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Chinua Asuzu Remember Lot’s Wife!

1

Remember Lot’s

Wife!

Interpretation of Tax Statutes

Chinua Asuzu




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Contents

Table of Cases

1. Abstract

2. Canons of Statutory Interpretation

2.1 Textual Canons

2.1.1 The Strict Constructionist Approach

2.1.2 The Literal Rule or the Plain Meaning Rule

2.1.3 The Golden Rule

2.1.4 The Ejusdem Generis Rule

2.1.5

Expressio unius est exclusio alterius 2.1.6 Noscitur a sociis

2.2 Substantive Canons

2.2.1 The Mischief Rule

2.2.2 The Purposive Approach

2.2.3 Charming Betsy

2.3 Deference Canons

2.3.1 Chevron Deference

2.4 Avoidance Canons

2.4.1 Avoidance of Constitutional Problems

2.4.2 Avoidance of Absurdity

2.4.3 Avoidance of Conflict with International Law

2.5 TCP- A New Canon?

3. Basic Rules of Statutory Interpretation

3.1 Presumption Against Human Rights Derogation

3.2 Presumption against Ouster Clauses

3.3 Holistic Construction

3.4 Presumption of Linguistic Consistency

4. Is Tax Statute Interpretation Sui Generis?

4.1 Cape Brandy

4.2 Duke of Westminster




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4.3 Anti-Avoidance Interpretive Gadgetry

5. Conclusion

6. Exercises

Bibliography

Author‘s Professional Profile

Table of Cases

Aderawos Timber Trading Company Ltd v Federal Board of Inland Revenue NTC 160; (1966)NCLR 416.

Astor v Perry [1935] AC 398 (HL)

Authority v Regional Tax Board NTC 182

Cabell v Markham 148 F.2d 737

Caminetti v United States 242 U.S. 470 (1917)

Canada Trustco Mortgage Co 2005 SCC 54

Candler v Crane, Christmas & Co (1951) 2 KB 164

Cape Brandy Syndicate v Inland Revenue Commissioners (1921) 2 KB 403

Chevron v Natural Resources Defense Council 467 U.S. 837 (1984)

Commissioners of Inland Revenue v Luke (1963) 40 TC 630

Compañía General de Tabaco de Filipinas v Collector of Internal Revenue , 275 U.S. 87 (1927)

Crawford v Spooner (1846) 6 Moore PC 1

Croxford v Universal Insurance Co. [1936] 2 KB 253

Eidman v Martinez 184 U.S. 578

Fothergill v Monarch Airlines [1981] AC 251

Gitlitz v Commissioner 531 U.S. 206 (2001)

Glen Anil Development Corporation Ltd v SIR (1975) 37 SATC 319

Graven v White (1988) STC 476

Greenberg v Inland Revenue Commissioners (1971) 47 TC 240

Harrison v PPG Industries Inc 446 U.S. 578, 588 (1980)

Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465

Heydon’s Case (1584) 76 ER 637

Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Ltd (1946) 1 All ER 637

http://en.wikipedia.org/wiki/Case_citation


http://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.








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Inland Revenue Commissioners v Duke of Westminster 1936 19 TC 510; [1935] All ER 259

(H.L.); [1936] AC 1 (HL)

Latilla v Inland Revenue Commissioners (1943) AC 377

Lehigh Valley Coal Co. v Yensavage 218 F. 547 (2d Cir. 1914)

Lord Howard de Walden v Inland Revenue Commissioners (1942) 1 KB 389

Mangin v Inland Revenue Commissioners (1971) AC 739

Mobil Oil (Nig) Ltd v Federal Board of Inland Revenue (1977) 1 NCLR 1

Montreal (City) v. 2952-1366 Québec Inc 2005 SCC 62

Murray v The Charming Betsy 6 U.S. (2 Cranch) 64 (1804)

Mutual Benefit Life Insurance Co. v Herold , 198 F. 199, affirmed 201 F. 918

Mutual Trust Co. v Miller 177 N.Y. 51

Nothman v Barnet Council [1978] 1 WLR 220

Oakes (1959) 2 QB 350

Parkview Building Association v Herold , 203 F. 876

Partington v Attorney General (1869) LR, 4 HL 100

Phoenix Motors Ltd v National Provident Fund Management Board (1993) 1 NWLR (Part 272)718

Placer Dome Canada 2006 SCC 20

Ramsay v Inland Revenue Commissioners (1982) AC 300

Ransom v Higg (1974) 50 TC 1

Seaford Court Estates v Asher [1949] 2 All ER 155

Securities and Exchange Commission v Joiner 320 U.S. 344

Shell Petroleum Development Company of Nigeria Ltd v Federal Board of Inland Revenue (1996) 8

NWLR (Part 466) 256

Smith (FL) & Co v Greenwood (Surveyor of Taxes) (1921) 8 TC 193, 206

United Savings Association v Timbers of Inwood Forest Associates 484 U.S. 365 (1988)

United States v Boisdoré’s Heirs 49 U.S. (8 How.) 113

United States v Wigglesworth 2 Story 369

Abstract

http://bulk.resource.org/courts.gov/c/US/6/6.US.64.html







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The common law has over several centuries developed rules of or guides to

statutory interpretation. These rules are usually referred to as canons of statutory

construction or canons of statutory interpretation. Although tax statutes are

(allegedly?) a special breed of legislation, they are nevertheless statutes, and it

is submitted here that the canons of statutory interpretation may be employedfreely in the interpretation of tax statutes, almost, though not quite, as much as

they are used in statutory interpretation generally. In the evolution of the canons

of statutory construction, tax statutes have not been exempted from their beam.

On the other hand, the received professional wisdom on tax statutory

interpretation is that most of the canons are not suitable for construing this elite

category of legislation. Indeed, going by some of the most eminent authorities,

the Strict Constructionist Approach and the Literal Rule appear to be the only

permissible guides to construing tax statutes.

Lawyers love certainty of doctrine and precedent along with predictability of

their application. They adopt a worshipful backward gaze at rigid precedent andstiffen their necks in the process. They are like Lot‘s wife, who, having lookedback, was turned into a pillar of salt

1, rigid and unyielding, unable to glance

forward. Tax lawyers love to invoke Cape Brandy and Duke of Westminster ,

and then fold their arms, gleefully expecting a judicial ―Amen!‖ to whatever

fossilised jurisprudence they have uttered.

Well, ―nothing is certain except death and taxes‖ including the death of

doctrines about the interpretation of taxes.

Cape Brandy and Duke of Westminster are no longer gospel truth.

In this paper I essentially submit the proposition for your consideration that

while taxes may be certain, their interpretive philosophy is not as settled as tax

lawyers have been led to assume or would like to think. The paper therefore

muddles the waters that you thought had long been calmed, in order to throw upthe pebbles and coral reefs of discord entangled beneath, for possible

disentanglement.

1. Canons of Statutory Interpretation

Tax statutory interpretation is first and foremost statutory interpretation, and so

an overview of the canons of statutory interpretation should aid an

understanding of the theme of this paper.

1Genesis 19:26, Holy Bible.




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In the first place, these canons are, as a matter of fact, called in aid in construing

tax statutes, though they are more commonly relied upon in non-tax statutory

interpretation. I submit that they could be more useful in construing tax statutes

than they have hitherto been given credit for. I suspect that part of the

explanation for their relative relegation in tax statute interpretation in favour of

special formulae must be traceable to intellectual indolence on the part of

lawyers nestling themselves in doctrinal mediocrity.

Secondly, a familiarity with the canons should be of pragmatic value to tax

attorneys and advisers for the following reason: even if the interpretation of tax

statutes occupies a distinctive place in the jurisprudence of statutory

interpretation and is not as dependent on the canons as general statutory

interpretation, nobody has alerted most Nigerian judges. They do not draw this

distinction. In the foreseeable future at least the Nigerian judiciary will thus

continue to approach the interpretation of tax statutes in much the same manner

as they do other classes of legislation, at times higgledy-piggledy, often by

(facile) resort to the canons of statutory interpretation. You stand to lose a lot,

including your case, by a lack of acquaintance with the canons. You need to be

able to predict how the courts and tribunals are likely to treat your case that

turns on statutory interpretation (and because tax law is entirely statutory, most

tax cases do!). ―The prophecies of what the courts will do in fact, and nothing

more pretentious, are what I mean by the law.‖2

Thirdly, the much-vaunted special character of tax statutory interpretation vis-à-

vis general statutory interpretation has been viably doubted in some respectable

professional quarters. A respectable and significant segment of the legal

profession would like to see tax statute interpretation tackled in like manner as

the rest of statutory interpretation. This trend of professional opinion may gain

2 Oliver Wendell Holmes Jr, ‘The Path of the Law’, Collected Papers, 1920, page 173.




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ground, and if it does, ―the last shall be the first‖3

as those judges treating tax

statutes no differently from other classes of legislation are vindicated in their

approach.

How are the canons applied to the interpretation of statutes? As a statute comes

up for interpretation before a court, opposing counsel may urge the court to

construe it by resort to one or more canons that would produce a result

favourable to their respective sides. After considering the opposing arguments,

the judge may choose from the proposed canons, or may conjure up a different

canon entirely, as appropriate for interpreting the legislative provision in

question. In some cases, a particular canon may be so glaringly apt for the

interpretation of the statutory clause in issue that there ought to be no room for

argument. (But lawyers talking hot air or in love with the sounds of their voices

do not need any room to argue- they will argue in a closet!)

