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Published online by Cambridge University Press: 15 May 2020
In 2015, the OECD gave the world a template to address base erosion and profit shifting and ensure that profit is taxed in the jurisdiction of value addition and / or where economic activities take place. The world's jurisdictions then embarked on implementing the template. Examining the legal framework subsequently put in place for the taxation of intangibles in Nigeria, this article argues that the distinct regimes for connected and unconnected persons’ transactions create flaws. It further asserts that these flaws are consequences of the conflict between the policy that underpins the legal framework and other policies in the country. It concludes that the legal framework may not be a “Swiss army knife” (providing Nigeria with all that is needed to combat transfer pricing issues associated with the transfer of intangibles by connected persons), as it creates issues that have undesired consequences for the taxation as well as the economic system.
LLD (Pretoria). Associate research fellow, Institute for Oil, Gas, Energy, Environment and Sustainable Development, Afe Babalola University, Nigeria.
LLB (Ekpoma), LLM (Dundee), PG cert, PhD (Glasgow Caledonian University). Visiting lecturer, Edo State Polytechnic, Nigeria.
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3 Technically, geese honk. Plucking geese and other birds has been part of human history, as the feathers are used as stuffing and insulation. However, live plucking is considered inhumane and is at the centre of animal rights anti-cruelty campaigns and policies. See O Milman “‘Ethical down’: Is the lining of your winter coat nothing but fluff?” (14 January 2016) The Guardian, available at: <https://www.theguardian.com/world/2016/jan/14/winter-coat-ethically-produced-down-goose-feathers> (last accessed 9 April 2020); and European Food Safety Authority (EFSA) Panel on Animal Health and Welfare “Scientific opinion on the practice of harvesting (collecting) feathers from live geese for down production” (2010) 8/11 EFSA Journal 1, available at: <https://efsa.onlinelibrary.wiley.com/doi/epdf/10.2903/j.efsa.2010.1886> (last accessed 9 April 2020).
4 This article builds on the analysis of the TPR in Ndajiwo, M and Aniyie, IA “Adoption of BEPS in Nigeria” in Sadiq, K, Sawyer, A and McCreddie, B (eds) Tax Design and Administration in a Post-BEPS Era: A Study of Key Reform Measures in 18 Countries (2019, Fiscal Publications) 229Google Scholar.
5 RM Bird and EM Zolt “Introduction to tax policy design and development” (draft prepared for World Bank course on practical issues of tax policy in developing countries, April 2003) at 4, available at: <http://www1.worldbank.org/publicsector/LearningProgram/PracticalIssues/papers/introduction%20to%20tax%20policy/WBI%20Module%201(Bird&Zolt)April10.doc> (last accessed 9 April 2020).
6 See Coltness Iron Company v Black (1881) 6 App Cas 315 (per Lord Blackburn). See also IRC v Holmden [1968] AC 685 at 712, where Lord Wilberforce stated: “A man is not to be taxed by a dilemma: He must be taxed by positive provision under which the Crown can satisfactorily show that he is fairly and squarely taxed.”
7 See Constitution of the Republic of the Gambia 1997 (effective 16 January 1997), available at: <https://www.refworld.org/docid/4811c33f2.html> (last accessed 9 April 2020).
8 For example, see Federal Inland Revenue Service (Establishment) Act 2007, secs 1 and 2, pursuant to which the Federal Inland Revenue Service was established. See also sec 87(1) of the Personal Income Tax Act cap P8 Laws of the Federation of Nigeria 2004 (LFN) (as amended), under which each of the states of Nigeria was to establish a State Board of Internal Revenue.
9 Bird and Zolt “Introduction to tax policy”, above at note 5 at 23.
10 RM Bird “Smart tax administration” (October 2010) 36 Economic Premise 1 at 2, available at: <http://siteresources.worldbank.org/INTPREMNET/Resources/EP36.pdf> (last accessed 9 April 2020).
