By Olusegun Adeniyi
The controversy surrounding the proposed adjustment to the formula for sharing the states’ portion of the Value Added Tax (VAT), especially the derivation component, in the tax reform bills submitted to the National Assembly by President Bola Tinubu is yet to abate. What I find interesting is that many readers are asking for my take on the issue. When I respond with ‘Tinubu, Wike and the Politics of VAT’ published on this page on 16 September 2021, everyone to whom I have forwarded the column replied that it is worth publishing again because it addresses many of the issues that are currently in the public domain. As I wrote in the column almost two years before he became president, the VAT battle was ignited by Tinubu as Lagos State governor. But is he handling the issue well now that he is president of Nigeria?
Before I draw my conclusions on this vexatious issue, let me also state for the benefit of those who do not know me and may not be familiar with my writing that I am not the author of a piece being circulated on WhatsApp credited to one Olusegun S. Adeniyi. Aside the fact that Kwara State, from where I hail, is in the northern part of Nigeria, I don’t subscribe to unhelpful and divisive rhetoric. Now to the slightly abridged column of September 2021, before I conclude with my take on the current logjam.
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In September 2018, there was an interesting exchange in Premium Times between Vice President Yemi Osinbajo and his ‘illustrious predecessor’ (as he described him), Alhaji Atiku Abubakar. The issue in contention was restructuring of the country. The latter had taken on the former on his postulation that what Nigeria required was “managing resources properly and providing for the people properly.” To Atiku, Osinbajo failed “to appreciate the connection between Nigeria’s defective structure and its underperformance.” Defending his stance, Osinbajo argued that “good governance involves, inter alia, transparency and prudence in public finance,” before throwing this punchline: “Surprisingly, Alhaji Atiku leaves out the elephant in the room – corruption. And how grand corruption, fueled by a rentier economic structure benefits those who can use political positions or access to either loot the treasury or get favorable concessions to enrich themselves.”
However, the bit that is relevant here is where Osinbajo explained “the issue of deeper fiscal federalism or restructuring” and “how the then Lagos State Government, led by Asiwaju Bola Ahmed Tinubu, decided to fight for greater autonomy of states.” Osinbajo then listed sundry issues on which he, as Attorney General of the state, took the federal government to court, before concluding: “Years later, we also filed an action at the Supreme Court arguing that the Value Added Tax, being a consumption tax, should exclusively belong to the States.”
I have spent considerable time in the past week investigating the VAT case under reference and my findings are quite revealing. In the statement of claim filed at the Supreme Court, the LASG under Tinubu had stated: “The House of Assembly of Lagos State of Nigeria is the body entitled, to the exclusion of any other legislative body, to enact laws with regard to the imposition and collection of tax on the supply of all goods and services within Lagos State of Nigeria and that Lagos State of Nigeria, or any agency of the State, is the body entitled, to the exclusion of any other body, to assess and collect such tax, and that the revenue of the Lagos State Government has been and continues to be affected by the enforcement of provisions of the Value Added Tax Act.”
Based on this claim, Lagos then urged the Supreme Court to determine “Whether upon the coming into effect of the Constitution of the Federal Republic of Nigeria, 1999, the said Value Added Tax Act is an existing law within the meaning of Section 315 of the said Constitution, being a federal legislation, which is deemed to be an Act of the National Assembly.”
Apparently mindful of the implications of the case against the background of some earlier rulings, the Supreme Court counselled Lagos to seek a political solution on the issue. That was understandable. A few years earlier, when the state challenged the powers of the federal government to grant licenses and permits to erect structures in Lagos without prior knowledge or consent, the Supreme Court ruled in favour of the state. The apex court held that any item “not expressly mentioned in the Exclusive Legislative List or Concurrent Legislative List is Residual and within the legislative competence of the state government.”
