Court throws out case against GRA

An Accra High Court has dismissed the case, in which Export Finance Company Limited is seeking the court to quash the administrative decision of the Ghana Revenue Authority to garnishee the account of the company.

In the judgement delivered on July 8, 2020, Justice George Koomson, the presiding judge held that the Commissioner General of the GRA did not err in law with the notice garnishing the account of Export Finance Company Limited domiciled with the Universal Merchant Bank on February 17, 2019.

On December 10, 2018, the GRA requested the company by a notice of assessment to pay the amount of GH₵2,502,701.54 and GH₵57,113.04 being its tax liability and NFSL liability for the year 2013 and October 2018 year of assessment.

The company who is the applicant in the case objected to the assessment in a letter dated December 17, 2018.

It is the case of the applicant that the respondent in a letter dated December 21, 2018, duly acknowledged receipt of the letter or objection, and was therefore required to have taken a decision on the objection within 60 days of having received the objection  in accordance with Section 42(2) of the Revenue Administration Act, 2016(Act 915).

The applicant contends that the respondent rather than complying with the 60-day period to take a decision, disallowed  the decision of February 26, 2019 for which reason the decision was void and of no legal effect.

The GRA on the other hand contended that the applicant did not comply with the mandatory conditions for objecting to a tax decision being the payment of 30 per cent of the tax assessed for which reason the applicant’s letter dated December 17, 2018, could not be deemed a legal objection.

The respondent avers that its failure to take a decision within 60 days rather allows a party such as the applicant to treat the response as the respondent having disallowed the objection and thereafter the remedy opened to the person is by way of a tax appeal.

The applicant’s contention is in two folds, the first contention is that respondent having failed to give the objection decision within the mandatory 60 days, any decision thereafter was void and of no legal effect as it sinned against statute and secondly, in accordance with Section 43(3) of Act 915, the applicant opted to treat the respondent’s failure to make decision within the 60 days as “allowing the objection.”

Justice Koomson noted that the combined effect of Sections 43(2) and (3) of Act 915 is not to preclude or prevent the respondent from making a decision on an objection raised by a party such as the applicant after a 60-day period, but rather to ensure that parties who have objected to a decision by the respondent, do not hold on in the performance of their tax obligations on the basis that they are awaiting the outcome of the decision.

This, the judge said, was to allow for a party to treat the objection as having been refused so as to invoke the appeal process as set out in Section 44 of Act 915 if he so wishes.

Justice Koomson said he does not think that the framers of the statute intended to prevent or preclude the respondent from making a decision to an objection after 60 days. 

“Just as the High Court (Civil Procedure) Rules, 2004 C.I.47 particularly Order 41 rule 2(1), should a judge fail to deliver its judgement within the stipulated six weeks, would he be precluded from making judgement thereafter?  I think not.”

He said the applicant’s attempt to now change the wording of the statute to read, “allow the objection,” “I must say is very disingenuous, especially, having regard to the timing of the letter indicating that it was treating the failure of the respondent to make a decision within 60 days as having allowed the objection.”

Justice Koomson stated that apart from the applicant’s contention that the decision of the Commissioner General of GRA of February 26, 2019 was void and of no legal effect, the applicant failed to demonstrate that the letter titled “Garnishment” was not in accordance with Sections 60 and 61 of Act 915, and one can only assume that the contention was based solely on the allegation that the letter was null and void.

BY MALIK SULLEMANA

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