11 See Musgrave, R and Musgrave, PPublic Finance in Theory and Practice (5th ed, 2004, Tata McGaw-Hill)Google Scholar at 212; Thuronyi, VComparative Tax Law (2003, Kluwer Law International)Google Scholar; Black, P et al. (eds) Public Economics (5th ed, 2012, Oxford University Press) at 163Google Scholar; Burman, LE and Slemrod, JTaxes in America: What Everyone Needs to Know (2013, Oxford University Press)Google Scholar at 5.
12 BT Kujinga “A comparative analysis of the efficacy of the general anti-avoidance rule as a measure against impermissible income tax avoidance in South Africa” (2014, LLD thesis, University of Pretoria, South Africa) at 12. Also, in Matthews v Chicory Marketing Board (Victoria) (1938) 60 CLR 263 at 276, the High Court of Australia defined tax as “a compulsory exaction of money by a public authority for public purposes, enforceable at law, and … not a payment for services rendered”.
13 A penalty is a sum paid and received from an individual following a breach or failure to discharge an obligation. See R v Barger (1908) 6 CLR 41 at 99 (per Isaacs J).
14 Thuronyi Comparative Tax Law, above at note 11 at 45. Bird and Tsiopoulos highlighted a further difference between user charges and taxes when they stated: “The main economic rationale of user charges, therefore, is not the generation of revenue but the promotion of economic efficiency.” Thus, user charges promote efficiency in two ways: by providing information to public sector suppliers about how much clients are actually willing to pay for particular services; and by ensuring that citizens value what the public sector supplies, at least at its marginal cost. See Bird, RM and Tsiopoulos, T “User charges for public service: Potentials and problems” (1997) 45/1Canadian Tax Journal 25Google Scholar at 36. See Air Caledonie International v The Commonwealth (1988) 165 CLR 462, where it was held that, for a financial imposition to be legally defined as a “user charge or fee for a service”, the person required to make the payment must either receive the service direct or request its provision; judgment available at: <http://eresources.hcourt.gov.au/showbyHandle/1/11789#XN.7> (last accessed 15 April 2020). However, the existence and consequence of this distinction is not appreciated among scholars. See Odinkonigbo, JJ and Ezeuko, JJ “Does Nigeria follow the contemporary global trend in tax dispute resolution strategy?” (2014) 12 Nigerian Juridical Review 151Google Scholar at 152–53, where, after a review of definitions proffered by other authors that lack the same distinction, the authors reach a conclusion that does not take this distinction into account.
15 The Constitution of the Federal Republic of Nigeria 1999 (as amended), sec 24(f) makes this a constitutional obligation for every citizen.
16 See Mohdali, R et al. “A cross-cultural study of religiosity and tax compliance attitudes in Malaysia and Turkey” (2017) 15/3eJournal of Tax Research 490Google Scholar at 491, where it was described as a “mechanism that determines the level of social solidarity and social participation of the country”.
17 Prichard, WTaxation, Responsiveness and Accountability in Sub-Saharan Africa: The Dynamics of Tax Bargaining (2015, Cambridge University Press)CrossRefGoogle Scholar at 1. See also W Prichard “What have we learned about taxation, statebuilding and accountability?” (May 2016) 4 International Centre for Tax and Development Summary Brief 1.
18 Berenson, MPTaxes and Trust: From Coercion to Compliance in Poland, Russia and Ukraine (2018, Cambridge University Press)CrossRefGoogle Scholar at 1.
19 Lord Clyde in Ayrshire Pullman Motor Services and Ritchie v CIR (1929) 14 TC 754 at 764–65.
20 At the core of this argument is the proposition that taxation is an inherent or essential component of sovereign status. For highlights of this relationship and a copious review of relevant literature, see A Christians “Sovereignty, taxation and social contract” (University of Wisconsin Law School legal studies research paper series, paper no 1063 of 2008) at 6–16, available at: <https://ssrn.com/abstract=1259975> (last accessed 9 April 2020).