Judges also show remarkable agility in their use of the canons. Thus while it has

been suggested that the canons constrain judges and inhibit their knack for

legislating in the guise of interpretation, judges always have a choice between

competing canons that lead to different results. So the canons can serve to

conceal, rather than reduce judicial creativity in statutory interpretation.

If there is one area of judicial work where discretion ought to be minimised if

not eliminated, it is statutory interpretation. The severe curtailment of judicial

discretion in statutory interpretation is in accord with the fundamental dogma of

separation of powers, a bulwark of our constitutional and political system. If the

judges get too creative in interpreting statutes, they would, in effect, be making

law. The legislature, not the judiciary, has been elected to make laws. The

judges should faithfully apply and interpret the laws as made by the legislature.

―Of course, Congress can always amend a statute to require a result different

3Mark 10:31; Matthew 19:30, Holy Bible, King James Version.




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from that reached by the Court. In interpreting statutes, the Court recognizes

that legislative power resides in Congress, and that Congress can legislate away

interpretations with which it disagrees. Congress has revisited statutory issues

fairly frequently in order to override or counter the Court‘s interpretations.

Corrective amendment can be a lengthy and time-consuming process, however,

and Congress in most instances will probably wish to state its intent clearly the

first time around.‖4

Besides, laws are not made for lawyers, but for everyone. This is especially true

with tax laws, aimed as they are at all citizens. Laws should therefore be

reasonably accessible and comprehensible to lay people. In taxation, in

particular, a huge concern of the modern state, the laws should be rendered in as

simple a language as possible, to the end that the honest taxpayer is enabled to

seamlessly obey, and the dishonest taxpayer disabled from artful dodging.

This simple point (that laws are not made for lawyers alone) is extremely

important, and should be taught to legislative drafters and judicial officers, who

too often carry out their functions as if their audience hold LLMs. Excessive

resort to quaint canons, especially in the area of tax law, beclouds this important

consideration: laws are directed at ordinary citizens, who should, at least

generally, be able to read and understand them for themselves without legal

consultation, and without a mastery of Latin maxims.

2.1 Textual Canons

―Textual canons are rules of thumb for understanding the words of the text.‖5

―These are used to help understand the words and wording used within each

4

Yule Kim, ‘Statutory Interpretation: General Principles and Recent Trends’, CRS Report for Congress, 2008,page 6.5

Wikipedia http://en.wikipedia.org/wiki/Statutory_interpretation, last accessed 6 February 2011.

http://en.wikipedia.org/wiki/Statutory_interpretation







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statue.‖6

Textual canons are intrinsic guides to statutory interpretation. When

applying a textual canon, you do not go outside the text of the statute.

2.1.1 The Strict Constructionist Approach

Strict Constructionist judges apply statutory text only as it is written, allowing

themselves no elbow room in pursuit of any higher purpose. Judicial activism or

creativity is anathema to the Strict Constructionists. Lord Denning was not fond

of them. Nor, for that matter, was Jesus Christ!

To those who stuck slavishly to the letter of the law at the expense of its spirit in

a context analogous to taxation, the Lord Jesus Christ had this to say: ―Woe

unto you, scribes and Pharisees, hypocrites! For ye pay tithe of mint and anise

and cummin, and have omitted the weightier matters of the law, judgment,

mercy and faith ...‖7

In Nothman v Barnet Council8

Lord Denning condemned the Strict

Constructionist Approach as ―a voice from the past ... the voice of those who go

by the letter ... who adopt the strict literal and grammatical construction of the

words, heedless of the consequences.‖ In Denning‘s view in Nothman, Strict

Constructionism was ―completely out of date‖, having been replaced by the

Purposive Approach9.

Cast your mind back to Candler v Crane, Christmas & Co10

, where Lord

Denning, albeit in a dissenting judgment11

, grouped judicial officers into two

ideological camps: ―timorous souls‖ and ―bold spirits‖. I think the bold spirits

6 http://www.forthepeople.com/statutory-interpretation--11-1987.html, last accessed 6 February 2011.

7Matthew 23: 23, Holy Bible, King James Version.

8[1978] 1 WLR 220.

9 Infra.

10

(1951) 2 KB 16411later expressly approved by the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC

465.

http://www.forthepeople.com/statutory-interpretation--11-1987.html







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would pursue the Purposive Approach, while the timorous souls would be

petrified in Strict Constructionism.

The Strict Constructionist approach was severely criticised by Lord Diplock,who in Fothergill v Monarch Airlines

12 decried it as a ‗narrowly semantic

approach‘.

2.1.2 The Literal Rule or the Plain Meaning Rule

A learned author had the Literal Rule in mind when he said that ―the words of a

statute are to be interpreted as bearing their natural meaning.‖13

If the natural

meaning is plain, there is no scope for canons of construction,14

except of course

the Literal Rule itself.

―Where the literal reading of a statute ... produced an intelligible result ... there

is no ground for reading in words or changing words according to what may be

supposed intention of parliament.‖15

In Caminetti v United States16 , the US Supreme Court discussed the Literal

Rule, reasoning that ―it is elementary that the meaning of a statute must, in the

first instance, be sought in the language in which the act is framed, and if that is

plain... the sole function of the courts is to enf orce it according to its terms.‖

And if a statute‘s language is plain and clear, the Court further warned that ―the

duty of interpretation does not arise, and the rules which are to aid doubtful

meanings need no discussion.‖

12[1981] AC 251,280.

13Gerald Dworkin, Odgers’ Construction of Deeds and Statutes, 5

thEdition, London, Sweet & Maxwell, 1967,

page 239.14

Croxford v Universal Insurance Co. [1936] 2 KB 253, 281 per Scott LJ.15 Oakes (1959) 2 QB 350.

16242 U.S. 470 (1917).






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In Smith (FL) & Co v Greenwood (Surveyor of Taxes)17

Lord Buckmaster said:

―Remember the rule which the Courts ought to obey, that where it is desired to

impose a new burden by way of taxation, it is essential that this intention be

stated in plain terms. The Courts cannot assent to the view that if a section in a

taxing statute is of doubtful or ambiguous meaning, it is possible out of that

ambiguity to extract a new and added obligation‖.18

―The starting point in statutory construction is the language of the statute itself.

The Supreme Court often recites the ‗plain meaning rule‘ that, if the language of

the statute is clear, there is no need to look outside the statute to its legislative

history in order to ascertain the statute‘s meaning.‖19

The Literal Rule is not eternally literal. Under the literal rule, literal reading of

statutory text is only the starting point as the rule allows deeper scrutiny or even

self-destructs (and activates the Golden Rule) if a literal reading is unhelpful.

This is in contrast to the Strict Constructionist Approach, which requires a strict

reading of text even if absurdity results.

A caveat about the Literal Rules is that the ―if‖ in its formulation (―if the natural

meaning is plain‖, ―if the meaning of the words is clear‖ etc) is a very big IF,

because in practical judicial experience few clauses are so clear as to be

immediately applicable without the exertion of some interpretive energy.

Another caveat: some words you think have clear, ordinary meanings do not, on

closer scrutiny, possess any such clarity of meaning. For example, in this

audience we are all familiar with the simple word ―taxpayer‖ and use it with

complete confidence about its ―clear‖ meaning. But what does it mean? In

ordinary English it should mean, shouldn‘t it, ―a person who pays tax‖. Not so

17(1921) 8 TC 193, 206.

18

See Authority v Regional Tax Board NTC 182.19 Yule Kim, ‘Statutory Interpretation: General Principles and Recent Trends’, CRS Report for Congress, 2008,

page 6.




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fast, though. In tax statute interpretation you will find that ―taxpayer‖ includes a

person who evades tax or pays no tax at all, and can include a person who has

never paid any tax in his life. So the term ―taxpayer‖ can mean or include

―taxable person‖20. {I refer you, to cite just one example, to the use of the word

―taxpayer‖ in section 33 of the Federal Inland Revenue Service (Establishment)

Act which empowers the FIRS Board to levy distraint on defaulting

―taxpayers‖.} If the word did not have the expanded meaning I have suggested,

any statute prescribing penalties or sanctions, or enabling distraint, on

delinquent ―taxpayers‖ could not apply to those who pay no tax, and an

individual who has successfully evaded tax all his life cannot be prosecuted or

otherwise dealt with under such a statute, not being a tax payer in the literal

sense. A literal reading will excuse from liability or stipulated measures (like

distraint) the principal targets of the legislation: the working adult who pays no

tax. So in at least one sense, a taxpayer is not a tax payer. The law is an ass!

So maybe the term ―taxpayer‖ includes ―a person ordinarily liable to taxation‖,

or ―a person liable to taxation‖, or, in more ordinary English, ―a person who

should pay tax‖. By using the word ―maybe‖ in the previous sentence, I have

already shown that the Literal Rule is inadequate for interpreting the simple

word ―taxpayer‖ should you come across it in a statute.

2.1.3 The Golden Rule

(The Golden Rule does not mean that he who has the gold makes the rule!)

Where a literal reading of the text would produce an absurd or anomalous result,

the tribunal may apply the Golden Rule to avoid or remove the absurdity or

anomaly, by modifying the language sufficiently to preclude the absurdity, but

no further. (So if you want a definition, the Golden Rule is the interpretive

20 “Taxable person” is defined in section 69 of the Federal Inland Revenue Service (Establishment) Act, but

“taxpayer” is not defined, on the erroneous assumption that its meaning is clear.




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philosophy whereby absurdities and anomalies stemming from application of

the Literal Rule are avoided or removed.)

