Former AG mounts legal challenge against VAT amendments

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A legal challenge has been launched against the Value Added Tax (VAT) Act Chapter 81:05 amendments of 2017. The writ, which was filed by former Attorney General Anil Nandlall, under the new rules of court, is seeking to have the Coalition’s amendments declared null and void.

This amendment was assented to by President David Granger on January 16, 2017, and gazetted on the same day. But according to Nandlall’s writ, which was filed in the High Court on Tuesday, it “is or is likely to be, contrary to, inconsistent with, and in violation of Articles 40 and 148 of the Constitution of the Co-operative legalRepublic of Guyana.”

In particular, Nandlall’s affidavit highlighted the wide powers granted to the Guyana Revenue Authority (GRA) Commissioner General in Section 45 (amended) of the Act. He noted that the Act empowers the Commissioner to stop someone from leaving Guyana if there are grounds to believe that the person is not paying the requisite taxes.

The Commissioner General can do this by merely making a request to the Chief Immigration Officer, with a certificate containing the details of the tax due. That person is effectively stopped from leaving the country until he or she pays in full or makes a satisfactory arrangement with the Commissioner.

Nandlall noted that this power is “ex-facie, exercisable at any time, without affording the person a fair or any hearing, or without serving the person a notice of demand for taxes allegedly due, or without allowing the exhaustion of any lawful recourse available to the person to challenge the taxes allegedly owed, or without an Order from the High Court or any court, and without a final assessment of taxes owed.”

During an interview with this newspaper, Nandlall acknowledged the need for the State to collect the taxes it was due. However, he emphasised the necessity of affording persons due process, including a hearing, before taking such a drastic step.

He also noted the manner in which the Value Added Tax Act, Chapter 81:05, is administered, “Permits persons registered thereunder to pay Value Added Tax at periodic intervals; therefore at any given point in time, there is always an overwhelming likelihood that a person registered under the said Act will owe taxes.”

The Attorney-at-Law pointed out that in such circumstances, those persons who are at the mercy of the GRA Commissioner General.

The writ states that in addition to costs, the former Attorney General is seeking a declaration “that Section 45(1) of the Value Added Tax Act Chapter 81:05, as amended by Section 2 of Act No 3 of 2017, Value Added Tax (Amendment) Act 2017, (is) unconstitutional, unlawful, null, void and of no effect.”

Pursuant to Article 8 of the Constitution of Guyana, he is also seeking an order striking down Section 45(1) on the grounds of its likely unconstitutional nature. The writ also extends to “such Orders, writs and directions as the Court may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of Article 138 to 151 of the Constitution.”

The writ names Nandlall’s successor, Attorney General Basil Williams, as the respondent. The matter is scheduled to be heard in the High Court on February 24.

The document states that should Williams fail to appear at the hearing “an order or judgment may be given in your absence and without further notice to you.”

It also notes that if said order is given, failure to comply can see him being held in contempt of court and he “may be liable (to) imprisonment or to have your assets confiscated.”

When the amendments were presented by Finance Minister Winston Jordan last month, the People’s Progressive Party (PPP) had immediately lambasted the Government for the measures. (Guyana Times)

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