Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The Pub­lic Ser­vices As­so­ci­a­tion (PSA) has lost its law­suit over the Gov­ern­ment’s plan to in­tro­duce the long-tout­ed T&T Rev­enue Au­thor­i­ty (TTRA) to re­place the Cus­toms and Ex­cise Di­vi­sion (CED) and the In­land Rev­enue Di­vi­sion (IRD).

De­liv­er­ing a judg­ment yes­ter­day, High Court Judge West­min James dis­missed the law­suit filed by the PSA, through its mem­ber and cus­toms of­fi­cer Ter­risa Dho­ray, as the Gov­ern­ment was seek­ing to im­ple­ment the TTRA in Au­gust.

In the law­suit, Dho­ray was chal­leng­ing the con­sti­tu­tion­al va­lid­i­ty of the T&T Rev­enue Act 2021. She con­tend­ed that cer­tain seg­ments of the leg­is­la­tion are un­con­sti­tu­tion­al, as they seek to in­ter­fere with the terms and con­di­tions of em­ploy­ment of pub­lic ser­vants cur­rent­ly as­signed to the CED and IRD. She al­so claimed that the Gov­ern­ment did not have the pow­er to del­e­gate its tax rev­enue col­lec­tion du­ties.

The law­suit specif­i­cal­ly fo­cused on Sec­tion 18 of the leg­is­la­tion, which was pro­claimed by Pres­i­dent Chris­tine Kan­ga­loo on April 24.

The sec­tion gives pub­lic ser­vants three months to make a de­ci­sion on their fu­ture em­ploy­ment up­on the op­er­a­tional­i­sa­tion of the TTRA. Af­fect­ed pub­lic ser­vants have the choice to vol­un­tar­i­ly re­sign from the Pub­lic Ser­vice, ac­cept a trans­fer to the TTRA, or be trans­ferred to an­oth­er of­fice in the Pub­lic Ser­vice.

In its de­fence, the Gov­ern­ment has claimed that tax col­lec­tion could be del­e­gat­ed once guide­lines are pro­vid­ed by Par­lia­ment.

In de­ter­min­ing the case, Jus­tice James ruled that tax col­lec­tion is not a core gov­ern­men­tal func­tion that is non-del­e­gable.

While he not­ed that tax­a­tion is a key source of a gov­ern­ment’s rev­enue, and that the process of as­sess­ing and col­lect­ing tax­es is es­sen­tial, he not­ed there were cur­rent­ly in­stances of pri­vate en­ti­ties be­ing able to col­lect tax­es on the Gov­ern­ment’s be­half.

Jus­tice James said: “It is com­mon for VAT-reg­is­tered in­di­vid­u­als and busi­ness­es to col­lect tax­es from con­sumers on be­half of the State and then re­mit those tax­es to the ap­pro­pri­ate tax agency.”

“Sim­i­lar­ly, in the in­come tax (PAYE) regime, in­di­vid­ual em­ploy­ers are re­spon­si­ble for as­sess­ing and col­lect­ing the in­come tax payable by the em­ploy­ee and re­mit that sum to the gov­ern­ment agen­cies,” he added.

James al­so point­ed out that sev­er­al for­eign coun­tries have set up sim­i­lar spe­cial­ist bod­ies to deal with the “com­plex­i­ties” of mod­ern tax­a­tion.

“While this is not de­ter­mi­na­tive of whether the act here is con­sti­tu­tion­al, it does pro­vide con­text of what has been con­sid­ered core gov­ern­men­tal func­tions by oth­er states in the Com­mon­wealth,” Jus­tice James said.

Jus­tice James al­so ruled that the del­e­ga­tion of the as­sess­ment and col­lec­tion of tax­es to a State cor­po­ra­tion un­der the con­trol of the Min­is­ter of Fi­nance was per­mit­ted.

“The TTRA, be­ing an agent of the Gov­ern­ment for the as­sess­ment and col­lec­tion func­tions with over­sight of the Min­is­ter, a mem­ber of the Ex­ec­u­tive, the ex­ec­u­tive func­tion re­lat­ed to this as­pect of tax­a­tion has not been re­moved from the cen­tral gov­ern­ment,” he said.

“The claimant has not point­ed to how the del­e­ga­tion of these func­tions will un­der­mine any core func­tion of the gov­ern­ment to im­pede the se­cu­ri­ty or the ad­min­is­tra­tion of jus­tice,” he added.

Jus­tice James al­so not­ed that the en­force­ment du­ties of the TTRA would still be per­formed by pub­lic ser­vants, who are not un­der the di­rect con­trol of the min­is­ter or the TTRA board.

“Those pow­ers over pub­lic ser­vants re­main with the Pub­lic Ser­vice Com­mis­sion un­der the Act,” he said.

The PSA ini­tial­ly sought an in­junc­tion block­ing the im­ple­men­ta­tion pend­ing the out­come of the law­suit but it was de­nied by High Court Judge Bet­sy Ann Lam­bert-Pe­ter­son, who was ini­tial­ly as­signed to pre­side over the case.

Her de­ci­sion was up­held by the Court of Ap­peal.

Af­ter Jus­tice Lam­bert-Pe­ter­son re­ject­ed the in­junc­tion, Dho­ray made an ap­pli­ca­tion for her to re­cuse her­self based on con­cerns raised by PSA mem­bers over the al­leged friend­ship be­tween her hus­band Gilbert Pe­ter­son, SC, and Prime Min­is­ter Dr Kei­th Row­ley.

Jus­tice Lam­bert-Pe­ter­son re­peat­ed­ly re­ject­ed the links, as she claimed she could pre­side im­par­tial­ly in the case.

How­ev­er, she even­tu­al­ly con­ced­ed, re­sult­ing in the case be­ing re­as­signed to Jus­tice James.

Guardian Me­dia at­tempt­ed to con­tact PSA Pres­i­dent Leroy Bap­tiste for com­ment but calls to his cell­phone went to voice­mail. How­ev­er, a mem­ber of the union’s le­gal team in­di­cat­ed that it plans to ap­peal the out­come of the case.

Dho­ray was rep­re­sent­ed by Anand Ram­lo­gan, SC, Jayan­ti Lutch­me­di­al, Kent Sam­lal, Robert Ab­dool-Mitchell, Natasha Bis­ram, Vishaal Siewsaran and Ganesh Sa­roop. The State was rep­re­sent­ed by Dou­glas Mendes, SC, Si­mon de la Bastide, Leann Thomas and Svet­lana Dass.