In Astor v Perry21

, the House of Lords applied the Golden Rule in a tax case to

avoid what was perceived to be an inappropriate result by reading extra words

into the relevant statutory provision. Lord Reid also applied the Golden Rule in

Commissioners of Inland Revenue v Luke22

, another tax case when he held: ―In

order to avoid imputing to Parliament an intention to produce an unreasonable

result, we are entitled and indeed bound to discard the ordinary meaning of any

provision and adopt some other possible meaning which will avoid that result.‖

2.1.4 The Ejusdem Generis Rule

Provisions in statutes often list several specific items and then end the clause

with a general word or phrase as to similar items intended to be covered. When

that happens, the general word or phrase must not be construed too generally,

but must be restricted to items of the same kind, class or nature (ejusdem

generis) as the specifically named items. A more elegant formulation of this

canon is found in the American case of Harrison v PPG Industries Inc23

:

―where general words follow an enumeration of specific items, the general

words are read as applying only to other items akin to those specifically

enumerated.‖ For example, where in a statute dealing with prevention of cruelty

to animals (―A righteous man regardeth the life of his beast‖, says the Bible24

), a

clause regulates gentle treatment of ―cats, dogs, and other animals‖, the ―other

animals‖ would be interpreted in a limited sense to include, say, domestic

animals only and thus cannot include serpents and scorpions. (Who ever heard

of cruelty to a scorpion? Even the Bible, full of tender loving care {TLC} as it

21[1935] AC 398 (HL).

22

(1963), 40 TC 630, at 648 (HL).23446 U.S. 578, 588 (1980).

24Proverbs 12:10, Holy Bible, King James Version.




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is, allows us to ―trample upon serpents and scorpions,‖25

- but you should not

try that at home!)

Paragraph 11(1) of the Federal Inland Revenue Service (Establishment) Act

empowers the Tax Appeal Tribunal to adjudicate on disputes arising from

certain specified federal taxation statutes and ―other laws made or to be made

from time to time by the National Assembly.‖ Does this general or omnibus

phrase empower us to settle cases of land disputes under the Land Use Act, or

electoral disputes under the Independent National Electoral Commission Act,

both statutes ―made by the National Assembly‖? Of course not! The ―other

laws‖ must be ejusdem generis (of the same kind as) the specifically itemised

statutes- they must be tax statutes, and since the FIRS Act is a federal

legislation, they must be federal tax statutes. The Tax Appeal Tribunal cannot

adjudicate on husband-snatching!

2.1.5 Expressio unius est exclusio alterius

This Latin phrase means ―the express mention of one thing implies the

exclusion of the other‖. ―When certain persons or things are specified in a law,

contract or will, an intention to exclude all others from its operation may be

inferred.‖26

Except where the context clearly indicates otherwise, as in

illustrative lists in a statutory provision, items not on a list are assumed not to be

covered by the statute. You can tell illustrative lists by such indicators as

―includes‖ or ―such as‖ (but please note that the mere absence of such phrases

does not mean a list is not illustrative). In an exhaustive list, the maxim

expressio unius est exclusio alterius applies to its interpretation. Items not listed

are treated as having been pointedly excluded. If a temple, by way of statutory

stipulation, welcomes ―Buddhists, Christians, and Muslims‖, the expressio

unius rule will apply to exclude Hindus or Zoroastrians. By specifying the

25Luke 10:19, Holy Bible, King James Version.

26 Black’s Law Dictionary , 6

thEdition, St Paul, Minnesota, West, 1990, page 581.




15

religious groups allowed, the provision clearly shows its intendment as

exclusionary of other religious groups.

2.1.6 Noscitur a sociis

This maxim means: ―it is known from its associates.‖27

A word is known by the

company it keeps. ―The meaning of a word is or may be known from the

accompanying words. Under the doctrine of ‗noscitur a sociis‘, the meaning of

questionable or doubtful words or phrases in a statute may be ascertained by

reference to the meaning of other words or phrases associated with it.‖28

When a

word is ambiguous, its meaning may be determined by reference to the rest of the statute, especially the immediately surrounding language.

2.2 Substantive Canons

―Substantive canons instruct the court to favour interpretations that promote

certain values or policy results.‖29

―These guidelines are designed to lead the

judge to choose a particular policy, value or outcome. They may specify that a judge should not create an interpretation that opposes the values that are

considered to be held by society as a whole ...‖30

2.2.1 The Mischief Rule

Surprisingly, considering how little recourse is made to it especially in tax

cases, the Mischief Rule was formulated centuries ago in Heydon’s Case31

in

the following words: ―And it was resolved by [the Barons of the Exchequer],

that for the sure and true interpretation of all statutes in general (be they penal

or beneficial, restrictive or enlarging of the common law), four things are to be

discerned and considered: — 1st. What was the common law before the making

27 Black’s Law Dictionary , 6

thEdition, St Paul, Minnesota, West, 1990, page 1060.

28 Black’s Law Dictionary , ibid.

29

Wikipedia http://en.wikipedia.org/wiki/Statutory_interpretation, last accessed 6 February 2011.30 http://www.forthepeople.com/statutory-interpretation--11-1987.html, last accessed 6 February 2011.

31(1584), 76 ER 637, at 638 (KB).












16

of the Act. 2nd. What was the mischief and defect for which the common law

did not provide. 3rd. What remedy the Parliament hath resolved and appointed

to cure the disease of the commonwealth. And, 4th. The true reason of the

remedy; and then the office of all the Judges is always to make such

construction as shall suppress the mischief, and advance the remedy, and to

suppress subtle inventions and evasions for continuance of the mischief, and pro

privato commodo, and to add force and life to the cure and remedy, according to

the true intent of the makers of the Act, pro bono publico.‖

In Mobil Oil (Nig) Ltd v Federal Board of Inland Revenue32

Bello JSC wrote of

the Mischief Rule: ―In construing a statute, regard shall be given to the cause

and necessity of the Act and then such construction shall be put upon it as

would promote its purpose and arrest the mischief which it is intended to deter.‖

The Mischief Rule considers the sociological background of the statute (its

―cause and necessity‖) with special attention to the lacunae or shortcomings in

the prior law which it was aimed to address, and the remedies it prescribes for

dealing with those shortcomings or gaps. The tribunal is enjoined to interpret

the statute so as to advance the remedy and minimise the shortcomings

(‗mischief‘).

The Mischief Rule is often very helpful in criminal law, and should be

exceedingly useful in tax law as well, especially with reference to anti-

avoidance legislation. Criminal law deals with forbidden behaviour, and anti-

avoidance clauses deal with prohibited or restricted conduct. This similarity

between criminal law and anti-avoidance tax law, along with their common

feature as public law domains, makes the Mischief Rule uniquely suited for

construing statutory provisions in both domains. Both criminal law and the anti-

avoidance branch of tax law are calculated to prevent or punish (or remedy)

32(1977) 1 NCLR 1.




17

defined conduct, or ‗mischief‘. The Mischief Rule instructs the court to adopt an

interpretation that prevents or at least restricts the subject conduct and promote

the remedy purposed in the legislation.

2.2.2 The Purposive Approach

Lord Diplock gave this interpretive method its name33

, but it is more famously

associated with Lord Denning, its most ardent disciple. In Nothman v Barnet

Council34

, Lord Denning said with reference to the Purposive Approach: ―In all

cases now in the interpretation of statutes we adopt such a construction as will

‗promote the general legislative purpose‘ underlying the provision. It is nolonger necessary for the judges to wring their hands and say: ‗There is nothing

we can do about it‘. Whenever the strict interpretation of a statute gives rise to

an absurd and unjust situation, the judges can and should use their good sense to

remedy it – by reading words in, if necessary – so as to do what Parliament

would have done, had they had the situation in mind.‖

Furthermore, Lord Denning wrote in Seaford Court Estates v Asher 35: ―The

English language is not an instrument of mathematical precision. Our literature

would be much the poorer if it were. This is where the draftsmen of Acts of

Parliament have often been unfairly criticized. A judge, believing himself to be

fettered by the supposed rule that he must look to the language and nothing

else, laments that the draftsmen have not provided for this or that, or have been

guilty of some or other ambiguity. It would certainly save the judges trouble if

Acts of Parliament were drafted with divine prescience and perfect clarity. In

the absence of it, when a defect appears a judge cannot simply fold his hands

and blame the draftsman. He must set to work on the constructive task of

finding the intention of Parliament, and he must do this not only from the

33Lord Denning, The Discipline of Law , London, Butterworths, 1979, page 16.

34

[1978] 1 WLR 220.35 [1949] 2 All ER 155.




18

language of the statute, but also from a consideration of the social conditions

which gave rise to it, and of the mischief which it was passed to remedy, and

then he must supplement the written word so as to give "force and life" to the

intention of the legislature. That was clearly laid down by the resolution of the

judges in Heydon's case, and it is the safest guide to-day. Good practical

advice on the subject was given about the same time by Plowden in his second

volume Eyston v Studd . Put into homely metaphor it is this: A judge should ask

himself the question: If the makers of the Act had themselves come across this

ruck in the texture of it, how would they have straightened it out? He must then

do as they would have done. A judge must not alter the material of which it is

woven, but he can and should iron out the creases.‖

The Purposive Approach has been adopted by the European Court probably

since inception, where it is termed the ‗schematic and teleological‘ method of

interpretation.