21 M Ross “Does taxation lead to representation” (2004) 34 British Journal of Political Science 229 at 234.
22 See Bird, RM and Zolt, EM “Fiscal contracting in Latin America” (2015) 67 World Development 323CrossRefGoogle Scholar; Timmons, JF “The fiscal contract: States, taxes and public services” (2005) 57/4World Politics 530CrossRefGoogle Scholar, where the author suggests that optimum taxation would be achieved where the state approaches taxation like a contract: negotiating, agreeing and actually keeping terms so as to ensure greater compliance. Also see, O-H Fjeldstad et al “Peoples’ views of taxation in Africa: A review of research on determinants of tax compliance” (Chr Michelsen Institute working paper 2012:7) at 4, where it was argued that the existence of government expenditure has the potential to encourage tax compliance, especially where the former is directed at or focused on the provision of goods and services that are a priority for citizens.
23 Bird and Zolt “Fiscal contracting”, above at note 22 at 325.
24 von Haldenwang, C and von Schiller, A “The politics of taxation: Introduction to the special section” (2016) 52/12The Journal of Development Studies 1685CrossRefGoogle Scholar at 1685.
25 Berenson Taxes and Trust, above at note 18 at 8–9.
26 Cullen, JB and Gordon, RH “Taxes and entrepreneurial risk-taking: Theory and evidence for the US” (2007) 91 Journal of Public Economics 1479CrossRefGoogle Scholar.
27 Legwaila, T “Tax reasons for establishing a headquarter company” (2011) Obiter 126Google Scholar. See also, MJ Boskin and WG Gale “New results on the effects of tax policy on the international location of investment” (1986, National Bureau of Economic Research working paper 1862). See also Legwaila, T “Tax characteristics of an ideal holding company location” (2012) 1 De Jure 22Google Scholar at 45 where, after a review of the South African tax provisions relating to the corporate tax rate, dividend tax rules, capital gains tax regime, transfer pricing provisions, etc, the author concluded that the jurisdiction is suitable for the location of a holding company.
28 The method and rate of depreciation of an asset determine the tax written down value and consequential value of the asset.
29 This is because profit from the perspective of the business is the difference between income and the total cost (including tax) associated with the generation of income. This impacts on the return on investment (including dividends and interest).
30 Stiglitz, JE “Using tax policy to curb speculative short term trading” (1989) 3 Journal of Financial Services Research 101CrossRefGoogle Scholar; Mashkoor, M et al. “Tax revenue and economic growth: An empirical analysis for Pakistan” (2010) 10/11World Applied Science Journal 1283Google Scholar; and B Exelby “The impact of taxation on mobile growth and its associated socio-economic contribution” (2011), available at: <https://www.itu.int/ITU-D/finance/work-cost-tariffs/events/tariff-seminars/Gaborone-11/Documents/Session4GSMA.pdf> (last accessed 15 April 2020).
31 See Ferede, E and Dahlby, B “The impact of tax cuts on economic growth: Evidence from the Canadian provinces” (2012) 65/3National Tax Journal 563CrossRefGoogle Scholar; Poulson, BW and Kaplan, GJ “State income taxes and economic growth” (winter 2008) 28/1Cato Journal 53Google Scholar; Engen, E and Skinner, J “Taxation and economic growth” (1996) 49/4National Tax Journal 617Google Scholar; Djankov, S et al. “The effect of corporate taxes on investment and entrepreneurship” (2010) 2/3American Economic Journal: Macroeconomics 31Google Scholar; Pope & Talbot Inc v Government of Canada interim award, 26 June 2000, para 99, available at: <https://www.italaw.com/sites/default/files/case-documents/ita0674.pdf> (last accessed 9 April 2020); Epps, T “Taxation and expropriation” (2013) 13 Otago Law Review 145Google Scholar; Stephan, PB “Taxation and expropriation: The destruction of the Yukos oil empire” (2012) 48 Virginia Public Law and Legal Theory Research Paper 1Google Scholar; Doran, M “Tax penalties and tax compliance” (2009) 46 Harvard Journal on Legislation 111Google Scholar; and Sornnarajah, MThe International Law on Foreign Investment (2017, Cambridge University Press) 480CrossRefGoogle Scholar.
