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Nigeria: MAP guidelines, resolving double taxation disputes

Nigeria: MAP guidelines, double taxation disputes

The Federal Inland Revenue Service (FIRS) released guidelines concerning the mutual agreement procedure (MAP) to resolve income tax treaty-related disputes. The MAP dispute resolution device allows tax administrations to resolve disputes regarding the application of the income tax treaty measures to address double taxation.

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Among the items addressed in Nigeria’s MAP guidelines [PDF 123 KB] are certain key aspects, described briefly below.
 

Application eligibility

The MAP guidelines specify that a taxpayer that is a resident in Nigeria is eligible to apply for MAP, if it considers that the actions of either or both Nigeria and the treaty partner’s tax authorities result or will result in a taxation that is not in accordance with the provisions of the income tax treaty, regardless of the remedies provided by Nigerian domestic law. Subject to the provisions of the relevant tax treaty, a non-resident person can also make an application under the MAP guidelines. A MAP application can be made in respect of matters relating to:

  • Transfer pricing
  • Dual residence status
  • Withholding tax
  • Permanent establishment
  • Characterisation or classification of income


Period of limitation

The MAP guidelines stipulate that the time limit for presenting a case for competent authority assistance depends upon the specific terms of the MAP article of the applicable income tax treaty. When a time limit for presenting a case to invoke MAP is not specified in the relevant tax treaty, the competent authorities of the treaty signatories are to agree on the applicable time limit. Nonetheless, the case must be presented to the Nigerian competent authority within three years from the date of issuance of a notice of assessment.


MAP process

  • Pre-filing consultation: A taxpayer seeking a MAP must first engage in a pre-filing consultation with the FIRS (in the form of a meeting or in writing).
  • Submitting a formal request: All formal requests for MAP are to be made in writing and addressed to the relevant officer of the FIRS.
  • Review of a MAP request: The competent authority on review of a MAP request is, on identifying any deficiencies, to request that the taxpayer take remedial action. Also, when the authorized competent authority is of the opinion that the deficiency in the request has not or cannot be remedied or when the taxpayer has failed, neglected or refused to remedy the deficiencies, the competent authority will decline the MAP request and notify the taxpayer, in writing, and state the reasons.
  • Acceptance of a MAP request: The Nigerian competent authority will accept a MAP request when the issue or transaction relates to a foreign country with which Nigeria has a tax treaty in force, or it is evident that the actions of one or both countries have resulted or will result in taxation not in accordance with the tax treaty.


Roles of the taxpayer during the MAP process
  

The MAP guidelines require the taxpayer to provide necessary support to the Nigerian competent authority in the course of the MAP process. The taxpayer is expected to be notified by the Nigerian competent authority when an agreement is reached by the two countries involved in the MAP process. The agreement will only be finalised upon written consent of the taxpayer.


Termination of the MAP process

A MAP process may be terminated when adequate, accurate and/or complete information was not provided by the taxpayer. The Nigerian competent authority may propose terminating a MAP process based on the shortcomings highlighted in the MAP guidelines.


Withdrawal of a MAP request

A taxpayer may withdraw its request at any time before a MAP agreement is reached. The withdrawal of a request for MAP is expected to be made in writing to the FIRS executive chairman.


Tax collection during MAP

The MAP guidelines state that a request for MAP does not affect the requirement for payment of the tax liability or collection action by the relevant tax authority.


KPMG observation

The MAP guidelines provide taxpayers with guidance as to how to resolve situations of double taxation. Tax professionals have observed that the federal government needs to expedite its actions on signing and ratifying more income tax treaties, in particular with Nigeria’s major trading partners, so as to provide taxpayers a broader network of income tax treaties with a view to reducing the exposure to double taxation. Taxpayers also may want to consider the MAP guidelines in initiating pre-filing consultations with the Nigeria competent authority when there are unresolved double taxation matters.

 

Read an April 2019 report [PDF 128 KB] prepared by the KPMG member firm in Nigeria

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