QA II concessions, the Minister of Finance and more conflicts

In the absence of a Ministry of Planning and Development, the Ministry of Finance takes on immense importance. I therefore publicly greeted the announcement of Dr Ashni Singh as Minister of Finance not as a fellow accountant with training in accountability – of course – integrity, competence, capacity for hard work and an independent streak, but as one who would be confident enough to control expenditure, rein in President Jagdeo’s capacity to ignore the strictures of the constitution in relation to the Lotto funds or to spend first and seek approval after, evident with the frequency and value of supplementary provisions requested in the National Assembly.

More than even the Ministers of Trade or Agriculture, the Minister of Finance is the point person with the private sector, and by his action and even pronouncements can directly affect investments, jobs, performance of the economy, interest and exchange rates and share prices. He is the subject minister for the NIS, the Bank of Guyana and the Guyana Revenue Authority (GRA), appointing their boards often with people of his choice and under his influence, and responsible for the Companies Act and a raft of other legislation. He decides who gets tax holidays, budget allocations (or not), and how insurance companies and financial houses are regulated. His knowledge of the tax laws, their role and operation informs his determination of not only the level of taxation in the country but also the fairness of the system and how the burden is borne by various segments of the tax-paying public.

The overflowing VAT
In the period since Dr Singh’s appointment in September 2006, he has tested the public’s confidence in him in critical areas with his relationship with the private sector and civil society often being at best, polite. In both years following his appointment, he not only broke with tradition but with the implied constitutional requirement (Article 13) to engage stakeholders in pre-budget consultations. He failed even to acknowledge a request by the women’s group Red Thread to meet him on the effects of VAT on women in particular. He did not correct a misleading date (September 15, 2007) on his 2007 mid-year report presented to the National Assembly in November 2007 despite this being drawn to his attention and it reported to have been behind related delays in 2007 by the Bank of Guyana and the Statistical Bureau to publish important information on the economy.

In his first full year as minister the National Assembly rubber-stamped some of the most expensive supplementary provisions ever made in the country ($18 billion), witnessed an unacceptable level of budget under-statements on revenue with VAT alone being under-budgeted by 76 % and the combined effect of two taxes that were supposed to be revenue neutral (VAT and Excise Tax) being under-budgeted by 48%.
The consequence of this was the steepest single year rise in the tax burden this country has witnessed for as long as statistics are readily available (see table below) and a massive 10% increase in the 7-year period 2000 -2007, putting Guyana in the league of rich countries despite the government’s inability to offer the poor and the unemployed basic assistance, or citizens, security, and the continuing flood of migration to any country that Guyanese can enter – legally or otherwise. Amidst all the confusion caused by some misleading statements on VAT from government spokespersons and the Guyana Revenue Authority, the Minister stayed behind a wall of silence. That silence was extended to the saga of the QA II concessions until his ministry responded to increasing concerns expressed by the public.

Tax to GDP ratio – selected years 1992 to 2007

1992     1996     2000     2004     2007

42%        40%          37%         40%         47%

Source: Ministry of Finance National Estimates

The intervention came in the form of a wordy four-page clarification from the Ministry of Finance on June 15 and a statement issued through GINA on June 16 responding to a Stabroek News article on the QA II saga on the same day. The clarification restated the government’s commitment to openness and transparency, claimed that fiscal concessions are rule-based and not discretionary, recounted the recent history of the law on tax holidays and sought to blame the saga on poor legislative drafting.

An examination of the statements, however, shows that they are misleading in terms of how the law is applied. The Minister had played a role in the QA II saga wearing several hats, some of which would have involved obvious conflicts and at least wearing one of those hats he should have realised that the law as passed and assented to by President Jagdeo did “not reflect Government’s intent.”

While it is true that the scope for tax holidays is limited to geographical regions and particular types of activities, it is far from correct to suggest that the tax holiday laws are not discretionary. The relevant section of the Income Tax (In Aid of Industry) Act quoted in the clarification provides only “that the Minister may grant an exemption from the Corporation Tax,” which can hardly be considered mandatory. Did the Minister and Cabinet restrict their consideration of the tax holiday provisions to Corporation Tax as the law provides, and not to income tax? In other words, did he give any preferred hotelier or other non-incorporated entity any tax holiday because it was “pioneering” and would he say what authority he used for doing so?

A stretch
Under the claim of transparency the statement refers to “substantial information on tax exemptions” included in annual reports of the Guyana Revenue Authority. It seems a real stretch to consider a total figure as “substantial information” when the quantified information applies only to concessions by the Customs and Trade Administration in respect of goods imported by or for a pot-pourri of products or sectors. There is no information on the beneficiaries of tax holidays and on any Income, Corporation or other taxes remitted.

While the President on the occasion when he castigated Mr. Yesu Persaud spoke of the concessions in the past tense, the Ministry’s statement confidently states that the QA II concessions are subject to approval by the GRA and the Ministry of Finance [sic]. Are we to believe that a matter taken to Cabinet in May 2007 had not been approved one year later and that the company would have proceeded with their multi-million dollar investment only with “subject to” approval?

The statements also tell us that the Minister is Chairman of the Privatisation Board which made the recommendation to the Cabinet of which he is a key member and that the decision by Cabinet was subject to approval by the GRA and the Minister of Finance – confusing to most ordinary minds. Since as the “clarification” states that “Cabinet’s decision is the definitive authority for subsequent decisions and actions,” do the GRA and the Minister have any discretion in the matter, whatever the law says to the contrary?

Pass the buck
But placing the blame on the framers of the 2003 legislation raises further questions. At the time of the 2003 legislation Dr. Singh was not only the Budget Director in the Ministry of Finance and should therefore have been concerned about the legislation’s potential revenue impact, but he was also a member of the board of the GRA as a nominee of the Ministry of Finance and in that capacity too should have perused the legislation both for impact and flaws. Yet it has taken two years after granting concessions under the act as Minister, before there has been any acknowledgment that the act is flawed.

The ministry’s statement also sought to place, incorrectly in my view, the concessions for QA II on the same level as the Berbice bridge for which there is separate legislation passed subsequent to the 2003 legislation (Act 3 of 2006), specifically exempting the income of and dividends and interest paid by the concessionaire from corporation, income and withholding tax, and income earned by contractors and subcontractors to be exempted from income tax for the concession period.

Given the confusing statements made by spokespersons who are either expected to know or apply the relevant laws, the proposed seminar on privatisation and fiscal concessions to be hosted by the Privatisation Unit (of the Ministry of Finance) on July 9 becomes all the more necessary, and it is clear that the list of participants should be widened. Moreover, while it is never good to hold up applications regarding investments it may be preferable to place such applications on hold pending corrections and clarifications.

But there is one final issue that neither the clarification nor the statement addressed. Under section 38 of the Investment Act 2004, concessions granted under the section of the Income Tax (In Aid of Industry) Act dealing with tax holidays require a procedural audit by the “Auditor General or any suitably qualified person” designated by him. The only professionally qualified accountant in that office is the wife of the Minister of Finance, which potentially could unfairly place her in the unenviable position of being associated with adverse comments on concessions that her husband would have granted. Whatever opinion is issued by the Audit Office and whatever Chinese Wall may have been put in place, this is a most blatant case of conflict of interest in a most important function of the country’s administration. The respective functions simply cannot co-exist and the Public Accounts Committee should immediately step in to end it.

Next week: BP turns its attention to the operations of the general tax laws under the watch of the President and the Minister of Finance.

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