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People line up to file tax returns at the Inland Revenue Division, Ministry of Finance in April 2022. File photo – Jeff K Mayers
A move by Finance Minister Colm Imbert to start operationalising the TT Revenue Authority (TTRA) has been condemned by the Public Services Association (PSA).
There now appears to be some confusion over the extent of a limited stay granted by the Court of Appeal, as the union’s president Leroy Baptiste said on June 27 that letters had been sent to staff of the Board of Inland Revenue (BIR) and Customs and Excise Division (CED) on June 25.
“This is a flagrant violation and gross disrespect to the struggle of the workers as well as the administration of justice,” his statement said.
The PSA’s attorneys have sought an urgent emergency hearing asking the Court of Appeal to “correct” its June 11 order to specifically direct a stay of the implementation and operationalisation of section 18 of the TTRA Act.
On June 4, Justices of Appeal Mark Mohammed, Charmaine Pemberton and Mira Dean-Armorer said it made sense to temporarily preserve the status quo, as it would be conducive to the ease of administration in the public’s interest, while mindful of the administration of justice.
They granted a limited stay which should have put a temporary halt to the operationalisation of the TTRA until September 25. The court’s order was sent out to attorneys on June 11.
However, this led to a flurry of e-mails from the PSA’s attorneys and attorneys for the State, pointing out an apparent error in the drafting of the formal order sent by the registrar, as it did not “accurately reflect the nature of the stay asked for by the union and granted by the court,” Svetlana Dass, instructing attorney for the Attorney General said in her e-mail.
Vishaal Siewsaran, one of the PSA’s attorneys, sent a similar e-mail asking for the to court revisit and revise its order.
On June 14, the registrar told the parties the order they had received “faithfully represents the decision and order of the court pronounced at the hearing on June 4.”
The exchanges form part of the PSA’s application to the Court of Appeal to “correct” its order, which is allowed under the civil proceedings rules.
“The court may at any time correct (without an appeal) a clerical mistake in a judgment or order, or an error arising in a judgment or order from any accidental slip or omission.”
Siewsaran also said, “Given the clear understanding by both parties regarding the true nature and purpose of the orders made by the court and in particular the interim relief, the appellant was confident that the respondent would respect and preserve the status quo and hence chose to focus on the preparation of the appeal to the Board.”
However, the application said on June 15, the State told the PSA’s legal team the Appeal Court order did not prevent the implementation of section 18 of the act, and that the minister had decided to proceed with implementing the section, while giving an extension to BIR and CED staff until July 31 to exercise their option.
The Revenue Authority Act was proclaimed with an effective date of May 1, 2023, and was scheduled to take effect on August 1, 2023.
However, the PSA, through its member customs officer Terissa Dhoray, challenged the lawfulness of the authority.
The lawsuit specifically focused on Section 18 of the legislation, which President Christine Kangaloo proclaimed on April 24, 2023.
Initially, the deadline to do so was July 31, 2023, but there were at least five other extensions, with the last, on April 30, extending the deadline to June 3.
The PSA’s conditional-leave application was filed on May 29, seeking an interim order staying the implementation and operation of section 18 of the act, pending the hearing and determination of the appeal to the Privy Council.
The attorneys were told the ministry had written to each public officer notifying them of the final extension.
The letter, from the ministry’s permanent secretary, Suzette Taylor-Lee Chee, sent to staff on June 25, senior counsel had advised the minister there was no order preventing the Government from implementing section 18 or any other statutory provision.
“What the court ordered was a stay of its own decision.”
The PS also noted that after both sides sought clarification, it was “made clear that only its own order has been stayed.
“The Minister of Finance has, therefore, been advised by senior counsel that he is free to fix a deadline date for the exercise of the options under s18 of the act by public officers who are eligible to do so.”
It also said the minister had decided to effect one further and final extension of the option period to July 31, and there was undertaking that if the Privy Council finds the legislation unconstitutional, the Government would restore all public officers to the position they were in before they exercised their option.
On May 28, Justices of Appeal Nolan Bereaux, Pemberton and Dean-Armorer dismissed the challenge, which High Court judge Westmin James initially rejected in November 2023.
In her lawsuit, Dhoray challenged the constitutional validity of the Revenue Act 2021. She contended that section 18 was unconstitutional, as it sought to interfere with the terms and conditions of employment of public servants currently assigned to the CED and BIR.
The section gave public servants – some 1,200 – three months to decide on their future employment on the operationalisation of the TTRA. Those affected had the choice to resign from the public service, accept a transfer to the TTRA or be transferred to another office in the public service.
Dhoray’s appeal was filed in the Privy Council on June 26.
“The respondent has sought to steal a march on the appellant and force affected public servants to select an option under section 18 by July 31, 2024 based on the fact that the issued order of the court does not accurately reflect what was actually ordered.
“The conduct of the respondent in issuing letters to all public officers employed at the BIR and CED reeks of unfairness and underscores the urgency of this application.
“There is a serious threat to the rule of law if the TTRA is operationalsed and implemented in breach of the Constitution, which is the supreme law.”
In the statement on June 27, the PSA described the minister’s move as “as an attempt to intimidate workers.” The union’s president called on the affected public officers to “ignore those letters and let the law take its course.
“This action by the government is totally inconsistent with the intention and purpose of the court’s order and flies in the face of the rule of law.
“The PSA has filed its appeal in the Privy Council and has sought an urgent hearing. We therefore call upon the government to respect the letter and spirit of the law and stop this vulgar and obscene attempt by Mr Imbert to steal a march on the rights of these workers so that the highest court in the land can adjudicate on this matter.
“The PSA stands in solidarity with the workers of the BIR and CED and warns the government that it will not stand idly by and allow it to trample on the rights of the aggrieved workers.
“We are committed to standing up and defending their rights against the onslaught of oppression and victimisation to champion the cause of justice. We ask that the government respect the courts and let due process prevail.”
In an affidavit on June 3, in opposition of the PSA’s application for the stay, Imbert said an interim stay would push back the the deadline for eligible officers to exercise one of the three options and delay the start of operations. He said the Government strongly preferred not to extent the option period beyond June 30.
“The economy of TT is an oil- and gas-based economy, and the performance of the country’s economy is heavily dependent on the international price for oil and for gas and the amount of oil and gas that is produced in the country.”
He said the weighted average price of oil produced in TT had fallen and the price of natural gas was below the budget price representing a “significant variance from the budgeted figures,” which, he said, “was a serious cause for concern and makes the speedy operationalisation of the Revenue Authority even more imperative.”
Imbert said the next three years would be challenging for TT from a revenue perspective.
“In fact, unless additional tax revenue can be collected through the improvements in tax administration that will come with a fully operational Revenue Authority, the Government will soon be faced with very difficult choices in terms of maintaining the current levels of subsidies, grants, free services and social programmes.”
He said the annual tax gap between actual and potential tax revenue was over $5 billion, and possibly as high as $10 billion.
Leading the team for the PSA is Anand Ramlogan, SC. Douglas Mendes, SC, leads the team for the State.
