Sat | Aug 19, 2017

Gordon Robinson | Property tax and Malahoo ballyhoo

Published:Sunday | April 16, 2017 | 4:00 AM

It's possible that a young, inexperienced attorney general may fail to alert Government to obstacles in the path of a sudden property tax increase, particularly when the increase is to be blamed on a revaluation of land.

First and foremost, because some money-grubbing bureaucrat says your land is valued a gazillion dollars doesn't make it so. The postage-stamp piece of land (182m2) upon which the Old Ball and Chain's match-box home (in which I'm kept locked away in the attic) is built has been revalued (or so she was informed when she last visited the tax office in late March) at $4.2 million and she was hit by a 110 per cent property tax increase.

This has to be the Guy Lombardo Show. It beats me how property values could possibly be so high in a previously quiet, exclusively residential sector so devalued by Government's failure to prevent the construction, by subterfuge, of huge commercial malls in its midst. More to come as I read about the Ministry of Economic Growth attending to necessary government approvals for the erection of a hotel nearby, and, with much fanfare, the energetic minister delivering the approvals to the developer at the launch. Then the same Government says that my piece of dutty tuff is worth over $4 million. Would Government buy it at that price? Please?

The good news is that the Land Valuation Act places a series of restrictions on Government before any alleged revaluation can take effect and so before any new property tax rates can be fully applied to these valuations. To begin with, notice of the new valuation must be given to the person in possession of the land [section 18(1)] and the notice must indicate that the landowner may object to the valuation.

N.B: The landowner has 60 days to object [Section 20].

So, anyone (or group - Tambourine shakers, take note) wanting to frustrate Government's reliance on this iniquitous tax rise in its revenue projections need only wait patiently for the notice to arrive, after which, wait for another 59 days before lodging an objection. During this time, no new property taxes can be collected because the new property taxes would have no legal foundation.

 

Quite exciting

 

This Land Valuation Act is quite exciting. Watch out, they'll soon repeal it. Among the permitted bases for objection given in Section 20 are "that the values assessed are too high or too low" [Section 20(a)], and, my personal favourite, "that the person named in the notice is not the owner of the land" [Section 20(d)]. Citizens, get your trust deeds out!

The commissioner is to consider the objection "with all reasonable dispatch" (lol) [Section 21] but must notify the objector if his objection is disallowed. It won't be allowed. Government is, as usual, sitting in judgment of Government in a factual scenario in which both judge and accused bruk!

So, after lodging your objections, wait for 'dispatch' and formal notice of dismissal. If enough of you should object, that'll give 'dispatch' a new meaning even for Jamaican bureaucracy.

I'm not finished. If you're dissatisfied with the commissioner's decision (and I promise you will be), you have another 60 DAYS to appeal to the Revenue Court [Section 22(1)]. The Revenue Court should be able to hand down its decision, based on current form, within two years, after which you have ANOTHER 60 DAYS to appeal to the Court of Appeal [Section 23(1)]. Although the act calls for the payment of the tax pending the outcome of any appeals, that doesn't trip in until AFTER the objection has been lodged and the requirement is accompanied by a mechanism for the taxpayer to ensure that the interim payment is no greater than 75 per cent of the assessed tax, thus ensuring a 25 per cent discount, at worst, for years.

Since not even notifications of the new valuations have been received by most of us, I see no basis for anybody to be forced to pay these horrendous new taxes, especially coming as they do on top of a $7-per-litre gas tax, a doubling of GCT on electricity, and taxing health insurance.

 

Little-too-late

 

Did Government take these roadblocks into account before budgeting to collect a full year of increased property taxes? Before her too-little-too-late effort in Parliament on April 11, did the attorney general advise Government that there was no possibility of these taxes tripping in right away? My sources tell me Cabinet's decision to revisit the taxes on Monday, April 3, was triggered by a conversation the day before, between a prominent attorney-at-law and a current senior minister, during which the attorney informed the minister of some of the difficulties that Government faces.

At first, the attorney was laughed to scorn, but, on Monday morning, he was consulted for his advice on the matter. It seems to me, therefore, that neither Cabinet's decision to appoint a committee to examine hardship cases nor Audley 'Are You' Shaw's announced rollbacks on April 11 was based on sympathy for property owners but were concessions wrung out of government because of the urgency of reality that informs that the taxes won't be collected for now in any event. Once again, both the original and the rollback rates were introduced Nicodemus style without consultation with, or representation from, a citizenry whose sole purpose seems to be to act as punching bags.

It has always been a moot point as to whether an attorney general should be in Parliament. I endorse the approach taken by Bruce Golding when he appointed Ransford Braham, QC, a private attorney-at-law with many years' experience as a civil advocate, as attorney general. There's an old legal saying that a lawyer who represents himself has a fool for a client. As an adviser to Government and as government's attorney-at-law, it would seem to me that being a part of government, whether in Parliament or the Senate, would mean the attorney general has a fool for a client.

 

Square peg

 

In my opinion, the current attorney general is a square peg in a round hole for more than one reason. In addition to being a member of parliament who helps to make laws she must later advise the Government on, she isn't known as a civil advocate. She spent her formative legal years in the DPP's office and had a short stint as a magistrate. She lacks both expertise (in the civil law) and experience, and, frankly, it shows.

It's time for Government to have a rethink on this issue of who an attorney general should be and start looking for one who more closely fits the required profile. Maybe the prominent practitioner who brought the intricacies of the Land Valuation Act to the minister's attention would be a good candidate. In an ideal world, the justice ministry itself would be scrapped and its functions split between the attorney general's chambers acting as a sort of Department of Justice (as in the USA) and the Chief Justice's Office, which would shoulder responsibility for the operations of the courts.

 

Obvious breach

 

I've often pointed to the incongruity of a member of the national executive having any sort of control over the courts, especially where it has to do with finances/salaries of judges because this is a clear and obvious breach of the constitutional arrangement of separation of powers, which was read into our Constitution by the Privy Council 40 years ago in R v Hinds et al (the Gun Court cases). How has it escaped the powers that be how unjust it appears for the justice minister to be trying to boss judges around when, tomorrow, those same judges must sit and preside over a trial of a lawsuit brought by a citizen against the Government?

Justice must not only be done, it must manifestly appear to be done. A senior civil advocate running a department of lawyers mandated to represent government or render advice to any government agency and a separate and autonomous court system funded like any statutory body with its own budget and run by the Office of the Chief Justice would go a far way towards ensuring independence of the judiciary and a feeling of justice being dispensed to every citizen alike.

Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.