MTN sues FG for N3b over $1.3b withholding tax

MTN Nigeria Communication Ltd has filed a fresh suit at the Federal High Court in Lagos to challenge the legality of N242 billion and $1.3 billion import duties and withholding tax demanded from it by the Federal Government.

It is demanding N3billion general and exemplary damages and legal costs from the defendant.

Justice Chukwujekwu Aneke on Thursday adjourned the suit until December 3 for hearing after counsel confirmed that motions have been filed and served on parties.

MTN, in the suit filed on September 10, is challenging the legality of the Attorney-General of the Federation’s assessment of its import duties, withholding tax and value added tax amounting to N242 billion and $1.3 billion.

It is contending that the purported “revenue assets investigation” allegedly carried out by the Federal Government  for the period of 2007 to last year, and its decision conveyed through the Office of the AGF by an August 20 letter, violates the provisions of Section 36 of the 1999 Constitution.

The plaintiff sought a declaration that the AGF acted in excess of its powers by purporting to direct through its letter of May 10 a “self-assessment exercise” which usurps the powers of the Nigerian Customs Service to demand payment of import duties on importation of physical goods.

MTN sought a declaration that the AGF acted illegally by usurping the powers of the Federal Inland Revenue Service (FIRS) to audit and demand remittance of withholding and value added taxes.

It is praying the court to hold that the purported self-assessment exercise instituted by the AGF via its May 10 letter is unknown to law, and therefore null and void and of no effect whatsoever.

It prayed for a declaration that the AGF’s demand of the sums is premised on a process that is malicious, unreasonable and made on incorrect legal basis.

MTN prayed for an order vacating the AGF’s demand letter for N242 billion and $1.3 billion, and claimed N3 billion general and exemplary damages, as well as legal costs.

But, the AGF, in his preliminary objection, argued that the plaintiff was statute-barred, having not filed the suit within three months from the date the cause of action arose.

The AGF argued that the plaintiff commenced the suit in violation of Section 2 of the Public Officers Protection Act, which provides that any action commenced against a public officer must be made within three months from commencement of cause of action.

AGF contends that the plaintiff’s failure to commence the suit within three months as stipulated by law robs the court of jurisdiction to entertain it.

MTN earlier filed a separate suit against the AGF and the Central Bank of Nigeria (CBN), which is pending before Justice Saliu Saidu of the same court and will be heard December 4.

In the suit, MTN is challenging the $8,134,312,397.63 demanded from it by the CBN over alleged forex remittance infractions.

It is praying the court to restrain the CBN and the AGF from imposing punitive sanctions against it.

The CBN accused MTN Nigeria of improper dividend repatriations and demanded that $8.1 billion be returned “to the coffers of the CBN”.

The Federal Government also accused MTN of unpaid taxes on foreign payments and imports, asking it to pay approximately $2billion in relation to the taxes.

According to the CBN, MTN and four banks – Standard Chartered Bank, Citi Bank, Stanbic IBTC Bank and Diamond Bank – deliberately flouted the “laws and regulations…including the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, 1995 and the Foreign Exchange Manual, 2006.”

The banks allegedly colluded with MTN, using irregular Certificates of Capital Importation (CCI), to illegally remit foreign exchange abroad. The four banks were slammed a combined N5.87 billion fine.

MTN denied the allegations and subsequently filed the suit.