Dear Editor,
Permit me to respond to Mr. Christopher Ram’s letter in the Stabroek News of November 25th , 2019 `’, by immediately referring to the relevant law. The Honourable Minister of Finance acted on the advice of the Commissioner General and pursuant to Section 105 of the Income Tax Act Chapter 81:01. Section 105 of the Income Tax Act provides as follows:
“The Minister may make regulations, subject to negative resolution of the National Assembly, to provide for the remitting wholly or in part of the tax payable by any person or category of persons on such income, in respect of any year of assessment, and in accordance with such conditions as may be specified in the regulations”.
This section was amended by Act No. 13 of 2008 with a marginal note of “Power to remit taxes”. It should be noted that Marginal notes are short explanatory notes placed in the margin of the bill which may be seen as the title of the section to which they relate.
Prior to 2003, section 105 of the Act provided that “The President may remit, wholly or in part the tax payable by any person in respect of any year of assessment if he is satisfied that it will be just and equitable to do so.”
However, in 2003 section 105 of the Act giving the President the power to remit tax was repealed in the Fiscal Enactment (Amendment) Act No.15 of 2003. However, by Act 13 of 2008, section 105 was reinstated in its current form as stated above.
It is clear that the repeal in 2003 intended to remove the power to remit from the President. It is also apparent that, relying on the intent of the section prior to 2003, the new section 105 reinstated in 2008 was intended to do the same thing, that is, to allow for the remission of tax. However, this power to remit was given by the legislature to the Minister instead of the President, under the expressed condition that such power to remit by regulation, is subject to the oversight of the National Assembly by negative resolution. This was made clear by the Hansard of July 30, 2008 when the Bill was presented to the National Assembly by the then Honourable Minister of Finance, Dr. Ashni Singh, MP.
[Section 22(1) of the Interpretation and General Clauses Act Cap. 2:01 provides the expression “subject to negative resolution of the National Assembly” when used in relation to the making of subsidiary legislation shall mean that such subsidiary legislation shall be laid before the National Assembly with all convenient speed after the making thereof and if the National Assembly within such period as shall be prescribed by standing order of the Assembly resolve:
(a) That the subsidiary legislation shall be annulled the subsidiary legislation shall be void as from the date of resolution;
(b) That the subsidiary legislation shall have effect subject to the specified amendments, the subsidiary legislation shall have effect subject to such amendments.]
Section 105 did not at any time (in 2003 or 2008) refer to section 13 of the Income Tax Act, but conferred a discretion in the President and then the Minister to remit tax. This certainly appears to be an additional section allowing for the remission of tax.
This section it appears (and it is strongly argued) allows for a discretion to be entertained on a temporary basis for a specific time in contrast to section 13 which provides for permanent exemptions which may apply in every year of assessment, e.g., the emoluments of the Chancellor and Chief Justice (referred to by Ram), and “income earned by artistes during festivities which were certified by the Minister of Tourism and approved by the Commissioner- General.” (also referred to by Ram).
Further even in section 13 the Minister, the Minister of Tourism and the Commissioner- General were conferred with discretion. Hence, the conferring of a discretion on the subject of remissions by Minister is not unheard of under the Income Tax Act. Section 105 adds the same tier of oversight. Ram has completely ignored section 105, and may be essentially ignoring the amendment conveniently.
Yours faithfully,
Godfrey Statia
Commissioner General
Guyana Revenue Authority