Knowing it had a solid case on VAT, Lagos refused to toe the suggested line of political solution. Eventually, the federal government filed a preliminary objection on technical point, asking the supreme court to strike out the case on grounds that there was no dispute between it and Lagos. The authority being challenged by Lagos, according to the federal government, was that of the Federal Inland Revenue Services (FIRS) hence the suit ought to have been filed at the Federal High Court (FHC). The federal government averred: “The Plaintiff’s cause of action relates to acts of a federal organ and cannot form the basis of invoking this Honourable Court’s Original Jurisdiction to entertain this suit; and the entire suit constitutes an abuse of court processes.”
In determining the case, the Supreme Court held that based on the affidavits filed, the grouse in question was about “…a dispute pertaining to the operation of an agency of the federal government.” With that, the Supreme Court concluded that it was the FHC “that was imbued with jurisdiction to the exclusion of any other court in civil causes and matters relating to the revenue of the government; connected with or pertaining to taxation of companies and other bodies; the operation and interpretation of the constitution in so far as it affected the federal government or any of its agencies.”
There were arguments at the time that the Supreme Court deliberately chose a clever route since Lagos was challenging the VAT Act enacted by the National Assembly and not FIRS as claimed by the federal government. But Lagos was left with the option to take the matter up at the FHC. Somewhere along the line, the state that had for 16 years been in opposition suddenly found itself in the ruling All Progressives Congress (APC) in 2015 and decided not to pursue the matter any further.
However, apparently taking a cue from Lagos, Rivers State under Governor Nyesom Wike filed a case against the FIRS at the FHC. And in his judgement, Justice Stephen Pam declared that FIRS “has no constitutional authority to enforce and administer taxes not expressly stipulated under Items 58 and 59, Part I, Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria.” Following that decision, the Rivers State House of Assembly quickly enacted VAT Law No. 4 of 2021 to end the authority of the FIRS to administer, collect and enforce the VAT Act, 2007 in Rivers State. Lagos State that had pretended to be sleeping on the issue also jumped in with the accelerated passage of the VAT bill “in line with fiscal federalism that we have been talking about.”
I have always suspected that the VAT law would unravel one day. In a 2016 interview, former president of the Institute of Chartered Accountants of Nigeria (ICAN) and respected tax consultant, Mr Emmanuel Ijewere (he passed away last December), explained the mandate General Ibrahim Babangida gave the committee (which he chaired) that came up with the VAT law in 1993. “What was happening at that time was that there was a sales tax in several states, and there was no particular rule as to what they were charging. It was being used as a source of creating confusion, so the government now said let us standardize it.” Ijewere said his committee was told that “whatever money was collected in a state belongs to that state” while the VAT tax commission would retain 5% for administration. “Somewhere along the line, the federal government took it over, pushed the states aside, and that defeated the whole thing. It now turns out that the states that are generating a lot more VAT are not getting the commensurate amount of money from their economic activities and that was the unfair part of it.”
While the intention behind the 1993 VAT decree may have been altruistic, it has created more problems than it attempted to solve. But we cannot blame Babangida for that. Although he enacted the VAT decree before leaving office, implementation started on 1st December 1993 by which time General Sani Abacha was in power. Now, what is the issue? VAT, in a nutshell, is a consumption tax imposed on the supply of all goods and services, except those specifically exempted in a Schedule to the Act. The main challenge is that there is a near unanimity of opinion that the unjust sharing formula in VAT Act creates an impression of ‘robbing Peter to pay Paul’. That has always been the problem.
It is difficult to fault Wike’s argument that it makes no sense that Rivers State generated N15 billion VAT revenue in June this year but got N4.7 billion (about 30%) in return, while Kano generated N2.8 billion in the same month and got the same N2.8 billion back (100%). Meanwhile, Lagos State that generated N46.4 billion in the same month, was allocated N9.3 billion (about 20%). “Sometimes, you don’t want to believe these things exist,” Wike said. But while the Rivers Governor may have championed the recent fight, Tinubu was in the forefront before the APC came to the centre.