And with reference to the American jurisdiction: ―In analyzing a statute‘s text,

the [US Supreme] Court is guided by the basic principle that a statute should be

read as a harmonious whole, with its separate parts being interpreted within

their broader statutory context in a manner that furthers statutory purpose. The

various canons of interpretation and presumptions as to substantive results are

usually subordinated to interpretations that further a clearly expressed

congressional purpose.‖36

Such a ―congressional purpose‖ (or legislative intent, for non-US jurisdictions)

should usually be one expressed in the statute itself, for example in a preamble.

In some situations an excursion into the legislative history of the statute may be

permissible, but this is more common in the United States.

36 Yule Kim, ‘Statutory Interpretation: General Principles and Recent Trends’, CRS Report for Congress, 2008,

page 2.

http://en.wikipedia.org/w/index.php?title=Eyston_v_Studd&action=edit&redlink=1







19

The overriding objective of statutory construction is to effectuate statutory

purpose. As Justice Jackson of the US Supreme Court put it in Securities and

Exchange Commission v Joiner 37

: ―However well these [other] rules may serve

at times to decipher legislative intent, they long have been subordinated to the

doctrine that courts will construe the details of an act in conformity with its

dominating general purpose, will read text in the light of context and will

interpret the text so far as the meaning of the words fairly permits so as to carry

out in particular cases the generally expressed legislative policy.‖

In Cabell v Markham, Learned Hand J observed: ―it is one of the surest indexes

of a mature and developed jurisprudence not to make a fortress out of the

dictionary; but to remember that statutes always have some purpose or object to

accomplish, whose sympathetic and imaginative discovery is the surest guide to

their meaning.‖38

Elsewhere the great jurist Learned Hand reasoned that statutes ―should be

construed, not as theorems of Euclid, but with some imagination of the purposes

which lie behind them.‖39

The Purposive Approach does not contemplate voyages of discovery that take

the judiciary off the coast of adjudication into the troubled waters of legislation.

Lord Denning was perhaps the ultimate, if not extreme, Purposivist.

2.2.3 Charming Betsy

Municipal legislation must be construed so as not to conflict with international

law. In Murray v The Charming Betsy40 it was held in the US: ―It has also been

37320 U.S. 344, 350-51 (1943).

38148 F.2d 737, 739 (2d Cir. 1945).

39 Lehigh Valley Coal Co. v Yensavage 218 F. 547, 553 (2d Cir. 1914).

406 U.S. (2 Cranch) 64 (1804).










20

observed that an act of Congress ought never to be construed to violate the law

of nations if any other possible construction remains...‖

2.3 Deference Canons

―Deference canons instruct the court to defer to the interpretation of another

institution, such as an administrative agency or Congress.‖41

2.3.1 Chevron Deference

This is a rule of deference to administrative interpretation and was formulated

by the US Supreme Court in Chevron v Natural Resources Defense Council42. It

held that if a statute administered by an agency is ambiguous with respect to the

specific issue, the courts will defer to the agency‘s reasonable interpretation of

the statute. ―When a court reviews an agency‘s formal interpretation of a statute

that the agency administers, and when the statute has not removed agency

discretion by compelling a particular disposition of the matter at issue, courts

defer to any reasonable agency interpretation.‖43

At the turn of the 21st century, the US Supreme Court ―clarified and narrowed

Chevron‘s application, ruling that Chevron deference applies only if an

agency‘s interpretation is the product of a formal agency process, such as

adjudication or notice-and-comment rulemaking, through which Congress has

authorized the agency ‗to speak with the force of law.‘‖44

In the Nigerian

context, this would include delegated or subsidiary legislation, and in specificcontext of Nigerian tax law, it would include (interpretive) rules made by the

Minister of Finance or the Federal Inland Revenue Service pursuant to statutory

enablement.

41Wikipedia http://en.wikipedia.org/wiki/Statutory_interpretation, last accessed 6 February 2011.

42467 U.S. 837 (1984).

43

Yule Kim, ‘Statutory Interpretation: General Principles and Recent Trends’, CRS Report for Congress, 2008,page 27.44

Ibid.














21

This is by all means a salutary rule. If, for example, the FIRS has been applying

a particular statutory provision in a certain reasonable manner in its dealings

with the taxpayer, the tribunal or court will prefer that approach to another

(even if equally reasonable) interpretation, if both are tenable. Please note that

for Chevron deference to apply:

the provision in question must be ambiguous;

the administrative agency‘s interpretation must be reasonable;

the agency‘s interpretation must be the result of a formal agency

process (for example, internal complaints handling, or

administrative rulemaking); and,

preferably, the agency‘s interpretation should be borne out by

application and practice and must not merely be theoretical or

academic- in other words, they must already have been proceeding

on the basis of that alternative, reasonable understanding (i.e. it

must have been concretised by application).

In our context here today, the FIRS may in issuing, for example, a Notice of

Refusal to Amend (NORA) a taxpayer‘s assessment, give explanations that

(purport to) interpret a statutory clause. If so, the tribunal or court should favour

the FIRS interpretation if the other conditions of Chevron deference are

fulfilled.

Another means by which an agency like the FIRS can ―interpret‖ a statutory

provision is through delegated or subsidiary legislation, or administrative

rulemaking. Sections 14, 23(2), 26(4), 60 and 61 of the Federal Inland Revenue

Service (Establishment) Act empower the FIRS or the Minister of Finance to

make or issue certain directives, guidelines or rules, and I submit that if or when

made, those may enjoy Chevron deference. It was also said in Chevron: ―If

Congress has explicitly left a gap for the agency to fill, there is an express




22

delegation of authority to the agency to elucidate a specific provision of the

statute by regulation. Such legislative regulations are given controlling weight

unless they are arbitrary, capricious, or manifestly contrary to the statute.‖45

Chevron Deference promotes systemic harmony. The court essentially says:

―This is the agency charged with applying this law. This is how they understand

and apply it. Their understanding and application are reasonable. There is

another reasonable interpretation, but we shall defer to the agency‘s

interpretation- they are used to this business and they must know what they‘re

doing.‖

2.4 Avoidance Canons

2.4.1 Avoidance of Constitutional Problems

Where a legislative provision is susceptible to several reasonable constructions,

one or more of which may raise constitutional difficulties, the tribunal or court

should favour an interpretation that poses no constitutional challenge.

Commissioners of the Tax Appeal Tribunal should bear this in mind, since

theirs is an inferior, administrative tribunal that should hesitate to pronounce on

constitutional matters. Of course if such a case went before the highest court in

the land, the constitutional challenge would be welcomed with gusto.

2.4.2 Avoidance of Absurdity

The tribunal or court should presume that the legislative branch of government

could not have intended by its drafting to produce an absurd or unreasonable or

manifestly unjust result. With that presumption at the back of its mind, the

tribunal should interpret the clause in a way that avoids the absurdity or

injustice. This is similar to the Golden Rule.

2.4.3 Avoidance of Conflict with International Law

45467 U.S. 837, 843-844 (1984).






23

This is identical to Charming Betsy.

2.5 TCP- A New Canon?

In 2005 the Supreme Court of Canada was extremely busy battling with the

formulation of a suitable methodology for interpreting tax statutes. In Canada

Trustco Mortgage Co46

the Canadian Supreme Court created TCP- the Textual,

Contextual and Purposive Approach to construing tax statutes. (In the words of

the Chief Justice of Canada, the courts must, in order to resolve explicit and

latent ambiguities in tax statutes, ―undertake a unified textual, contextual and

purposive approach to statutory interpretation‖. But in so doing the CanadianSupreme Court appeared to restrict this interpretive guide to GAAR (General

Anti-Avoidance Rule) contexts, but I think we can borrow TCP as one of

several approaches to interpreting not only clauses in GAAR cases, or

avoidance contexts, but to tax statutes, and even statutes generally, in

appropriate contexts. The methodology is attractive- you have to look at the text

(who can argue with that?) and the context of the provision, with due regard to

the purpose of the statute. Please note that this is a simplistic introduction of

TCP- for a better understand you should read the case.

TCP was further developed in Placer Dome Canada47

and again in Matthew48

.

The impression persisted that TCP was meant for GAAR cases. Fortunately, in

Montreal (City) v. 2952-1366 Québec Inc49

the Supreme Court applied TCP in a

non-GAAR context. All these cases were in 2005, and all were before the

Canadian Supreme Court.

3. Basic Rules of Statutory Interpretation

462005 SCC 54.

47

2006 SCC 20.482005 SCC 55.

492005 SCC 62.




24

The bouquet of canons of statutory interpretation constitutes an adjudicatory

toolbox from which the tribunal or court may pick and choose appropriate

implements for use in specific contexts. But there is an underlying stream of

dogmas to guide the court in virtually all scenarios of statutory interpretation,

including tax statute interpretation. They include:

3.1 Presumption against Human Rights Derogation

Statutes must be read and applied in a manner compatible with the basic rights

and fundamental freedoms enunciated in domestic and international human

rights instruments. In Nigeria no provision of a tax or any other statute shouldbe interpreted so as to derogate from the Fundamental Rights set out in Chapter

IV of our Constitution. Nigerian legislative clauses must also be compatible

with the African Charter on Human and Peoples‘ Rights and the United Nations

Universal Declaration of Human Rights.

3.2 Presumption against Ouster Clauses

There is a presumption that the legislature could not have intended to oust

the jurisdiction of the courts. In the absence of very clear, effective and valid

words to that effect, the court would be loath to interpret a clause as ousting

its jurisdiction or inhibiting access to justice. Even in the presence of such

words, courts are jealous of their jurisdiction and would and should hesitate

to welcome an ouster clause.

