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Recognition and respect long overdue

Published: 
Thursday, September 7, 2017
Tax Appeal Board of T&T 1966-2017

Tax Appeal Board of T&T, a superior court of record, is fast approaching the end of its 50th anniversary year, having started life in 1966, approximately one year before the Industrial Court.

Regrettably, it remains one of the best kept and increasingly under-funded institutions in this 55th year of independence.

T&T remains uniquely placed among Caribbean jurisdictions in terms of having created four very significant superior courts of record which play an increasingly important role in the jurisprudential history of this country.

While the Industrial Court seeks to adjudicate and conciliate industrial relations between employers and employees, the tax court was created with a very wide remit to determine appeals against the determination of objections to tax assessments in relation to income and corporate tax, petroleum tax, customs and excise duties, stamp duty, value added tax among others and is soon to be the arbiter of disputes in relation to the property tax, having exercised jurisdiction in relation to the predecessor land and building taxes.

Allied with more recently created courts such as the Environmental Commission and the Equal Opportunity Tribunal pertaining to environmental and discrimination matters as encompassed by their respective statutes, the four courts, in addition to the High Court and the Family Court—the latter of which provides a combined mechanism for family disputes at the magisterial and High Court levels—establish a fairly comprehensive framework for local jurisprudence to blossom at the national, regional and international levels.

These courts are also established as providers of alternative dispute resolution (ADR) services by virtue of being so established as statutory bodies providing such facilities under the Mediation Act 2004.

ADR increasingly plays a vital role in resolving disputes which contributes to saving judicial and administrative time as well as the saving of costs which would otherwise be incurred by litigants seeking to resolve such disputes through pure litigation.

Such courts may often be able to offer a quicker and less expensive means of resolving disputes provided the administrative groundwork has been laid. This has been the case increasingly with the High Court in so far as it has benefited from two pilot projects which established that judicial institutions in particular could comfortably offer such services and indeed are increasingly doing so as expectations continue to grow among the populace that is becoming increasingly sensitised to the benefits of ADR and mediation. This, as a reasonable means of preserving relationships where possible but certainly also leading to a positive climate for future relations among disputants.

The creators of such bodies have straddled mainstream political parties, given that the Industrial Court and tax court were created under a PNM regime and the Environmental Commission and Equal Opportunity Tribunal under a UNC-led administration.

Although these institutions are perceived as being increasingly relevant to the growing needs of a modern society, it remains of major concern that such courts are, to a large extent, not receiving the level of attention and funding.

It is a matter of record that, from 2006-2010, the tax court was unceremoniously evicted from its purpose-built premises at the Hall of Justice and spent the next five years literally being shifted from pillar to post as it struggled to discharge its mandate in the most oppressive of circumstances.

This occurred in the midst of important development in the global tax arena which increasingly attached importance to double- tax treaties internationally and modernising domestic tax regimes locally and regionally where, only through sheer determination, was the court able to survive and to provide its services to the general public.

Notable at this time was the daily trek of court files, staff and judges from its warehouse premises at the AS Bryden Building, Independence Square to the Industrial Court to a tiny storage room modified at the expense of the tax court to enable it to continue sittings in trying circumstances and then back again.

It also subsequently occupied premises over a car dealership and other manifestly unsuitable bedfellows. It is a trite but true statement that many sectors over which other sister courts preside may be called upon from time to time to adjudicate in matters pertaining to industrial relations, environmental matters and equal opportunity grievances.

However, to state the obvious, everyone is a taxpayer and thus in need of the court’s services, whether it be the individual litigant, business owner or multinational corporation.

This country also provides assistance to its neighbours and within Caricom and the CSME, in particular, as well as being part of the Caribbean Regional Negotiating Machinery in relation to Europe and other international jurisdictions.

Given this context, it remains a travesty that the court’s legislation is desperately in need of being updated to meet the expectations of the general public who may rightly have concerns about resolving their tax disputes within a reasonable timeframe.