32 Substitution effect is the variation in consumer preference or the quantity demanded of goods, occasioned by a change in the price of the goods or disposable income, with income remaining constant. Where a price increase is occasioned by taxes, a consumer eschews expensive goods in favour of cheaper alternatives. The effect also applies where a taxpayer favours strategies and arrangements that would generate and / or guarantee a disposable income that is greater than would otherwise have been the case. In this case, the taxpayer adjusts his options or substitutes noncompliant behaviour to reduce the tax due on the income.
33 These are strategies implemented by the taxpayer to ensure that he pays the lowest tax possible. They are legal insofar as they fall within the confines of what is referred to as tax avoidance. See Ayrshire Pullman Motor Services and Ritchie v CIR (1929) 14 TC 754; IRC v Duke of Westminster (1935) All ER 259; Helvering v Gregory 69 F 2d 809, 810 (2nd cir 1934). Also see CIR v Willoughby (1997) 4 All ER 65 at 73, per Lord Nolan.
34 Gurtner, B “The financial and economic crisis and developing countries” (2010) 1 International Development Policy 189Google Scholar, available at: <https://journals.openedition.org/poldev/144?lang=fr> (last accessed 9 April 2020).
35 For a discourse highlighting the relationship between taxation and inequality, see, for example, C Hallum and KW Obeng “The West Africa inequality crisis” (Oxfam briefing paper, July 2019) at 27–29, available at: <https://www.oxfam.org/en/research/west-africa-inequality-crisis> (last accessed 9 April 2020).
36 W Prichard “Improving tax and development outcomes: What next for civil society engagement?” (2018) at 2, available at: <https://www.ictd.ac/publication/improving-tax-and-development-outcomes-what-next-for-civil-society-engagement/> (last accessed 15 April 2020).
37 See generally, Report of the High Level Panel on Illicit Financial Flows from Africa (2015, commissioned by the African Union/Economic Commission for Africa Conference of Ministers of Finance, Planning and Economic Development), available at: <https://www.uneca.org/sites/default/files/PublicationFiles/iff_main_report_26feb_en.pdf> (last accessed 9 April 2020).
38 These include: (i) the signing of the Convention on Mutual Administrative Assistance in Tax Matters on 29 May 2013 without any reservation and its entry into force on 1 September 2015; (ii) the signing of the Multilateral Competent Authority Agreement on the Exchange of Country-By-Country Reports (MCAA) on 27 January 2016 and its ratification by the Federal Executive Council on 3 August 2016; (iii) the legislation of the Income Tax (Country by Country Reporting) Regs 2018 in January 2018, which give effect to the MCAA, secs 8(1)(i) and (t), 8(2), 26 and 27(1) of the Federal Inland Revenue Service (Establishment) Act, secs 58 and 60 of the Companies Income Tax Act cap C21 LFN (CITA), secs 31 and 32 of the Petroleum Profits Tax Act cap P13 LFN and reg 6 of the TPR; and (iv) the signing of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting on 17 August 2017. Note that this last convention is yet to enter into force in Nigeria as Nigeria has not deposited its instrument of ratification; see OECD “Signatories and parties to the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting: Status as of 11 March 2020”, available at: <http://www.oecd.org/tax/treaties/beps-mli-signatories-and-parties.pdf> (last accessed 9 April 2020).
39 The TPR were preceded by the Income Tax (Transfer Pricing) Regs (No 1) 2012, which were revoked by reg 26(1) of the TPR.
