorney General of the Federation & Ors(1986)LPELR- SC.88/1985, the doctrine of legal expectation was examined and the Court noted that the Minister in exercising his discretionary power must act fairly, and not to the prejudice of the citizens. The Court further held that : “an aggrieved person is entitled to invoke judicial review, if he shows that a decision of a public authority affected him by depriving some beneficiary or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy, either until he was given reason for its withdrawal and the opportunity to comment was given that it would not be withdrawn before he had been given opportunity of making representation against the withdrawal”.

In Federal Board of Inland Revenue v. Halliburton ( WA) Limited (2016)4N.W.L.R ( part 1501) 53, the court held that “what the doctrine postulates is that where a public body or person acting in public authority has issued a promise or has been acting in given way, the members of the public who are to be affected by the scheme of conducting public affairs in the charted manner would by law require the promise or the practice to be honored or kept by the public body or person acting in public authority…”.

WHERE LEGITIMATE EXPECTATION APPLIES TO TAXATION IN NIGERIA

Discretionary Powers

A statutory provision can create a substantive power, but the mode or procedure of exercising the power would be by discretion bestowed on the tax authority by the same law, another law or an executive policy instrument enabled by law. The court encourages that fairness be the fundamental rule whenever exercise of power is by discretion.

Legitimate expectation would therefore be created when exercise of discretionary power becomes uniform in mode and forms a pattern, such that persons who are subject to such a power are led to arrange their business affairs with the expectation that the mode would be constant. The expectation can also come from an Advanced Tax Ruling (“ATR”) by the tax authority on how to apply its discretion in assessing a specific transaction or specific transactions of a company or an individual in a year of assessment.

Judicial Decisions Adopted by Tax Authorities

When the court creates a principle in its judgments, the tax authorities, beyond enforcing the judgment in the particular case involved, also apply the principle to the tax treatment of future similar disputes. Thus, the judicial precedent becomes the practice on that case and gradually forms a rule of practice in tax issues.

Judgements on tax disputes are normally judgments in personam and not in rem. It is settled in law that the former class of judgments bind only parties to the particular dispute, while the latter is connected in effect to the subject-matter of the dispute and binds the whole world in respect of that subject-matter. By this nature of tax judgments therefore, tax authorities are neither entitled nor bound in law to apply the principles of one judgment in the treatment of another dispute, no matter the similarities of facts and circumstances between the cases. However, when the taxman notifies a particular taxpayer or the entire public of its adoption of a judicial decision, or issues a circular based on the judgment, legitimate expectation is created to bind the taxman until a later decision alters such principle.

Contractual and Statutory Waivers

The word “waiver” according to Black’s Law Dictionary is the “the voluntary relinquishment or abandonment, express or implied, of a legal right or advantage.”

Waiver applies both in contract and under statute, but in varied scopes. In a contractual setting, the agreement need not expressly nor even impliedly provide for waiver. The doctrine of waiver would be enforced against a party who with full knowledge of his rights under the contract, has by his words or action, discarded he right. Such a relinquished right cannot be reclaimed. In a statute-governed situation however, waiver arises by express provision of the relevant statute.

Statutory waiver can be gotten from most of the discretionary powers granted to tax authorities under the various tax laws. For example, while Section 32(1) of the FIRS Act just like Section 85(1) of the Act provides for interest and penalty for failure to pay tax as and when due, both sections in their subsections (3) empower FIRS to remit the whole or any part of the interest and penalty when good cause is shown for such remission. Vide a public notice in 2016, FIRS granted a general waiver on interest and penalties stretching back to three years (2013-2015), to all taxpayers in default on stipulated conditions. When a taxpayer takes advantage of such statutory waiver and complies with the conditions attached thereto, the doctrine of legitimate expectation would forbid FIRS to take any backward step on the promise.

In Conclusion, the concept of Legitimate Expectation is applicable under the Nigerian law, as long as the applicant can established the ‘ingredients’ enumerated in the South African case of Duncan v. Minister of Environmental Affairs and Tourism and others.

The ingredients are:

  • representation inducing the expectation must be clear, unambiguous and devoid of any relevant qualifications; .

  • The expectation must have been induced by the decision maker; .

  • The expectation must be reasonable; and .

  • The representation must be one which is competent and lawful for the decision maker to make.

  • The court also held that “what must be shown is the legitimacy of the expectation of that expectation which led the person whose expectation was so raised to believe that it would receive a procedural benefit”. Although, this is not oblivious of the fact that Nigerian Courts are not bound by foreign decisions.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

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