ICO: betting tax records can be withheld
Records showing which two betting shops still owe almost half a million dollars in tax were correctly withheld from the public, the Information Commissioner has declared.
Gitanjali Gutierrez said in a decision due to be published today that the Office of the Tax Commissioner was justified in relying on an official secrecy provision in a 1976 law to withhold the documents from The Royal Gazette.
However, she reiterated a call she made last month for a “comprehensive review of existing secrecy provisions” in Bermuda’s laws to ensure they do not weaken the Public Access to Information Act.
All of the island’s betting shops ― Paradise Games, Seahorses and Triple Crown Racing in Hamilton and GameTime in St George’s and Somerset ― closed in March last year when they were required under new legislation to apply for bookmaker’s licences from the Bermuda Gaming Commission.
Their declared revenue had dropped dramatically in the years before they shut, from $7.2 million in 2015-16 to $1.3 million in 2021-22.
Betting tax of 20 per cent was due annually to the Government but had not been paid in full since 2018-19, with two businesses owing $448,865 by 2021-22.
The Gazette submitted a public access to information request to the OTC for a list of all entities liable to pay betting tax, as well as their declared annual betting revenue and how much betting tax they had paid annually since 2015, and details of those in arrears.
The request also sought communications between the OTC and the businesses about significant fluctuations in their declared betting revenue.
The OTC provided a table giving an annual breakdown of declared bets, tax due to the OTC, tax paid, the amount of arrears and the length of time of the arrears.
However, it withheld information about individual entities, citing Section 37 of the Pati Act, which says records are exempt if disclosure is prohibited by another statutory provision. The Gazette asked the Information Commissioner to review the decision.
Ms Gutierrez found that Section 4 of the Taxes Management Act 1976 created a “mandatory prohibition on disclosure” by the OTC.
She explained that in an earlier decision, involving the Ministry of Finance and the failed Sandys 360 sports centre, she ordered the disclosure of records involving social insurance contributions and land tax but that was because neither category of payments were included in a specific schedule attached to the Taxes Management Act, while betting tax was included.
The Information Commissioner noted that Section 37 did not require the OTC to consider whether it was in the public interest to release the records, unlike with some other exemptions.
She said the Gazette acknowledged the public interest did not apply to Section 37 but also argued there was a real public interest in holding the OTC accountable for fulfilling its functions under legislation relating to the betting industry.
Last month, in a decision she issued involving the Department of Child and Family Services, Ms Gutierrez called for an “urgent” legislative review of Bermuda’s “older secrecy frameworks”.
In her new decision, she wrote again of her “concerns about the scope of Section 37 and the need for a comprehensive review of existing secrecy provisions, which would address the applicant’s concerns about the limitations to the right of access under the Pati Act.”
The commissioner also upheld the OTC’s refusal to release communications about fluctuations in betting revenue on the grounds that the records did not exist.
The public authority told the Gazette it queried one of the five betting shops about the falling revenue in 2018, but the correspondence could not be found, and there had been no recent correspondence regarding overall declared betting revenue numbers.
Ms Gutierrez wrote that the OTC searched the e-mails of the Assistant Tax Commissioner, as they were the person in direct correspondence with the relevant betting shops.
“The OTC also provided a plausible explanation as to why no records existed with respect to the decrease in revenue in relation to some of the betting entities, and this explanation was confirmed by the ATC’s notes in the underlying records provided to the ICO,” she wrote.
The commissioner said she was satisfied the authority “conducted the search for records … with adequate rigour and efficiency.”