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TAX TREATIES

A treaty is a formal, written agreement between sovereign states or between states and international organizations.The type of tax treaty within the purview of the Federal Inland Revenue Service (FIRS) and domicile in the Tax Policy and Legislation Department is the Avoidance of Double Taxation Agreement (ADTA).

 What is Avoidance of Double Taxation Agreement (ADTA)

A tax treaty is a written tax agreement between two contracting states for the avoidance of double taxation and fiscal evasion. It identifies all items of income and defines what standards would apply to their taxation as well as where each income would become taxable (at residence, at source or both) and when this should be done. A tax treaty clearly spells out the conditions for the limitation or denial of benefits under the agreement.

The agreement also does the following:

  • Guide against the occurrence of a double taxation scenario in which a particular income is taxed twice in the hand of a taxpayer by either his home Country (Country of residence) or the Country of source of the income.
  • Modifies domestic tax laws by reducing the domestic tax rate.
  • Grants concessions to beneficiaries.
  • Guide against the occurrence of a double non-taxation scenario in which a particular income escapes taxation from both the source State (where the revenue is generated) and resident State (State of residence of the enterprise) in the hand of a taxpayer.
  • Exchange of all relevant tax information beneficial to either or both Contracting States for the furtherance of the operation of the Agreement.
  • Assistance in the collection of taxes by either Contracting States
  • Establishment of the Mutual Agreement Procedure (MAP) for the resolution of disputes emanating from the implementation of the agreement or the taxation of income of residents of both Contracting States

The purpose of double tax treaties;

Double tax treaties are viewed as beneficial by most states because they allow business to transact with a degree of certainty both on the part of the individuals, partnerships or corporate entities and the government of that state in which that business entity operates. The perceived benefits of double tax treaties have been identified as follows:

Clarification of taxing rights of each State

Tax treaties create the elucidation of taxation rights between the two Contracting states involved in the Agreement for purpose of clarity, avoidance of litigation and international conflicts. In the case of Tax Treaty, it states specifically which Contracting States has the taxing right and when both of them have the right.

Avoidance of international juridical double taxation

International juridical double taxation arises where the same profits are taxed in the two Contracting States in the hand of the same person (corporate or individual). The ADTA clearly addresses and resolves such harsh conditions. 

Prevention of fiscal evasion with anti-avoidance provision

The Acronym ADTA in Nigeria is fully called the Avoidance of Double Taxation and the Prevention of Fiscal Evasion With Respect to Taxes on Income and on Capital Gains. The Agreement therefore plays a dual purpose of preventing double taxation and also preventing fiscal evasion. Exchange of information provision (see Article 26 below) is intended to assist countries to obtain information in order to ensure its taxing rights are preserved, although the effectiveness of such provisions for tax avoidance as opposed to tax fraud may be limited at present. 

 Encourages Economic Cooperation Between States.

Contracting States to the ADTA establish economic cooperation by opening the gate for companies from their Country to come to the other Contracting State because of its confidence in the tax system of that Country.

Double tax treaties generally are of tremendous importance to businesses with an international dimension.  Without them trade would be stifled and economies would likewise be affected.  It is because of this that treaties often assume huge importance when developing tax strategies. However, the introduction of anti-treaty shopping Articles (pioneered by the US) in double tax treaties and the exchange of information between member states is forcing substance into structure where perhaps years ago this would not have been an issue.  Because of the importance of treaties it is not only necessary to understand how they operate but also how they are interpreted.

 

Tabular Presentation of List of Countries having ADTA with Nigeria:

 

S/N
      Countries
ADTA Type
Date/Place of Signing
Date of Entry into Force
Effective Date
1
Nigeria - Canada
Comprehensive
4th August, 1992 in Abuja
16th November, 1999
1st January, 2000
2
 Nigeria - Pakistan
Comprehensive
10th October, 1989 in Lagos
7th March, 1990
1st January 1991
3
Nigeria -  Belgium
Comprehensive
20th November, 1989 in Brussels
1stJanuary, 1990
1st January, 1991
4
Nigeria -  France
Comprehensive
27th February, 1990 in Paris
2nd May 1991
1st January, 1992
5
Nigeria -  Romania
Comprehensive
21st July, 1992 in Abuja
18th April, 1993
1st January, 1994
6
 Nigeria - Netherlands
Comprehensive
11th December, 1991 in Lagos
9th December, 1992
1st January, 1993
7
 Nigeria - United Kingdom
Comprehensive
9th June, 1987 in London
1st January,1988
1st January, 1989
8
 Nigeria - China
Comprehensive
15th April, 2005 in Abuja
21st March, 2009
1st January, 2010
9
Nigeria -  South Africa
Comprehensive
29th April, 2000 in Cape Town
5th July, 2008
1st January, 2009
10
 Nigeria - Italy
Air & Shipping Agreement Only
22nd February, 1976 in Lagos
1977
1st January, 1978
11
Nigeria-Philippines
Comprehensive
30th September, 1987 in Manila
18th August 2013
1st January, 2014
12
Nigeria- Czech
Comprehensive
31st August 1989 in Lagos
2nd December, 1990
1st January, 1991
13
Nigeria- Slovakia
Comprehensive
31st August 1989 in Lagos
2nd December, 1990
1st January, 1991

 

Date of Entry into Force of the ADTA
 
This is the date the Agreement is deemed to be a law forming part of the body of the legal system of both Contracting States. In essence, the Agreement becomes an enforceable law in both States because it has fulfilled necessary domestication procedures. This is provided for in Article 28 (1) of the various ADTAs that;
“each of the Contracting States shall notify to the other the completion of the procedures required by its law for the bringing into force of this Agreement. The Agreement shall enter into force thirty days after the date of receipt of the latter of these notifications”.

 

Effective date or date of application of the Agreement
 
Both of these clauses are often used interchangeably. However, it is the date citizens of both Contracting States start benefiting from the Agreement as provided for in Article 28 (2) (a) (i)(ii) of the various ADTAs. Technically, the Effective Date of the Agreement is the first day of the fiscal year following the date of Entry into Force of the Agreement. 
 
Nigeria’s authorised Competent Authority on Exchange of Information (EOI) Matters:
 
Mr. Peter Olayemi
Director, Tax Policy & Legislation Department.
 
Contact Address:
Federal Inland Revenue Service,
Tax Advisory Department,
15,Sokode Crescent, 
Wuse Zone 5, Abuja,
Federal Capital Territory, Nigeria.
 
Phone Nos:
+2348115900054
  +2348033194877
 
Email Addresses: