Lawyers Pay VAT, Why Not Doctors? By Abubakar D. Sani, Esq.

The answer to this question might seem obvious: doctors ease pain, heal the sick and save lives, but not lawyers. Really? Are those functions peculiar to only doctors, to the exclusion of other professionals, including lawyers? The question is prompted by the decision of the Court of Appeal in AL-MASEER LAW FIRM vs. FIRS, CA/J/179/2018, in which the court upheld the applicability of the Value Added Tax Act to legal practitioners on the ground that legal services are not included in the list of services which the Act exempts from collecting and remitting VAT.

While the rationale for the judgement can hardly be faulted on the basis of the ipssisima verba (or the exact terms) of the law which the court was asked to interpret, the larger question, in my view, is whether that law itself is valid, either by reference to any other law or the Constitution. We shall shortly undertake that exposé, but, first, an analysis of that decision.

The appellant, a private legal practitioner, challenged a demand by the Federal Inland Revenue Service to pay Value-Added Tax purportedly due from the Appellant’s clients which she had failed to remit to the Respondent. She requested the Federal High Court, Bauchi to interpret relevant provisions of the VAT Act in her favour, to wit: (i) that legal practice is not a business venture under Section 8 of the VAT Act and as such is not required to register with the FIRS as an agent for the purpose of collecting VAT; (ii) that a (private) legal practitioner is not a “taxable person” within the contemplation of Section 46 of the VAT Act. The trial court agreed with the Respondent that the Act was applicable to the Appellant, and dismissed her originating summons.

Dissatisfied, the Appellant approached the Jos Division of the Court of Appeal, which, in determining the appeal, considered the provisions of Sections 1 – 3 of the VAT Act, viz:

“There is hereby imposed and charged as a tax to be known as the Value Added Tax which shall be administered in accordance with the provisions of this Act”;

“Tax shall be chargeable and payable on the supply of all goods and services (in this referred to as “taxable goods and services”) other than goods and services listed in the First Schedule to this Act”.

In affirming the decision of the lower court, the Court of Appeal reiterated that, to the extent that “legal practitioners” and “law firm” are not included in the list of services specifically exempted from collecting/remitting VAT in the First Schedule to the Act, “the rule of interpretation is that when something is specifically mentioned in a statute, the intendment is that it excludes whatever is not mentioned”. Accordingly, the Court of Appeal dismissed the appeal.

A subsequent, seemingly contrary, decision (AMA ETUWEWE vs. FIRS, FHC/WR/CS/27/2019, Federal High Court, Warri, delivered on 30^th September, 2019) should, however, be understood within its own peculiar facts and issues, which turned on whether a solicitor to an oil company is bound to remit VAT already paid by his client. This piece is concerned with the status of legal practitioners and other professionals vis-à-vis the distinction which the VAT Act makes in exempting only medical practitioners (“medical services”) from collecting and remitting VAT. I believe that it raises profound questions about . . .

The Status of Professionals in Nigeria

Are they co-equal or, is one class or group of professionals superior to the other or others in the eyes of the law? This poser is significant, because the answer to it will determine the validity or otherwise of the distinction between medical professionals and others – including legal practitioners – for the purposes of collection/payment of VAT.

As ever, the starting point is the fons et origo of our law – the Constitution. By virtue of Section 4(3) and Item 49 of the Exclusive Legislative List of the 1999 Constitution, only the National Assembly is competent to legislate in respect of “professional occupations as may be designated by (it)”. The National Assembly has exercised that power in relation to a number of professions, including Architecture, Estate Surveying/Valuation, Engineering, Pharmacy, Teaching (yes), Computer Science, Nursing/Midwifery, Medicine/Dentistry and, of course, Law. The relative statutes in this regard are all contained in the relevant volumes of the current edition (2010) of the Laws of the Federation.

