Anthony D J Gafoor
Tax Appeal Court of Trinidad and Tobago, Trinidad
gafooranthony@gmail.com

Introduction

In Trinidad and Tobago prior to 1942, tax was collected by the Treasury Division of the British colonial government until the Inland Revenue Department was created that year. When the colony was granted internal self-government in 1956, it became a department of the Ministry of Finance and a decade later in 1966 was reformed to introduce both corporation and withholding tax as separate tax regimes and, later in 1974, to include a tax regime for the petroleum industry, with value added tax being implemented in 1989.^[1]

The development of revenue authorities

This system remained in place with few reforms until 2021, when legislation was passed to implement the Trinidad and Tobago Revenue Authority (TTRA), which is due to take full effect from 1 August 2023. This also coincides with a move to reform property taxes, which had previously been referred to as land and building taxes, but are now expected to be re-implemented as a property tax in 2023, based on a percentage of the annual rental value of the property.

It is noteworthy that the UK itself has evolved by amalgamating both the departments of Inland Revenue and the Customs and Excise into one department in 2005. The reasons for this merger, which had been proposed since 1862, were to provide ‘potential improvements in customer service, effectiveness and efficiency.’^[2] A similar trend has been observed to a limited extent in other Commonwealth Caribbean jurisdictions, such as Guyana in 2000 and Barbados in 2014.

Taxpayers’ rights

Such initiatives sought to modernise and implement the greater use of information technology (IT) to improve the collection of taxes. However, from the perspective of the protection of taxpayers’ rights, there appears to be little comfort in terms of a statutory code of protection, which may be enforceable legally. In the case of the Guyana Revenue Authority (GRA), it refers in its vision statement to ‘Fair, impartial and timely redress processes’, though no formal time lines are given.^[3] In the case of the Barbados Revenue Authority (BRA), it spells out taxpayers’ rights in greater detail, referring to the right to be respected, kept informed, the provision of a quality service based on honesty and integrity, a fair system administered in an even handed manner, privacy and confidentiality, and the ability to appeal to an independent tribunal.^[4] Notably, such taxpayers’ rights do not enjoy statutory recognition and, thus, may not be legally enforceable.

In the case of the TTRA, a similar emphasis has been placed on its primary purpose, ie, being the enhanced collection of tax, and claiming that ‘Deficiencies in the [current] system damage the social contract between the citizen and the collection agency and contribute to the trust deficient leading to non-compliance.’^[5] Much of the official ministerial statement focused on the issues of modernisation, digital transformation and encouraging voluntary compliance, but it makes no apparent reference to enhanced protection of taxpayers’ rights. The reference to taxpayers’ rights can be traced back to 2010 when the mandate to create the TTRA did make reference to including a basic charter of rights, similar to the BRA, which enumerated those rights as the right to be informed, assisted and heard; the right of appeal; the right to pay no more than the correct amount of tax; the right to certainty; the right to privacy; and the right to confidentiality and secrecy.^[6]

Unfortunately, such rights did not carry over into the primary legislation establishing the TTRA.^[7] Nor can such a reference to taxpayers’ rights be found on the Ministry of Finance’s website, under whose purview both the revenue and customs and excise departments fall.^[8]

The worrying question is that such recent legislation and policies measures do not seem to have taken into account the importance of safeguarding taxpayers’ rights through enforceable codes or legislation, while balancing the needs of the state to implement more efficient measures for the collection of revenue. Such codes as those that exist in the United States and Canada, among other jurisdictions, signify the importance of protecting such rights; see for example the Taxpayer Bill of Rights in the US and Canada.^[9] Thus, while it can be discerned that states will frequently learn from each other and even ‘pool the exercise of their taxing systems’, there should be an equally compelling case for ‘the effective protection of the rights of taxpayers.’^[10]

Conclusion

It seems that, hand in hand with the enactment of a revised regime for the collection of tax, there should have been a focus on providing enhanced protection for taxpayers by the legislature. Such case law as emanates from tax courts globally focuses on a taxpayer challenging an assessment, but taxpayers are left bringing proceedings before courts of general jurisdiction in common law countries or constitutional courts in civil countries to enforce rights relating to breaches of natural justice, while they may face being denied a fair hearing or encounter issues of bias by tax authorities. While there may be the possibility of resort to an ombudsman to intervene in cases of maladministration, such matters may be prone to delay without any real power being vested in such an officer, save to lay an adverse report before parliament.

It is important that the lost opportunity to provide taxpayers with enhanced rights should be rectified if foreign and local investors are to continue to repose confidence in receiving fair and equal treatment and avoiding expensive litigation, as well as have the ability to challenge the decision of the revenue authorities in the Caribbean and elsewhere.