40 These provisions are the Personal Income Tax Act, cap P8 LFN, sec 17; CITA, secs 13(d) and 22; and Petroleum Profits Tax Act, sec 15. See Abdulrazaq, AO “Nigeria: Effect of the OECD BEPS initiative on Nigerian transfer pricing regulations” (2016) 23/6International Transfer Pricing Journal 535Google Scholar, where these provisions are described as providing guidance for enforcement of the TPR.
41 “OECD transfer pricing guidelines for multinational enterprises and tax administrations 2017”, available at: <https://doi.org/10.1787/tpg-2017-en> (last assessed 9 April 2020).
42 “UN practical manual on transfer pricing for developing countries 2017”, available at <https://www.un.org/esa/ffd/wp-content/uploads/2017/04/Manual-TP-2017.pdf> (last assessed 9 April 2020).
43 This provision is not peculiar to Nigeria. See for example, Zambia's Income Tax (Transfer Pricing) (Amendment) Regs 2018, sec 20.
44 This is the government agency saddled with responsibility for assessing economic actors within the stratum of the Nigerian tax system that comes within the purview of the federal government, as well as collecting and accounting for the taxes collected. See Federal Inland Revenue Service (Establishment) Act, sec 2. Also see Aniyie, IA“Nigeria” in Evans, C et al. (eds) Improving Tax Compliance in a Globalised World (2018, International Bureau of Fiscal Documentation) 601Google Scholar at 622–23 for an overview of the administrative jurisdiction of the tiers of government in Nigeria.
45 OECD TPG, above at note 41 at 247.
46 See id at 249 and 252–57; and UN MTP, above at note 42 at 18.
47 Ndajiwo and Aniyie “Adoption of BEPS”, above at note 4 at 235.
48 Ibid.
49 Ibid.
50 See Aligning Transfer Pricing Outcomes with Value Creation, Action 8–10: Final Reports OECD / G20 Base Erosion and Profit Shifting Project (2015, OECD Publishing) at 63–65. This was subsequently referred to as “DEMPE-control risk associated with intangibles”.
51 See Niger Progress Ltd v NEI Corp (1989) 3 NWLR (pt 107) 68; Garba v Federal Civil Service Commission (1988) 1 NWLR (pt 71) 449; Odua Investment Limited v Talabi (1997) 10 NWLR (pt 523) 1; Bamaiyi v AG of Federation (2001) 90 LRCN 2738; Ainabeholo v ESUWFMPCS Ltd (2007) 2 NWLR (pt 1017) 33 at 37 where it was affirmed that the plain meaning approach to interpretation (also referred to as a contextual approach) should be utilized when the statute's language is clear and unambiguous.
52 Generally, persons are deemed connected when one has the ability to control or influence the other in making financial, commercial or operational decisions. They are also connected when a third person has the ability to control or influence both persons in making commercial or operational decisions. Hence, transactions between principal and subsidiary or affiliate companies, or between subsidiaries or affiliates are connected persons transactions. See TPR, reg 12(1).
53 The EBITDA of a taxpayer is generally the same as the net profit per account. It is arrived at after the cost of revenue and other operating expenses have been deducted from total revenue.
54 See Aligning Transfer Pricing Outcomes, above at note 50 at 63–65 for a summary of the guidelines proffered for the treatment of intangibles.
55 “Suggested approach to drafting transfer pricing legislation” (2017, ATAF), available at: <http://ataftaxevents.org/media/documents/10/documents/ATAF_Suggested_Approach_Eng_green_LR_print.pdf> (last assessed 9 April 2020).
56 Id at 4.
57 See Coltness Iron Company v Black 6 App Ca 315 at 330, which enunciated the principle that tax cannot be imposed (or deviations be introduced) without a law to that effect. See also SA Authority v Regional Tax Board (1960–2000) 2 NTLR 686 at 700 for judicial enunciation of this principle in Nigeria.
