By Adejuwon Osunnuyi
Federal inland revenue Service of Nigeria,FIRS and the Shell Petroleum Company of Nigeria Limited (SPDC) have settled out of court the lingering tax legal battle that has been going on for the past two years.
The Shell Petroleum Company of Nigeria Limited being dissatisfied with the decision of the Tax Appeal Tribunal (TAT) delivered on 10th February, 2015 in Appeal number TAT /LZ/004/2014 on the deductibility of withholding Tax dividends paid on Gas Profit filed a notice of Appeal dated 11th March 2015 at the Federal High Court in Lagos.
Shell Petroleum Development Company had filed a notice of Appeal before the Tax Appeal Tribunal challenging the Federal inland Revenue Service demand note dated 28th October, 2013, setting out an assessment of withholding Tax, Penalty and interest in the sum of USD16,275,081 on dividends on SPDC’s Gas profits for the years 2010-2011.
Tax Appeal Tribunal upheld the Federal Inland Revenue Service ‘s decision and Shell Petroleum Development Company appealed against this decision of the Tax Appeal Tribunal of the Federal high court.
The demand notice was issued based on the Federal inland Revenue Service position that Shell Petroleum Development Company having enjoyed the tax incentive provided under section 11(2) (d) of the Petroleum Profits Tax Act Cap P13 Law of Federation of Nigeria 2004 (PPTA) for the computation of tax liability on income natural gas operations at the Companies Income Tax (CITA) Act Cap C21 Law of the Federation CITA at 30% rate, that the income and profits from SPDC’s gas operations must be subjected solely to the tax regime under the Company Income Tax Act.
As such, the dividends paid out to shareholders from SPDC’s Gas Profits are liable to withholding Tax as provided under Companies Income Tax Act.
The Tax appeal Tribunal in dismissing SPDC appeal held that the additional incentive provided for in section 60 of Petroleum Profit Tax Act does not apply to Gas as such, the Companies Income Tax Act governs the taxation of Gas income and all taxable derivatives of Gas income.
Consequently, the Tax Appeal Tribunal upheld the validity of the Demand Notice issued by the Federal Inland Revenue Service. The Federal Inland Revenue Service then approached Shell Petroleum Development Company to explore amicable resolution of the dispute.
In this regard, FIRS and SPDC and their respective solicitors and their officials held a reconciliatory meeting on 28th of November, 2017 to reach amicable settlement and have now agreed to settle their differences with regard to the Demand Note issued by FIRS to SPDC for years 2010-2011
In line with the reconciliation exercise carried out by SPDC and communicated to the FIRS, the FIRS has agreed to amend the tax liability based on the actual Gas income derived by SPDC for the years 2010-2011.
In full and final settlement of this dispute, SPDC agrees to pay to the FIRS, the amended withholding Tax liability for the years of assessment, in the sum of USD 8,979,214.
The terms of settlement have been made the consent and final judgment of the court.
The terms of judgement was executed on behalf of the Federal inland Revenue Service of Nigeria by its Executive Chairman, Mr Tunde Fowler while Finance Director of The shell Petroleum Development Company of Nigeria Limited Mr Yakov Kravchenco executed the agreement on behalf of his company.
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