Tax-deductible flare gas penalty payments in Nigeria: context, responsibilities and judicial interpretation

Abstract

The judicial interpretation of the Associated Gas Re-injection Act (Nigeria) with regard to the legality of tax deductions, which are based on the payment of gas flaring fees or penalties, illustrates some of the inconsistencies between the legality of tax action under the literal terms of the statute and the purpose of the statute to achieve a desired ethical environmental conduct. This article will examine the context and cases of gas flaring fees and their interpretation for tax purposes, and will highlight the potential role of judicial interpretation which could take into account contextual factors, through purposive interpretation. The fees for flaring gas and its assessment for tax liabilities are an exemplar of potential contradictions that present a challenge for legal interpretation and (ir)responsible action. The use of relevant interpretation approaches may help deal with issues that arise from contradictory overlaps – even if these approaches may themselves be subject to dispute. The paper suggests a purposive two-step test that takes into account the specific purposes of the legislation and the general context of gas flaring and corporate responsibilities.