East Coast communities without water

the Commissioner General had effectively abdicated his statutory responsibilities for making an assessment in favour of the auditors.

Accordingly, he held that the notices of assessment were not assessments made by the Commissioner.

In its appeal to Justice Chang’s ruling, however, the GRA argued among other things that the judge failed to properly assess the evidence before him and drew inferences that were both erroneous and bad in law.

Meanwhile, in granting the nisi orders the Revenue Authority submitted that Justice Chang misapplied the law relating to delegation of the powers of the Commissioner General pursuant to the Act.

Referencing case law, the Court of Appeal ruled among other things, that the scheme of the VAT Act permits taxing officers to perform the functions and duties of the Commissioner General, albeit under his direction, control or supervision and that communications signed by them are deemed to have been signed by the Commissioner.

The appellate court said it was satisfied that Grand Coastal was afforded an opportunity to make representations to taxing officers of the GRA before it was assessed for additional value added taxes.

In fact, the court said the hotel made such representations to the taxing officers before the assessment which resulted in a reduction in total VAT liability for the period in question from an initial amount of $31,990,375 to $31,290,473.

In its pronouncements, the court said that there is no legal requirement that the respondent be heard by the Commissioner himself as it would be too onerous a task to impose upon the Commissioner a duty to himself hear each and every taxpayer prior to assessment.

It would defeat the intention of Parliament the court said, which saw it fit in easing the burdens on the Commissioner in the exercise of his powers and duties under the Act to expressly vest the powers and duties granted to the Commissioner in taxing officers acting under his direction, control or supervision.

The court declared that in all instances, the process leading up to the assessment was fair. Dear Editor, To date, for the past 24 hours, the residents and taxpayers in the Success, Chateau Margot and LBI communities are without water usually supplied by Guyana Water Inc.

Many telephone calls were made since Tuesday and to date the pipes are still without water.

We respectfully request GWI’s chairman to look at this matter and treat it with a sense of urgency! Your faithfully, Rooplall Dudhnath

Section 33(1) (b) of the VAT Act enables the Commissioner, if he is dissatisfied with a return to make an assessment of the amount of tax payable by the person. The court found that the Commissioner had so done.

Contending that Grand Coastal’s complainant had been against the assessments, the GRA advanced that the proper procedure would have been for the hotel to have availed itself of the statutory appellate procedure as stipulated by the Act before going to the court.

Part X

To aggrieved taxpayers, Part X of the VAT Act provides the remedy of first appealing to the Commissioner General, the VAT Board and finally to the court. This, the GRA argued, was the correct procedure for Grand Coastal to have invoked, as opposed to seeking the prerogative nisi remedies in the first place.

This argument was endorsed by the appeal court which added that the VAT Board of Review was the appropriate and better equipped tribunal to determine the method of assessment complaints raised by Grand Coastal.

To this end, the court cited the recent Caribbean Court of Justice (CCJ) ruling in Guyana Stores Ltd v. the Attorney General of Guyana et al. In that case, a challenge was made to the constitutionality of a 2% minimum corporation tax created by the Fiscal Enactments (Amendment) Acts.

The CCJ rejected the appellant’s arguments that the 2% tax was unconstitutional and held that while the appellant was entitled to pursue a claim for constitutional relief, that “entitlement did not alter the fact that at root, the underlying and primary issue the company had, was with the liability to pay the demanded taxes.”

As such, the CCJ ruled that this was precisely suited for resolution by the specialized processes and tribunal established by the Income Tax Act for producing such resolution.”

The Caribbean court concluded that there was “no sudden and unheralded imposition of and demand for taxes from the Revenue Authority and, it appears, it was no arbitrary assessment.

In the case between GRA and Grand Coastal, the Court of Appeal found that the additional VAT was assessed after an investigation which included meetings with and representations on behalf of the respondent hotel.

It concluded that indeed there was “no sudden and unheralded imposition of and demand for taxes from the Revenue Authority,” or arbitrary assessments. There was nothing to prevent the respondent from lodging an objection and invoking the jurisdiction of the VAT Board of Review if the objection was rejected.

The appeal court added further, that there were no exceptional circumstances either or for that matter no circumstances shown to justify prerogative remedy proceedings in the light of the more appropriate and specialized appellate procedure established under the VAT Act.

Delivering the ruling on behalf of the court, Justice Khan declared that what Grand Coastal’s action, “misconceived as it was,” succeeded in doing was to falsely secure for them, temporary financial respite at the expense of the nation while the case wound its way through the court processes for over seven years.

The court made it clear, however, that such a strategy “if one may call it that,” in no way helps the respondent who will still remain liable for the taxes assessed along with the consequential interest imposed by the Act.

The justices of appeal declared that it “therefore behooves the Courts before whom applications such as this are initially heard to exercise great care in making the orders prayed for, lest they become unwitting participants in a charade,” though acknowledging that there undoubtedly will be genuine cases for prerogative remedies while adding that these should be “exceptional.”

Referencing case law, the court said “it is a cardinal principle that, save in the most exceptional circumstances [the judicial review] jurisdiction will not be exercised where other remedies were available and have not been used”.

Against this backdrop, the judges declared, “the Court therefore must not shirk its responsibility to quickly identify the wolf in sheep’s clothing and dispatch it with all due haste.”

The court found that the hotel failed to establish any exceptional circumstances which would justify the preference of the prerogative writ procedure to the statutory appellate procedure.

In allowing GRA’s appeal, the Court of Appeal discharged the orders nisi previously granted to Grand Coastal while ordering them to pay the Revenue Authority court costs in the sum of $250,000.

Representing GRA were attorneys Joy Persaud, Hessaun Yassin Nandlall and M Halley. Meanwhile, Grand Coastal was represented by attorney Robin Hunte.