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INTRODUCTION

Pursuant to section 12(2)(a) of the NITDA Act (National Information Technology Development), companies and enterprises enumerated in the Third Schedule and having turnover of #100,000,000 and above are liable to pay a levy of 1% of their Profit before Tax (PBT), in the relevant accounting year.

The Third Schedule provides; –

Businesses which section12(2)(a) refers to-

1. GSM Service Providers and all Telecommunications Companies
2. Cyber Companies and Internet Providers
3. Pension Managers and Pension Related Companies
4. Banks and Other Financial Institutions
5. Insurance Companies

FACTS OF THE CASE

IHS TOWERS LIMITED VS FEDERAL INLAND REVENUE SERVICE(FIRS)

The Appellant (IHS TOWERS LIMITED) filed its annual returns for 2021 YOA on the Tax Pro-Max platform. The platform computed and assessed the Appellant to the sum of #488,103,920.09 being 1% of the Appellant’s profit before tax to be contributed to the NITDA fund.

Further to the assessment, the Appellant through its Tax Consultant, by request letter dated July 13 2021, drew the FIRS (Respondent) attention to the said assessment and requested that it should be discharged. The Service, in response to the letter, invited the taxpayer to a meeting.

After the meeting was held, the Service issued a notice of assessment, which the taxpayer objected to, wherein it maintained that it is not a telecommunications company but only provides support services, being an infrastructure service provider.

The Service, in response to the letter of objection, issued a Notice of Refusal to Amend (NORA). The taxpayer thereafter filed this appeal challenging the assessment by the Service.

ARGUMENTS

The Representative of the Company argued that:

• The Appellant is licensed under the NCC (Nigeria Communications Commission) Act, of which the Appellant falls under the category of network facilities provider and not a network service provider.
• The service provided by the Appellant is received by network service providers such as MTN, Airtel, GLO and others and distinguishes from a company that services telecommunications companies.

The Board argued that:

• The Appellant has waived its rights to be considered a non-telecommunications company, having been granted PSI as a telecommunications company.
• The Appellant is estopped from denying that it is not a telecommunications company, as one of the rules of estoppel by conduct is that a man is not allowed to blow hot and cold, to approbate and reprobate.

TRIBUNAL DECISION

The honourable Tribunal holds that, the principal objective of the Appellant is to carry on business as a telecommunications infrastructure provider; to manage, develop and operate tower facilities in respect of assets and operations of telecommunication companies; to provide related communication services in respect of the operation of telecommunication towers; to engage in the business of installation of telecommunications facilities including masts, towers, VSAT and allied equipment.

As a result, the Appellant is a Network Facilities Provider and not a telecommunication company and is therefore not liable to pay the NITDA levy pursuant to section 12(2)(a) and the Third Schedule to the NITDA Act.

CONCLUSION

The judgement made by the court has made it clear that Network Facilities Providers do not fall under GSM service providers and telecommunication companies as stated in the third schedule.

As a result, Network Facilities Providers are not liable to the payment of 1% profit before tax levy chargeable on GSM service providers and telecommunications companies under section 12(2)(a) and the third schedule of the NITDA Act.