GEISHA KOW­LESSAR ALON­ZO

Se­nior Re­porter

geisha.kow­lessar@guardian.co.tt

Chair­man of the Tax Ap­peal Board Dr An­tho­ny Gafoor has warned that chron­ic un­der­fund­ing, de­lays in ap­point­ments, out­dat­ed leg­is­la­tion and ad­min­is­tra­tive bot­tle­necks are threat­en­ing the ef­fec­tive­ness of one of T&T’s key ju­di­cial in­sti­tu­tions.

Speak­ing dur­ing cel­e­bra­tions mark­ing the Tax Ap­peal Board’s 60th an­niver­sary which took place yes­ter­day, Gafoor out­lined a se­ries of long­stand­ing chal­lenges fac­ing the spe­cial­ist court, de­scrib­ing them as is­sues that have per­sist­ed for years de­spite re­peat­ed calls for re­form.

While the board con­tin­ues to ad­ju­di­cate dis­putes in­volv­ing bil­lions of dol­lars in tax as­sess­ments, Gafoor said its abil­i­ty to func­tion ef­fi­cient­ly is be­ing un­der­mined by lim­it­ed re­sources and in­sti­tu­tion­al con­straints.

Over the last law term alone, some TT$16.1 bil­lion in tax as­sess­ments came be­fore the court for de­ter­mi­na­tion, high­light­ing the eco­nom­ic sig­nif­i­cance of its work.

Yet de­spite han­dling mat­ters that af­fect crit­i­cal sec­tors of the econ­o­my, in­clud­ing en­er­gy, busi­ness and in­ter­na­tion­al tax­a­tion, Gafoor said the court re­ceives less than one per cent of the na­tion­al bud­get.

“Those funds are pri­mar­i­ly utilised in pay­ing ex­ist­ing run­ning ex­pens­es and very lit­tle is left over for re­search and de­vel­op­ment as well as en­hanc­ing our re­search li­brary,” he said adding, “The con­stant re­frain of do­ing more with less is not ap­pro­pri­ate when every de­ci­sion and rul­ing ren­dered by this court is open to scruti­ny on ap­peal.”

Gafoor added that the court is un­der­staffed and that ef­forts to ex­pand dig­i­tal ser­vices and mod­ernise its op­er­a­tions have been hin­dered by a lack of fi­nan­cial sup­port, ar­gu­ing that the in­sti­tu­tion’s de­pen­dence on ex­ter­nal ap­proval process­es for fund­ing has al­so cre­at­ed in­ef­fi­cien­cies.

One of the chair­man’s sharpest crit­i­cisms was di­rect­ed at fi­nan­cial arrange­ments put in place since 2009, when ad­min­is­tra­tive con­trol over as­pects of the court’s fi­nances was trans­ferred to the In­dus­tri­al Court’s Reg­is­trar.

Gafoor said this arrange­ment has re­sult­ed in un­nec­es­sary de­lays and should be re­versed.

“I main­tain that there is no jus­ti­fi­ca­tion for this and we would like to see the full ac­count­ing func­tions re­stored to the Tax Ap­peal Board,” he said.

The chair­man al­so re­flect­ed on what he de­scribed as a tur­bu­lent pe­ri­od in the court’s his­to­ry fol­low­ing its evic­tion from the Hall of Jus­tice in 2006.

He re­count­ed how the court was forced to op­er­ate from a suc­ces­sion of tem­po­rary lo­ca­tions over sev­er­al years be­fore se­cur­ing its cur­rent premis­es in Port-of-Spain.

“We were locked out of our own premis­es,” Gafoor re­called, adding that files, fur­ni­ture and li­brary re­sources had to be placed in stor­age while staff worked un­der dif­fi­cult con­di­tions.

He de­scribed the treat­ment of the court dur­ing that pe­ri­od as un­prece­dent­ed among Com­mon­wealth ju­ris­dic­tions.

An­oth­er ma­jor con­cern raised was the lack of progress on leg­isla­tive re­forms.

Gafoor re­vealed that pro­pos­als to mod­ernise the Tax Ap­peal Board Act and Rules were first de­vel­oped in 2000 but re­main unim­ple­ment­ed more than two decades lat­er.

Ac­cord­ing to Gafoor, suc­ces­sive ad­min­is­tra­tions have dis­cussed re­form pro­pos­als but failed to bring leg­is­la­tion be­fore Par­lia­ment.

The re­forms in­clude mea­sures aimed at digi­ti­sa­tion, ex­pand­ed use of tech­nol­o­gy, en­vi­ron­men­tal sus­tain­abil­i­ty through pa­per­less process­es and changes to the court’s name to elim­i­nate pub­lic mis­con­cep­tions that it forms part of the Board of In­land Rev­enue.

