The Guyana Revenue Authority (GRA) in March of this year successfully challenged a move by the Special Organised Crime Unit (SOCU) to gain access to and make copies of taxpayer records for three persons who were at the time the subjects of a money laundering investigation.
As a result, then acting Chief Justice Yonette Cummings-Edwards in March revised a production order that had earlier been granted to SOCU, limiting access to SOCU head Assistant Commissioner Sydney James to examine the relevant documents under the supervision of GRA at the agency’s headquarters. His access to the information was granted subject to confidentiality and with the specific direction not to replicate any of the information in any form or manner.
The case arose after SOCU requested that GRA Commissioner-General Godfrey Statia provide access to, as well as certified copies as may be necessary, of material relating to the GRA transactions involving the three individuals, Ashraf Ally, Imran Ally and Saveta Dabee of Peters Hall, East Bank Demerara.
Court documents, seen by Stabroek News, showed that Statia was served on March 6 with a Production Order, made by Justice Cummings-Edwards pursuant to Section 24 of the Anti-Money Laundering and Countering the Financing of Terrorism Act (AML/CFT).
The order was granted based on an ex-parte application by SOCU.
However, Statia and his team of lawyers subsequently applied to the court to either vary, set aside or discharge the order.
In a supporting affidavit, he argued that while the AML/CFT Act allows for an ex-parte application, it does not preclude an inter-partes application or an application with notice, which he said should have been the route taken in order to give the GRA an opportunity to apprise the court of the laws and facts pertaining to the production of documents.
“I am advised by counsel and verily believe that while the [AML/CFT Act] appears to allow for production of taxpayer information in certain circumstances, the Revenue Authority has an obligation to ensure that such production does not put the information into public record, does not expose the information to the public or is not removed from the repository where the taxpayer and/or citizen has filed pursuant to the law,” Statia said in the affidavit.
He also highlighted GRA’s obligation to safeguard returns, declarations and other information submitted by taxpayers as well as the court’s role as the ultimate guardian of taxpayers’ rights, before adding that orders such as the one requested by SOCU should be granted “only in exceptional circumstances and in a controlled manner.”
Section 24 of the Act stipulates that in the course of an investigation, a police officer may request documents from any person who has within his control a document either “(a) identifying , locating or quantifying property of the person or to identifying or locating a document necessary for the transfer of property of such person or; (b) identifying, locating, or quantifying tainted property in relation to the offence or to identifying or locating a document necessary for the transfer of tainted property in relation to the offence.”
Statia said he was advised that the application by SOCU failed to establish a nexus between the material requested from the GRA and the criteria set out in the law.
He added that some of the material required to be produced by way of the order may be “irretrievable, difficult to retrieve, or destroyed” in accordance with the statutory time prescribed for the preservation of the documents.
He further added that a particular request by SOCU to see not just particular income tax and Value Added Tax records but “any other documents relating to the tax affairs” of the individuals was clearly outside the spirit and intention of Section 24 as the request was vague, imprecise, and nebulous and in no way satisfied the criteria stipulated therein.
As a result, the court subsequently varied the order. The varied order gave SOCU’s James access to all inbound and outbound cash declarations made by the trio to GRA for the period 2009 to 2015, certificates of registration registered in their names and income tax returns together with supporting financial statements and tax computations by the trio for the years 2009 to 2015 (years of assessment 2009 to 2016) if still in possession of the GRA.
Further, GRA was to make available all customs documents and duties, charges and VAT paid in relation to the imports and exports done by Ashraf Ally and all customs documents and duties, charges and VAT paid in relation to imports by the said Ashraf Ally among other documents.