3.3 Holistic Construction

The legislation must be read as a whole. In the case of ambiguity, the scheme of

the Act may resolve it. In United Savings Association v Timbers of Inwood

Forest Associates50

, Justice Scalia wrote: ―Statutory construction . . . is a

50484 U.S. 365, 371 (1988).




25

holistic endeavour. A provision that may seem ambiguous in isolation is often

clarified by the remainder of the statutory scheme — because the same

terminology is used elsewhere in a context that makes its meaning clear, or

because only one of the permissible meanings produces a substantive effect that

is compatible with the rest of the law.‖ This approach was not new when this

dictum was authored. As far back as 1850, in United States v Boisdoré’s Heirs51

US Chief Justice Taney held: ―In expounding a statute, we must not be guided

by a single sentence or member of a sentence, but look to the provisions of the

whole law, and to its object and policy.‖

3.4 Presumption of Linguistic Consistency

Words used in the same context inside a statute or even in a series of statutes on

the same subject are presumed to be used in the same sense.

4. Is Tax Statute Interpretation Sui Generis?

A noted jurist has contended that ―there are no special principles of construction

applicable only to fiscal legislation‖.52

Tax law, like Nigerian criminal law, is entirely statutory. (There is ―no taxation

by common law‖53

, but of course there is plenty of common law of tax statute

interpretation, and to that extent at least ―there is a common law of tax‖54

.) All

tax liability must be traced to statute, the charging provisions of which must be

5149 U.S. (8 How.) 113, 122 (1850) (opinion of Court).

52 Vinelott J, ‘Interpretation of Fiscal Statutes’, *1982+ Statute Law Review , 78.

53

F R Davies, Introduction to Revenue Law , 2

nd

Edition by David Williams and Geoffrey Morse, London, Sweet &Maxwell, 1985, page 36.54

Davies, ibid (italics in the original).




26

directly connectible to the target taxpayer. An inferential nexus will not do- the

link between the charging clause and the target taxpayer must be direct.55

In light of the wholly statutory basis of tax law, tax disputes and litigation tend

to entail statutory interpretation. Generally, tax statutes attract strict

interpretation, as a matter of convention. Judges claim to be applying the Literal

Rule when interpreting tax statutes, but on close analysis the formula they use is

a mixed grill of Literalism and Strict Constructionisism. Learned writers and the

legal community in general have not detected this gambit. The purported

approach of the courts is to adopt the literal, ordinary meaning of the provision,

but if the clause is clearly ambiguous, they take the interpretation, if any, most

favourable to the taxpayer.

―The literal interpretation, coupled with the restrictive interpretation, placed the

onus on Parliament to express itself clearly, and if it did not, the benefit of the

doubt went to the tax payer.‖56

The alleged rationale for this taxpayer-friendly approach to ambiguous tax

provisions is as follows. Tax is an imposition on the subject . At English

common law, any law whereby the Crown sought to expropriate anything from

its subjects had to be construed in favour of the subject against the Crown. Well,

in Nigeria, we have no subjects since Nigeria is a republic, not a monarchy like

England. We are citizens here, not subjects. But perhaps more seriously, is tax

an expropriation? Tax may be an imposition, but I doubt it can be characterised

as an expropriation. If tax is not an expropriation, and the taxpayer is a citizen

not a subject, what is the justification for interpretation of ambiguous clauses in

favour of the citizen? (Every citizen has participated, even if notionally, in

making the law.) Is this rule of the English common law tenable on Nigerian

55 See Ade Ipaye, ‘Introduction to the Nigerian Tax System’, a presentation at the Tax Law and Administration

workshop organised by the Chartered Institute of Taxation of Nigeria and Rahmad Research and ConsultancyService, March 20-22, 2001, pages 24, 25, and 26.56

Florence N Dollo, ‘Tax Legislation and the Lawyer’s Training Needs- An African Perspective’.




27

soil? The origins of Nigerian tax law lie in English law, but some of the tenets

from the latter need to be jettisoned from the former.

In Nigeria tax is more akin to a contribution than an expropriation.

In the words of tax law teacher John Townsend: ―Revenue is the life blood of

Government and society as we know it.‖57

In his dissenting opinion in

Compañía General de Tabaco de Filipinas v Collector of Internal Revenue58

,

Justice Oliver Wendell Holmes of the US Supreme Court wrote: ‗Taxes are

what we pay for civilized society.‘‖59

That said, the taxpayer should still get the benefit of any doubt, but not on the

trite basis of expropriation of subjects. The taxpayer should receive this

beneficial consideration for the simple reason that as between the taxpayer and

the Government, the taxpayer is the weaker party. But any interpretive

manoeuvre that grants the benefit of doubt to the taxpayer without due regard to

the legislative intent cannot be valid. In other words, the Purposive Approach to

statutory interpretation should still control the allocation of any such benefit.

Quaere: Is it necessarily correct to say that the taxpayer is always weaker than

the Government? Is Microsoft Corporation weaker than the Government of

Southern Sudan?

In the interest of full disclosure, I should point out that in the United States,

another republic, the benefit of doubt in the context of ambiguous taxprovisions is allowed to the taxpayer on the basis that taxation is in derogation

of personal rights and property interests. This is similar to the expropriation

57 John A Townsend, Federal Tax Procedure, 2010, page 3, http://www.tjtaxlaw.com/uh-tpc.htm, last accessed

12 March 2011.

58275 U.S. 87, at 100 (1927).

59 275 U.S. 87, at 100 (1927).

http://www.tjtaxlaw.com/uh-tpc.htm







28

thesis propounded in the United Kingdom of Great Britain and Northern Ireland.

American law of course derived largely from English law, and in the course of

American legal development someone forgot to mention that King George was

dead. So several US cases have held that tax statutes should be strictly

construed, and any ambiguity found should be resolved in favour of the

citizen.60

Doubt to be resolved in favour of the taxpayer must be reasonable doubt, and

attempts must first be made to resolve the doubt by other means before handing

its benefit to the taxpayer. In a judgment in which all his learned brothers and

sisters concurred, LeBel J of the Canadian Supreme Court wrote: ―Although

there is a residual presumption in favour of the taxpayer, it is residual only and

applies in the exceptional case where application of the ordinary principles of

interpretation does not resolve the issue ... Any doubt about the meaning of a

taxation statute must be reasonable, and no recourse to the presumption lies

unless the usual rules of interpretation have been applied, to no avail, in an

attempt to discern the meaning of the provision at issue. In my view, the

residual presumption does not assist PDC in the present case because the

ambiguity in the Mining Tax Act can be resolved through the application of the

ordinary principles of statutory interpretation.‖61

I am not alone in doubting the benefit of doubt. As far back as 1938, a learned

writer had declared: ―Once upon a time taxing Acts, like penal Acts, were

construed as narrowly as possible. Today it is undoubted law that they are to be

construed in just the same way as any other Act. The cases are, no doubt, agreed

that the benefit of the doubt still goes to the subject and not the Crown; but the

60 Eidman v Martinez 184 U.S. 578, 583; United States v Wigglesworth, 2 Story, 369, 374; Mutual Benefit Life

Insurance Co. v. Herold , 198 F. 199, 201, affirmed 201 F. 918; Parkview Building Association v Herold , 203 F.

876, 880; Mutual Trust Co. v Miller , 177 N.Y. 51, 57.

61 Placer Dome, infra.




29

fact that a recent Canadian case found it necessary to collect from previous

cases no less than three different reasons why this was so, does seem to indicate

that the presumption in favour of the subject is felt to rest on no solid ground

and that it will tend to disappear.‖62

4.1 Cape Brandy

In Cape Brandy Syndicate v Inland Revenue Commissioners63

, Rowlatt J stated:

―In a taxing Act, one has to look merely at what is clearly said. There is no

room for any intendment. There is no equity about a tax. There is no

presumption as to a tax. Nothing is to be read in, nothing is to be implied. Onehas to look fairly at the language used.‖

In interpreting a tax statute, the court must not strain itself unduly to assist the

tax collector achieve his goal.

In Authority v Regional Tax Board 64

the Appellant sued for himself and on

behalf of other members of the Holy Apostles Community, Aiyetoro. He sought

a declaration that the Community was not liable to pay income tax under the

Income Tax Law of Western Nigeria. The Community did engage in various

income-yielding activities, and the tax authorities alerted them that they would

be taxed pursuant to section 3(4)(a) of the Income Tax Management Act 1961,

and section 8 of the Income Tax Law of Western Nigeria. The Appellant

contended that the Income Tax Law of Western Nigeria could not validly

impose tax on his Community without specifically charging the tax on income

belonging to one of the three categories listed in section 3(4)(a) to (c). The

Appellant lost at the High Court and the Western State Court of Appeal. The

Supreme Court allowed his appeal, holding that to validly impose tax on a

62 John Willis, ‘Statute Interpretation in a Nutshell’ (January 1938), 16 The Canadian Bar Review 1-27, at 25-26.

63(1921) 2 KB 403. See also Mangin v Inland Revenue Commissioners (1971) AC 739.

64NTC 182.




30

community, the statute must charge the tax on income determined in one of the

three ways set out in section 3(4) of the Income Tax Law of Western Nigeria.

In Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance

Ltd 65

a provision intended to widen the tax net failed to achieve that aim

because of linguistic ineptitude. Lord Simonds said: ―It is at least clear what is

the gap which is intended to be filled, and hardly less clear how it is intended to

fill that gap. Yet I can come to no other conclusion than that the language of the

section fails to achieve its apparent purpose and I must decline to insert words

or phrases which might succeed where the draftsman failed.‖

These two cases go along with Cape Brandy in persisting on the path of Strict

Constructionism.