Meanwhile, the FHC judgement in favour of the Rivers State Government has thrown up issues about the nature of our system. If we were running a proper federation, the federal government would have jumped at it; being the biggest beneficiary if we disaggregate the VAT components. But many of the states would suffer and that is where the interest of the federal government comes in. With Wike talking tough against the background of the mismanagement of our diversity by the current administration, the VAT issue has provoked another North-South brouhaha. I want to deal with a few of them before I conclude.
Since everybody is talking about alcohol, including those who don’t drink, let us start from the VAT derived from it. In addressing the unholy wedlock between religious pulpit and political podium in Nigeria in my September 2019 column, I referenced the issue, following the destruction by the Kano State Hisbah Board of 196,400 bottles of beer in its effort to ensure a “sane, peaceful and sharia-compliant society.” I wrote: “this is the sort of hypocritical decisions that makes many to question the viability of our federal structure. The issue of VAT revenue is one of the strongest points being canvassed by proponents of restructuring the country. It is also one of the arguments made by Atiku before the last general election. ‘If a state is opposed to cattle tax or bicycle tax or alcohol tax, or pollution tax, for instance, it should not expect to share in the tax proceeds from those items,’ Atiku said in 2017.”
So, I align myself with those who say states that ban alcohol cannot benefit from VAT derived therefrom. But the notion of a ‘Parasitic North’ and ‘Productive South’ that forms the basis of most narratives when discussing the contradictions of Nigeria is not supported by any empirical evidence. While we cannot discount the argument of the Niger Delta whose people have for decades borne the brunt of oil exploration without much to show for the resource, the oil money for which some people deride others is rent rather than “any rigorous productive activity,” as Alhaji Bashir Ibrahim Yusuf reminded some of us in a chat group during the week. “The most hardworking Nigerians are the farmers who feed the nation with iron age tools without a fair reward for their labour.” And you find this class of Nigerians everywhere in the country.
As I have consistently argued on this page, the saber-rattling about North and South is a distraction from the real issue which is that Nigeria is not working for majority of its citizens. Now that the system is creaking beneath all of us, we must begin to fix it by bringing to the table the productive capacities of every citizen which means we need to wean ourselves of this distributive mentality that oil has foisted on our collective psyche. When the federal government argues for the retention of the status quo on VAT, it is to protect at least 30 of the 36 states which are both in the north and south. But it is also now clear that the market is over for these states that must begin to generate their own economic activities. The days of taking begging bowls to Abuja that is neck deep in foreign debts is gradually but surely coming to an end.
This VAT crisis therefore comes with a huge opportunity to address fundamental issues in an economy that is already in dire straits and perfect our skewed federal structure. As I argued in my ‘Platform Nigeria’ presentation with the theme, ‘Is Devolution of Powers the solution to Nigeria’s Problem?’ in May this year (2021), the fiscal imbalance in which the federal government controls disproportionate power and wealth has become a huge problem. The current regime of ‘sharing the national cake’ is also unsustainable. “We should actually be thinking in terms of getting the people to directly fund their government, not gathering to share oil money, and the laziness, lack of accountability and tension associated with it. We should be moving from an extract and share economy to one funded by taxpayers.”
In practical terms, there is value in a centrally collected tax and the current VAT regime has its own merit. We may need to change the name, increase derivation components, reduce the cost of collection by FIRS and allow states to retain 100% taxes on certain items (like alcohol) that some may have issues with. We may also need to tweak the sharing formula such that only a certain percentage will go to the central pool for sharing. But asking each state to keep all the VAT it generates will be difficult to implement under the current circumstance.
If, for instance, the court upholds the current ruling, each state will have to create its own VAT law to plug the hole that the centrally collected and distributed VAT will create in their already troubled finances. Different rates in different states will make it difficult to do business across the country. Things exempted from VAT could also be brought under such law (like food and agricultural products, for states that don’t have other things they can immediately tax.) The implication will be higher prices and inflation. Besides, since most states don’t have the capacity that FIRS has, they may deploy commissioned consultants and motor park touts to do the job of tax collection. We all know that would result in an open invitation to anarchy.
