People’s Progressive Party/ Civic (PPP/C) parliamentarian Anil Nandlall has filed a legal challenge to a recent amendment of the Value Added Tax (VAT) Act that empowers the Commissioner-General of the Guyana Revenue Authority (GRA) to prevent persons who owe taxes from leaving Guyana until they pay or make acceptable arrangements to do so.
The application, which argues that the amendment violates rights granted to citizens under the constitution, is due for a hearing in the High Court on February 24, 2017.
In his application for relief under the constitution, which was seen by Stabroek News, Nandlall asks for a declaration that the amended Section 45 (1) of the VAT Act, which was assented to by President David Granger on the January 16, 2017, “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 Republic of Guyana, unconstitutional, unlawful, null, void and of no effect.”
He also seeks an order striking down the amendment and any other orders, writs and directions as may be appropriate for the enforcing or securing the enforcement of the provisions of Article 138 to 151 of the Constitution.
According to Nandlall, Article 8 of the Constitu-tion declares it to be the supreme law of Guyana and if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.
Additionally, he notes that Articles 40 and 148 of the Constitution guarantee to every individual “as a fundamental right and freedom, protection of freedom of movement, that is to say, the right to move freely throughout Guyana, the right to reside in any part of Guyana, the right to enter Guyana, the right to leave Guyana and immunity from expulsion from Guyana,” among other things.
This right is infringed, Nandlall argues, by the amendment, which states that where the Commis-sioner has reasonable grounds to believe that a person may leave Guyana without paying all taxes due under the VAT Act, the Commissioner may issue a certificate to the Chief Immigration Officer containing particulars of the tax due and request that the Chief Immigration Officer takes the necessary steps to prevent the person from leaving Guyana until the person makes payment in full; or an arrangement satisfactory to the Commis-sioner for the payment of the tax.
This power and authority, he adds, is on the face of it 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 alleged owed, or without an Order from the High Court or any Court, and without a final assessment of taxes owed.”
He further notes that the manner in which the Act is administered permits persons registered thereunder to pay at periodic intervals and therefore at any given point in time persons registered under the law would owe taxes and, in those circumstances, the Commis-sioner-General would be authorised and empowered to prevent them from leaving Guyana. “The exercise of this statutory power… would be or is likely to be in violation of Articles 40 and 148 of the Constitu-tion,” he says, while noting that the amendment does not fall with in any of the exceptions contained in Article 148 of the Constitution.
Nandlall also notes that the law previously carried a provision that prevented the Commissioner from proceeding without an Order of the Court in respect of the tax due but the section was amended by deleting the proviso.