Lord Simonds‘ dictum in the latter case is in sharp contrast to the Solomonic

wisdom of the Denning school of thought.

Conversely, the tribunal must not exert its interpretive energies too gallantly to

assist the taxpayer avoid or minimise his tax.66

The judiciary must not re-draft the statute to help the legislature. The Judicial

Committee of the Privy Council held in Crawford v Spooner 67

: ―We cannot aid

the legislature‘s defective phrasing of an Act, we cannot add and mend and, by

construction, make up deficiencies which are left there.‖

Lord Denning would differ. Maybe I would too.

In Partington v Attorney General68

Lord Cairns held: ―If the person sought to be

taxed comes within the letter of the law he must be taxed, however great the

hardship may appear to the judicial mind to be. On the other hand, if the Crown,

65(1946) 1 All ER 637.

66

Aderawos Timber Trading Company Ltd v Federal Board of Inland Revenue NTC 160 or (1966) NCLR 416.67(1846) 6 Moore PC 1, 8, 9.

68(1869) LR, 4 HL 100, 122.




31

seeking to recover the tax, cannot bring the subject within the letter of the law,

the subject is free, however apparently within the spirit of the law the case

might otherwise appear to be. In other words, if there be admissible, in any

statute, what is called equitable construction, certainly such a construction is not

admissible in a taxing statute.‖

In Gitlitz v Commissioner 69

the US Supreme Court sustained a taxpayer benefit

that was obviously not intended by the legislature, holding ―Because the Code's

plain text permits the taxpayers here to receive these benefits, we need not

address this policy concern.‖ The Court followed Strict Constructionism,

disdaining Purposivism.

But Lord Wilberforce‘s formulation of the ―familiar‖ {Strict Constructionist}

principle, presumably of Cape Brandy, in Ramsay v Inland Revenue

Commissioners70

suggests a subtle and perhaps welcome advance: ―A subject is

only to be taxed on clear words, not on ‗intendment‘ or on the ‗equity‘ of an

Act. Any taxing Act of Parliament is to be construed in accordance with this

principle. What are ‗clear words‘ is to be ascertained on normal principles;

these do not confine the courts to literal interpretation. There may, indeed

should be, considered the context and scheme of the relevant Act as a whole,

and its purpose may, indeed should, be regarded ...‖71

Lord Wilberforce was either contradicting himself in the same breadth (Strict

Constructionist versus Purposive Approach) or he was advancing the law

(Purposive Approach, in italics). I think he was advancing the law. Immediately

you begin to ―consider‖ the context and scheme, and to ―regard‖ the purpose of

a piece of legislation, you are leaving the scorched earth of the Literal and Strict

Constructionist desert and moving towards a fertile Purposive oasis.

69

531 U.S. 206, 220 (2001).70(1982) AC 300.

71My italics.




32

On this dictum of Lord Wilberforce‘s in Ramsay, learned author F R Davies

juxtaposed the contradiction brilliantly: ―So a purpose of a [tax] statute can now

be sought, even if equity and intendment can be ignored. Equity, in so far as it

means fairness between taxpayers, is not ignored, nor is intendment, in the

sense of policy.‖72

Bello JSC appeared to have strayed from tradition if not principle when in the

tax case of Mobil Oil Nigeria Ltd v Federal Board of Inland Revenue73

he wrote

for the majority (rather inelegantly, I fear): ―In construing a statute, regard shall

be given to the cause and necessity of the Act and then construction shall be put

upon it as would promote its purpose and arrest the mischief which it is

intended to deter ... Some companies have been manipulating their accounts

with the intent to hide their true assessable profits and in that manner have been

avoiding tax which they ought to have paid. The purpose of section 30 (of the

Companies Income Tax Act) is to deter companies from engaging in such a

fraudulent practice.‖

In so holding Bello JSC recognised no distinction between statutory

interpretation generally and tax statute interpretation, but he recognised section

30 of the Companies Income Tax Act as an anti-avoidance mechanism. He did

not accord any special place to tax statute interpretation, as conventional

wisdom (or foolishness?) holds. He adopted neither the Literal Rule nor the

Strict Constructionist paradigm. He followed the Mischief Rule and the

Purposive Approach, two interpretive methodologies uniquely suited, in my

view, to tax statute construction. The Mischief Rule is virtually tailor made for

tackling tax avoidance, and is an excellent anti-avoidance judicial gadget.

72

F R Davies, Introduction to Revenue Law , 2

nd

Edition by David Williams and Geoffrey Morse, London, Sweet &Maxwell, 1985, page 38.73

(1977) 1 NCLR 1.




33

Bello JSC‘s bold (if you subscribe to the Purposive Approach) or mistaken (if

you are an adherent of the Cape Brandy idolatry) departure in the Mobil Oil

case may be part of the judiciary‘s anti-avoidance apparatus74

, though if so,

obviously this was not conscious on his lordship‘s part. The eminent jurist

might, while weeping louder than the bereaved, have stumbled upon an

ingenious juridical device for dealing with anti-avoidance schemes.

Thus, although that was never part of the rationes decidendi of Mobil Oil, the

interpretive approach adopted in that case may be the appropriate tool for

dealing with anti-avoidance clauses in tax statutes, without pointedly disturbing

the credo in Cape Brandy.

But what is so sacrosanct about Cape Brandy?

Unfortunately for the numerous Nigerian disciples of Cape Brandy, Mobil Oil is

no aberration in Nigerian tax jurisprudence. Section 2 of the Petroleum Profits

Tax Act defined ‗petroleum operations‘ as ―the winning or obtaining and

transportation of petroleum and chargeable oil in Nigeria by or on behalf of a

company for its own account by any drilling, mining, extracting or other like

operations or process, not including refining at a refinery, in the course of a

business carried on by the company engaged in such operations, and all

operations incidental thereto and any sale of or any disposal of chargeable oil by

or on behalf of the company.‖ In Shell Petroleum Development Company of

Nigeria Ltd v Federal Board of Inland Revenue75

the Supreme Court construed

‗petroleum operations‘ as used in the cited Act to include expenses incurred by

the appellant in paying petroleum profits tax! The Supremes stretched and

strung the definition section beyond the wildest imagination of the most

hallucinatory draftsman or legislator. They threw Cape Brandy and, more

74

I had almost said ‘arsenal’, but that might sound unduly belligerent, whereas the judiciary is supposed to beneutral and peace-loving.75

(1996) 8 NWLR (Part 466) 256.




34

importantly, ejusdem generis into the garbage can of jurisprudence in a manner

too helpful, if not ingratiating, to the large corporate taxpayer in that case.

The unruly horse of public policy, if not the violent camel of executive

programming!, was dragged into the tax-statute interpretation fray by the Court

of Appeal in Phoenix Motors Ltd v National Provident Fund Management

Board 76

where Tobi JCA (as he then was) declared in the lead judgment: ―If a

statute is revenue based or revenue oriented, it will be part of sound public

policy for a court of law to construe the provisions of the statute liberally in

favour of revenue or in favour of deriving revenue by Government, unless there

is a clear provision to the contrary. This is because it is in the interest of the

generality of the public and to the common good and welfare of the citizenry for

Government to be in revenue and affluence to cater for the people. That is the

only way it can distribute wealth to the people to facilitate development to all

and sundry. And this is more so in a country such as ours, where most citizens

open their mouths with all gluttony to receive assistance and welfare packages

from Government in almost all sectors of development in our very frail and

flabby economy.‖

This clumsy dictum represents neither good law nor sound policy.77

It is

tantamount to a Liberal Misrule! It is a judicial essay in totalitarianism and an

epistle in the breakdown of checks and balances. The idea of liberal

interpretation of any species of tax statutes is the fallacious antithesis of the

literal interpretation represented by Cape Brandy.

Both are wrong.

76(1993) 1 NWLR (Part 272) 718, 731D-E.

77Out of respect for the eminent jurist, I shall refrain from commenting on his unkind comments about

Nigerians, a class from which the learned justice has apparently excluded himself. I shall also ignore hislordship’s gratuitous mischaracterisation of “most citizens” of Nigeria as gluttons, but I must wonder what

“assistance and welfare packages” are available to Nigerians.




35

The court is not the tax collector. It is an arbiter between the tax collector and

the taxpayer, and must maintain an emotional equidistance between them. The

extravagantly Revenue-biased interpretive attitude urged by Justice Tobi cannot

even get under the umbrella of Purposive construction. It is an egregious

descent into the arena of conflict between tax collector and taxpayer in unctuous

aid of the former.

Phoenix Motors is blasphemy in the annals of tax jurisprudence. It is a ‗sublime

piece of mysticism and nonsense‘78

.

4.2 Duke of Westminster

In Inland Revenue Commissioners v Duke of Westminster 79

the Duke of

Westminster paid his gardener £3 a week in wages. He covenanted with the

gardener to mutate the wages into certain weekly sums of like value for a period

of seven years or the joint lives of the parties. The covenant recited that the

payments were made in recognition of past services faithfully rendered to the

Duke and that the Duke desired to make provision for the gardener

notwithstanding that he may continue in the Duke's service (in which event he

would be entitled to remuneration in respect of such future service) or may

cease to work for the Duke. It was understood that the payments were in lieu of

wages and that the gardener would not demand other or further remuneration for

his future work.

