Frequently Asked Questions On Power Of Substitution In Tax Administration

What is power of substitution?

The power of substitution is a tax recovery mechanism that permits the tax authority to issue a directive to a third party (a ‘substitute’) to remit funds belonging to a defaulting taxpayer to settle a final, established, and unpaid tax liability. This power is only exercised after all legal and administrative processes, including appeals to the courts, have been exhausted.

Is there a risk of arbitrary use of this power?

No. The power of substitution is neither arbitrary nor discretionary. Its use is strictly governed by due process and can only be invoked after all established processes involving enquiries, assessments, objections, final notice, and appeals to the courts have been concluded, and the tax liability has become final and conclusive. It serves as a rigorously controlled, last-resort, not a routine administrative action.

Does this affect low-income earners or small businesses?

Individuals earning the national minimum wage or small businesses operating below applicable taxable thresholds are outside the scope of this measure. The power of substitution is only worthwhile where there is a substantial tax liability, which these groups generally do not have under the new tax laws.

Is the power of substitute a new provision in the Nigerian tax system?

No. This power is not new. It has been an existing provision of Nigeria’s tax legislation, including section 50 of the repealed Personal Income Tax Act (PITA) and various other tax statutes.

Is this a globally accepted practice?

Yes. The use of third-party collection mechanisms is consistent with global best practices in tax administration. Similar powers, such as issuing garnishment or third-party payment notices, are common in tax jurisdictions worldwide to recover confirmed tax debts.

Why is this power necessary?

This power is essential for maintaining fairness within the tax system. Without effective enforcement tools, compliant taxpayers are unfairly burdened, tax evasion is inadvertently encouraged, and government finances face undue pressure, which can lead to higher tax rates for all.

Under what conditions can the tax authority exercise this power?

The power of substitution is strictly a last-resort measure and requires the simultaneous fulfillment of the following three conditions:

Exhausted process – the entire process for establishing a tax liability (enquiries, assessment, objection, final notice, and appeal involving the court) has been concluded.

Final liability – the taxpayer has a confirmed, final tax liability that is legally due and payable.

Refusal to pay – the taxpayer has failed, neglected, or refused to pay the debt within the written period specified by the tax authority.

Who can be appointed as a substitute of a defaulting taxpayer?

The tax authority can issue a notice of substitution to any person who holds funds belonging to, or owes sums of money due to the defaulting taxpayer.

What are the obligations of a substitute, and can such a person decline the appointment?

Upon receiving a notice of substitution, the appointed party is statutorily obligated to either comply or formally object in writing within 30 days. The objection must specify the grounds for refusal. The legal provisions for appealing tax assessments are also applicable to the substitution notice.

What are the specific safeguards to prevent the abuse of this power?

Various legal and administrative safeguards exist to ensure the power is controlled, subject to review, and accountable including:

Due process – a mandatory due process for establishing the final tax assessment.

Right to object – a statutory right for the substitute to object in writing within 30 days.

Appeal rights – comprehensive appeal rights under the established tax dispute resolution framework.

Taxpayer rights – protection for the taxpayer or appointed agent by the Office of the Tax Ombud.

The power of substitution, including its framework under the new tax laws, is a carefully controlled mechanism designed to ensure equity in the tax system. It is not punitive, arbitrary, or intended for routine administration, which is why its use has been historically rare. It exists to ensure that confirmed and lawful tax debts are ultimately paid by those who may choose to ignore their statutory obligations.