The implication of the above provisions is that, as far as the Constitution is concerned, all the professions which the National Assembly has so designated are duly recognised (baptised?) by the law. Such a recognition should not to be taken lightly, as it makes all the difference between a genuine professional and a fake one; in other words, whether there has been compliance, in any given case, with laid down guidelines contained in (a) relevant Act(s) of the National Assembly. I humbly submit that, to this extent, all professions which have been designated by the National Assembly are similarly circumstanced, or, in colloquial language, are “birds of the same feather”.

Accordingly, just as the members of our avian analogy flock together, no discrimination ought to be discernible between professionals in the eyes of the law. This is otherwise known as the right to equal protection of the law, and it is codified in Article III(II) of the African Charter on Human and Peoples Rights, an international treaty, domesticated vide an Act of the National Assembly. As conceded at the beginning of this piece, an obvious criticism of this analogy is that, suggesting that lawyers and other professionals should enjoy the same exemption from remitting VAT as medical doctors, would be somewhat akin to comparing grapes with apples.

However, I believe that this is far from the case, because that notion ignores hard statistics gathered in a census of private health facilities conducted across six States of Nigeria by the Strengthening Health Outcomes through the Private Sector (SHOP) Project in 2014 (USAID-funded). That study identified 5,086 private health facilities in the six target States of Abia, Benue, Edo, Kaduna, Lagos and Nassarawa, compared to only 3,612 public health facilities (See page 66 of the report). Extrapolating this across the 36 States of the Federation, the import is clear: the overwhelming preponderance of health facilities (read: medical services and, therefore, medical professionals or doctors/dentists/ophthalmologists, optometrists, etc.) in Nigeria are provided by the private sector.

Accordingly, I posit that to the extent that the VAT Act does not distinguish between private medical services and public medical services which it exempts from its coverage, it unwittingly subsidises the income of the former to the detriment of their counter-parts in other professions, including, of course, private legal practitioners. Curiously, however, Section 2 of the Act, provides that a “taxable person”, includes, inter alia, “an agency of Government exploiting tangible or intangible property for the purpose of obtaining income therefrom by way of trade or business”. Be that as it may, suffice it to say that it violates the right to equal protection of the law for the Act to discriminate against legal services, when, to all intents and purposes, they are similarly circumstanced with medical services. Quite simply, it would be unfair and unjust.

For the avoidance of doubt, the right to equal protection of the law “demands that laws will only be legitimate if they can be described as just and equal. Equal protection guarantees that the Government must treat a person or class of persons the same as it treats other persons or class of persons like circumstances . . . equal protection means a legislation that discriminates must have a rational basis for doing so. And if the legislation affects a fundamental right or involves a suspect classification, it is unconstitutional unless it can withstand strict scrutiny” see BLACK’S LAW DICTIONARY, 8^th edition, page 577.

I submit that the blanket exclusion of “medical services” from paying VAT without discrimination as aforesaid, fails the twin tests for the validity of any discriminatory legislation – intelligible differentia and rationality – laid down by the Court of Appeal in N.N.P.C vs. FAWEHINMI (1998) 7 NWLR pt. 559 pg. 598 @ 616.

Conclusion

To the extent that, by virtue of Section 4(3) and Item 49 of the Exclusive Legislative List of the Constitution, all professionals are similarly circumstanced, it is illegitimate and unacceptable to confer the privilege of exemption from paying VAT on medical services (or medical professionals) without distinguishing between private health/medical services and public health/medical services.

This is because whilst the latter is justifiable and acceptable (on the grounds of public policy), the former is not. Assuming the rationale is that they both provide a supposedly “critical” service, what about lawyers? We defend the rights – sometimes to life – of the oppressed, downtrodden and, all-too-often, economically-disadvantaged.

Accordingly, it is arguable that the decision in AL-MASEER’S case was given per incuriam, as the foregoing argument was never canvassed by the appellant, either at the trial court or before the Court of Appeal.

Abubakar D. Sani, Esq.Kano.