Under the relevant tax law, the gardener's wage would not have given rise to a

tax deduction, but the covenant reduced the Duke's tax liability. The

arrangement was clearly a tax avoidance scheme. The House of Lords upheld it,

Lord Tomlin stating: ―Every man is entitled if he can to arrange his affairs so

that the tax attaching under the appropriate Acts is less than it otherwise would

78Robert Stewart (Lord Castlereagh) (18 June 1769 – 12 August 1822)

791936 19 TC 510, [1935] All ER 259 (H.L.), [1936] AC 1 (HL).




36

be. If he succeeds in ordering them so as to secure that result, then, however

unappreciative the Commissioners of Inland Revenue or his fellow taxpayers

may be of his ingenuity, he cannot be compelled to pay an increased tax‖.

This dictum from Duke of Westminster is the holy writ of the tax avoidance

industry.

Duke of Westminster essentially established the doctrine that taxpayers are

entitled to arrange their affairs in such a manner as to minimise their tax

liability.

4.3 Anti-Avoidance Interpretive Gadgetry

Prudent businessmen engage in prudent tax planning. ―If taxes are minimized or

postponed, more capital will be available to run the business and more profit

will result .... it would be naive to suggest that businessmen can, or should,

conduct and manage their business affairs without regard to the incidence of

taxation or that they are not, or should not, be attracted to transactions or

investments or forms of doing business that provide reduced burdens of

taxation.‖80

Your right to engage in tax planning must be balanced against ― the

government‘s responsibility to protect the tax base for the benefit of all

citizens.‖81

Whereas conventional wisdom is that you can practise tax avoidance

to your heart‘s content, keep in mind that the legislature can stipulate clauseswhich limit or even eliminate your room for avoidance manoeuvre, at least in a

particular field of activity or a specific category of avoidance. Whatever is

statutorily prohibited becomes illegal. The maxim that tax avoidance is not a

crime cannot save your transaction tailored to minimise your tax liability if it is

caught by an ingenious anti-avoidance legislative clause.

80

Ward & Cullity, Abuse of Rights and the Business Purpose Test , 1981, 451, 473-474.81Reflections on the Relationship between Statutory Interpretation and Tax Avoidance, Canadian Tax Journal

(2001), Vol. 49, No. 1, page 32.




37

Tax evasion is a crime, but tax avoidance is not. Tax avoidance is thus legal,

even if the morals and ethics may be questionable. Tax avoidance is at times

little more than prudent tax planning, although increasingly it has become much

more than that. Although tax avoidance is generally legal, this is only a general

rule capable of admitting exceptions, especially, if not exclusively, as provided

by statute. The tax avoidance industry or community have been extremely busy

setting up shrewd stratagems to legally minimise or exclude taxation with

regard to certain transactions or classes of transactions engaged in by their

clients. They are in love with Duke of Westminster . They essay to almost

immunise their clients from certain taxes or categories of taxes.

If smart tax planners and advisers have been busy devising tax avoidance

schemes, smart legislatures have not been idle. A legislative house should, say

through an expert committee or one taking expert advice, continue to craft anti-

avoidance clauses into tax laws. Just as the good guys of the computer age

format anti-virus programs to counter the computer viruses unleashed by the

bad guys to wreak havoc on systems, legislative houses of nations, especially

developing ones like Nigeria, should be astute to format anti-avoidance clauses

to counter the increasingly ingenious and economically damaging (though

barely legal) avoidance schemes set up by tax planners to enrich their clients at

the expense, not only of the economy as a system, but often also of other

taxpayers, onto whose shoulders the unfair burden might have been shifted.

Tax avoidance is legal only in the sense, and only to the extent, that it is not

illegal. It is not legal in any sense of being above-board.

So when we say that tax avoidance is not a crime, it should not be understood to

be an approbation of tax avoidance. Indeed, Viscount Simon in Latilla v Inland

Revenue Commissioners82

and Lord Greene MR in Lord Howard de Walden v

82(1943) AC 377.




38

Inland Revenue Commissioners83

did not hesitate to condemn tax avoidance

arrangements as reprehensible or obnoxious.

So what about the judicial branch of government (we often forget that the

judiciary is an arm of government)? Should it, along with the legislative branch,

be alert to tax avoidance? Should it innovate anti-avoidance implements?

Should not the judiciary share the policy objectives and concerns of the

government of which it is a part? Does its role as an impartial arbiter have to

blind it to the social goals of the realm of which it is an estate?

As we have seen ( Latilla, de Walden), some English judges harbour nomisgivings about regarding tax avoidance schemes as pernicious social sins, not

mere peccadilloes, their ‗legal‘ status notwithstanding. Tax avoidance schemes

shamelessly exploit the loopholes in the (literal84

) language or letter of the tax

statutes with the aim of defeating the ultimate or true purpose or spirit of the

legislative clause at issue. So their much-vaunted ―legality‖ is merely the

absence of clear, formal ―illegality‖. They are ―on the windy side of the law.‖85

Tax avoidance is at least a mischief in the sense of the Mischief Rule, and an

alert (tax) judiciary should interpret tax avoidance schemes into the ground by

suppressing that mischief and advancing any remedy of anti-avoidance

provisions found to hand.

In Greenberg v Inland Revenue Commissioners86

Lord Reid wrote: ―We seem to

have travelled a long way from the general and salutary rule that the subject is

not to be taxed except by plain words. But I must recognise that plain words are

seldom adequate to anticipate and forestall the multiplicity of ingenious

schemes which are constantly being devised to evade taxation.‖ (Lord Reid was

83 (1942) 1 KB 389.

84

So the celebrated Literal Rule might not be such a great tool for tax statute interpretation after all.85William Shakespeare, Twelfth Night , Act 3 Scene IV.

86(1971) 47 TC 240, 272.




39

using the word ―evade‖ in its ordinary sense, synonymously with ―avoid‖,

rather than in its technical sense of ―criminally or illegally dodge [tax]‖.)

On the other hand, ―the function of the court is to construe the relevant charging

section and to apply it to the facts found. I do not conceive it to be the function

of the court to act as the third arm of the Revenue in seeking to attack tax

avoidance at large.‖87

The court may thus be bereft of jurisdiction to ―attack tax

avoidance at large‖, but it should be able to resist or deflect specific tax

avoidance missiles.

In so doing the court must still remain in the business of interpreting thelanguage actually used in the statute, and not to escalate the Purposive

Approach through an over-zealous pursuit of the wily taxpayer. As Lord

Donovan warned in Mangin v Inland Revenue Commissioners88

, ―the words are

to be given their ordinary meaning. They are not to be given other meaning

simply because their objective is to frustrate legitimate tax avoidance devices ....

moral precepts are not applicable to the interpretation of revenue statutes.‖ But

the ordinary meaning may itself frustrate avoidance schemes, and the court

should of course give effect to it.

In Ransom v Higg89

Lord Simon of Glaisdale held: ―It may seem hard that a

cunningly advised taxpayer should be able to avoid what appears to be his

equitable share of the general fiscal burden and cast it on the shoulders of his

fellow citizens. But for the Courts to try to stretch the law to meet hard cases

(whether the hardship appears to bear on the individual taxpayer or on the

general body of taxpayers as represented by the Inland Revenue) is not merely

to make bad law but to run the risk of subverting the rule of law itself.

Disagreeable as it may seem that some taxpayers should escape what might

87

Graven v White (1988) STC 476, per Lord Jauncey88(1971) AC 739, 746.

89(1974) 50 TC 1, 94.




40

appear to be their fair share of the general burden of national expenditure, it

would be far more disagreeable to substitute the rule of caprice for that of law.‖

So tax avoidance schemes may still succeed, but not on the premise of any

presumptive creed, like Duke of Westminster , but only if the anti-avoidance

statutory language misses its target in spite of the application of broad

interpretive philosophies. In ‗Reflections on the Relationship between Statutory

Interpretation and Tax Avoidance‘90

Brian J Arnold ―argues ... that the

[Canadian] Supreme Court‘s adherence to the Duke of Westminster principle

that taxpayers are entitled to arrange their affairs to minimise tax is

inappropriate today and inconsistent with a modern, more purposive approach

to statutory interpretation ...‖91

5. Conclusion

I submit that, as a general rule at least, the Purposive Approach should be

adopted in construing tax statutes. In this regard, regard should be had to the

Solomonic caveat of a New Zealand jurist: ―A purposive approach should not

be made an excuse for starting with an assumption as to the underlying purpose,

and then forcing the words into a preconceived and strained construction to fit

that assumption.‖92

You have to grapple with the words first, before invoking purposive

interpretation. At the end of any interpretive exercise the result must be

compatible with the words used. No interpretation, no matter how golden,

should be reached which is not at least one of several probable results of the

language employed. ―Thus, legislative purpose may not be used to supplant

90

Canadian Tax Journal (2001), Vol. 49, No. 1.91Ibid, from the Abstract.

92Sir Ian McKay, 'Interpreting Statutes-A Judge's View', (2000) 9 OULR 743, 749.




41

clear statutory language, but to arrive at the most plausible interpretation of an

ambiguous statutory provision‖, wrote LeBel J in Placer Dome93

.

