Monday, October 23, 2017

Property Tax on hold

...judge stops Govt

A HIGH COURT judge on Friday granted a stay of implementation and enforcement of the decision by Government that all property owners were required to complete and submit a Valuation Return Form.

The judgement, handed down by Justice Frank Seepersad, means that the June 5 extension given to citizens to present their documents to the Valuation Division of the Ministry of Finance for the calculation of the property's Annual Rental Value, has been voided.

The stay will remain in place at least until May 31, Justice Seepersad ruled, after hearing arguments from the lawyers for the claimants and the State.

He ruled: On the application for interim relief, the Court hereby orders that with immediate effect, there shall be a stay of the implementation and/or enforcement of the decision contained in a press release dated Aril 19, 2017, that “all property owners are now required to complete a valuation…”.

The judge added: “In democratic societies, there should always exist a circumstance where the law creates a climate of certainty. Citizens have a right to understand why they are mandated to act in a certain way and more importantly, to be properly informed as to the sanctions to be imposed upon them if they fail to comply with the law”.

The judge rejected the argument of the State's lawyer that citizens were not being compelled to file the forms and that it was voluntary.

The judge made the order after hearing from senior counsel Anand Ramlogan who represented former Agricultural  Minister Devant who is claiming that the property tax documents are illegal and ultra vires.

Maharaj, a transport minister under the People's Partnership administration, last week delivered  pre-action protocol letters to Finance Minister Colm Imbert and the Commissioner of Valuations.

Ramlogan stated in court documents that under the 2009 act, the deadline for the filing of any valuation return form (VRF) was April 1, 2010, and that if citizens had failed to do so by that time, then the commissioner had six months to forewarn them they could be prosecuted for non-compliance.

However, no amendment has since been made to the act and, as such, the State cannot simply impose a new deadline for the filing of the VRF, stated Ramlogan.

“April 1, 2010, having come and gone, the only power which the commissioner has under Section 6 is the power under Section 6(2) to call upon the owner 'to file a return, failing which he may be liable to conviction under this section'.

“Thus, the commissioner will effectively be seeking to forewarn about the risk of and/or initiate criminal prosecution some seven years after the grounds for same arose and some six-and-a-half years after the deadline for doing so expired under Section 33 of the Summary Courts Act. This is plainly untenable,” he stated.

Ramlogan submitted that Finance Minister Imbert was not simply allowed to bypass Parliament and impose the new deadline, describing such action as a “most serious violation of the most basic and elementary principles of constitutional law”.

“The Government cannot impose the property tax without a lawful assessment and hence the mad rush to do so for the sake of raising much-needed revenue from a financially beleaguered public without reference to the rule of law is reminiscent of the proverb 'the way to hell is paved with good intentions',” said Ramlogan.

Citizens had been given until June 5 to submit their documents. Finance Minister Colm Imbert announced the extension on Wednesday. The initial deadline date was  May 22.

Justice Seepersad was set to rule ex-parte in the judicial review matter at 11.30a.m on Friday.

However, the Express was told that the State learnt of his pending ruling and asked to be allowed to make legal submissions. It was done via a tele-conference from the Hall of Justice in Port of Spain, with the State being represented by senior counsel Deborah Peake.

Peake submitted that the request to citizens was not mandatory and that the State was merely gathering information.

At 5.45p.m. Justice Seepersad delivered a 15-page ruling.

He said: “If the intent of the Commissioner was always to engage citizens in a voluntary exercise which was not premised upon any statutory foundation prior to his invocation of either Section 6 (2) or 15 of the Act, the said position ought to have been expressly communicated to the population”.

He said: “The public interest can never be served by the sanctioning of any process which imposes an obligation to act. If that process is not premised upon a foundation that is lawful and constitutional”.

There will be case management conference on May 31.

Ramlogan's team included Alvin Pariagsingh, Kent Samlal, Robert Abdool-Mitchell, Chelsea Stewart, and Jayanti Lutchmedial.