One of the challenges of the present system is the fact that negotiations between the taxing authorities and taxpayers seems to take an extremely long time. This is often allied with several adjournments being sought due to the lack of readiness of the parties to proceed to trial or because there seem to be the perceptions that there should be an open-ended time frame to negotiate a settlement despite the fact that, during the objection phase in relation for example to income and corporation tax disputes, two years would already have elapsed when the parties would have been afforded through statute a reasonable time to exchange further information and to meet in order to resolve matters before an appeal is lodged with the court.

Moreover, one of the major challenges that such courts have is that they are entirely dependent on a Cabinet decision to advise the Office of the President on new or renewed appointments.

Unlike the High Court, whose judges are appointed by the Judicial and Legal Service Commission which advises the President as to such appointments and thus ostensibly remaining free from control by the executive, appointments of new members/judges to the above superior courts of record remain a matter for executive discretion for a term of three to five years.

This lack of tenure has been an abiding concerns which successive regimes have not sought to address.

Thus courts such as the tax court remain entirely dependent on the government of the day to make such appointments in a fair and transparent manner. It is a matter of some concern as to the approach which may be adopted to such appointments given that the relevant criteria.

Many lay persons who are appointed to such positions without the benefit of several years of legal practice often struggle to come to terms with preparing judgments which are open to scrutiny and criticism by the Appeal court and the Judicial Committee of the Privy Council.

A mixed bench may add value where the strict rules of evidence are not followed. However, before the tax court there is no significant difference with the High Court in terms of matters of practice, procedure and evidence.

Of major concern is the lack of funding to discharge the often onerous administrative and judicial duties attendant upon such courts such as the tax court.

In this 50th year of operations with two published volumes of law reports and a third in train, the court was unable to receive any funding towards marking its Golden Jubilee.

No-one suggests that lavish parties and functions should be held in this so-called guava season of declining energy prices.

However, to not be afforded even a small financial concession to continue to mark the occasion and to sensitise the public about the court’s work especially as the tax regime continues to attract attention may give the impression that the court is not perceived as a priority.

Up until 2009, the court quite competently managed its financial affairs under the watchful eye of the auditor general as well as the Ministry of Finance budgets division and Comptroller of Accounts.

However, the unfortunate decision to amalgamate its affairs together with the Environmental Commission, Public Service Appeal Board and the Industrial Court whereby it became a sub-accounting unit of its sister court whose vintage exceeded its own by all of one year remains an unfortunate occurrence which has led to the loss of financial independence to manage its own affairs whilst acknowledging at all times the imperative of accountability for the disbursement of public funds to the Public Accounts Committee of Parliament.

This has resulted in numerous challenges in ensuring that the court remains independent of state control and also that it is able to fill vacancies in tandem with the Public Services Commission in a timely manner. It struggles to keep afloat with a relatively small staff whilst at the same time fulfilling the expectations of its various stakeholders.

Of notable concern remains the general perception that the court is structurally and administratively part of the Board of Inland Revenue.

After some 50 years of existence when it has quietly sought to carry out its work and sometime been the target of unfair criticism, it is important, especially within the context of a small society to maintain and to be perceived as maintaining its independence if it is to win the confidence of the general public and those who have need of its services.

Its move to publishing its law reports, which have a ready following regionally and internationally and its more recent efforts to establish its own database of case law as well as maintaining links with its sister institutions locally, regionally and internationally despite the fact that its proceedings are held in camera can be perceived as evincing the court’s commitment to transparency and accountability.

Its steady and timely delivery of rulings and judgments in more recent times whilst still grappling with a small backlog stemming from the constant and frequent movement of its files and records among approximately four different venues in five years should be a cause for celebration in its 50th year of operation whilst acknowledging that there is always room for improvement.

As we prepare for the forthcoming law term 2017-18, we seek always to place ourselves at the service of our beloved T&T and trust that this small excursus will in some small measure contribute to a better understanding of its role and function and that the Court will receive the resources, recognition and support that it has earned over the past 50 years.

May God continue to bless us on the occasion of our 55th year of independence.

HH Judge Anthony DJ Gafoor

Chairman, Tax Appeal Board of T&T

(Superior Court of Record)

The views expressed remain the personal views of the author and should not necessarily be attributed to the Court