For anti-avoidance provisions, the tribunal should apply the Mischief Rule, if necessary with reference to legislative history and the travaux préparatoires

directly bearing on the clause in question. In the South African case of Glen

Anil Development Corporation Ltd v SIR94

, Botha JA wrote: ―Section 103 of the

Act is clearly directed at defeating tax avoidance schemes. It does not impose a

tax, nor does it relate to the tax imposed by the Act or to the liability therefor or

to the incidence thereof, but rather to schemes designed for the avoidance of

liability therefor. It should, in my view, therefore, not be construed as a taxing

measure but rather in such a way that it will advance the remedy provided by

the section and suppress the mischief against which the section is directed…

The discretionary powers conferred upon the Secretary should, therefore, not be

restricted unnecessarily by interpretation.‖ Botha JA‘s result was good, but his

premises are burdened with Cape Brandy hangover. Notice that he thought it

necessary to classify the statutory provision before him outside taxation statutes

to enable him utilise the Mischief Rule rather than the Strict Constructionist tool

to which he felt somewhat beholden. My submission is that he ought to have

boldly wielded the Mischief Rule without any apologies as to whether the

clause was a taxing measure or not.

Of course if the provisions are clear, the Literal Rule should be adopted. All thecanons should be retained for tax statute construction as appropriate. Where a

Literal or Strict Construction would deprive a provision of operational value, I

submit that neither approach should be adopted. The tax judge should consider

other aids to or canons of interpretation, and may find the Mischief Rule

93 Supra.

94(1975) 37 SATC 319.




42

(especially if the provision in issue is an anti-avoidance legislative device) or

the Purposive Approach helpful.

For ambiguous or hazy provisions, the tribunal should maintain judicial

equidistance, but should be prepared to consider legislative history as they do in

America.

Was learned writer E A Dreidger essaying a synthesis of the canons of statutory

interpretation when he said: ―Today there is only one principle or approach,

namely, the words of an Act are to be read in their entire context and in their

grammatical and ordinary sense harmoniously with the scheme of the Act, theobject of the Act, and the intention of Parliament‖

95?

Maybe he was.

Maybe he was 22 years ahead of the Supreme Court of Canada, which in 2005

developed TCP- the Textual-Contextual-Purposive Method of Statutory

Interpretation.

Keep learning. Doubt everything I have said. Keep thinking. Keep looking

forward. ―Remember Lot‘s wife!‖96

6. Exercises

6.1 What role should judicial activism play in statutory interpretation?

6.2 To what extent should tax statutes be amenable to judicial creativity?

6.3 Do judges make law? If so, how?

6.4 If a judge construes a statute by resort to a canon not urged by either

side, does he thereby violate the suo motu rule? (The suo motu rule

95 Construction of Statutes, 2

ndEdition, 1983, page 87.

96Luke 17:32, and see Genesis 19:26, Holy Bible, King James Version.




43

says a judge should not of his own motion raise an issue not presented

by either party.)

6.5 What is the difference between ‗intent‘ and ‗intendment‘ in the

context of statutory interpretation? Please draw a clear distinction

between legislative intent with reference to a given provision on the

one hand, and the intendment of the provision on the other.

6.5.1 What interpretive enterprise could aid a tribunal or court in

giving effect to the legislative intent?

6.5.2 How should the tribunal or court discern the intendment of a

statutory provision?

6.6 What is the verb root of the noun ‗construction‘ as used in the phrase

‗construction of statutes‘?

6.7 How old is Cape Brandy? Is it still good law?

6.8 What are the differences between the Purposive Approach and the

Mischief Rule?

6.9 Distinguish between the Golden Rule and the Purposive Approach?6.10 Compare the status of adultery in southern Nigerian criminal law

with that of tax avoidance in tax law.

6.11 In light of section 251(1)(a) and (b) of the Constitution, is the Tax

Appeal Tribunal competent to hear and determine tax disputes? (The

provisions read as follows: ―Notwithstanding anything to the contrary

contained in this Constitution and in addition to such other jurisdictionas may be conferred upon it by an Act of the National Assembly, the

Federal High Court shall have and exercise jurisdiction to the

exclusion of any other court in civil causes and matters – (a) relating

to the revenue of the Government of the Federation in which the said

Government or any organ thereof or a person suing or being sued on

behalf of the said Government is a party; (b) connected with or

pertaining to the taxation of companies and other bodies established or




44

carrying on business in Nigeria and all other persons subject to

Federal taxation.‖

6.11.1 What canon of interpretation is most apt for interpreting section

251(1)(a) and (b) of the Constitution?

6.11.2 Why?

6.11.3 How have you applied it?

6.12 What is stare decisis?

6.12.1 How is the title of this paper relevant to the discussion?

6.12.2 To what extent does the warning expressed in the title of this

presentation uphold stare decisis?

6.13 A statute forbids ―driving under the influence of alcohol or drugs‖.

Yinka rides his horse on the highway while drunk.

6.13.1 Has Yinka violated the DUI statute?

6.13.2 What canon of construction is best suited for interpreting this

DUI clause?

6.14 Can the National Assembly pass a tax statute with retroactiveeffect?

6.14.1 If not, why not?

6.14.2 (If you say what I think you‘re going to say) Who says?

Bibliography

Ade Ipaye, ‘Introduction to the Nigerian Tax System’, a presentation at the

Tax Law and Administration workshop organised by the Chartered Institute

of Taxation of Nigeria and Rahmad Research and Consultancy Service,

March 20-22, 2001.

Black’s Law Diction ary , 6th Edition, St Paul, Minnesota, West, 1990.




45

Brian J Arnold, ‗Reflections on the Relationship between Statutory

Interpretation and Tax Avoidance‘, Canadian Tax Journal (2001), Vol. 49,

No. 1.

Denning, The Discipline of Law , London, Butterworths, 1979.

E A Dreidger, Construction of Statutes , 2nd Edition, 1983.

Florence N Dollo, ‘Tax Legislation and the Lawyer’s Training Needs- An

African Perspective’.

F R Davies, Introduction to Revenue Law , 2nd Edition by David Williams and

Geoffrey Morse, London, Sweet & Maxwell, 1985.

Gerald Dworkin, Odgers’ Construction of Deeds and Statutes , 5th Edition,

London, Sweet & Maxwell, 1967.

Holy Bible, King James Version.

Ian McKay, 'Interpreting Statutes-A Judge's View', (2000) 9 OULR 743.

John A Townsend, Federal Tax Procedure , 2010.

John Willis, ‘Statute Interpretation in a Nutshell’ (January 1938), 16 The

Canadian Bar Review

Oliver Wendell Holmes Jr, ‘The Path of the Law’, Collected Papers , 1920.

Vinelott J, ‘Interpretation of Fiscal Statutes’, [1982] Statute Law Review , 78.

Ward & Cullity, Abuse of Rights and the Business Purpose Test .

William Shakespeare, Twelfth Night.

Yule Kim, ‘Statutory Interpretation: General Principles and Recent Trends’,

CRS Report for Congress, 2008.

Author’s Professional Profile

Chinua Asuzu obtained a BA (Hons) from the University of

Nigeria at Nsukka, his LLB (Hons) from the University of

Ibadan, and his BL from the Nigerian Law School. Sinceenrolment in the Supreme Court of Nigeria, Chinua has




been in active, sometimes activist, legal practice at the Assizes Lawfirm. Chinua has

published numerous articles, and presented many papers on law, democracy and

governance. Chinua has consulted for Kayode Sofola & Associates, Olisa Agbakoba &

Associates, Human Rights Law Service (HURILAWS), Legislative Solicitors, the

Nigerian Bar Association, the Catholic Secretariat of Nigeria, and the NationalAssembly.

Chinua Asuzu is now the Senior Partner at Assizes Lawfirm, an Honourable

Commissioner of the Tax Appeal Tribunal, an Adjunct Lecturer and External Examiner at

the Nigerian Law School, and Nigerian-law consultant to the London firm of Bluestone

and Partners.

Chinua Asuzu is a member of the Nigerian Bar Association (NBA) and the International

Bar Association (IBA), and an Associate of the Chartered Institute of Arbitrators (UK).

Asuzu's areas of academic and professional interest or expertise include Dispute

Resolution (adjudication, arbitration, litigation, mediation, and negotiation), Legal

Writing, Legislative Drafting & Advocacy, and Tax.

Asuzu has participated in the preparation of several legislative drafts and proposals to

the National Assembly. His contribution to the civil procedure revolution in Lagos State

was publicly acknowledged by the then Attorney General of Lagos State, Prof Yemi

Osinbajo SAN at the NBA Annual Conference in Calabar in 2002.

Asuzu also made very significant and bold contributions to the current Fundamental

Rights (Enforcement Procedure) Rules. The overriding directives, the encouragement of

public interest litigation, the expansion of locus standi , the resort to regional and

international human rights systems, and indeed the entire preamble to the new

Fundamental Rights Rules were some of Asuzu's innovations.

Asuzu's career has been helped by several senior and contemporary colleagues including

Afe Babalola SAN, Prof Epiphany Azinge SAN, Gani Fawehinmi SAN of blessed memory,

Prof Itse Sagay SAN, Kayode Sofola SAN, Olisa Agbakoba SAN, Patrick Kola Esq, and Prof

Yemi Osinbajo SAN. Olisa Agbakoba in particular gave much-needed direction andopened up vistas of exciting opportunities for the advancement of Asuzu's professional

profile. Prof Azinge supplied giant doses of encouragement and support. Kayode Sofola

has been a great mentor and a teacher by calm example.

Chinua Asuzu is the author of Fair Hearing in Nigeria, Lagos, Malthouse, 2009.

Asuzu would appreciate criticisms of or comments on this presentation by phone/sms

(0803 341 2508) or email ([email protected]). You can download this paper from

mailto:[email protected]



http://ssrn.com/abstract=1920702


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