58 See Mangioni, V and Mckerchar, M “Strengthening the validity and reliability of the focus group as a method in tax research” (2013) 11/2eJournal of Tax Research 176Google Scholar at 176, where it was argued that taxation is an area of research populated by scholars from diverse disciplines including law, accounting, economics, psychology, sociology and political science. Van Oordt described taxation as a large pile of sand that consists of other piles of sand (ie disciplines): ML van Oordt “A quantitative measurement of policy options to inform value-added tax reform in South Africa” (unpublished PhD thesis, submitted to the University of Pretoria, South Africa, 2005) at 12.
59 Leedy, PD and Ormrod, JEPractical Research: Planning and Design (10th ed, 2013, Pearson)Google Scholar at 74.
60 See Togler, B “What do we know about tax morale and tax compliance?” (2001) 48 International Review of Economics and Business 395Google Scholar; LP Feld and BS Frey “Deterrence and tax morale: How tax administrations and taxpayers interact” (2002, unpublished manuscript), available at: <http://www.oecd.org/dataoecd/9/51/2789923.pdf> (last accessed 9 April 2020).
61 Dilling-Hansen opines that the Peter Pan syndrome is a characteristic of “life-style” firms (ie firms that were established primarily as a vehicle to create revenue to support their owners’ basic costs of living). He further argues that, when the owner(s) of such firms accumulate the wealth needed to afford basic luxury goods, profit maximization becomes less important: Dilling-Hansen, M “SMEs: Peter Pan syndrome of firms not grown up?” (2017) 3/1Athens Journal of Business and Economics 7CrossRefGoogle Scholar at 14–15.
62 Rationality is at the core of the rational choice theory, which has its origins in economics. At its centre is the abstraction homo economicus: a consistently rational, self-interested individual with unlimited cognitive capabilities, acting to maximize his own utility or the attainment of a pre-determined goal and the means to it. See Vriend, NJ “Rational behavior and economic theory” (1996) 29 Journal of Economic Behavior and Organization 263CrossRefGoogle Scholar at 264. See also R Selten “What is bounded rationality” (1999, Sonderforschungsbereich discussion paper B-454) at 3, available at: <http://www.wiwi.uni-bonn.de/sfb303/papers/1999/b/bonnsfb454.pdf> (last accessed 9 April 2020); SD Levitt and JA List “Homo economicus evolves” (2008) 319/5865 Science 909. See also S Schneider “Homo economicus: Or more like Homer Simpson” (29 June 2010) Deutsche Bank Research 1, available at: <https://www.dbresearch.com/PROD/RPS_EN-PROD/PROD0000000000475711/Homo_economicus_%E2%80%93_or_more_like_Homer_Simpson%3F.PDF> (last accessed 9 April 2020); Barros, G “Herbert A Simon and the concept of rationality: Boundaries and procedures” (2010) 30/3Brazilian Journal of Political Economy 455CrossRefGoogle Scholar at 457, where the author defined rationality in a similar manner.
63 See generally Coffman, RB “Is profit maximization vs value maximization also economics vs finance?” (1983) 12 Journal of Financial Education 37Google Scholar, where the author highlights the shortcoming of profit maximization as a decision function.
64 See Hettich, W “Henry Simons on taxation and the economic system” (1979) 32/1National Tax Journal 1Google Scholar at 5.
65 NOTAP was established pursuant to the NOTAP Act cap N62 LFN 2004.
66 These include registering all agreements for the transfer of foreign technology to Nigerian parties (ie technology transfer agreements) and the imposition of a regulatory cap on the fees payable for licences, royalties, etc. See NOTAP Act, secs 4 and 20. For a restatement of NOTAP's responsibilities, see Financial Reporting Council of Nigeria, Regulatory Decision in the Matter of Financial Statements of Stanbic IBTC Holdings Plc for Years Ended 31st December 2013 and 2014 (2015), available at: <https://drive.google.com/file/d/0BxB1-bqcIt35aHh2OXBFNFBneWM/view> (last accessed 15 April 2020).
