Civil case could set precedent on Land Valuation payments
A British QC has been hired by Government to contest a tribunal's decision on the value of a “high-end” property belonging to former Premier Dame Pamela Gordon and her husband.
Jonathan Small, accompanied by barrister Nathaniel Duckworth, appeared at Supreme Court yesterday on behalf of Chris Farrow, the Director of Land Valuation, who is pursuing a civil appeal against Dame Pamela's husband Andrew Banks.
The silk, from Falcon Chambers in London, argued the outcome of the case could affect the amount of land tax that hundreds of homeowners are liable to pay to the public purse.
The proceedings involve the GateWood property on Inglewood Lane in Paget, which was built in 2008 and given an annual rental value (ARV) of $852,000 by Mr Farrow, putting it among the most expensive properties on the Island.
Mr Banks and Dame Pamela objected to the valuation, arguing at a tribunal chaired by Arthur Jones in 2010 that it should be less.
Mr Jones upheld the couple's objection and ruled the property should be listed as having three assessment units.
A second tribunal held the following year, chaired by Kenneth Robinson, concluded the ARV of GateWood should be $360,000.
Mr Robinson also ruled the property should be listed as having three assessment units a main house with an ARV of $300,000, a cottage with an ARV of $40,000 and an apartment with an ARV of $20,000 rather than one unit, as Mr Farrow had originally concluded.
Yesterday's hearing involved an “out of time” application by Mr Farrow to appeal the September 2010 decision of Mr Jones.
A 21-day time limit applies for appealing a decision of the Land Valuation Tribunal but Mr Farrow took almost 14 months to do so.
He explained in an affidavit sworn on Monday that he sought advice from the Attorney General's Chambers, and was twice told by counsel there, including the Solicitor General, that an appeal would fail before finally being advised that it could succeed in October 2011.
“While I am regretful that I have been put in the position that I have to seek to appeal out of time, and considerably so, I would respectfully urge the court to permit me so to do,” Mr Farrow said.
The application was rejected by Puisne Judge Ian Kawaley who said there were “no satisfactory reasons for the delay”.
Mr Farrow appealed the October 2011 decision of Mr Robinson within 21 days and that matter will be heard in Supreme Court on a later date.
The judge ruled yesterday it was in the public interest for that hearing to consider whether land tax should be paid on newly built or renovated properties after final building inspection approval has been given but before a certificate of occupancy is granted.
In the case of Mr Banks and Dame Pamela, the Tax Commissioner billed them for land tax on GateWood before an occupancy certificate was granted; the couple say they should not have had to pay as they weren't allowed in law to live there.
Mr Small said the issue should be decided in court as the outcome would affect many properties, have an important impact on government revenue and have ramifications beyond the GateWood case.
He said a determination needed to be made or homeowners who had paid land tax in similar circumstances, involving more than 700 properties, would want their money back.
“If we allow that appeal to go forward we can resolve the uncertainty on the Island and with speed. My client says it could set a very helpful precedent or a very harmful precedent, depending what happens.”
His client has offered to pay the “reasonable costs” of Mr Banks incurred in relation to the issue in order to have the matter decided.
Lawyer Jeffrey Elkinson, representing Mr Banks, questioned why his client and former United Bermuda Party leader Dame Pamela ought to be the “guinea pigs” in this “publicly-minded exercise”.
“I could be glib and say having been Premier of Bermuda, some people have already done their public service,” he said. “These are matters which should not be confined to a specific example. Why should it be specific to this homeowner's case?”
Mr Elkinson argued it was “extraordinary” for a civil servant such as Mr Farrow to offer to indemnify Mr Banks's legal costs.
He questioned whether the Director had the budgetary authority to do so and, reading from the 2012/13 Government Budget, noted there was no provision for legal costs in the Department's allocation.
Mr Elkinson accused Government of “so much delay, prevarication and dissemblance” in handling the GateWood case.
The judge accepted it was in the public interest to determine the land tax issue and said Mr Farrow had the authority to make the offer to pay associated costs.
“The legal issue the appellant [Mr Farrow] wishes this court to determine appears to have potentially huge implications for government revenue derived in particular from high-end properties,” he said in his ruling.
Mr Justice Kawaley ruled that the costs for yesterday's hearing should be paid by whoever loses the Robinson decision appeal.
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