Jun 26, 2022 News
Kaieteur News – Days after Attorney General, Anil Nandlall, SC, made an application for a one month extension to file his submission in the tax case brought by Kaieteur News Publisher, Glenn Lall, challenging the tax provisions in the 2016 Petroleum Agreement, a similar request was made by ExxonMobil subsidiary Esso Exploration and Production Guyana Limited (EEPGL).
The application for the extension by the Attorney General made on June 22 provides a number of reasons for the request for time. Among them, the Attorney General noted that Lall’s case raises highly technical and complex questions of tax law for which expert guidance is required.
On Friday Attorney for EEPGL, Andrew Pollard, SC, made a similar request. The request by Pollard, however, did not elucidate the reason to support EEPGL’s need for an extension of time to respond.
Pollard indicated in an email sent to a registrar attached to High Court that the legal team is seeking an extension to respond to the case.
“Please convey to His Honour that we are instructed by our clients to respectfully request a similar extension, which would keep the timelines consistent… We have taken the liberty of speaking with counsel for the Applicant [Glenn Lall] who indicated he has no objection…” the lawyer said in the notice sent to the Court.
Earlier in the week, the Government of Guyana (GoG) through the office of the Attorney General approached the court with a similar application.
The Notice of Application (NOA) in the name of Ocelisa Marks, Assistant State Solicitor attached to the Office of the Attorney General, sought the extra time to help the legal team address the “highly technical” and “complex questions” raised in Lall’s case.
The document details that the case raises highly technical and complex questions of tax law (which itself is a highly complex, and specialised area of law) and contract law, which must be carefully interrogated to allow the Court to make an informed decision.
The NOA went on to state that since the filing of Lall’s Fixed Date Application (FDA), and the Defence on behalf of the Attorney General, the Chambers of the Attorney General has made and continues to make concerted efforts to fully appraise itself on the issues raised.
The document explained that this process includes the identification and interrogation of tax regimes in several statutory instruments. Further, it stated that: “as part of the process of appraising itself of the tax regimes and the issues raised in this [FDA], the Attorney General is in the process of soliciting independent expert advice from a firm which specialises in tax law.”
The NOA noted that this guidance is critical in allowing the Attorney General to prepare submissions. Further it stated that at the time of the drafting of the NOA, the Attorney General was unable to complete the process of obtaining the aforementioned expert advice. In the circumstances, the AG office noted that additional time is required to allow the lawyers to obtain the expert guidance being sought.
“The information which the Attorney General is seeking will be laid before the court in the form of submissions which will allow the Court to properly address its mind to the issues to make a decision,” the NOA detailed.
Added to this, the lawyers representing the AG insisted that the application for time will not cause any unjust prejudice to Lall’s case; instead, it will assist the Court with ensuring that justice is determined on the merits of the issues raised in the case.
The Kaieteur News publisher filed an action to challenge the Petroleum Agreement, dated June 27, 2016, between the Guyana Government and the oil companies. According to Lall, the agreement between the oil company and the government grants exemptions to persons other than licensees, which violate the Petroleum Exploration and Production Act, the Financial Administration (and Audit) Act and the Constitution.
Lall’s application raises several contentions for the court’s consideration including whether the agreement between the Government of Guyana and ExxonMobil are subject to the principles of private law or public law; whether the acts of the Minister of Natural Resources and certain sub-articles of the Petroleum Agreement were ultra vires and in breach of sections 10 and 51 of Petroleum Exploration and Production Act (PEPA), sub-sections 1A and 1B of section 6 of the Financial Administration (and Audit) FAA; and Whether upon its proper interpretation the PEPA permits the payment of taxes due on behalf of licensees. EEPGL was added as a respondent to the case.
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