DEREK ACHONG

Se­nior Re­porter

The Pub­lic Ser­vices As­so­ci­a­tion (PSA) and its mem­bers in the In­land Rev­enue Di­vi­sion (IRD) and the Cus­toms and Ex­cise Di­vi­sion (CED) will have to wait al­most three months to learn the fate of a law­suit chal­leng­ing the on­go­ing op­er­a­tional­i­sa­tion of the long-tout­ed T&T Rev­enue Au­thor­i­ty (TTRA).

Five Law Lords of the Privy Coun­cil promised to de­liv­er their de­ci­sion in the fi­nal ap­peal of the case when the new law term opens at the be­gin­ning of Oc­to­ber af­ter fin­ish­ing hear­ing sub­mis­sions at the UK Supreme Court Build­ing in Lon­don, Eng­land, a short while ago.

Un­til then, pub­lic ser­vants at both di­vi­sions will have to de­cide whether they wish to join the au­thor­i­ty as the Board de­clined to grant a stay of a de­ci­sion tak­en by the Min­istry of Fi­nance to re­quest that the de­ci­sions be in­di­cat­ed by the end of the month.

The Law Lords said that they were sat­is­fied with a re­cent un­der­tak­ing giv­en by the min­istry that the op­tions se­lect­ed by the pub­lic ser­vants would not be ac­ti­vat­ed un­til the case is fi­nal­ly de­ter­mined.

In the ap­peal, the PSA is con­tend­ing that a High Court Judge and the Court of Ap­peal got it wrong when they re­ject­ed the case brought by its mem­ber and cus­toms of­fi­cer Ter­ris­sa Dho­ray.

In the sub­stan­tive law­suit, the PSA and Dho­ray, chal­lenged the con­sti­tu­tion­al va­lid­i­ty of the leg­is­la­tion which seeks to re­place the IRD and CED with the TTRA.

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

The sec­tion gave 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 2023, but was de­ferred by Fi­nance Min­is­ter Colm Im­bert to De­cem­ber 2023 based on the case. It was sub­se­quent­ly de­ferred to March 2024 to fa­cil­i­tate the ap­peal be­fore the Court of Ap­peal. 

Dho­ray's lawyers 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.

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

In No­vem­ber, last year, Jus­tice West­min James dis­missed the case.

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, Jus­tice James not­ed that 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 up­hold­ing Jus­tice James' judg­ment in May, the ap­peal pan­el ruled that while en­force­ment is a "core gov­ern­ment func­tion" that can­not be del­e­gat­ed, the as­sess­ment and col­lec­tion of tax 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," said Jus­tice Mi­ra Dean-Ar­mor­er, who wrote the judg­ment.

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

Jus­tice Dean-Ar­mor­er 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.

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

The au­thor­i­ty and the Of­fice of the At­tor­ney Gen­er­al was al­so rep­re­sent­ed by Dou­glas Mendes, SC, Si­mon de la Bastide, SC, and Leanne Thomas.