Remigrant duty free case…

May 21, 2008 News

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Lawyers clash over interpretation of importation laws

The Guyana Revenue Authority (GRA) has stated that remigrant Mohabir Ramsahoye was not entitled to a tax exemption on his vehicle as six months had elapsed since he reassumed residence in Guyana.
Ramsahoye, of Lot 5 C Chateau Margot, East Coast Demerara, has accused GRA Commissioner-General Khurshid Sattaur of denying his entitlement to the tax exemption.

The legal challenge was filed by Attorney-at-Law Khemraj Ramjattan on behalf of the remigrant.
Sattaur has since been compelled to show why the decision made by Sattaur should not be quashed.
The GRA Head had initially claimed that the remigrant did not own the car at least six months prior to returning to Guyana.

According to Sattaur, Ramsahoye is required to pay $6.3M to clear the vehicle which is currently at the John Fernandes Wharf.

Lawyers for both Sattaur and Ramsahoye submitted written arguments to the court on Monday.
Ramjattan said Ramsahoye applied to the Ministry of Foreign Affairs for qualifying remigrant status which has certain benefits of a substantive nature.

He noted that it entitles the status holder to bring in personal and household effects and a motor vehicle with almost a maximal remission.

The lawyer said there is no dispute that on November 15, 2006, Ramsahoye made his application for such status and that he became a qualifying remigrant as of December 17, 2006.

This is evident by a letter signed by Jacqueline Hamer for Director General, Elisabeth Harper.

The big dispute arose, however, over the motor vehicle Ramsahoye wanted to bring in and which the GRA refuse to have him import.

Ramjattan said Ramsahoye was intent on bringing in a Japanese vehicle which is economical because of its fuel consumption, right-hand drive and easily accessible spare parts.

In February 2007, the GRA requested of Ramsahoye the type of vehicle he was importing so as to commence the process for the remission document.

Ramsahoye informed them that the vehicle was Japanese but he had not yet decided on the model.
He was then advised that in order to qualify for remission, the vehicle could not be imported from Japan and he first had to own the vehicle for six months.

Ramsahoye sought clarification and legal advice on the issue and first decided to plead with GRA officials.

Ramsahoye even requested that his lawyer write to the Attorney General and insisted that the matter be resolved between the parties. However, GRA maintained its position.

“The GRA was erroneously taking this position because it was banking on requirements and conditions set by the policy guidelines of the re-migrant scheme which governed the old regime of the scheme when it came about some decades ago. This old regime which is captured in the policy guidelines made provision under clause 2 (e) that vehicles imported by re-migrants for which they must provide evidence of ownership by registration for a minimum of six months”.

The old regime set by the Ministry of Finance was however swept away by statutory provisions which replaced it stating, “A remission of import duty on a motor vehicle is allowed on the import of a motor vehicle by eligible public officers and qualifying remigrant provided that the remission under this section is available to remigrants only once within six months of reassuming residence in Guyana”.
Ramjattan argued that Section 23 of the Fiscal Enactment (Amendment) Act of 2003, allows him to import the vehicle from Japan and proffered no requirement of a six-month prior ownership of the vehicle.

He submitted that there were no regulations specifying any criteria ever made under this statutory provision.

Ramsahoye decided to import a Toyota Harrier with the belief that GRA would ultimately realize the error of interpretation but the authority did not budge.

In fact, GRA informed Ramsahoye that he was expected to pay $6.3million before his vehicle could be released.

“Because of the misadvice of GRA, Ramsahoye, although wasting a lot of time causing a big delay in making the arrangements to bring this vehicle into Guyana, from February last year when he was stopped by GRA to November last year when he decided to order same, was careful enough to get a letter extending his qualifying status as a remigrant for the purpose of procuring the remission he sought on the vehicle.”

The Foreign Affairs Ministry even dispatched a letter to the GRA stating, “The Ministry of Foreign Affairs has extended the period of his remigrant status to cater for the time taken to settle his business and is hereby requesting your assistance in the clearance of his vehicle under the re-migrant condition”.

Ramjattan said it was clearly a case of one arm of the State being caring and accommodating so as to ensure that a remigrant enjoys his substantive benefit while another was draconian and oppressive, seeking to deny a remigrant such entitlement.

He added that worse has happened in that the GRA has at the last minute confounded its maladministration by mischievously changing the reason why remission cannot and will not be granted.
“What has happened is that being caught as it were, the GRA through its Deputy Commissioner has made a volte fas in view of Section 23 staring them in the face and finding no answer to the argument that a six-month ownership period does not apply.”

Ramjattan argued too that having brought in the vehicle on December 16, 2007, Ramsahoye is way out of the six-month period stipulated in Section 23 of the statute.

He noted that Section 23 states that remission is available to remigrants “within six months of reassuming residence in Guyana” which does not mean the date the person is granted remigrant status.
Ramjattan maintains that Ramsahoye is entitled to a duty free vehicle as long as he is granted qualifying remigrant status.

In support of its decision to refuse the tax exemption, the GRA stated that the pivotal issue is whether the applicant is entitled to import duty relief by virtue of Section 23.

The GRA also stressed that the tax remission is only available within six months of reassuming residence in Guyana.

“Issue has been raised as to whether the provision of this Act should be deemed applicable in these circumstances.

The interpretation of the words of the statue therefore arises for consideration,” the GRA lawyers said.
They claimed that the six-month requirement under the law has not been satisfied by the applicant since his application was made 13 months after he reassumed residence.

“The GRA has absolutely no discretion to extend the mandatory six-month stipulation to accommodate an applicant. To do so would be unlawful,” the respondent submitted.

They argued further that the applicant’s motion should be dismissed with substantial damages being awarded to the GRA.

Justice Jainarayan Singh is expected to hand down a decision after perusing the submissions. Court documents state that on January 2, 2008, Sattaur decided against granting Ramsahoye the tax exemption on the basis that he was not qualified.

Ramsahoye was granted exemption on personal household effects including television sets, furniture, and air-condition units.

Attorneys-at-Law Leron Daly, Hissaun Yassin-Nandlall and Mahendra Satram are making legal representation on Sattaur’s behalf.

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