67 NOTAP “History”, available at: <https://www.notap.gov.ng/content/history> (last accessed 9 April 2020).
68 For the TPR objectives, see TPR, reg 2.
69 This channel is managed by the Central Bank of Nigeria (CBN). Under the CBN Act 2007, sec 2, the CBN is saddled with the responsibility of ensuring monetary and price stability in Nigeria. The CBN issued the CBN Foreign Exchange Manual under the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, cap F34, LFN 2004, sec 1(1) to provide guidance to authorized foreign exchange dealers, authorized buyers and the general public in processing foreign exchange applications.
70 (2015) 18 TLRN 1.
71 Cap C20 LFN 2004.
72 Oando v FBIR, above at note 70 at 31. Also see Independent Television / Radio v Edo State Board of Internal Revenue (2014) 16 TRLN 37 at 58–59, where the Court of Appeal reiterated the superior position of special provisions in the course of statutory interpretation.
73 Elkins, D “Horizontal equity as a principle of tax theory” (2006) 24/1Yale Law & Policy Review 43Google Scholar; and Miller, JA “Equal taxation: A commentary” (2000) 29/2Hofstra Law Review 529Google Scholar at 532.
74 Credit for the origin of this theory goes to Becker, who developed the “Simple model of rational crime” to combat illegal behaviour, including white collar crimes such as tax evasion: Becker, GS “Crime and punishment: An economic approach” (March – April 1968) 76/2Journal of Political Economy 169CrossRefGoogle Scholar. The current form is the product of the work of Allingham and Sandmo, Srinivasan as well as Yitzhaki. See generally, Allingham, MG and Sandmo, A “Income tax evasion: A theoretical analysis” (1972) 1 Journal of Public Economics 323CrossRefGoogle Scholar; Srinivasan, TN “Tax evasion: A model” (1973) 2 Journal of Public Economics 339CrossRefGoogle Scholar; and Yitzhaki, S “A note on income tax evasion: A theoretical analysis” (1974) 3 Journal of Public Economics 201CrossRefGoogle Scholar at 201–02. The theory has two assumptions at its core. The first is that individuals respond to incentives (whether positive or negative) and the prevalence of crime in a jurisdiction is inversely proportional to the effectiveness of the crime detection apparatus of the jurisdiction as well as the severity of the punishment on detection. The second is that, after a rational analysis of their situation to gauge the probability of apprehension (or success) as well as the consequence of failure, individuals commit crime and / or indulge in illegal behaviour only when there is an incentive to so do. From an economic point of view and in the context of taxation, the theory suggests that a taxpayer will embrace avoidance or evasion if the expected gain or incentive (ie the hidden taxable income) would exceed the utility (ie income) derivable from the use of economic resources (ie time and other resources, such as tax intermediaries) for purposes other than tax evasion (or avoidance).
75 See Manhire, JT “There is no spoon: Reconsidering the tax compliance puzzle” (2015) 17/8Florida Tax Review 623Google Scholar at 628–29, where taxpayer rationality, non-rationality, morality, social and cultural norms, trust in government and alignment of government policies with those of the citizenry were listed as factors that motivate the compliance orientation and behaviour of taxpayers. See R Aiko and C Logan “Africa's willing taxpayers thwarted by opaque tax system, corruption” (2014, Afrobarometer policy paper no 7), highlighting data pointing to the fact that Africans are willing to pay tax, notwithstanding the existence of psycho-social referents that could catalyse noncompliant behaviour. Also see Togler, B “Speaking to theorists and searching for facts: Tax morale and tax compliance in experiments” (2002) 16/5Journal of Economic Surveys 657CrossRefGoogle Scholar at 662–69 for a review of some of the non-economic variables that often propel compliance.
