By NEIL HARTNELL
Tribune Business Editor
nhartnell@tribunemedia.net
Freeport businesses are asking the Supreme Court to order that the Government clarify its position on the 2013-2014 Budget tax/fee increases imposed on the city, and whether these have been rolled-back fully or in part.
Documents filed with the courts last Friday reveal that the Grand Bahama Chamber of Commerce, and the 13 businesses party to the action, want judicial permission to serve the Government and Grand Bahama Port Authority (GBPA) with a list of questions related to the controversial taxes imposed on Freeport by that year’s Budget.
In particular, the private sector parties want the Government to state “as a matter of principle” whether it believes the revenues generated by the 1 per cent Customs administrative processing fee should be refunded to GBPA licensees, and how it might do this.
This relates to the Christie administration’s seeming decision to repeal the fee, which was levied up to a maximum of $500 per entry, on the C-14 Customs form - something the Chamber and 13 companies also want clarity on.
And they are also demanding that the Government and GBPA disclose details of “any agreement or Memorandum of Understanding” reached over the 2013-2014 Budget tax/fee increases, and their application to Freeport.
Fred Smith QC, the Callenders & Co partner, who is leading counsel for the business community, told Tribune Business that its request to the Supreme Court was “an opportunity to break down the wall of secrecy”.
“We’re asking the court to allow us to cross-examine the defendants with these questions before trial. They are a mechanism to avoid protracted factual disputes,” he said. “Once we get permission to issue them, the other side has to answer under oath.”
The move comes after growing private sector frustration with the Government’s failure to file evidence, or even take a position, on an action that was filed on July 15 last year.
The GBPA, meanwhile, has not even entered an appearance in an action that many of its licensees view as critical to clarifying a key aspect of Freeport’s business environment.
Considerable uncertainty remains over whether the Customs processing fee, together with the Environmental Levy and other 2013-2014 Budget impositions are still in effect.
Prime Minister Perry Christie last year promised that the 1 per cent processing fee would be dropped from Customs’ C-29, C-30 and C-35 forms, which deal with exports, after Tribune Business revealed it had only been removed from the C-14 import form.
Both the Government and Port Authority subsequently alluded to an agreement that had been reached over the 2013-2014 Budget taxes ‘roll back’, but virtually no details have been made public.
Among the outstanding questions are whether the ‘roll back’ applies to all 3,500 GBPA licensees or just some, given that the Government indicated the retreat was designed to facilitate Freeport Container Port’s expansion.
The continuing uncertainty has created another dark shadow over Freeport’s business environment, which is already under pressure over the August 2015 ‘sun setting’ of key investment incentives.
Running out of patience, the 13 businesses that (with the Grand Bahama Chamber of Commerce) initiated the action are now seeking the Supreme Court’s position to serve “interrogatories” on both the Government and GBPA.
They want the Supreme Court to Order that these be answered within 21 days, with both the Government and Port Authority submitting any documentary evidence they intend to rely on in the case within the same timeframe.
The “interrogatories”, if granted, would require the Government’s defendants and the Port Authority to answer the private sector’s questions under oath. Apart from Prime Minister Perry Christie, the Government defendants are Customs comptroller, Charles Turner, and attorney general Allyson Maynard-Gibson.
Challon Romer, an official with two of the plaintiff companies, Bahamian Outdoor Adventure Tours and Callenders & Co, alleged in a January 9 affidavit that the Government - via the Attorney General’s Office - had failed to reply to the many letters sent to it.
“As a result, although the government defendants entered an appearance well over four months’ ago, the plaintiffs still do not know what the defendants’ position is in respect of these proceedings,” Ms Romer alleged.
“Some of the information sought may have taken a little while to collate, but other matters should have been known immediately to the Office of the Attorney General.”
Ms Romer added that the Attorney General’s Office “must know” whether the Customs Management (Amendment) Regulations 2014, which appeared to repeal the 1 per cent processing fee levied on the C-14 form, had been passed and “come into force”.
The Environmental Levy, together with the Customs processing fee and the other 2013-2014 Budget impositions, are still being challenged by the private sector on the grounds that they breach the Hawksbill Creek Agreement.
Among the questions in the “interrogatories” is whether the amended 2014 Customs Management Act regulations have been approved by Parliament and, if so, when they took effect.
Apart from a copy or details of any agreement between the Government and Port Authority, the private sector is also seeking information on “any planned further waivers or derogations” from the 2013-2014 taxes.
It also wants the Government to disclose how much money it has raised from Freeport via the Customs processing fees and Environmental Levy, plus details of which accounts the monies are paid into and who controls them.
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