“More re­cent­ly, we have made yet an­oth­er at­tempt, some 25 years af­ter our pro­pos­als were put for­ward,” he said, not­ing that the in­sti­tu­tion con­tin­ues to wait for ac­tion.

The chair­man al­so high­light­ed chal­lenges re­lat­ing to the ap­point­ment of judges.

While the chair­man and deputy chair­man are ap­point­ed through the Ju­di­cial and Le­gal Ser­vice Com­mis­sion, oth­er mem­bers are ap­point­ed by the Cab­i­net act­ing through the pres­i­dent.

Gafoor said va­can­cies have re­sult­ed in pe­ri­ods where the court op­er­at­ed be­low its full com­ple­ment of judges, lead­ing to the post­pone­ment of some hear­ings af­ter par­ties ob­ject­ed to re­duced pan­els.

He fur­ther ar­gued that the chair­man should have a for­mal role or at least be con­sult­ed in the ju­di­cial ap­point­ment process, par­tic­u­lar­ly giv­en the re­spon­si­bil­i­ty of as­sign­ing work and man­ag­ing the court’s op­er­a­tions.

Re­source con­straints have al­so af­fect­ed pro­fes­sion­al de­vel­op­ment op­por­tu­ni­ties for judges.

Gafoor said mem­bers of the court of­ten face dif­fi­cul­ties ac­cess­ing train­ing, con­fer­ences and le­gal re­search ma­te­ri­als that are read­i­ly avail­able to pri­vate prac­ti­tion­ers ap­pear­ing be­fore them.

“The judges of the court are vir­tu­al­ly forced to pur­chase their own ma­te­ri­als giv­en the ex­ten­sive and de­tailed is­sues which are fre­quent­ly raised be­fore us,” he said.

De­spite be­ing re­gard­ed as a lead­ing spe­cial­ist tax court in the re­gion, Gafoor warned that main­tain­ing high-qual­i­ty de­ci­sions would be­come in­creas­ing­ly dif­fi­cult with­out greater in­vest­ment in re­search re­sources and on­go­ing ju­di­cial ed­u­ca­tion.

The chair­man al­so drew at­ten­tion to de­lays in tax lit­i­ga­tion, say­ing ad­journ­ments re­quest­ed by par­ties fre­quent­ly post­pone hear­ings for months or even years.

He not­ed that while the court works to de­liv­er com­pre­hen­sive and well-re­searched judge­ments, de­lays of­ten oc­cur long be­fore cas­es reach the de­ci­sion stage.

He crit­i­cised what he de­scribed as a cul­ture of pro­longed lit­i­ga­tion and bu­reau­crat­ic process­es, par­tic­u­lar­ly with­in tax ad­min­is­tra­tion, that slow ef­forts to re­solve dis­putes.

“It is of­ten dis­heart­en­ing when mat­ters are list­ed for tri­al but in­dul­gences are sought for a de­fer­ral which runs in­to months and even years while par­ties try to re­solve is­sues which are out­stand­ing,” he said.

Among the ar­eas re­quir­ing ur­gent at­ten­tion, Gafoor iden­ti­fied tax­pay­er rights, greater use of me­di­a­tion, en­hanced trans­paren­cy, pub­li­ca­tion of judg­ments and stronger in­sti­tu­tion­al in­de­pen­dence.

He ar­gued that tax­pay­ers must have con­fi­dence that dis­putes are re­viewed ob­jec­tive­ly and fair­ly, par­tic­u­lar­ly dur­ing the ob­jec­tion stage be­fore ap­peals reach the court.

Look­ing ahead, Gafoor said T&T’s am­bi­tion to re­main com­pet­i­tive in­ter­na­tion­al­ly re­quires greater at­ten­tion to the de­vel­op­ment of tax ju­rispru­dence and stronger sup­port for the in­sti­tu­tion charged with in­ter­pret­ing and ap­ply­ing tax law.

“If this ju­ris­dic­tion as­pires to be more com­pet­i­tive re­gion­al­ly and in­ter­na­tion­al­ly, the ne­glect of this in­sti­tu­tion must stop,” he said.

As the Tax Ap­peal Board marks six decades of op­er­a­tion, Gafoor’s mes­sage was clear: de­spite its record of han­dling com­plex dis­putes and de­liv­er­ing de­ci­sions that are large­ly up­held on ap­peal, sig­nif­i­cant fund­ing, leg­isla­tive and ad­min­is­tra­tive chal­lenges re­main un­re­solved and con­tin­ue to con­strain the court’s work.