76 See Report of the High Level Panel, above at note 37 at 13, stating that Africa has lost USD 1 trillion in the last 50 years and loses USD50 billion annually in illicit financial flows.
77 Deadweight loss is the efficiency loss associated with tax-induced substitution in the decision function of an economic agent. In real terms it is the loss suffered, whether real or intrinsic, because of choices made to reduce or avoid the impact of taxes.
78 These are the four largest accounting firms in terms of global revenue: Deloitte, PricewaterhouseCoopers, Ernst & Young and KPMG. See: “Revenue of the Big Four accounting / audit firms worldwide in 2019” Statista, available at: <https://www.statista.com/statistics/250479/big-four-accounting-firms-global-revenue/> (last accessed 9 April 2020).
79 In 2016, attention was drawn to the inadequate number of staff within the FIRS transfer pricing unit, at that time numbering approximately half the number of KPMG Nigeria staff dedicated to advising clients on the subject. See Ogungbenro, T et al. “Transfer pricing in Nigeria: The journey so far” (2016) 84 Tax Notes International 789Google Scholar at 791.
80 2015 ATAF statistics show that 43.7% of staff disengage from FIRS after nine years and put average disengagement from the service of African tax authorities after nine years of employment at 68.2%: ATAF African Tax Outlook (2nd ed, 2017, ATAF) at 150–51. See also Dealing Effectively with the Challenges of Transfer Pricing (2012, OECD Publishing) at 58, available at: <http://dx.doi.org/10.1787/9789264169463-en> (last accessed 9 April 2020), where the OECD affirmed this.
81 Africa Capacity Report 2015: Capacity Imperatives for Domestic Resource Mobilization in Africa (2015, African Capacity Building Foundation) at 6, available at: <https://www.acbf-pact.org/sites/default/files/ACR_2015_11_2015_Web_v2.pdf> (last accessed 9 April 2020). Also see African Tax Outlook (3rd ed, 2019, ATAF) at 169 for some of the staff retention and motivation schemes employed by tax administrations in Africa.
82 See Dealing Effectively, above at note 80 at 58–73.
83 See Musgrave and Musgrave Public Finance, above at note 11 at 3–14, where it was proposed that the function of the state is to allocate resources, stabilize the economy and redistribute income.
84 Avi-Yonah, RS “The three goals of taxation” (2006) 60 Tax Law Review 1Google Scholar, where the Musgravian objectives were described as the “three goals of taxation”.
85 This is often the source of uncertainty for the taxpayer, as the court has been known to hand down conflicting decisions. See the decisions in Gazprom Oil & Gas Nigeria Limited v FIRS (2015) 19 TLRN 66 and Vodacom Business Nigeria Limited v FIRS (unreported, appeal TAT/LZ/VAT/016/2015, delivered 12 February 2016); in these two cases the Tax Appeal Tribunal handed down conflicting decisions with regard to the VAT obligation of a Nigerian company that consumes goods or services provided by a non-resident company. The conflict stood until the Federal High Court, sitting in its appellate jurisdiction in Vodacom Business Nigeria Limited v FIRS (unreported, appeal FHC/L/4A/2016, per Kuewumi J, delivered 19 December 2017) affirmed the decision in Vodacom Business Nigeria Limited v FIRS.
86 These are alternative trade policy measures with the potential to have an economic effect on the international trade in goods, changing quantities traded, prices or both. They encompass non-customs tariff measures like sanitary / phytosanitary or environmental protection measures, quotas, price control and export restrictions, or contingent trade protective measures and behind-the-border measures like competition, trade-related investment measures, government procurement and distribution restrictions. See UN Conference on Trade and Development “Non-tariff measures: Evidence from selected developing countries and future research agenda” (2010, UN) at XVI, available at: <https://unctad.org/en/Docs/ditctab20093_en.pdf> (last accessed 9 April 2020).