The Gov­ern­ment has been giv­en the all-clear to con­tin­ue with its move to im­ple­ment the long-tout­ed T&T Rev­enue Au­thor­i­ty (TTRA).

De­liv­er­ing a judg­ment yes­ter­day, Ap­pel­late Judges Nolan Bereaux, Char­maine Pem­ber­ton and Mi­ra Dean-Ar­mor­er dis­missed an ap­peal brought by Pub­lic Ser­vices As­so­ci­a­tion (PSA) mem­ber and cus­toms of­fi­cer Ter­risa Dho­ray, whose case was ini­tial­ly re­ject­ed by High Court Judge West­min James in No­vem­ber last year.

The ap­peal pan­el said, “We find no rea­son to de­part from the find­ings of the first in­stance judge.”

The out­come of the case means that the move to im­ple­ment the TTRA can pro­ceed.

Al­though the PSA pre­vi­ous­ly lost two at­tempts at an in­junc­tion to halt the move pend­ing the out­come of its lit­i­ga­tion, Fi­nance Min­is­ter Colm Im­bert had pre­vi­ous­ly agreed to hold out on the move as the case was be­ing con­sid­ered by the lo­cal courts.

With the PSA sig­nalling its in­ten­tion to mount a fi­nal chal­lenge be­fore the Unit­ed King­dom-based Privy Coun­cil fol­low­ing yes­ter­day’s rul­ing, it would now be up to Im­bert to de­cide whether to re­sume the im­ple­men­ta­tion process or af­ford an­oth­er stay pend­ing the out­come of the fi­nal ap­peal.

How­ev­er, the lat­ter seems un­like­ly based on Im­bert’s warm re­cep­tion of the State’s se­ries of con­sec­u­tive le­gal vic­to­ries in the case.

“The Court of Ap­peal just ruled unan­i­mous­ly that the T&T Rev­enue Act is valid and con­sti­tu­tion­al and does not breach the con­sti­tu­tion­al rights of pub­lic of­fi­cers,” Im­bert said in a post on X soon af­ter the rul­ing.

“We can now move swift­ly to im­prove and max­imise rev­enue col­lec­tion for the ben­e­fit of all our cit­i­zens,” he added.

Im­bert sub­se­quent­ly is­sued a me­dia re­lease in which he high­light­ed as­pects of the unan­i­mous judg­ment and praised the find­ings.

In the law­suit, the PSA, through Dho­ray, chal­lenged the con­sti­tu­tion­al va­lid­i­ty of the leg­is­la­tion, which seeks to re­place the Cus­toms and Ex­cise Di­vi­sion (CED) and the In­land Rev­enue Di­vi­sion (IRD) with the TTRA.

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

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.

The im­ple­men­ta­tion was ini­tial­ly ex­pect­ed to take place in Au­gust but was de­ferred by Im­bert to De­cem­ber based on the case. It was sub­se­quent­ly de­ferred to March to fa­cil­i­tate the ap­peal.

Dho­ray’s lawyers, led by Anand Ram­lo­gan, SC, 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 the Gov­ern­ment did not have the pow­er to del­e­gate its tax rev­enue col­lec­tion du­ties.

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

Jus­tice James dis­agreed with Dho­ray’s le­gal chal­lenge. 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. He al­so point­ed out that sev­er­al for­eign coun­tries have set up sim­i­lar spe­cial­ist bod­ies to deal with the “com­plex­i­ties” of mod­ern tax­a­tion.

In their judg­ment, the ap­peal pan­el ruled that while en­force­ment is a “core gov­ern­ment func­tion” that can­not be del­e­gat­ed, the as­sess­ment and col­lec­tion of tax­es are not.

“We ob­serve that the as­sess­ment which the au­thor­i­ty is em­pow­ered to con­duct is in re­al­i­ty an arith­meti­cal stage of the process and does not con­fer on the as­ses­sor any co­er­cive pow­er,” Jus­tice Dean-Ar­mor­er said.

“Col­lec­tion is al­so not co­er­cive and is gen­er­al­ly vol­un­tary,” she added.

Jus­tice Dean-Ar­mor­er, who wrote the judg­ment, not­ed that en­force­ment will still be per­formed by pub­lic ser­vants who fall un­der the re­mit of the Pub­lic Ser­vice Com­mis­sion (PSC).

“We there­fore hold that there was no breach of the im­plied term that core func­tions should re­main un­der the su­per­vi­sion of the PSC,” she said.

Re­ject­ing claims that the leg­is­la­tion breach­es the sep­a­ra­tion of pow­ers, Jus­tice Dean-Ar­mor­er point­ed out that the au­thor­i­ty was mere­ly act­ing as an agent of the State.

“In this way, the in­trin­si­cal­ly ex­ec­u­tive au­thor­i­ty is nev­er re­moved from the State,” she said.

Jus­tice Bereaux agreed with his col­leagues that the ap­peal should be dis­missed, as the leg­is­la­tion was not un­con­sti­tu­tion­al.

“The pow­er to im­pose a tax is a leg­isla­tive pow­er wield­ed by a sim­ple ma­jor­i­ty. The pow­er to im­pose a tax has not been de­volved or trans­ferred by the TTRA Act to an ex­ec­u­tive agency,” he said.

How­ev­er, he wrote a brief judg­ment in which he dis­agreed with the test ap­plied to de­ter­mine whether the dif­fer­ent stages of tax­a­tion were “core” func­tions.

“To say that it is those ex­ec­u­tive func­tions that in­volve the ex­er­cise of a co­er­cive pow­er in­tro­duces a hard and fast for­mu­la which is whol­ly un­nec­es­sary for present pur­pos­es,” Jus­tice Bereaux said.

Dho­ray was al­so rep­re­sent­ed by Jayan­ti Lutch­me­di­al, Kent Sam­lal, Robert Ab­dool-Mitchell, Natasha Bis­ram, Vishaal Siewsaran and Ganesh Sa­roop.

The au­thor­i­ty and the Of­fice of the At­tor­ney Gen­er­al were rep­re­sent­ed by Dou­glas Mendes, SC, Si­mon de la Bastide, Svet­lana Dass and Leann Thomas.