Fmr. Attorney General takes VAT law restriction on leaving Guyana to High Court

Last Updated on Tuesday, 14 February 2017, 18:23 by Denis Chabrol

People’s Progressive Party Civic (PPPC) parliamentarian, Anil Nandlall on Tuesday challenged the constitutionality of an recent amendment to the tax laws that seeks to prohibit persons who owe Value Added Tax from leaving Guyana until they pay up or make acceptable arrangements to do so.
The application will be heard on February 24, 2017.

In court papers seen by Demerara Waves Online News, Nandlall said the amendment of the Value Added Tax Act that was assented to by President David Granger on January 16, 2017 and published in the Official Gazette the same day “is or is likely to be, contrary to, inconsistent with, and in violation of Articles 40 and 148 of the Constitution of the Co-operative Republic of Guyana, unconstitutional, unlawful, null, void and of no effect.”
The former Attorney General and Minister of Legal Affairs states that the amendment to the VAT act empowers the Commissioner General of the Guyana Revenue Authority to block those who owe VAT from leaving Guyana without a High Court order.

“this power and authority…is ex facie, exercisable at any time, without affording the person a fair or any hearing, or without serving the person a notice of demand for taxes allegedly due, or without allowing the exhaustion of any lawful recourse available to the person to challenge the taxes alleged owed, or without an Order from the High Court or any Court, and without a final assessment of taxes owed,” he says.

Nandlall wants the High Court to strike down that amendment make such Orders, writs and directions to enforce  Articles 138 to 151 of the Constitution.

He says in his affidavit that that Articles 40 and 148 of Guyana’s Constitution guarantee to every individual subject, as a fundamental right and freedom, protection of freedom of movement, that is to say, the right to move freely throughout Guyana, the right to reside in any part of Guyana, the right to enter Guyana, the right to leave Guyana and immunity from expulsion from Guyana.

The amendment empowers and authorizes the Commissioner-General of the Guyana Revenue Authority, an agency of the State, to prohibit a person from leaving Guyana, whom the Commissioner-General has reasonable grounds to believe may leave Guyana without paying all taxes due under the said Value Added Tax Act by issuing a certificate to the Chief Immigration Officer containing particulars of the Tax due, and request that the Chief Immigration Officer takes the necessary steps to prevent the person from leaving Guyana until the person makes payment in full; or an arrangement satisfactory to the Commissioner for the payment of the tax.

Nandlall reasons that the VAT Act amendment and payment arrangements makes those registered to pay VAT at most times owing the GRA that tax.

“…(this) permits persons registered thereunder to pay Value Added Tax, to do so, at periodic intervals; therefore at any given point in time, there is always an overwhelming likelihood that a person registered under the said Act will owe taxes and in those circumstances, the Commissioner-General of the Guyana Revenue Authority is authorized and empowered to prevent such a person from leaving Guyana,” said Nandlall.

The PPPC had opposed the amendment on similar grounds. However, Finance Minister Winston Jordan has said that all he has done is copied a similar provision from the Income Tax Act and pasted it in the VAT Act to catch VAT defaulters.

The VAT ceiling was increased in this year’s budget from GYD$10 million to GYD$15 million of gross annual revenue.