At the end of the day, we have two major problems. One, we have a revenue problem across the board. Without necessarily raising rates or creating new taxes, we need to bring more people into the tax net and be more efficient in collection. Two, we need to spend the accrued revenues more prudently. No point taking taxes from the people and expending such proceeds on frivolities or having some mummy and son fight over millions of Naira after daddy had ‘disappeared’ the dollar component into his Babariga!
ENDNOTE: From the foregoing, it is clear that I saw this problem coming more than three years ago. I also suggested the way forward. “From my reading of the whole situation and given the experience of Lagos on this issue, a political solution appears the surest bet to the VAT imbroglio,” I wrote at the time. “For that to happen, President Muhammadu Buhari must show leadership. He can delegate Vice President Yemi Osinbajo to use the instrumentality of the National Economic Council (NEC) which he chairs to negotiate with the states.”
Not surprisingly, Buhari did nothing. And in dealing with the issue, his successor has compounded the problem. Not only did President Tinubu discard the NEC recommendation to withdraw the bills before the National Assembly to pave the way for more comprehensive consultation with key stakeholders in the country, he also dismissively told the council, headed by Vice President Kashim Shettima and comprising all the 36 governors, to direct their reservations to the National Assembly. That statement was in bad taste.
Considering recent Supreme Court rulings which suggest a stance to uphold the federal nature of our constitution, presidential handlers may feel that the law is on their side on this matter. But that will be a myopic reading of the situation in a country like ours. The Waziri Adio-led Agora Policy, a think tank focused on development and governance, has done extensive work on the tax bills and their implications in practical terms. The main takeaway from their interventions is that there will be losers and winners on the VAT issue, and it will impact revenue in many states. You don’t handle a policy like that the way this administration has gone about it.
For instance, Agora Policy’s disaggregation of the ‘percentage gains and losses on actual and proposed VAT for states for October 2024’, indicates that no fewer than 14 states will suffer revenue deficit with ten of them from the North if the proposed VAT formula scales through with adjustment. But that does not even tell the whole story. Of the 22 states that will ‘gain’, only nine are from the North, and if you remove Kano (42.32%) and Kaduna (35.24%), the accruing benefits for the other northern states are marginal. In fact, my state (Kwara) would gain only 1.16%. Meanwhile, 13 of the 17 Southern states are projected to witness a massive revenue jump with an additional VAT revenue of 86.17% going to Delta, 62.43% to Ogun, 53.58% to Imo and 50.09% to Anambra. Such fundamental changes in fiscal outlook in each of the 36 states (for better or worse) cannot be treated in such a cavalier manner.
When the stakeholders (federal government, 36 states and 774 local governments) gather each month to share the proverbial ‘national cake’ at the meeting of the Federation Account Allocation Committee (FAAC), the main source used to be from Statutory Revenue: oil and gas plus solid minerals and all other taxes/levies from the Federal Inland Revenue Service (FIRS) and Nigeria Customs Service (NCS). Not anymore. On 24 November when they last met to share accrued revenues for the month of October, for instance, only N206.32 billion came from that source (after sundry deductions, which is another story by itself). Meanwhile, that N206.32 billion from Statutory Revenue is about 15 percent of the net sum shared, raising questions about the management of the Federation Account. In contrast, of the N1.411 trillion shared at FAAC for the month, the VAT component was N622.3 billion!
Like the two policies of the current administration on fuel subsidy and Naira exchange rate, the motivations behind them may have been good but their reckless implementation has negatively impacted the people, to put the situation mildly. The same could happen with the tax bills, which ordinarily are not a bad idea. Because most states rely on money shared at FAAC to fund their budgets, it is no surprise that we now have a political crisis that has divided the country along sectional lines. I continue to urge President Tinubu to dialogue with the governors on this issue. If he bullies his way to get the laws passed by the National Assembly without the buy-in of critical stakeholders across board, the consequences may be too difficult to manage in a fragile country like Nigeria.
You can follow me on my X (formerly Twitter) @Olusegunverdict and on www.olusegunadeniyi.com
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