An Examination of the Current State and Future Directions of Cryptocurrency Taxation in Nigeria

de Ajulo, OON, SAN, FCIArb (UK), Attorney-General of Ondo State

This paper by Learned Senior Advocate, Dr Olukayode Ajulo, provides an in-depth examination of the legal status of cryptocurrencies, their validity as legal tender, the current legal framework for taxing cryptocurrencies in Nigeria, the challenges faced, and the potential future directions for policymakers

An Examination of the Current State and Future Directions

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his paper by Learned Senior Advocate, Dr Olukayode Ajulo, provides an in-depth examination of the legal status of cryptocurrencies, their validity as legal tender, the current legal framework for taxing cryptocurrencies in Nigeria, the challenges faced, and the potential future directions for policymakers

Introduction

A cryptocurrency (also known as virtual currency), is a type of decentralised digital currency that investors can buy and sell along the blockchain. Unlike banknotes or minted coins that have tangible, physical forms, cryptocurrencies can only be accessed using computers and other electronic devices. While there are thousands of cryptocurrencies like Bitcoin, Ethereum, Binance coin, Dogecoin, etc., many with unique traits, they all tend to work in similar ways. The rapid growth and adoption of cryptocurrencies worldwide, have presented significant regulatory and taxation challenges for governments, including Nigeria. As one of the countries with a burgeoning cryptocurrency market, Nigeria has grappled with the task of developing a comprehensive legal and taxation framework, to address the unique aspects of this emerging asset class.

Overview of the Current Legal Framework

The legal framework for the taxation of cryptocurrencies in Nigeria is still evolving, as the Nigerian Government has not yet enacted specific legislation to address the taxation of cryptocurrency transactions. However, there are some existing laws and regulations that can be applied to the taxation of cryptocurrencies in Nigeria. Here’s an overview of the current legal framework:

1. Central Bank of Nigeria (CBN) Regulations: The Central Bank of Nigeria has issued several circulars and directives regarding the regulation of cryptocurrency activities in Nigeria. In 2021, the CBN prohibited banks and other financial institutions from facilitating cryptocurrency transactions. However, the CBN has not explicitly addressed the taxation of cryptocurrencies in its regulations.

2. Income Tax Laws: The relevant income tax laws in Nigeria, such as the Companies Income Tax Act (CITA) LFN 2004 and the Personal Income Tax Act (PITA) LFN, 2004, do not specifically mention cryptocurrencies. However, the Nigerian tax authorities can potentially consider cryptocurrency transactions as either business income or capital gains, depending on the nature of the transaction and the taxpayer’s activities.

3. Value Added Tax (VAT) Act: The Value Added Tax Act (CAP. V1 LFN, 2004) in Nigeria does not provide specific guidance on the VAT treatment of cryptocurrency transactions. The Nigerian tax authorities may consider applying VAT to certain cryptocurrency-related services, such as cryptocurrency exchange services or the sale of digital assets.

4. Regulatory Guidance: The Nigerian government, through the Federal Inland Revenue Service (FIRS) and the Securities and Exchange Commission (SEC), has issued some guidance on the taxation of cryptocurrencies. In 2020, the FIRS released a public notice stating that gains from cryptocurrency transactions should be subject to capital gains tax. The SEC has also provided guidance on the classification and regulation of certain cryptocurrency-based assets, which may have implications for their taxation.

It is however important to note that the legal framework for the taxation of cryptocurrencies in Nigeria is still evolving, and there may be additional developments or clarifications from the Nigerian government in the future. Taxpayers and businesses involved in cryptocurrency activities in Nigeria should stay informed about any updates or changes in the relevant laws and regulations.

Legality and Legal Status of Cryptocurrencies in Nigeria

Legal or Illegal?

There is no legislation in Nigeria that expressly bans the usage of cryptocurrencies. In normative systems such as law, without an express prohibition of a conduct (whether an act or omission) by a code, such a conduct is permitted. Its application in legal philosophy is that an action is permitted if it is not prohibited.  In criminal law, this is known as the principle of nullum crimen sine lege (Latin, meaning “there is no crime where there is no law”). 

When applied to legislation, it simply means that the existence of a crime depends on there being a previous legal provision declaring the action to be an offence. This is the jurisprudence behind the provision in Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that“…a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law”.The courts have consistently upheld this principle (Aoko v. Fagbemi (1961) 1 All NLR 1; Amadi v. FRN [2011] All FWLR (Pt. 561) 1588). In the